Relevant case law that predates the adoption of Indiana Evidence Rule 617
• [A]lthough we impose no legal obligation, we discern few instances in which law enforcement officers would be justified in failing to record custodial interrogations in places of detention. Disputes regarding the circumstances of an interrogation would be minimized, in that a tape recording preserves undisturbed that which the mind may forget. In turn, the judiciary would be relieved of much of the burden of resolving disputes involving differing recollections of events which occurred. Moreover, the recording would serve to protect police officers against false allegations that a confession was not obtained voluntarily. Therefore, in light of the slight inconvenience and expense associated with the recording of custodial interrogations in their entirety, it is strongly recommended, as a matter of sound policy, that law enforcement officers adopt this procedure.
• In the absence of an electronic recording of a custodial interrogation in a place of detention, we also note that the following consequences may ensue: “[D]efense counsel is entitled to pursue the failure of the police to record a defendant's statements. Counsel may, for example, inquire of a testifying police officer . . . whether he or she was aware of the availability of recorders to use during the questioning of suspects. Counsel may argue to a jury and to a judge as factfinder that the failure of the police to record electronically statements made in a place of custody should be considered in deciding the voluntariness of any statement, whether the defendant was properly advised of his rights, and whether any statement attributed to the defendant was made.”
Stoker v. State, 692 N.E.2d 1386, 1390 n. 11 (Ind. Ct. App. 1998)(quoting Commonwealth v. Diaz, 661 N.E.2d 1326, 1329 (Mass. 1996))(alterations in the original)
Indiana Evidence Rule 617: Text of the rule
• (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; and “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.
• For more information about custodial interrogation, please review When Required.
• For more information about the routine booking question exception, please review When Required.
• For more information about unsolicited, or spontaneous, statements, please review Unsolicited Statements.
Indiana Evidence Rule 617: Interpretation of “Place of Detention”
• Indiana Evidence Rule 617 does not apply to an interrogation that takes place in a gas station.
See Steele v. State, 975 N.E.2d 430, 432 (Ind. Ct. App. 2012), trans. denied(“Evidence Rule 617 does not apply in this case because Officer Ferklic's interrogation of [the defendant] did not occur in a Place of Detention.”)
Indiana Evidence Rule 617: Whether law enforcement officers have a duty to transport a person to a Place of Detention before conducting a Custodial Interrogation
• [T]he rule does not, either explicitly or implicitly, impose an affirmative duty on law enforcement officers to transport a person to a Place of Detention before conducting a Custodial Interrogation.
Indiana Evidence Rule 617: Whether the defense must request production of a recorded statement
• Though the prosecutor and defense counsel parried over whether the defense should have demanded production of any recording in advance of trial, the court correctly observed that Rule 617 does not impose any such burden on a defendant.
Indiana Evidence Rule 617: Use of the recorded statement as substantive evidence
• Had the State attempted to use [the defendant’s] statement from July 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 [the defendant] with his statements, even given the late moment at which counsel and the court became aware of its existence.
Indiana Evidence Rule 617: Use of the recorded statement for impeachment purposes
• The prosecution was permitted to use the defendant's prior custodial statement against the defendant for impeachment purposes, even though the electronic recording of the statement was not “available at trial,” as required by Indiana Evidence Rule 617, where neither defense counsel nor the prosecutor knew of the existence of the recording until the trial was underway, and the trial court gave a limiting instruction to jurors that the defendant's prior statement was to be considered, if at all, solely to evaluate his credibility as a witness.
• For more information about impeachment as it relates to admissions of the accused, please review Impeachment.