The Queens County District
Attorney's Office has recently announced its intention to begin
the systematic, recorded interrogation of all persons arrested
for felony offenses in Queens. These recorded interrogations
will take place before the accused's first appearance, or
arraignment,
in criminal court.
The District Attorney's office has
always had the right, under the law, to seek to interrogate any
person being investigated for or accused of a crime in Queens.
In the past, however, in all but the most serious of cases, the
District Attorney's Office has relied on the discretion of the
police department as to the nature and extent of interrogations
to conduct. Under this new policy, however, the Queens District
Attorney's Office will be supplementing current police work with
their own interrogation attempts in every felony case.
One consequence of this new policy
will be to place a sharper focus on the desirability of having
private counsel retained to represent those accused of felonies
as soon as possible. The desirability of private counsel is
brought to a sharper focus by this new policy not because
of some qualitative difference between private counsel and
public defenders. Rather, it simply comes down to a consequence
of timing.
The bottom line is that private
attorneys are in a position to act immediately and prevent such
questioning while assigned attorneys are generally not.
As a general rule, The Legal Aid
Society and other assigned counsel organizations do not become
involved in representing people accused of crimes in Queens (or
elsewhere) until the arrest processing is complete and the
charging documents are prepared and docketed in court.
Historically, the point at which representation begins for
assigned lawyers is the point at which they are assigned by the
court – which is after arrest processing (including
interrogation) has already taken place.
Private counsel, however, can
become involved and have a substantial impact on the path of
criminal cases even before this point. Specifically, private
counsel retained soon after an arrest has the power to prevent
interrogation of his client as soon as his representation of
the client can be communicated to the Government.
Under our law, the Government may
not interrogate a person who is represented by counsel when
counsel has informed the Government that his client is not to be
questioned. Once counsel has invoked this right in New York,
the client may not even consent to waive this right in the
absence of counsel. That means that in New York, the police are
not allowed to try to talk a client who is represented by
counsel into “waiving” his right not to answer questions once
the lawyer is no longer physically present.
Therefore, a person who has the
means, time, and support network of friends and family, can
obtain the services of a lawyer soon after an arrest and the
lawyer will probably be able to prevent all questioning of his
client. On the other hand, a person who does not have the means,
time, or support of friends or family will likely not be in a
position to obtain private counsel immediately after arrest.
Therefore, people in this category will be subject to
interrogation by both the police and the Queens County District
Attorney's Office.
Once again, this was true
before the new policy of the Queens District Attorney's Office.
The difference now is that a systematic plan to conduct formal
recorded interrogations of all those arrested for felonies will
create a far greater pool of cases in which people are going to
be subject to interrogations.
One common question is whether or
not an innocent person accused of some crime SHOULD engage the
Government in conversations about the accused crimes. People
commonly wonder why a person, innocent of any crime, would NOT
want to engage the Government in a lively discussion of the
accusations so that his innocence could all the more quickly be
realized.
It is commonly accepted wisdom
among those who practice criminal defense for a living, that as
a general rule, it is NOT a good idea to engage the Government
by yourself in discussions about criminal accusations,
ESPECIALLY if you are innocent.
As a general rule, by the time you
have actually been formally arrested, the Government has already
decided that you are guilty. Their discussions with you,
therefore, cannot be related to a neutral desire to ferret out
the “truth” of the situation. They think they already KNOW the
truth of the situation or else they wouldn't have formally
arrested you. So if they think they already know the truth of
the situation, why oh why are they trying to talk to you?
Because they want to make their
case AGAINST you better. They want you to admit things that will
make their case even easier to prove. Even if you don't admit
everything, maybe you will admit to being present. That means
they won't have to worry so much about having to prove that you
were there when the crime occurred. Maybe you will say some
things in the heat of the moment that can be interpreted against
you by someone who already thinks you are guilty.
Often times, by the time you are
being interrogated in New York City, you will have been in the
arrest to arraignment process around 24 hours. Sleep deprivation
is a classic interrogation technique that can yield false or
incorrect statements from innocent people who are desperate to
make the nightmare of a false arrest go away. Without an
attorney there to protect you, you are sleep deprived,
frightened, and in no position to engage experienced Detectives
and Assistant District Attorneys in a matter as important as
criminal accusations against you.
