by Soma Sengupta
In 2007, the Queens County District Attorney implemented a central booking pre-arraignment interview program, consisting of a structured, videotaped interview conducted by an assistant district attorney and an investigator for the district attorney. The preamble informed the suspect that, among other things, “this is your opportunity to tell us your story,” and “your only opportunity” to do so before going before a judge. In addressing convictions in two cases, Dunbar & Lloyd-Douglas, the Court of appeals held that “that the preamble undermined the subsequently-communicated Miranda warnings to the extent that Dunbar and Lloyd-Douglas were not ‘adequately and effectively advised of the choice [the Fifth Amendment] guarantees against self-incrimination before they agreed to speak with law enforcement authorities.”
About 23 hours after Dunbar was taken into custody, he was interviewed by the investigator and an assistant district attorney. The assistant district attorney described for Dunbar the charges he would be facing when he went to court. The investigator then informed Dunbar that “in a few minutes I am going to read you your rights. After that, you will be given an opportunity to explain what you did and what happened at that date, time and place.” She then delivered the preamble, advising Dunbar as follows:
“If you have an alibi, give me as much information as you can, including the names of any people you were with. If your version of what happened is different from what we’ve been told, this is your opportunity to tell us your story. If there is something you need us to investigate about this case you have to tell us now so we can look into it. Even if you have already spoken to someone else you do not have to talk to us. This will be your only opportunity to speak with us before you go to court on these charges. This entire interview is being recorded with both video and sound”. She continued “I’m going to read you your rights now, and then you can decide if you want to speak with us, O.K.? You have the right to be arraigned without undue delay; that is, to be brought before a judge, to be advised of the charges against you, to have an attorney assigned to or appointed for you, and to have the question of bail decided by the court.” She then gave the Miranda warnings; and, finally, asked “Now that I have advised you of your rights, are you willing to answer questions?” Dunbar indicated his understanding of each warning as it was given, and his willingness to continue the interview. Twice during the questioning, Dunbar interrupted to express puzzlement as to how the interview was helping him. He remarked that he “want[ed] to work around this,” and asked if he would be talking to “the D.A.” next. Dunbar was told that the next person he would be speaking to was his lawyer.
The suppression court denied the Dunbar’s motion to suppress this videotaped statement, reasoning that, in view of the totality of the circumstances, Dunbar’s statement was voluntarily made after a valid Miranda waiver and before his right to counsel attached under New York law. Dunbar was convicted of attempted robbery and criminal mischief and sentenced as a persistent violent felony offender to an indeterminate prison term of from 17 years to life. The Appellate Division unanimously reversed and the People appealed.
Lloyd-Douglas received an identical scripted preamble and warning. Like Dunbar, Lloyd-Douglas indicated his understanding of each warning as it was given. Like Dunbar, Lloyd-Douglas indicated his understanding of each warning as it was given, and agreed to the interview. His subsequent motion to suppress was denied. Again, the Appellate Division unanimously reversed, and the People appealed.
The People’s argument throughout was that where no interrogation precedes a suspect’s Miranda waiver, and Miranda rights are fully administered, acknowledged and waived, law enforcement’s statements or conduct prior to the waiver bear only on the question of whether the waiver was knowing, voluntary and intelligent under the totality of the circumstances in each individual case. As the Appellate Division had, the Court of Appeals rejected this argument, noting that “[s]ince Miranda was handed down, the Supreme Court has declined to return to the totality-of-the-circumstances test of voluntariness, or to allow the government to meet its burden without demonstrating compliance with the Miranda procedure.” Citing Missouri v. Siebert, 542 US 600 (2004), the Court further noted that “it would be absurd to think that mere recitation of the litany suffices to satisfy Miranda in every conceivable circumstance” and that “the preamble, which is at best confusing and at worst misleading, rendered the subsequent Miranda warnings inadequate and ineffective in advising Dunbar and Lloyd-Douglas of their rights.” The Court explained that “[b]efore they were read their Miranda rights, Dunbar and Lloyd-Douglas were warned, for all intents and purposes, that remaining silent or invoking the right to counsel would come at a price — they would be giving up a valuable opportunity to speak with an assistant district attorney, to have their cases
investigated or to assert alibi defenses. The statements to “give me as much information as you can,” that “this is your opportunity to tell us your story” and that you “have to tell us now” directly contradicted the later warning that they had the right to remain silent. By advising them that speaking would facilitate an investigation, the interrogators implied that these defendants’ words would be used to help them, thus undoing the heart of the warning that anything they said could and would be used against them. And the statement that the prearraignment interrogation was their “only opportunity” to speak falsely suggested that requesting counsel would cause them to lose the chance to talk to an assistant district attorney.” The Court concluded that “While a lawyer would not be fooled, a reasonable person in these defendants’ shoes might well have concluded, after having listened to the preamble, that it was in his best interest to get out his side of the story — fast.”
Judge Read wrote the opinion for the Court. Judge Smith dissented in an opinion.
Tao of the law by Soma Sengupta 