People v. Jermaine Dunbar
AD2 order dated January 30, 2013, reversing judgment of conviction. Decision below: 104 AD3d 198, 958 NYS2d 764. Smith, J., granted leave to the People May 20, 2013.
ISSUE PRESENTED: Whether the defendant knowingly and intelligently waived his Miranda rights prior to making a videotaped statement to a Queens ADA pursuant to a program under which defendants are systematically interviewed by the ADA just prior to arraignment; the defendant was told prior to warnings that, "[i]f there is something you need us to investigate about this case you have to tell us now so we can look into it." (Assigned counsel for respondent: Leila Hull and Lynn W.L. Fahey, Appellate Advocates, 2 Rector Street, 10th Floor, NYC 10006.) (Leave was also granted in the companion cases of People v. Eugene Polhill and People v. Collin F. Lloyd-Douglas.)
The Queens DA’s office had a central booking protocol which consisted of a structured video-taped interview with an assistant district attorney and a detective investigator with the suspect prior to arraignment. During the interview, the investigator would read a Miranda preamble that advised the defendant, among other things, that this was their “only opportunity” to tell the District Attorney their “story” before going to see the judge, that if they had an alibi they should provide it, and that if they needed the District Attorney to investigate they should “tell” them “now” so they could “look into it.” After that scripted preamble, the defendant was read Miranda warnings. In both cases here, the defendants waived Miranda and made statements which they later sought to suppress on the grounds that the preamble undermined the subsequently communicated Miranda warnings.
Did the Miranda preamble render the subsequent Miranda warnings inadequate and ineffective?
A five-judge majority (Lippman, Graffeo, Pigott, Rivera, & Abdus-Salaam) held that the preamble “undercut the meaning of all four Miranda warnings, depriving [defendants] of an effective explanation of their rights,” because a “reasonable person in the defendants’ shoes might well have concluded, after having listened to the preamble, that it was in his best interest to get out his side of the story—fast.”
Judges Smith dissented. He would have held that the purpose of Miranda, which is “to be sure that suspects are informed of their rights and understand them ... is not undermined when police or prosecutors persuade a properly warned suspect to waive his or her rights.”
While the particular facts of this case are likely to arise only in Queens, because this was a Queens-specific practice, the principle has broader application: any pre-Miranda words or conduct by the police or district attorneys that neutralize a subsequent Miranda instruction may have the legal effect of nullifying those instructions. If it can be argued that the pre-Miranda conduct would have led a reasonable person to conclude that “it was in his best interest to get out his side of the story” then, a showing can be made under Dunbar that the Miranda warnings were neutralized, and the statement should be suppressed.