Once the Government has made a
criminal accusation against you, you are the Government's
adversary. The Government agents, whether they be police
officers, detectives, district attorneys, or federal agents, are
not your friends. They will say the opposite. They will
tell you that they believe you. They will tell you that they
“know you are innocent” but they are just “doing their job” or
their boss is “making them” arrest you. The truth is, however,
that if they are doing their jobs, they are doing things that
are going to advance the case of the Government against you. All
of the vast resources of the Government, including
investigators, lawyers, support staff, and experts, are now all
arrayed against you.
But you are not powerless against
even this vast and seemingly limitless force against you. There
are TWO things that can help you in this critical arrest phase.
The first is the Fifth Amendment
to the United States Constitution. The second, is a criminal
defense lawyer.
The first (Fifth Amendment) has
the advantage of being free, but you must have incredible
willpower to use it if the Government wants you to give it up.
When the Government wants you (without a lawyer) to answer
questions about the crimes it is accusing you of committing, it
is asking you to give up your Fifth Amendment rights.
And if you have the willpower
necessary to withstand requests by the Government to give up
your Fifth Amendment rights, then you will have gained the prime
benefit of having a criminal defense lawyer at this stage
without having to spend a dime. Whether you are lucky enough to
be as wealthy as Bill Gates or whether you are penniless, the
United States Constitution offers you this free shield against
the Government.
All you have to say is something
like “I prefer not discuss these accusations without a lawyer.
Please stop questioning me.” That simple phrase is enough to
invoke a 200 year old shield cast by our Founding Fathers. But
this shield, even though it is strong enough to withstand a
thousand Government agents and all their guns, only retains that
strength as long as you have faith in it.
If you seek to invoke this shield
on your own, without a lawyer, and if the Government wants you
to give up your Fifth Amendment rights, you will most likely
need your faith.
They won't yell at you.
They won't physically threaten
you.
They will smile at you.
They will tell you it's just fine.
They will let you stew in the
ideas that they know you already have, ideas like “those who
“take the fifth” are guilty” or “Those who “take the fifth” have
something to hide”. They will let you wallow in the belief that
you probably have that “everyone” will “think you are guilty” if
you “take the fifth”. They will let you simmer in the vague idea
that you have in the back of your mind that the judge will “go
easy on you” if he knows you “cooperated”.
And if you are like most people,
including lawyers I have represented, you will succumb to the
whisperings of these half-truths and your faith in the shield of
the Fifth Amendment will crumble. No threats need be made, no
voices need be raised. The seeds of your lack of faith in the
Fifth Amendment are already there.
But if you have the almost
superhuman willpower that is required to withstand these
pressures, you will make it through the arrest to arraignment
process and this new policy to conduct interrogations will just
provide yet one more opportunity for you to politely advise the
Government that you would prefer not to discuss your case in the
absence of a lawyer.
The second thing that can help you
to avoid difficulties with interrogations, aside from invoking
and maintaining your faith in the Fifth Amendment, is to hire a
lawyer. Hiring a lawyer eliminates the need for you to have to
rely on your superhuman willpower to resist the temptations of
the Government to make statements. Once retained to represent
you, a lawyer, empowered by the Fifth and Sixth Amendments can
prevent the Government from questioning you. End of story. A
simple telephone call or message, “please don't speak to my
client about the case” is all that it takes.
It remains to be seen whether the
Legal Aid Society or other assigned counsel entities will
intervene for those caught in the arrest to arraignment process
before the actual arraignment. Perhaps they will, but
historically, these organizations do not often become involved
that early in their cases (pre-arraignment).
Therefore, a person arrested for a
felony has the choice of attempting to engage the Government
armed with a faith in the Fifth Amendment (which is most
certainly enough as long as the faith is maintained fully)
or retaining private counsel to intervene on his behalf. The
first is free but requires willpower in the face of Government
requests. The second requires financial resources but does not
require that the accused deal with the inner torment of
personally resisting the Government's requests to give up his
rights. Both can achieve the same result.
In Queens, a person who is
arrested (and friends or family) can actually use the plodding
arrest to arraignment process to some advantage. In Queens, it
is generally about 24 hours before a person is arraigned.
Therefore, there is a fair amount of “down time” within which to
seek out and retain an attorney to stop the interrogations from
happening.
In the end, however, this new
interrogation policy doesn't add any new weapons to the arsenal
available to the Government in the prosecution of crime.
It simply represents a policy to
use a tool that already existed more often.
Don Murray, Kew Gardens, New York
July 26, 2007
