Queens Prosecutors’ Interview Program Violates Defendants’ Civil Rights: People v. Dunbar

Earlier this year, a panel of four New York State appellate judges decided unanimously that certain interview practices of the Queen’s County District Attorney’s Office violate the law. The case, People v. Jermaine Dunbar, arose after a customer attempted to rob a Queens convenience store in April, 2009. Jermaine Dunbar was arrested and charged with, among other crimes, attempted robbery and the unlawful sale or possession of an imitation gun—but the controversy in this case relates to the conduct of the prosecutor before Mr. Dunbar ever entered a courtroom.

Under a program instituted by the Queens DA’s Office to interview defendants right before they first appear in court, in the minutes before his arraignment Mr. Dunbar was interviewed by an NYPD Sergeant and an Assistant District Attorney about the events leading up to his arrest. Before asking him any questions, the prosecutor read him the following statement, referred to by the judges in this case as “the preamble”:

“If you have an alibi, give me as much information as you can, including the names of any people you were with.

If your version of what happened is different from what we've been told, this is your opportunity to tell us 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.

Even if you have already spoken to someone else you do not have to talk to us.

This will be your only opportunity to speak with us before you go to court on these charges.”

The police officer then read Mr. Dunbar his Miranda rights (often seen on TV dramas like Law & Order: “You have the right to remain silent…”), and Mr. Dunbar chose to answer questions about the case. After a trial—during which Mr. Dunbar’s statements in the interview were introduced as evidence and considered by the jury—he was convicted of two crimes and sentenced to seventeen years to life in prison. Mr. Dunbar appealed his conviction, arguing the contents of the interview should have been ruled inadmissible and ignored during the trial.

In addition to requiring that individuals under arrest be read their rights, the famous 1966 Supreme Court case Miranda v. Arizona also made clear that in order for statements made by defendants to police officers or prosecutors to be allowed into evidence, the government must demonstrate that the defendant acted with “a full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it.” In other words, in interviews like Mr. Dunbar’s, prosecutors are required by law to clearly explain that the defendant is not required to speak to them, and that if he or she does, their words might be used against them in court.

The judges deciding Mr. Dunbar’s appeal ruled, however, that “although suspects interviewed pursuant to the [interview] Program are told, through the Miranda warnings, that they have the right to remain silent, the preamble suggests that invoking that right will bear adverse, and irrevocable, consequences.” The preamble, they said, makes defendants think that interviews like Mr. Dunbar’s are their only chance to tell prosecutors their side of the story—but they are not. The judges even suggested the interview program was created for the dubious purpose of convincing guilty defendants to incriminate themselves before many of them are assigned defense attorneys: the judges noted that “the conduct of the interview [in Mr. Dunbar’s case …] raises doubt about” the prosecutors’ claim that they interview defendants because they want to avoid wrongfully convicting the innocent.

Because the prosecutor’s conduct violated Mr. Dunbar’s constitutionally guaranteed right against self-incrimination, the court ordered his conviction overturned, ordered that his statements from the interview be suppressed, and sent the case back to State Supreme Court for a new trial.

Under this recent ruling, any defendant who spoke with police officers or prosecutors as part of the Queens DA’s interview program and who was read the same preamble as Mr. Dunbar has been treated unconstitutionally. If you think you have been mistreated by prosecutors or the police, you are urged to speak with a seasoned New York City civil rights attorney who can help you assert your rights.