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January 30, 2013

New York Appellate Court Holds That Police And Prosecutors May Not Infer There Is A Penalty To Exercising Right To Remain Silent

By Michael H. Joseph

Often, the most valuable evidence to the police and prosecutors is a confession. If is often in the best interest of someone facing criminal charges to remain silent. Often the police may suspect that a person was involved in a crime, but they may not have the proof they need to prosecute or convict. Unfortunately too many people believe lies by the police that it is in their best interest to cooperate and tell the police what happened. This in most cases could not be further from the truth. Our White Plains criminal defense lawyers have encountered situations where both the police in Westchester County and New York City have engaged in deceptive and unfair methods to obtain confessions and to get people to waive their constitutional rights to remain silent and get a lawyer.

A New York Appellate Court in People v. Dunbar, just announced a decision where they reversed a conviction based upon improper police and prosecutor actions which inferred that there was a penalty to exercising the right to remain silent by giving instructions which gutted the Miranda warnings. The case involved a practice by the New York City Police Department and the Queens District Attorney’s office of interviewing arrestees (who have usually been sitting in jail for up to 23 hours waiting to see a Judge). These interviews occurred, not coincidentally, immediately before arraignment, which is when the right to counsel attaches. As part of the Program, the District Attorney’s office created a script which was read to suspects before they are advised of their constitutional rights.

The police would tell suspects that that they would be read their Miranda rights, and that they would “be given an opportunity to explain what they did and what happened at that date, time, and place. The suspects were told that this was their opportunity to tell the police your story and if there was something the suspect needed the police to investigate about this case they have to tell the police now so they can look into it.
The suspects were also told that this will be your only opportunity to speak with us before you go to court on these charges.

The Court held that It is “an underlying principle in the enforcement of our criminal law[] that ours is an accusatorial and not an inquisitorial system and that society carries the burden of proving its charge against the accused not out of his own mouth but by evidence independently secured through skillful investigation. The Court reaffirmed that both the U.S. Constitution’s Fifth Amendment and the New York Constitution guarantees that no person shall be compelled in any criminal case to be a witness against himself and that confessions that are deemed to be involuntary under this standard are still excluded from evidence. The New York Appellate Department went on to recognize that unless adequate protective devices were employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from a defendant could truly be the product of his free choice.

In analyzing whether the tactics utilized by the New York City Police Department and the Queens prosecutor’s office passed Constitutional muster, the Court focused on the core principal that the rights must be clearly conveyed to the accused. In finding that these tactics violated the Miranda rule, the New York Appellate Department held that the instructions added information and suggestion to the Miranda warnings which prevent them from effectively conveying to suspects their rights. Consequently, the instructions violated the Miranda rule because Miranda mandates that suspects be informed of their rights in clear and unequivocal terms. The Court correctly held that the message conveyed to suspects is muddled and ambiguous because when the warnings are combined with the speech, it cannot be said with assurance that the suspects clearly understood their rights because these suspects who were interviewed were advised of their Fifth Amendment privilege against self-incrimination, but only after being told that this is their “opportunity,” and then “only opportunity,” to, essentially, refute what the prosecutor has been told by other individuals, to correct any misperceptions or falsehoods, and to try to help themselves. This tactic was especially egregious because this “opportunity,” with which suspects were presented, is to speak, not merely with a police detective, but with an ADA who is the one person who can at the pre-arraignment stage plausibly assert authority to grant favorable treatment to an uncounseled defendant.

The Court further held that the police suggested a sense of immediacy and finality which impaired the suspects’ reflective consideration of their rights and the consequences of a waiver. By advising suspects if there is something you need us to investigate about this case you have to tell us now so we can look into it, the preamble suggests that the prosecutor will not investigate their version of events if the suspects decline to speak with the prosecutor at that time. This also suggests that the prosecutor will assist the suspects by performing such an investigation, if the suspects agree to be interviewed. Such a suggestion is contrary to the purpose of the warning that anything a suspect says can be used against him or her, namely, to make the individual more acutely aware that he is faced with a phase of the adversary system — that he is not in the presence of persons acting solely in his interest.

This ruling may pave the way for motions to set aside conviction under New York Criminal Procedural Law 440 for Defendants who have been convicted based upon confessions obtained under these circumstances.

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