EVIDENCE RULE 617
Steve Johnson
Executive 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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EVID. R. 617 continued
• Sanction for non-compliance
• Exclusion of evidence
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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
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EVID. R. 617 continued
• Must be
• complete
• authentic
• accurate
• unaltered, and
• continuous
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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”?
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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”
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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”?
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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. 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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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)
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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. denied12
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)
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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)
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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”
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EVID. R. 617 continued
• 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 exception
Boarman v. State, 507 N.E.2d
177 (Ind. 1987)
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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?
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• Will this be the new battleground?
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. 1195 (2010)
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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)
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EVID. R. 617 continued
• Juveniles – Is there a right to
“meaningful consultation” on the issue
of videotaping?
I.C. 31-32-5-1
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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)
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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
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Lee v. State, 531 N.E.2d 1165 (Ind. 1987)
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, 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) 25
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)
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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 readvised? 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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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
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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. 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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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
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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?
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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?
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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?
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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)
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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.
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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?
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EXCEPTIONS:
• Must prove any exception by
“clear and convincing proof”
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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
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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) 39
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 (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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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)
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