NY High Court Strikes Down Queens DA Pre-Arraignment Procedures

Oct 31 2014

The New York Court of Appeals vacated a defendant’s conviction and ordered a new trial in People v. Dunbar. They ruled that the statements made by the defendant should have been suppressed because the pre-Miranda statements by the Queens District Attorney’s Office to the defendant nullified his waiver of his right to remain silent and right to counsel. The Court was absolutely correct in this ruling.

Thanks to pop culture and basic high school civics, just about everybody knows and understands the famous Miranda warnings that police give suspects accused of a crime. You have the right to remain silent, you have the right to an attorney, etc, etc, etc. The United States Supreme Court held in Miranda v. Arizona that any time a person is legally in custody, he has to be read these warnings or anything he says cannot be used against him at his trial. The Court came up with this blanket rule so that police procedures regarding the taking of statements would be consistent throughout the country. The problem for law enforcement, though, is that some of the best evidence they can ever get about a case comes from the defendant’s own mouth and thanks to the Supreme Court, they have to tell the guy he has the right to keep his mouth shut. As I’ve previously written, a statement by a defendant does not need to be a full confession for the statement to be useful. Anything the defendant says that can be disproven by cold and hard facts can be used as powerful evidence that he lied about what happened and is therefore guilty. This is amplified by the fact that the defendant in a post-arrest situation is always going to be scared, alone, and has absolutely no idea what the police know and what they don’t know. So he’s figuratively swimming deep in the ocean in the middle of the night in these situations. This is true whether he is innocent or whether he is guilty. This is why he has the right to a lawyer.

The bottom line is that police officers and prosecutors want to get him to talk. They’d love a confession, but anything he says quite literally can and will be used against him. In the worst case scenario for the police, they don’t have to use what he says. It’s the option they want. What makes the situation so bad for an arrested person is that he can’t really win by talking to the police after his arrest. If he confesses, the police will just be happy that they got a confession that will almost assuredly get him convicted. If he denies committing the crime, the police will just assume he is lying and charge him anyway. So in almost all circumstances, there really is no benefit in talking to the police. As a result, law enforcement is trained to try to induce the criminally accused into talking. They say things like, “I’d like to hear your side of the story,” or “this is really the only time we are ever going to talk directly and this is your one chance to tell me what happened without lawyers getting involved,” or even my all-time favorite, “look, you have the right to a lawyer, but if you exercise that right, I won’t be able to help you like I can now.” These are all tricks used by police and prosecutors to induce people into talking. The problem for them though, is that those pesky Miranda warnings they have to read undermine these lies (which is why the Supreme Court makes them give them!).

Luckily, Court throughout the United States have ruled that there are things that law enforcement could say or do to a defendant that would nullify his waiver of his rights even if he did expressly waive the rights. What the Queens County District Attorney’s Office did here, takes it to a whole new level though. Basically, they had a pre-written statement that was used to induce the person to waive these rights. And this was tantamount to making the waiver involuntary. The bottom line is that the Court of Appeals basically wrote that you can’t say to someone who is under arrest and who doesn’t have a lawyer to help him, “Look, I’m going to read you your rights, but if you exercise them, you are making a huge mistake that you can’t unmake, but it’s entirely up to you if you want to talk to me.”

I probably took thousands of statements when I was a prosecutor in the Manhattan District Attorney’s Office. In every one of them, I said something along the lines of “You’re under arrest because there are allegations that you committed a crime. I am investigating that crime and as part of my investigation I’d like to talk to you. With that said, you have the following rights. Whether you choose to talk to me is entirely up to you.” I would then read the rights and the person would either talk to me or they wouldn’t. In my opinion the Court of Appeals currently held that doing anything more than that is troubling and it undermines the spirit of Miranda.

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