EVIDENCE RULE 617 Steve Johnson Executive Director Indiana Prosecuting Attorneys Council

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EVIDENCE RULE 617

Steve JohnsonExecutive Director

Indiana Prosecuting Attorneys Council

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EVIDENCE RULE 617

•Background

•Applies to custodial interrogations conducted after January 1, 2011

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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?

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•Sanction for non-compliance

• Exclusion of evidence

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•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

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•Must be• complete• authentic• accurate• unaltered, and• continuous

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•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”?

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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”

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•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”?

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“Custodial”

• Generally, does not mean traffic stopsBerkemer 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. 1121 (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)

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“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)

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“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

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“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)

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“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)

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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”

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•What is a “mobile building”?

•Does it apply to in-car cameras in police vehicles?

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SUMMARY OF BASIC PROVISIONS

• Audio-visual recording

• During “Custodial Interrogation”

• At a “Place of Detention”

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EXCEPTIONS:

(1)The statement was part of the routine “booking” of the person

• This is a Miranda exceptionBoarman v. State, 507 N.E.2d 177 (Ind. 1987)

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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?

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•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. 1195 (2010)

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•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)

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•Juveniles – Is there a right to “meaningful consultation” on the issue of videotaping?I.C. 31-32-5-1

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•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)

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• Generally, an express written or oral waiver of one’s Miranda rights is not necessary to

establish a valid waiverNorth 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 rightsLee v. State, 531 N.E.2d 1165 (Ind. 1987)

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• 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, 50-51 (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)

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•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)

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•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)

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• 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

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•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. 2601 (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

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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

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•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?

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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?

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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?

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EXCEPTIONS:

(6) The statement was spontaneous and not made in response to a question

• Is a Miranda exceptionEverroad v. State, 571 N.E.2d

1240 (Ind. 1991)

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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.

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•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?

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EXCEPTIONS:

• Must prove any exception by “clear and convincing proof”

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This Rule is in addition to, and does not diminish, any other requirement of law regarding the admissibility of

a person’s statements

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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)

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• 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

(3rd 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)

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•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)

EVIDENCE RULE 617 Steve Johnson Executive Director Indiana Prosecuting Attorneys Council

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