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October 30, 2006
Crimes, Truth and Videotape: Mandatory Recording of Interrogations at the Police Station
Crimes, Truth and Videotape: Mandatory Recording of Interrogations at the Police Station
by Walter F. Bugden, Jr. & Tara L. Isaacson
It is time for the Utah Supreme Court to exercise its supervisory power to require videotaping of custodial interrogations of juvenile and adult crime suspects. This requirement should be imposed when the questioning occurs at a place of detention where videotaping equipment is available. If video recording is unavailable, an audio recording should be required. The videotaping requirement should only be excused when impracticable, and the failure to do so, excusable. Requiring electronic recording when the questioning occurs at a place of detention will provide courts the means to develop a complete, accurate, and objective record on the voluntariness of a confession. With the simple flip of a switch, the courts can be provided with a record of everything that transpires during a custodial interrogation. Recording is a reasonable safeguard which will ensure the protection of an accused's right to counsel, right against self-incrimination, and his or her right to a fair trial. Recording will also protect law enforcement from false claims of coercion and improper conduct.
I. FALSE CONFESSIONS
Confessions by juveniles and adults are "universally treated as damning and compelling evidence of guilt [that] is likely to dominate all other case evidence and lead a trier of fact to convict the defendant."1 It is difficult for most people to understand why an innocent person would falsely confess to a crime. However, a combination of interrogation techniques, overzealousness, the length of the interrogation, isolation, police trickery and deception, and threats and promises can manipulate a rational person to rethink his denial of criminal responsibility and falsely admit guilt. Juveniles and mentally challenged suspects are the most vulnerable to psychological interrogation techniques.2 When police induced false confessions occur, they can lead to miscarriages of justice.
The Central Park jogger case brings home the stark reality of false confessions. People v. Wise, 752 N.Y.S.2d 837(N.Y. Sup. 2002). All five defendants implicated themselves as accomplices to a rape that was committed by someone else. Id. at 843. In this infamous case, five juveniles were convicted and sent to prison for the brutal rape of a young woman jogging through Central Park. Id. at 840. "Police interrogated each of the five youths separately, keeping them in custody at the Central Park Precinct for more than twenty hours before turning on the cameras for their confessions."3 All five teens were convicted despite the fact that neither the blood nor the semen found on the victim matched any of the juveniles. Id. at 845. Each juvenile confessed after several hours of interrogation. However, in each case the confessor pointed the finger at one of the other teen co-defendants rather than implicating himself. Id. at 845-846. Moreover, none of the juveniles provided accurate descriptions of where the attack took place. Id. at 846. Even though there was no physical evidence and there were inconsistencies and gaps in the "confessions," the jury convicted the juveniles.
More than twelve years later, the Manhattan District Attorney, Robert Morgenthau, asked the court to overturn the convictions after a convicted rapist, Matias Reyes, confessed. Id. at 843-44. Reyes' confession was corroborated by DNA evidence proving that he was the rapist. Id. at 844.
The convictions are a prime example of the compelling and damning impact of a confession on a jury. A jury easily overlooks discrepancies between the evidence and the confession. False confessions are real and can result in miscarriages of justice.
II. ADMISSIBILITY OF CONFESSIONS
The State bears the burden of showing that an accused gave a valid waiver of his Miranda rights prior to making incriminating statements during custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 475 (1966). In making this determination, courts look at the totality of the circumstances. State v. Hunt, 607 P.2d 1297, 300 (Utah 1980). On appeal, a trial court's finding of a valid waiver of Miranda rights is granted some degree of discretion. State v. Leyva, 951 P.2d 738, 741 (Utah 1997).
After determining a valid Miranda waiver has occurred, the courts are then called upon to determine whether a confession was involuntary, unreliable, and a product of coercion. If a confession was involuntary, its admission violates the defendant's due process rights under the Fourteenth Amendment of the United States Constitution, and Article I, Section 7 of the Utah Constitution. Under the totality of circumstances test, courts must consider such external factors as the duration of the interrogation, the persistence of the officers, police trickery, absence of family and counsel, as well as threats and promises made to the defendant by the officers. Moreover, the defendant's mental health, mental deficiency, emotional instability, education, age, and familiarity with the judicial system are additional factors which must be considered.4
Coercive police activity is a necessary predicate to a finding that a confession is involuntary. Colorado v. Connelly, 479 U.S. 157, 167 (1986). However, police do not need to engage in flagrant misbehavior in order to be coercive. "Rather, subtle pressures are considered to be coercive if they exceed the defendant's ability to resist. Accordingly, pressures that are not coercive in one set of circumstances may be coercive in another set of circumstances if the defendant's condition renders him or her uncommonly susceptible to police pressures." In Re Jerrell, 699 N.W.2d 110, ¦19 (Wis. 2005) (citation omitted). Since the police conduct itself is inextricably intertwined with the determination of the voluntariness of a statement, it should hardly be surprising that the police are not likely to admit that they engaged in a host of coercive tactics.
