For years the Queens DA’s Office has been end-running the Miranda warnings by adding a “preamble” whereby a DA tells arrestees before they meet a lawyer, “This is your opportunity to tell 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.”
Really? The DA’s Office will investigate on your behalf? Well, there’s a sucker born every minute.
The Appellate Division nixed this fingers-crossed flummery as undercutting the Miranda warnings. A suspect has to be told that anything he says can be used against him in court. The Court of Appeals agreed, saying that the preamble was “at best confusing and at worst misleading,” rendering the Miranda warnings “inadequate and ineffective.” People v. Dunbar (NY 2014).
Judge Psmith dissented, seeing nothing wrong with tricking arrestees into waiving their constitutional rights. Most likely “the great majority of people arrested and arraigned are guilty,” he opined. And if they’re stupid enough to fall for misleading promises, “why should that distress us?” After all, if the arrestee is innocent, all she has to do is “give investigators the true facts as soon as possible.” Like this:
Innocent arrestee: I never sold any drugs. They mistook me for someone else and then planted drugs on me at the precinct.
Interrogator: My goodness, what a terrible mistake we’ve made! Please accept our deepest apologies and this gift card for unlimited Happy Meals. The Commissioner’s personal chauffeur will drive you home right away.
On the other hand, according to Psmith, guilty arrestees deserve to be bamboozled because they have “a natural impulse” to try to talk their way out of trouble. Promising guilty persons that talking will benefit them will result in more crimes being punished. And of course the interrogator can tell the difference between an innocent person giving true facts and a guilty person indulging his natural impulses.
In other words, the right against self-incrimination is only for the innocent.
Dunbar came out as it did only because the interrogation was videotaped. The courts could see for themselves how the preamble confused the defendant and that there was no way the interrogators were merely looking for exculpatory evidence, as the People claimed. Without the videotape, the interrogators would have testified – as they do in nearly every suppression hearing – that, “after some small talk, he voluntarily agreed to speak to us.” Did you promise him anything? Perish the thought!
Two years ago, the NYPD announced with great fanfare that it was going to videotape all interrogations in felony cases, requesting 3 million balloons in pocket money for the purpose. We have yet to see one of these recorded interrogations in the appellate record. Must be that all those cases ended in dismissal, thanks to the NYPD’s relentless search for exculpatory evidence.