1 THE INSPECTOR GENERAL’S LEGAL AND ETHICS CONFERENCE November 30, 2010 EVIDENCE RULE 617 Steve Johnson Executive Director Indiana Prosecuting Attorneys Council

2 EVIDENCE RULE 617 Background Applies to custodial interrogations conducted after January 1, 2011

3 EVID. R. 617 continued Applies in all “felony” criminal prosecutions What if investigation starts out as a “misdemeanor” investigation? Misdemeanors elevated to felonies by reason of prior convictions? Exception?

4 EVID. R. 617 continued Sanction for non-compliance Exclusion of evidence

5 EVID. R. 617 continued Must be “Electronic Recording” as defined by Rule audio-visual must include visible image of person being interviewed voice of person voice of interrogating officer

6 EVID. R. 617 continued Must be complete authentic accurate unaltered, and continuous

7 EVID. R. 617 continued What if person being interviewed is temporarily out of the picture? What if the voice of the person being interviewed or the officer(s) are inaudible? not heard at all for a few seconds? What does “complete” and “continuous” mean? Is there such a thing a substantial compliance or “harmless error”?

8 EVID. R. 617 continued Must be “Custodial Interrogation” “means an interview conducted by law enforcement during which a reasonable person would consider himself or herself to be in custody” Basically – the Miranda definition of “custodial”

9 EVID. R. 617 continued Since the definition of “Custodial Interrogation” is the Miranda definition (and many of the exceptions are Miranda exceptions) can we assume that interpretations of Miranda issues will be the same? “Custodial”? “Interrogation”? “Conducted by law enforcement”?

10 EVID. R. 617 continued “Custodial” Generally, does not mean traffic stops Berkemer v. McCarty, 468 U.S. 420 (1984) Fact sensitive. Has there been a formal arrest or restraint of freedom of movement of a degree associated with a formal arrest. California v. Beheler, 463 U.S (1984) It is an objective test. Subjective views of interrogating officer or person being interviewed are irrelevant. Stansbury v. California, 511 U.S. 318 (1994); Loving v. State, 647 N.E.2d 1123 (Ind. 1995)

11 EVID. R. 617 continued “Custodial” Not every questioning at a police station is “custodial” under Miranda Oregon v. Mathiason, 429 U.S. 711 (1977) Laster v. State, 918 N.E.2d 428, 434 (Ind. Ct. App. 2009)

12 EVID. R. 617 continued “Custodial” These are factors courts have considered in determining whether person is in custody: whether and to what extent person has been made aware that he is free to not answer questions whether there has been prolonged coercive and accusatory questions whether police have used subterfuge in order to induce self- incrimination degree of police control over environment where interrogation takes place whether freedom of movement is physically restrained or otherwise significantly curtailed whether suspect could reasonably believe he could interrupt questioning and leave Gauvin v. State, 878 N.E.2d 515, 521 (Ind. Ct. App. 2007), trans. denied

13 EVID. R. 617 continued “Interrogation” “Interrogation” may be either express questioning or its “functional equivalent” Rhode Island v. Innis, 446 U.S. 291 (1980) Loving v. State, 647 N.E.2d 1123 (Ind. 1995) The standard for determining whether police “interrogate” a suspect is not whether questions are asked but whether the police should know that their words are “reasonably likely to elicit an incriminating response from the suspect.” Storey v. State, 830 N.E.2d 1011, 1016 (Ind. Ct. App. 2005)

14 EVID. R. 617 continued “By law enforcement” Miranda is concerned only with governmental or official coercion Colorado v. Connelly, 479 U.S. 157 (1986) Inmate not acting in concert with law enforcement Worthington v. State, 405 N.E.2d 913 (Ind. 1980) Youth care worker at juvenile correctional institute not law enforcement officer Whitehead v. State, 511 N.E.2d 284 (Ind. 1987) News reporters not law enforcement officers Grass v. State, 570 N.E.2d 32 (Ind. 1991) Probation officers generally not considered law enforcement Minnesota v. Murphy, 465 U.S. 420 (1984) Alspach v. State, 440 N.E.2d 502 (Ind. Ct. App. 1982) DCS caseworker can be “law enforcement” Hastings v. State, 560 N.E.2d 664 (Ind. Ct. App. 2007)

