Queens District Attorney's Office Felony Interrogation Policy
By Don Murray, Esq.
Partner, Shalley & Murray
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.
Queens DA to Record Interrogations of all New Felony Arrests
The Queens District Attorney's Office has instituted a policy to interrogate every person who is arrested for a felony in Queens County before they make their first appearance or arraignment in criminal court.
This article explains the consequences of this policy for those who are newly arrested in Queens. Since these prearraignment interrogations have always been possible, the policy ultimately represents a decision to use a prosecutorial weapon that previously had only been used sporadically.
You may also find the following articles, found elsewhere in this site, of interest:
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