04/24/2013 09:52 pm ET | Updated Jun 24, 2013

Constitutional Rights Do Not Diminsh Where the Crime Is Serious or Strong Evidence of Guilt Exists

The Boston bombing is so horrific, and the evidence of guilt apparently so overwhelming, that the country might wish to go straight to the punishment stage, but that is not how our system of justice functions. The decision to temporarily withhold Miranda warnings in the Boston Marathon bombing case may have been wrong for both practical and principled reasons. First, it was predicated upon a factual assumption that defies reality. It assumed that the accused was unaware of his Miranda rights absent the warning. For that to have been true, he would have had to live all these years in a cellar with no access to television or the outside world. Every grade-school child can recite the Miranda warnings, probably as easily as the pledge to the flag. But even accepting that he was unaware of his rights (and never watched Law and Order), the withholding of the warnings also presupposed that he would not talk if he were told about them but would if they were withheld.

The public safety exception makes perfectly good sense and undoubtedly has public as well as Supreme Court approval. If there is an imminent danger, other planted bombs or planned acts of terrorism, no Miranda warnings should be necessary or delay countenance. But that window of interrogation is very narrow, and there is a risk (one that may not be necessary) that an otherwise slam-dunk case may be jeopardized by invoking this exception. Not only the accused's statements but evidence gleaned from any pre-warning interview may be subject to suppression if the window was expanded beyond what is permitted and envisioned.

However, the justification that bothers me the most is the suggestion that even if he gave information without being Mirandized and a violation is found and that information suppressed, there is still sufficient evidence to convict him. What that really means is that the government can violate a citizen's constitutional rights if it won't jeopardize the government's case. The Fifth Amendment was not enacted to serve as some prosecutorial tool to be respected or violated depending on the strength of the government's independent evidence. It is a right granted to all citizens and should not be diminished because of the nature of the crime or the amount of evidence that the prosecution has independent of what they obtain from the accused.

Finally, I cannot pass up the opportunity to comment on the calls from Republican senators to treat the suspect as an "enemy combatant." Aside from the absurdity of the suggestion, the fact that it does not apply to American citizens and the fact that hundreds of terrorists have been tried and convicted in our civilian courts, compared with but a handful who have been tried in our military tribunals, these are the same senators who opposed any gun regulation and acquiesced in the NRA's position that suspected terrorists should not be prohibited from buying guns! If this were not such a horrendous tragedy, their hypocrisy might make us laugh.