15 EVID. R. 617 continued Must be in a “Place of Detention” “means a jail, law enforcement agency, station house, or any other stationary or mobile building owned or operated by a law enforcement agency at which persons are detained in connection with criminal investigations”

16 EVID. R. 617 continued What is a “mobile building”? Does it apply to in-car cameras in police vehicles?

17 EVID. R. 617 continued SUMMARY OF BASIC PROVISIONS Audio-visual recording During “Custodial Interrogation” At a “Place of Detention”

18 EVID. R. 617 continued EXCEPTIONS: (1)The statement was part of the routine “booking” of the person This is a Miranda exception Boarman v. State, 507 N.E.2d 177 (Ind. 1987)

19 EVID. R. 617 continued EXCEPTIONS: (2)Before or during a Custodial Interrogation the person agreed to respond to questions only if his or her statements were not Electronically Recorded, provided that such agreement and its surrounding colloquy is Electronically Recorded or documented in writing. Does this require a new waiver form? Will this be the new battleground?

20 EVID. R. 617 continued If this is like Miranda will all the same issues apply? Adequacy of advice (not as many aspects as Miranda so hopefully it won’t be complicated) See generally, Florida v. Powell, 130 S.Ct (2010)

21 EVID. R. 617 continued Since this will be a “custodial” situation though, does Pirtle concept apply? Pirtle v. State, 323 N.E.2d 634 (Ind. 1975) advice as to right to counsel)

22 EVID. R. 617 continued Juveniles – Is there a right to “meaningful consultation” on the issue of videotaping? I.C

23 EVID. R. 617 continued Will we get the same issues we have with regard to waiver of Miranda rights? Voluntariness – does a waiver of the “right” to be recorded have to be made voluntarily, knowingly and intelligently? Colorado v. Spring, 479 U.S. 564 (1987)

24 EVID. R. 617 continued Generally, an express written or oral waiver of one’s Miranda rights is not necessary to establish a valid waiver North Carolina v. Butler, 441 U.S. 369 (1979) Patton v. State, 501 N.E.2d 436 (Ind. 1986) On the other hand, a signed waiver form does not prove a voluntary and intelligent waiver of one’s rights McFarland v. State, 519 N.E.2d 528 (Ind. 1988) Refusal to sign a waiver form does not, in itself, constitute an exercise of Miranda rights Lee v. State, 531 N.E.2d 1165 (Ind. 1987)

25 EVID. R. 617 continued To establish that defendant knowingly and voluntarily waived his Miranda rights it must be shown that he understood those rights Johnson v. State, 829 N.E.2d 44, (Ind. Ct. App. 2005) trans. denied A waiver may be express or implied and an implied waiver can be found where the defendant makes a statement after having been advised of his rights and after acknowledging he understood them Robey v. State, 555 N.E.2d 145 (Ind. 1990)

26 EVID. R. 617 continued How clear does the waiver have to be, especially if it is only recorded on videotape? What if there is some right to counsel under a Pirtle theory? What if the person says: “I guess I don’t want this recorded, but, I’ve never done this before so I don’t know”? Taylor v. State, 689 N.E.2d 699 (Ind. 1997)

27 EVID. R. 617 continued What will be the rule if the defendant is properly advised of his right to be recorded and there is a break in the interrogation. Will he have to be re- advised? Generally speaking, there is no requirement that suspect be re-advised of Miranda, Mordock v. State, 514 N.E.2d 1247 (Ind. 1987), though the better practice may be to do so Allen v. State, 686 N.E.2d 760 (Ind. 1977)

28 EVID. R. 617 continued If a prior statement has been improperly obtained without proper Miranda warnings, will a subsequent waiver of the right to be recorded be deemed invalid, even if he is properly advised prior to the recording? The general rule is that a prior voluntary, but unwarned, admission will not bar a subsequent statement where proper Miranda warnings were given prior to second statement. Oregon v. Elstad, 470 U.S. 298 (1985), Johnson v. State, 829 N.E.2d 44 (Ind. Ct. App. 2005), trans. denied

