An important element in criminal law is an accused’s right to remain silent in the face of police interrogation. The issue often is what kind of questions are considered interrogation and what are not
If you are in police custody and questioned by officers, you must be advised of your Miranda rights (Miranda v. Arizona, 384 US 436) before you are interrogated. You must be advised that you have the right to remain silent, the right to an attorney, and that anything you say can be used against you in a legal proceeding. However, the police can ask some questions without giving Miranda rights. These are “pedigree” questions: your name, address, height, weight – questions used to establish who you are. Statements made in answering these questions can be used in court, even if your rights were not read to you.
Certain pedigree types of questions are actually more than just that. In a recent case from Queens County, the Appellate Division held that the hearing court erred in not suppressing a defendant’s statement regarding his gang affiliation. The hearing court had ruled that the statement was part of the defendant’s pedigree information. The Appellate Division held that the statement which the police obtained was not pedigree information, and should have been suppressed. People v. Hiraeta, (2010-04564, 2nd Dept. 5-21-2014).
In another recnt Queens County case regarding police questioning, the Appellate Term held that it was acceptable for the prosecutor during summation to comment to the jury about the defendant’s silence on certain matters to the arresting officer, since the defendant had chosen to speak to the arresting officer about other things. People v. Jackson, 2011-1978 Q CR, NYLJ 1202652401254.
The Fifth Amendment protects individuals from making statements to law enforcement which could be used against them. This protection should not be taken lightly. It should be constitutionally unacceptable to penalize a person for invoking his 5th Amendment privilege to remain silent. The two Queens County cases discussed above show the importance of exercising your right to remain silent. The prosecution has the burden of proving its case beyond a reasonable doubt. A person charged with a crime has the right to remain silent. If the prosecution intends on offering a statement at trial, a person charged with a crime has the right to have their attorney move to suppress that statement at a pre-trial hearing.
We at the law firm of Galchus & Gordon have done hundreds of suppression hearings in support of our clients seeking to protect their constitutional rights. Call us to discuss your case.