Queens Criminal Defense Attorney Discusses Controversial Pre-Arraignment Interviews

Of the five boroughs in New York City, Queens has the distinction of being the only area in which suspects arrested without a warrant meet with prosecutors before their arraignment. This controversial practice by the Queens District Attorney’s office has been receiving quite a bit of press due to its potential to incriminate alleged criminal offenders without them being able to confer with a lawyer beforehand.

Under this program, the District Attorney identifies individuals in custody who are ready to be arraigned but unable to retain private counsel, primarily because they do not have the resources to do so. Instead of allowing these unrepresented individuals to proceed to arraignment, the DA diverts them into an interrogation room. In this room, a prosecutor advises the alleged offender that there is a pressing need for them to disclose information about the details of their arrest directly to prosecutors prior to arraignment. Only after the interrogation is over, will the suspect be able to proceed to arraignment where a judge appoints counsel, makes a probable cause determination, informs the defendant of the charges, and sets bail.

Many groups have been protesting the interrogation practice, including American Civil Liberties Union, the New York Civil Liberties Union and the New York State Defenders Association. The latest major twist in this saga recently developed when New York State Supreme Court Justice Joel Blumenfeld ruled that the program is unethical, calling it “misleading and deceptive.” He asserts that prosecutors violate Rule 8.4(c) of the American Bar Association’s Rules of Professional Conduct when conducting this pre-arraignment interview. The ABA rule prohibits attorneys from engaging in “dishonesty, fraud, deceit or misrepresentation.”

The parties against this interrogation technique have cited two major issues with the process. The first is that it simply violates the Fifth Amendment by nullifying the intended effect of the Miranda warning and, in essence, rendering the warning itself constitutionally invalid.

Secondly, the program violates a suspect’s right to a prompt probable cause determination. New York criminal procedure enables law enforcement to perform only a narrow range of administrative steps in warrantless arrests and the pre-arraignment interrogation of unrepresented suspects, in this case, should not be considered a “necessary” step.

In view of these two issues alone, the program is an unfair and deceptive practice that leads many individuals without the resources or knowledge of law to incriminate themselves unjustly through aggressive questioning. Queens prosecutors have stated that many cases have been dismissed due to this practice, but it can also be argued that these cases, along with the others that proceeded with formal charges, have been compromised because of this deceptive interview procedure.

Although the pre-arraignment interview is a small variation on accepted practices, when it comes to the rights of the alleged offenders as citizens of this nation, it becomes a slippery slope that is susceptible to abuse. Even minor changes to procedure, when it comes to our legal code, have the potential to erode our rights, leading to an even more polarized and unfair system of law. Considering the right of everyone to due process and legal representation, Justice Blumenfeld and the rest of those against this practice should continue their vocal rejection of this unlawful procedure. Not being given proper information and making it difficult to confer with a Queens criminal defense attorney before arraignment is a major blow to our individual liberties. The United States was based partially on the defense of individual rights, including the right to representation, and these should be protected from overzealous prosecutors at all costs.