C. Pre-Arrest Silence
| Jurisdiction | New York |
C. Pre-Arrest Silence
A defendant's pre-arrest silence may not be used in evidence against him or her, nor may it be used to impeach him or her on cross-examination.233 In the federal system, pre-arrest silence may be used for impeachment purposes.234
1. Fifth Amendment Rights
Under Miranda v. Arizona,235 a person in custody, prior to interrogation, must be advised that he or she has the right to remain silent, that anything said will be used against him or her in court, that he or she has the right to have a lawyer present during questioning and that, if he or she cannot afford an attorney, one will be appointed for him or her. The accused cannot allege a violation of Miranda unless (1) he or she was in custody and (2) the statement was a product of interrogation.
a. Custody
To determine custody, the test is whether a reasonable person would have thought he or she was in custody under the totality of the circumstances. A person is considered to be in custody when that person is physically deprived of his or her freedom in any significant way or is led reasonably to believe that his or her freedom has been curtailed. These are objective, not subjective, tests.236
Custody will not be presumed merely because an accused is in a police station or the officers have probable cause and intent to arrest him or her.237 Where the accused voluntarily went to the police station, the issue is not whether the police intended to allow the accused to leave, but whether a reasonable person, innocent of any crime, would have felt free to leave.238 The prosecution has the burden of establishing that the accused freely consented to meeting with the police.239 A person who is frisked is not considered in custody for Miranda purposes. Questioning after a frisk, without more, does not constitute custodial interrogation.240
b. Interrogation
Interrogation is questioning by law enforcement designed to elicit a response concerning a crime.241 A statement by an officer to a suspect that was not likely to elicit a response does not constitute interrogation.242
The taking of pedigree information has been held not to be interrogation or statements requiring notice by the People.243 The test for suppression of pedigree statements is not whether the information was inculpatory, but whether the police were trying to inculpate the accused or merely process him or her.244
Once the accused is in custody, Miranda warnings must be given prior to interrogation.245 Any waiver of Miranda rights must be knowing, intelligent and voluntary. In making this determination, the court will consider the accused's age, intelligence, education and experience with the criminal justice system.246
The waiver must not be the product of coercion or pressure designed to undermine the accused's will. A waiver of Miranda need not be expressed, but may be inferred from the accused's statements and his or her conduct.247 Where a suspect is not given complete Miranda warnings, the test is whether under the "totality of circumstances" the statement was voluntary.248 However, the accused must be advised that he or she has the right to have counsel present during the interrogation.249
An accused who invokes the right to remain silent may still waive that right at a later time, so long as his or her initial refusal was "scrupulously honored," and there was a pronounced break between the periods of questioning. 250 Nothing prohibits a subsequent attempt at questioning the accused, so long as it is not done coercively.251
An accused who waives his or her Miranda rights and makes a statement need not be informed again of his or her rights prior to subsequent questioning.252
The mere fact that a suspect has made an unwarned admission does not necessarily render a subsequent warned admission involuntary. The reading of the rights prior to the taking of the second statement may be sufficient to remove the taint from the unwarned statement if the court concludes that the accused made a rational and intelligent choice whether to waive or invoke his or her rights when making the second statement.253 The New York courts tend to focus on whether there has been a definite, pronounced break in the interrogation so that the accused may be said to have returned to the status of one who is not under the influence of questioning.254
The concerns about interrogation and false convictions underlie the decision of the Court of Appeals in People v. Durant.255 The Court acknowledged that the electronic recording of interrogations would be valuable and that "there is widespread agreement that electronic recording of custodial interrogations promotes the fair administration of justice."
Since July 1, 2017, custodial interrogations by a public servant at a detention facility are required to be videotaped when the interrogation involves certain felonies, as enumerated in the statute.256 Failure to videotape a custodial interrogation does not automatically render a defendant's statement or confession inadmissible, but it is a factor to be considered by the court in determining admissibility where the prosecutor has not set forth good cause for the failure to record the statement.257
Defense counsel must raise a specific challenge to the sufficiency of the Miranda warnings during the course of the Huntley hearing. If counsel waits until both sides have rested, the argument will be considered waived.258
2. Illegal Detention
Where an otherwise voluntary statement is elicited from the accused after an unlawful arrest, the statement may be suppressed as the "fruit" of that arrest.259 The Supreme Court has authorized the admission of a station house statement that occurred after a warrantless arrest of a person in his home in the absence of exigent circumstances in violation of Payton v. New York.260 On remand, the Court of Appeals suppressed the statement on state constitutional grounds.261 In contrast, the Court of Appeals holds that a lineup identification following a Payton violation need not be suppressed.262
Where the accused's statement came as a result of an illegal search and seizure, it will be suppressed as the "fruit of the poisonous tree."263 But if, subsequent to an illegal search, an accused voluntarily goes to a police station and confesses, the statement is voluntary.264
3. Right to Counsel
The accused's right to effective assistance of counsel is secured by the Sixth and Fourteenth amendments to the U.S. Constitution and § 6 of article 1 of the New York State Constitution. In New York State, the standard for determining effective assistance of counsel is "whether the defendant was afforded 'meaningful representation.' " 265 Counsel's performance will not be considered ineffective if he or she employs an objectively "reasonable and legitimate strategy under the circumstances and evidence presented. . . ."266 The right to effective counsel does not encompass legal representation at the preaccusatory, investigatory stage of a criminal action.267 An accused's right to counsel attaches in one of three ways:
1. initiation of criminal proceedings;
2. while in custody, the suspect requests to speak with an attorney; and
3. notification to the authorities of representation by counsel, regardless of whether the suspect is in custody.268
Where a suspect's right to counsel has attached, he or she may not waive that right in the absence of counsel.
a. Initiation of Proceedings
The filing of an accusatory instrument constitutes the commencement of a criminal action against an accused and is equated with the entry of an attorney into the proceedings.269 The right to counsel attaches where the accused has been indicted and a warrant has been issued for his or her arrest.270 Whenever an accused is arrested pursuant to an arrest warrant, he or she cannot be interrogated without counsel, since an arrest warrant is issued only upon the filing of an accusatory instrument.271 Where an instrument had been signed but not filed, the accused's right did not attach.272 A delay in arraignment, which is not designed to deny the accused his or her right to counsel, will not result in suppression of a statement.273
b. Request for Counsel
Where a suspect unequivocally requests to speak to counsel, interrogation must cease.274 The police may not resume interrogation without counsel being present.275 The right does not attach when a suspect who is not in custody merely suggests to the police that he or she might consult a lawyer.276 A statement by a suspect that he or she has an appointment with counsel,277 or that he or she "might want a lawyer," is insufficient to invoke the right.278 Once a suspect has invoked his or her right to counsel, he or she may waive this right in the presence of a magistrate after a sufficient inquiry to ensure that the accused appreciates the dangers and disadvantages in giving up the right.279
c. Representation by Counsel on an Unrelated Pending Charge
Where the police know that the accused is represented by counsel in the matter they are investigating, the accused cannot be questioned in the absence of counsel, and any statement made by the accused must be suppressed.280
New York law also holds that where the questioning concerns a criminal matter that is closely related to another charge where the right to counsel has attached, the police may not question the accused in the absence of counsel.281 This is New York constitutional law;282 federal constitutional law is different. The Court of Appeals has reiterated that the test is whether the questioning about the unrelated charge will lead to questions or information about the crime for which the defendant has counsel.283
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