III. CREDIBILITY CONTESTS; DEFENDANTS LIE, POLICE OFFICERS TELL THE TRUTH
Motions to suppress are seldom won when the defendant must persuade the trial court that he, and not the police officer, has told the truth. Instead, when defendants prevail at motion hearings, they do so most often when the judge accepts as true every word spoken by the police, but still concludes that the undisputed facts permit ruling in favor of the accused.
The judicial pronouncement delivered to the jury during voir dire that the testimony of a police officer is to be given no greater weight than the testimony of any other witness is seldom observed by the same judge when called upon to decide a suppression motion.5 Instead, there is an unspoken bias that guides the judge when he or she serves as the trier of fact in the credibility contest between the testimony of a police officer and the testimony of the accused. Could it really be true that the testimony of a police officer is invariably more credible than the testimony of the defendant? One only needs to remember the words of Justice Jackson in Johnson v. United States, 333 U.S. 10 (1948), to recognize that police have both a bias and an investment "in the often competitive enterprise of ferreting out crime." Id. at 14. Both police officers and defendants have an investment in the outcome of a criminal proceeding.
Without a recording to resolve the credibility conflicts between a defendant and his interrogators, the trial court is left to evaluate the credibility of these witnesses and choose which version of the unrecorded events to believe. It should surprise no one that in almost every case, the recollections and testimony of police officers will be chosen over the contradictory recollections of the defendant:
Without a full recording to resolve the conflict, the superior court was required to evaluate the credibility of the witnesses and choose which version of the unrecorded events to believe. In each case, the court chose the police officers' recollections and determined that the confession was voluntary and, thus, admissible at trial.
Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985).
The contents of an interrogation are obviously material in determining the voluntariness of the confession. But the task of deciding what transpired in the interrogation room is a challenge:
The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado.
. . . .
. . . Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.
Stephan, 711 P.2d at 1161 (quoting Miranda v. Arizona, 384 U.S. 436, 445, 448 (1966).
Because police officers interrogate suspects in isolated settings, without independent witnesses, a tape recording is the only effective way a defendant can level the credibility playing field. In light of the deference given to a police officer's account of what a defendant said during an interrogation, the tape recording is the essential unbiased witness.
IV. DETERMINING VOLUNTARINESS WITH AND WITHOUT A VIDEOTAPE; PICTURES DON'T LIE
Juxtaposing the determination of voluntariness in State v. Dutchie, 969 P.2d 422 (Utah 1998), where there was no videotape, with State v. Rettenberger, 1999 UT 80, where there was a videotape, demonstrates who unfailingly wins the credibility contest between a police officer and a defendant.6 In Dutchie, the Supreme Court applied the totality test to a fifteen year old with attention deficit hyperactive disorder, a developmental expressive language disorder, oppositional defiant disorder, and four different psychotic disorders, one of which caused auditory hallucinations. Dutchie, 969 P.2d at 428. Dutchie read on the second or third grade level while the language contained in the Miranda warnings is equivalent to a fifth or sixth grade reading level. Id. Notwithstanding the foregoing, the defense expert was unable to render an opinion of whether Dutchie understood the Miranda warnings. Id. The expert was unable to make this determination largely because of Dutchie's ability to parrot back portions of Miranda warnings made by the interrogating detective. Id. at 429. In essence, although Dutchie had a below-average intelligence and psychological problems, his memory of the Miranda warnings were sufficient to lead the defense expert to conclude that he might have understood his Miranda rights. Id. In contrast, the State presented the testimony of the interrogating detective that Dutchie did not appear to be intoxicated or under the influence during the questioning. The detective further testified that Dutchie was responsive to the interrogator's questions, "did not appear confused or afraid, and appeared to be relaxed." Id.
Without a recording to resolve the conflict, the trial court sided with the detective and concluded the defendant was able to understand the Miranda warning. While acknowledging that the expert's testimony suggested that Dutchie's intelligence was below average and that he had psychological problems, the Supreme Court nonetheless concluded, "we think that his ability to parrot back portions of the warnings and his understanding of their meaning is sufficient to support the trial court's conclusion [that he knowingly, intelligently, and voluntarily waived his Miranda rights before giving a reliable, trustworthy, and voluntary statement to the detective]. Id. at 429. Moreover, in considering what weight should be given to Dutchie's "young and immature age" of fifteen, the court noted that Dutchie may have been more "experienced and brazen" than others of his age. Id. at 427.
