nationalsecuritylaw scholarship on the public-safety exception

I circulated this some time back, but for obvious reasons it seems worth recirculating now:

Mirandizing Terrorists? An Empirical Analysis of the Public Safety Exception

Joanna Wright

Columbia Law Review

October 12, 2011

Columbia Law Review, Vol. 111, p. 1296, 2011

The Quarles Public Safety Exception (“PSE”) exempts testimony from Miranda’s exclusionary rule and admits un-Mirandized statements made in response to questions intended to secure public safety. Recently, legislators, advocates, and academics have questioned the PSE’s ability to accommodate the unique challenges of terrorist interrogations, calling for legislative modification to or the elimination of suspected terrorists’ constitutional right to Miranda warnings. Before concluding that such drastic measures are necessary, this Note advocates for a logical, grounded assessment of the judiciary’s actual application of the PSE, learning as much as possible from the past case law to gauge exactly how courts utilize the PSE. This analysis examines whether or not the PSE is, in fact, capable of handling the unique challenges of terrorist interrogations. This Note conducts an empirical study of the PSE, systematically categorizing every state and federal court opinion that definitively asserts the appropriate application of the PSE, filtering the opinions through different metrics and variables relevant to terrorist interrogations. Ultimately, this Note concludes that the PSE is a fact-sensitive, capacious device equipped to properly handle the unique nature of terrorist interrogations, due largely to its malleability in the hands of the courts. Part I tracks the doctrinal evolution of confessions law leading up to the PSE. Part II presents the results of an empirical examination of the entire universe of Quarles case law. Part III pinpoints individual opinions that showcase features of the PSE particularly relevant to the debate. The data and analysis show, in conclusion, that Miranda warnings coupled with the PSE empower law enforcement to adequately interrogate suspected terrorists.

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