Queens DA’s Interrogation Program Unethical and Unconstitutional

The brief concerns three cases currently before the State New York State Appellate Division, Second Department, brought by individuals who were subjected to pre-arraignment interrogations. In addition to the defendants in these three cases, thousands of people who are too poor to afford an attorney have been interrogated by the Queens District Attorney under the program, which has been in operation since 2007.

“The district attorney’s program violates constitutional and ethical protections that are designed to ensure fundamental fairness and balance in the criminal justice system,” said NYCLU Senior Staff Attorney Taylor Pendergrass, lead author on the brief. “Any program where legally trained prosecutors intercept unrepresented suspects on their way to court and direct them into an interrogation room is unconstitutional and unethical. The program should be ended immediately.”

In the brief, the NYCLU argues that when people are arrested and held in jail solely on the assertion of a police officer, the Constitution and New York law require that a judge quickly determine whether the arrest was valid, appoint an attorney, and determine the conditions of release so the person can return to work, home, and family pending the disposition of the criminal case.

Under the district attorney’s program, wealthier suspects who can afford to retain an attorney are allowed to proceed directly to court for this hearing after their arrest. Suspects who have to wait for an attorney to be appointed by the court, however, are intercepted by the District Attorney and interrogated by prosecutors in a room just next to the courtroom.

The interrogation at issue in these cases begins with a standard script read to suspects, who have no lawyer present, misleadingly implying that the suspects will have no other opportunity to “tell us your story.” All suspects, however, have the ability to “tell their story” after arraignment with the help and advice of defense counsel. The NYCLU argues the script violates an ethical rule prohibiting lawyers from making misleading statements, and an ethical rule prohibiting lawyers—in this case prosecutors—from giving advice to non-lawyers whose interests are adverse to the lawyer’s interests.

“Any attorney knows that it is unethical to give misleading advice to a non-lawyer whose interests are adverse to yours,” said NYCLU Criminal Justice Fellow Susannah Karlsson, co-author of the brief. “Queens County prosecutors cannot deceive people into answering questions without an attorney present.”

The NYCLU’s brief also argues that the program violates the Fifth Amendment right against self-incrimination, noting that in 2004 the U.S. Supreme Court struck down a similar misleading interrogation protocol in Missouri v. Seibert.

In addition to Pendergrass and Karlsson, NYCLU Associate Legal Director Christopher Dunn is also on the brief. Organizations joining the NYCLU on the brief are the American Civil Liberties Union, Brennan Center for Justice, New York State Defenders Association, Pre-Trial Justice Institute, New York Association of Criminal Defense Lawyers, Five Borough Defense, and Bronx Defenders.