For a time, the surviving suspect in the Boston Marathon bombing seemed in some danger of dying in custody. During the first few days after his arrest, the FBI and other authorities questioned him in the hospital before reading him his Miranda rights. If he died, could a prosecutor use his statements against a surviving accomplice? And, isn’t the dead suspect’s statement hearsay?
A prosecutor may be able to use a dead suspect’s statements, but much depends on what evidence he revealed and whether or not an exception to the Miranda questioning restrictions applied. As for whether it’s hearsay, there are exceptions that may allow the statements into evidence at an accomplice’s trial.
This article discusses the law on the use of evidence from a dead suspect under U.S. law. For more information about the Miranda case and rights, see When Police Violate the Miranda Rule and Exceptions to the Miranda Rule.
A Suspect in Custody Is Entitled to Miranda Warning
Under most circumstances, when police want to question a person who is in custody, they must first give that person the familiar Miranda warning that they have a right to remain silent, that anything they say will be used against them in court, and that they have the right to an attorney. The Miranda warning notifies a person of his right not to incriminate himself under the Fifth Amendment to the Constitution. A suspect who is arrested and held in a hospital for treatment is clearly in custody, meaning he is not free to go, so he would be entitled to a Miranda warning before questioning under normal circumstances.
Violation of Miranda Rights Can Lead to Exclusion of Evidence Against Accomplice
Assuming that a suspect dies after answering questions without a Miranda warning, any evidence he gave to authorities, including evidence implicating an accomplice, could be ruled inadmissible by a court. The constitutional right not to incriminate oneself calls for this serious penalty for a violation of a person’s Miranda rights.
Evidence Against an Accomplice May be “Fruit of the Poisonous Tree”
Evidence that authorities discover through an interrogation that violates Miranda is called “fruit of the poisonous tree.” The idea behind this doctrine is that evidence that flows from an unconstitutional in-custody interrogation is tainted by the Miranda violation. So, an accomplice of a dead suspect could raise the Miranda violation as grounds to exclude evidence the dead suspect gave that implicated the accomplice. But, there are exceptions to this doctrine. Evidence gleaned through a Miranda violation may nevertheless be admitted at trial if:
- the evidence was also discovered from a source other than the non-Mirandized suspect (for example, if bomb-sniffing dogs located a bomb at the time the suspect made his statement),
- the prosecutor can prove that the same evidence would ultimately have been discovered through legal means (for example, where police had already secured a subpoena for a location identified by the suspect), or
- the connection between the evidence and the illegal police conduct is weak (for example, where a lot of time has elapsed between the illegal interrogation and the discovery of the evidence).
It is up to a court to determine whether any of these exceptions apply, and the more flagrant the violation by police, the greater a defendant’s argument that the court should not apply an exception.
If, during an unconstitutional interrogation, a dying suspect identifies a witness who has evidence against a surviving accomplice, the prosecution can call the witness at the accomplice’s trial even if the accomplice raises a Miranda violation objection.
Public Safety Exception to Miranda
The U.S. Supreme Court has ruled that police may question a suspect without first reading him his rights if immediate questioning is necessary to prevent harm to the public. In the Boston bombing case, the FBI and other authorities said that they had to question the suspect without Mirandizing him because they feared he and his accomplice may have planted other bombs or housed explosives that could go off and kill or injure more people.
This could provide another avenue for the prosecution to introduce evidence obtained from a dead suspect at a trial of an accomplice.
Dying Suspect’s Statements Might Fall Within Exceptions to Hearsay Rule
Usually, a person’s statements outside of court are not admissible as evidence of the subject of the statements because they are considered hearsay. But when a person is unavailable to testify due to death or other causes, his statements may be introduced if:
- the person making the statement believes his death is imminent and the statement is about the cause or circumstances of his death,
- the statement is contrary to the dying person’s own interests because it would expose him to criminal liability if he survived, and
- there is corroborating evidence that shows that the statement is trustworthy.
(Fed. Rule of Ev. 804.)
In the Boston bombing case, if the suspect died but made a statement about his injuries that implicated an accomplice, the statement may be admissible as a hearsay exception. For example, if the suspect was injured from a bomb blast and told authorities that he had assembled the bomb with the accomplice, that statement could be admissible. Where the statements made by a dying suspect would clearly implicate the suspect himself, as well as the surviving accomplice, in a crime, the statements would be admitted. Of course, the prosecution would have to introduce videotape, forensic, or other evidence that corroborated the statement in order to fall within the hearsay exception.