Salinas v. Texas, Indiana Rule of Evidence 617 & The Recording of Custodial Interrogations

Here's an interesting article about the Supreme Court's recent opinion in Salinas v. Texas and its holding that

When petitioner had not yet been placed in custody or received Miranda warnings, and voluntarily responded to some questions by police about a murder, the prosecution’s use of his silence in response to another question as evidence of his guilty at trial did not violate the Fifth Amendment because petitioner failed to expressly invoke his privilege not to incriminate himself in response to the officer's question.

According to the article, Frances Watson, a professor at IUPUI’s Robert H. McKinney School of Law, Salinas 

could lead to more informal questionings where it becomes the suspect’s word against the police. In Indiana, this is less of a problem since Rule of Evidence 617 requires such questionings to be electronically recorded.

Let's take a closer look at Indiana Rule of Evidence 617.

According to Barry C. Feld, Real Interrogation:  What Actually Happens When Cops Question Kids, 47 Law & Soc'y Rev. 1, 27 (2013), "[a]bout a dozen states require police to record interrogations, albeit some under limited circumstances--homicide or young suspects." As far as I know, however, Indiana is the only state to codify such a requirement in its rules of evidence. Indiana Rule of Evidence 617 reads as follows:

Rule 617.  Unrecorded Statements During Custodial Interrogation  

(a)  In a felony criminal prosecution, evidence of a statement made by a person during a Custodial Interrogation in a Place of Detention shall not be admitted against the person unless an Electronic Recording of the statement was made, preserved, and is available at trial, except upon clear and convincing proof of any one of the following:  

(1)     The statement was part of a routine processing or “booking” of the person; or  

(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; or  

(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 operating; or  

(4)  The statement was made during a custodial interrogation that both occurred in, and was conducted by officers of, a jurisdiction outside Indiana; or

(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; or

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

(7)  Substantial exigent circumstances existed which prevented the making of, or rendered it not feasible to make, an Electronic Recording of the Custodial Interrogation, or prevent its preservation and availability at trial.  

(b)  For purposes of this rule, “Electronic Recording” means an audio-video recording that includes at least not only the visible images of the person being interviewed but also the voices of said person and the interrogating officers; “Custodial Interrogation” means an interview conducted by law enforcement during which a reasonable person would consider himself or herself to be in custody; “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.  

(c)  The Electronic Recording must be a complete, authentic, accurate, unaltered, and continuous record of a Custodial Interrogation.  

(d)  This Rule is in addition to, and does not diminish, any other requirement of law regarding the admissibility of a person’s statements.

Indiana Rule of Evidence 617 is a new Rule, only applying to statements made on or after January 1, 2011. So far, the Rule has been applied twice. In Steele v. State, 975 N.E.2d 430 (Ind.App. 2012), the Court of Appeals of Indiana found that Rule 617 did not apply to a custodial interrogation at a gas station and that the police had no obligation to transport the defendant to a "Place of Detention" before conducting the interrogation.

Thereafter, in Cutler v. State, 983 N.E.2d 217 (Ind.App. 2013), the prosecution violated Rule 617 but was still allowed to impeach the defendant with his incriminatory statement over his objection. According to the Court of Appeals,

The trial court overruled Cutler's objection, noting that even a statement taken in violation of Miranda v. Arizona may be used at trial against a testifying defendant. "The theory being," said the trial judge, "that if a defendant chooses to take the stand he can't be insulated from his prior statements and that those statements can be used for impeachment purposes only."...The Indiana Supreme Court has recognized this principle, citing the U.S. Supreme Court. Page v. State, 689 N.E.2d 707, 710 (Ind.1997) (citing Harris v. New York, 401 U.S. 222, 225–26, 91 S.Ct. 643, 645–46, 28 L.Ed.2d 1, 4–5 (1971)) (“The shield provided by Miranda cannot be perverted into a license to use perjury by way of defense, free from the risk of confrontation with prior inconsistent utterances.”). In accord with these authorities, the trial court promptly instructed the jury that the statements from Cutler's interrogation could be considered "if at all, solely in evaluating his credibility as a witness."...

Had the State attempted to use Cutler's statement...as substantive evidence, Rule 617 would surely have required the prosecution to produce the recording before evidence of the statement could be admitted. Indeed, it seems that under the spirit of Rule 617, the defense would have been within its rights to insist on hearing the recording before the prosecutor could confront Cutler with his statements, even given the late moment at which counsel and the court became aware of its existence.  

Still, it is difficult to see defense counsel's failure to make such a request as constituting waiver. To the State's credit, the Attorney General has not argued that it was.  

Thus, on the main point at issue, we conclude that the principle recognized in Page and Harris v. New York applies. There appear not to have been any appellate decisions elsewhere in the country on the precise issue raised by Cutler. We do note that courts and legislatures in several states have enacted recording requirements. Some of these explicitly authorize use of custodial statements in circumstances similar to Cutler's, and others are silent on the point.

I'm not sure that I follow. In Harris v. New York, the Supreme Court "held that voluntary statements taken in violation of Fifth Amendment prophylactic rules, while inadmissible in the prosecution's case in chief, may nevertheless be used to impeach the defendant's conflicting testimony." That's the Supreme Court's prerogative. The Supreme Court can find that a prophylactic rule does not apply if its application would not serve to advance the purposes served by the prophylaxis.

On the other hand, Rule 617 plainly states that, unless an exception applies, "evidence of a statement made by a person during a Custodial Interrogation in a Place of Detention shall not be admitted against the person unless an Electronic Recording of the statement was made, preserved, and is available at trial..." The Rule does not distinguish between substantive and impeachment evidence. It simply indicates that the statement "shall not be admitted...." I thus don't see any basis for the court's opinion.

-CM