Washington, DC (Feb. 22, 2011) – The National Association of Criminal Defense Lawyers (NACDL) and the Brennan Center for Justice at New York University School of Law today submitted an expedited request to the Department of Justice under the Freedom of Information Act (FOIA) seeking all “legal memoranda, procedures, policies, directives, guidelines, and other guidance[,]” since Dec. 25, 2009, “regarding use of the ‘public safety exception’ to Miranda v. Arizona in the course of terrorism or national security investigations.”
Miranda is the landmark Supreme Court case requiring law enforcement officials to read criminal suspects their rights, including their right to an attorney, before questioning them. A narrow "public safety" exception allows the government to skip this reading, but only in emergency situations. The Obama administration and some members of Congress hoped to enact legislation to make it easier to question terrorist suspects without reading them their rights. When these efforts proved controversial, the administration decided to take unilateral (and secret) action.
Attorney General Eric Holder first revealed the existence of a new Miranda policy in a statement to the New York Times reported on Dec. 30, 2010. A Justice Department spokesperson confirmed the Department has issued formal guidance on the use of the public safety exception in terrorism investigations — guidance that determines when terrorists will or will not be read the rights. As explained in the FOIA request, the requested records “directly relate to a highly public and controversial debate over the propriety of issuing Miranda warnings in terrorism investigations and the legitimate scope of the public safety exception.” Nonetheless, the Justice Department has refused to make the guidance public.
"The Justice Department's Miranda guidance amounts to secret law," said Elizabeth Goitein, Co-Director of the Brennan Center''s Liberty and National Security Program. "In matters of national security, the government may need to keep some operational details secret. But the public, Congress and the courts always have a right to know what law the government is applying. The secret Miranda guidance shuts the American people out of the debate on an issue that directly affects their safety and their rights."
“We remain very concerned that the federal government believes there could be a blanket terrorism exception to Miranda,” explained NACDL National Security Coordinator Michael Price, who filed the request on behalf of NACDL. “Miranda embodies a centuries-old tradition aimed at preventing coerced confessions that lead to wrongful incarceration and harm our national security. An effort to expand the public safety exception through formalized guidance to law enforcement risks turning the exception into the rule and creating an end run around the constitutional requirements of Miranda.”
The complete text of the FOIA Request is available on NACDL’s web site here.
Cross-Examination Trial Pack
NACDL’s new Cross-Examination Trial Pack includes three of our best-selling Cross-Examination resources: “Damage Control: Situational Cross-Examination Techniques Trial Guide”, "Ultimate Cross 2.0: Audio Recordings & Written Materials" and "Sample Cross-Examination Questions."
This masterful collection of cross-examination resources provide countless tips, techniques and strategies for a variety of criminal case-specific scenarios. Learn to cross-examine a variety of trial witnesses!
Death Investigation: Forensic Pathology in the Courtroom and Cause & Manner of Death (2022)
This unique program provides criminal defense lawyers with an accurate and clear overview of forensic pathology and the countless factors to consider in a death investigation and will methodically explain what happens during an autopsy to determine cause and manner of death.
You'll uncover the different types of medicolegal death investigations, what to request from your MDI expert, quality benchmarks for accreditation and certification, guidelines and standards, common terminology and frequently asked questions.
The Psychology of Persuasion & Storytelling for Criminal Defense Lawyers
This Trial Resource Guide is a masterful collection of practical tips, techniques and strategies focused solely on using the arts and sciences of persuasion to improve your storytelling skills at trial.
You'll learn how to master the ability to communicate with juries, deliver powerful openings and closings, perform convincing cross-examinations, use effective courtroom choreography and non-verbal communication, identify and develop the optimal theme and theory for your case, and offer compelling arguments during mitigation and sentencing.
Zealous Advocacy in Sexual Assault & Child Victims Cases (2022)
Defending charges of sexual assault and child abuse can be daunting — but with the right tools, it doesn’t have to be.
Every year, NACDL identifies the hottest topics and most pressing issues when defending these cases, and brings-in nationally-renowned lawyers and experts to help you prepare for battle. This year’s 13th Annual Defending Sex Cases training program is our best yet; packed with topics and speakers you won’t want to miss!
NACDL Communications Department
The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.