29 EVID. R. 617 continued How will a “question first” technique apply in this situation? This is a situation where an interrogating officer makes a conscious decision to withhold Miranda warnings, question first and obtain a confession, then give Miranda warnings and obtain the same confession Missouri v. Seibert, 124 S.Ct (2004); Drummond v. State, 831 N.E.2d 781 (Ind. Ct. App. 2005); Johnson v. State, 829 N.E.2d 44, 51 (Ind. Ct. App. 2005), trans. denied

30 EVID. R. 617 continued EXCEPTIONS: (3)The law enforcement officers conducting the Custodial Interrogation in good faith failed to make an Electronic Recording because the officers inadvertently failed to operate the recording equipment properly, or without the knowledge of any of said officers the recording equipment malfunctioned or stopped recording

31 EVID. R. 617 continued How will “good faith” be demonstrated Did officers have someone constantly monitor equipment? Had there been past instances of malfunctions? Were officers properly trained on running equipment? Will “good faith” apply to minor glitches, particularly ones that were not entirely in the officer’s control – such as defendant or interrogator not being heard or always in the picture?

32 EVID. R. 617 continued EXCEPTIONS: (4)The statement was made during a custodial interrogation that both occurred in, and was conducted by officers of, a jurisdiction outside Indiana. What about Federal investigations doing interrogation in Indiana?

33 EVID. R. 617 continued EXCEPTIONS: (5)The law enforcement officers conducting or observing the Custodial Interrogation reasonably believed that the crime for which the person was being investigated was not a felony under Indiana law Is this an “ignorance of the law” exception?

34 EVID. R. 617 continued EXCEPTIONS: (6)The statement was spontaneous and not made in response to a question Is a Miranda exception Everroad v. State, 571 N.E.2d 1240 (Ind. 1991)

35 EVID. R. 617 continued EXCEPTIONS: (7)Substantial exigent circumstances existed which prevented the making of, or rendered it not feasible to make, an Electronic Recording, or prevent its preservation and availability at trial.

36 EVID. R. 617 continued What are exigent circumstances? Some form of “public safety” issue which requires immediate action? New York v. Quarles, 467 U.S. 649 (1989) Bailey v. State, 763 N.E.2d 998 (Ind. 2002) Snowstorm which prevents getting to recording place plus emergency? Power outage plus emergency?

37 EVID. R. 617 continued EXCEPTIONS: Must prove any exception by “clear and convincing proof”

38 EVID. R. 617 continued This Rule is in addition to, and does not diminish, any other requirement of law regarding the admissibility of a person’s statements

39 EVID. R. 617 continued ASSUME THE STATEMENT SHOULD HAVE BEEN RECORDED, WAS NOT, AND WOULD APPEAR TO BE INADMISSIBLE UNDER RULE 617 Can the defendant’s incriminating statement (through testimony of officer) be admitted to impeach defendant if he takes the stand and tells a different story? Under Miranda law, the un-Mirandized statement may be used for impeachment purposes so long as the statement was voluntary. Harris v. New York, 401 U.S. 222 (1971); Page v. State, 689 N.E.2d 707, 710 (Ind. 1997)

40 EVID. R. 617 continued Is physical evidence or a lead to a witness derived from an un-Mirandized statement the “fruit of the poisonous tree” which must be suppressed as well? The law may not be perfectly clear, see LaFave, Israel, King, Kerr, “Criminal Procedure, § 905 (3 rd ed. 2007); but it would appear they are not. United States v. Potane, 542 U.S. 630 (2004) Michigan v. Tucker, 417 U.S. 433 (1974)

41 EVID. R. 617 continued Does the exclusionary rule apply to the particular hearing? It has been held that the exclusionary rule does not apply to grand jury proceedings, United States v. Calandra, 414 U.S. 338 (1974), or to parole or probation hearings unless part of a continuing plan of police harassment or in a particularly offensive manner. Dulin v. State, 346 N.E.2d 746 (Ind. Ct. App. 1976); Pennsylvania Bd. Of Probation v. Scott, 524 U.S. 357 (1998)