Can the Cops Make Dzhokhar Talk?

The legal ins and outs of interrogating someone who has life-threatening injuries.

Police officers stand by as an ambulance passes after the successful operation to capture 19-year-old bombing suspect Dzhokhar A. Tsarnaev on April 19, 2013 in Watertown, Massachusetts.

Photo by Mario Tama/Getty Images

Marathon bombing suspect Dzhokhar Tsarnaev was taken to a Cambridge hospital in “serious condition” on Friday night. Police described him as “uncommunicative” and the owner of the boat where Tsarnaev had taken shelter said he was “covered in blood.” Is it legal to interrogate someone with potentially life-threatening wounds?

It could be. In 2003, the Supreme Court ruled 5-4 in the case Chavez v. Martinez that an interrogation that occurred in a hospital emergency room, while the plaintiff was screaming in pain and in danger of dying from gunshot injuries, did not violate the injured man’s Fifth Amendment rights.

Here’s more background on Chavez v. Martinez: In 1997, two police officers stopped Oliverio Martinez to question him about drugs. The violent altercation that ensued left Martinez blind and paralyzed from the waist down. A third officer, Benjamin Chavez, accompanied Martinez to the hospital, where he conducted an incriminating, tape-recorded interrogation. Throughout, Martinez was fading in and out of consciousness, begging for treatment, and complaining of intense pain. He was not, subsequently, charged with a crime, nor were his statements used against him in any criminal proceeding.

Martinez sued Chavez for violating his rights by interrogating him in these circumstances, and without reading him his Miranda warnings. Chavez invoked “qualified immunity” as a defense, saying that he had not trespassed on the plaintiff’s civil liberties. A federal district court thought otherwise, and Chavez appealed to the Supreme Court.

The SCOTUS justices were deeply divided, but the majority essentially found that you can’t violate the Fifth Amendment until the case goes to trial—that as long as Chavez didn’t seek to use Martinez’s statements as evidence in court, he hadn’t done anything wrong. Yet they remanded the suit to the Ninth Circuit to determine whether Martinez could win under the Fourteenth Amendment right to “substantive due process” if he could show the police had stooped to coercive investigative techniques. The Ninth Circuit found that if Chavez had in fact interfered with Martinez’s treatment to extract a confession—a clear case of police brutality—he’d be entitled to damages.

What does this legal precedent mean for Dzhokhar Tsarnaev? If he is interrogated while in serious condition, he’d have no complaint under the Fifth Amendment unless the feds hoped to submit his answers as evidence. He could be protected by the Fourteenth Amendment, but only if a court rules that questioning him in his current medical state is brutal or shocking to conscience.

Bonus Explainer: Who decides if an interrogation can proceed, the doctor or the cops? The cops have the most say, but if the doctor recommends against questioning and police proceed anyway, they could be accused of violating the suspect’s Fourteenth Amendment rights.

Can the government withhold treatment in order to interrogate first, or are they obliged to treat? Any confession extracted while treatment is withheld would almost certainly be seen to be obtained coercively—and thus, illegally. Same goes for informing a suspect that necessary treatment is being withheld, even if it isn’t. (Such tactics would likely be deemed “mental torture.”)

Read more on Slate about the Boston Marathon bombing.