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Judge Rules Queens DA's Pre-arraignment Questioning Unethical

A Queens judge has prohibited prosecutors from using a video-taped statement obtained from a defendant prior to his arraignment because the Queens DA's Office procedure of interviewing defendants prior to their arraignment violates accepted standards of professional conduct. By implicitly promising to investigate new information supplied by the defendant, and then failing to do so, the Court found that the DA's actions constituted, "at the very least a misrepresentation, if not," an act of outright deceit. You can read the full decision here.

The Queens DA's Office has in recent years instituted a policy of attempting to question all arrestees prior to arraignment. After they have been arrested and taken to court, but prior to having a chance to speak with a lawyer or see a judge, investigators from the DA's office take defendants from their holding cell to a room where prosecutors read to them from a prepared script, with the express purpose of trying to get them to make a statement.

The script reads as follows:

In a few minutes I'm going to read you your rights. After that, you'll be given an opportunity to explain what happened at that date, time and place.

If you have an alibi, give us as much information as you can, including the names of any people you were with.

If your version of the events of that day is different from what we have heard, this is your opportunity to tell us your story.

If there is something you would like us to investigate concerning this incident, you must 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 me.

This will be the only opportunity you will have to talk to me prior to your arraignment on these charges.

This entire interview is being recorded with both video and sound

Thereafter, the prosecutor reads the defendant the Miranda warnings.

Prosecutors claim they are only trying to do their job, by giving innocent defendant's a chance to give the prosecutors information so their stories can be investigated and their cases possibly dismissed as soon as possible. Defense attorneys, on the other hand, understand the real reason behind the practice: to get an accused to make incriminating statements, which can be used against him at trial. This is, after all, the same reason the police try to get suspects to talk. They are not interested in helping the defendant. Once the handcuffs go on, the decision has been made. All that remains is to solidify the government's case to secure a conviction.

The practice of prosecutors proactively seeking to elicit incriminating statements from defendants is troubling on many levels.

It is one thing for the police to engage in trickery or deception to get information from a suspect. It is quite another thing for an attorney to do it.

Rule 4.3 of the rules of professional conduct for attorneys states:

"In communicating on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the layer's role in the matter, the layer shall make reasonable efforts to correct the misunderstanding."

The rule further prohibits a lawyer from giving legal advice to an unrepresented person, other than advising the person to get a lawyer.

The pre-arraignment questioning tactics employed by prosecutors in Queens created the false impression that the prosecutor was really interested in helping the defendant. This was all the more egregious given the strong probability that the defendant had already been interrogated by the police and had been locked up for many hours without the chance to speak with a lawyer. The script read by the prosecutor created a false sense of urgency to a defendant not familiar with the workings of the criminal justice system, to give information, when the prosecutor knows full well that in moments, the defendant will have the benefit of speaking to his own attorney, who can advise him properly, and that all same opportunities to give information that exist prior to arraignment remain in place following arraignment as well.

This decision highlights an increasingly common practice among prosecutors' offices to aggressively seek to obtain incriminating statements from defendants before they have a chance to consult with an attorney. The importance of hiring an experienced criminal defense attorney at the earliest possible time can not be emphasized enough. You should retain an attorney as soon as you believe you or someone close to you is a suspect in a criminal case. As the above case shows, waiting until after charges have been filed may be too late to prevent the police and/or prosecutors from eliciting damaging statements from the accused. An experienced criminal defense attorney will know how to protect your rights: whom to contact to ensure that questioning is immediately halted, and how to proceed in the courts if law enforcement officials ignore demands to stop questioning.


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