The Utah Supreme Court's analysis one year later in State v. Rettenberger, 1999 UT 80, was decidedly different. In Rettenberger, the two interrogations of the eighteen year old defendant were videotaped in their entirety. There was no guesswork. This allowed both the trial court and the Supreme Court to review the actual interrogation without having to rely upon the competing memories of the defendant and the interrogating officers.
A. Susceptible Suspect
Rettenberger had attention deficit disorder, below average IQ, the maturity level of a fifteen-year-old, and symptoms of depression, anxiety disorder, thought disorder, schizophrenia and a dependent personality disorder. Rettenberger, 1999 UT at
B. Lies by Police About Evidence
The police made thirty-six false statements to the defendant during his interrogation. Id. at ¦21. "The overwhelming majority of these misrepresentations were not merely 'half-truths' but were complete fabrications about testimonial and physical evidence of Rettenberger's guilt. Id. In sum, although the State, in fact, had no physical evidence implicating Rettenberger, the officer sought to convince Rettenburger that the State had an air-tight case against him." Id.
C. The Mr. Rogers Technique
The police also utilized an interrogation technique called the "false friend technique" whereby they represented to Rettenberger that they were his friends and that they were acting in his best interest. Id. at ¦24.
D. Stick and Carrot
The Supreme Court also reviewed the threats and promises made to the defendant. The record was replete with "significant references to defendant being charged with capital murder, the lethal consequences of being charged with capital murder, and the possibility of lesser charges being brought, depending upon defendant's cooperation." Id. at ¦29-31.
E. Video Tells the Truth
Perhaps most compelling about the suppression of Rettenberger's statement were the details of the interrogation readily available on the videotape. What is the likelihood that a police interrogator would acknowledge making thirty-six false statements to a suspect at an evidentiary hearing when there is no record of the interview? The Supreme Court decided numerous issues by quoting the actual exchanges that took place between the interrogator and the suspect. The court also determined that the trial court had "glossed over the several occasions in which the officer strongly suggested that Rettenberger would not face the death penalty as long as he confessed to the crime." Id. at ¦29. Finally, the court was also able to question the reliability of Rettenberger's statements since the police, and not Rettenberger, were the general source of so many of the details of his confession. Thus, the Utah Supreme Court determined,
[A]t times the information that the officers gave Rettenberger took the form of outright instructions or demands. . . . When the officers changed the facts that they had provided Rettenberger, his story also changed. . . . By the close of the second day, the officers had directly or indirectly given Rettenberger virtually all of the facts that he used in his confession.
Id. at ¦41-44.
The Supreme Court noted that the district court judge reviewed the videotaped interrogations in their entirety at least four times and catalogued the numerous times that officers provided misleading information to the defendant. Id. at ¦8, n.2. Of course, the tapes were available to the appellate court as well. The availability of a recording permitted careful and precise review of both objective events in the interrogations and subjective characteristics that made the defendant more susceptible to manipulation by the interrogating officers. Id. at ¦34. The Supreme Court was particularly concerned that "Rettenberger was eighteen years old, had the maturity level of a fifteen-year old and had a below average I.Q. [since]... 'a case involving a defendant of subnormal intelligence is one of suggestibility.'" Id. at ¦37 (citing Jurek v. Estelle, 623 F.2d 929, 938 (5th Cir., 1980). The Supreme Court also noted that concerns about suggestibility were heightened by Rettenberger's symptoms of depression, anxiety and other mental disorders, which might make "him overly compliant and particularly vulnerable to psychological manipulation." Id.
V. SUPERVISORY POWERS OF THE SUPREME COURT
The powers of the Utah Supreme Court are defined in the Utah Constitution and by statute, and the Court has broad supervisory powers to control the course of litigation. This authority stems from Article VIII, ¤ 4 of the Utah Constitution, which mandates that the Utah Supreme Court "shall adopt rules of procedure and evidence to be used in the courts of the state and shall by rule manage the appellate process." Utah Const. Art. VIII, ¤ 4. The Court has interpreted this section of the Utah Constitution to grant it inherent supervisory power and defines it as "that which is necessary to protect the fundamental integrity of the judicial branch... This power enables a court to ensure that the judicial process is not abused." State v. Maestas, 2002 UT 123, ¦81 (Durrant, dissenting) (quoting In re Criminal Investigation, 754 P.2d 633, 642 (Utah 1988)(citations omitted)). The Court has created a process "for the adoption, repeal, and amendment of rules of procedure and evidence." Utah Code for Judicial Admin. 11-101(1)(A). Under this process,
. . . advisory committees propose changes to the rules, which are then made available for public comment prior to adoption. The process even provides an opportunity for this court, in our discretion, to adopt rules of procedure or evidence ... upon [our] own initiative and without proposals by the committees. Such rules, however, still must "be published for a 45-day public comment period."
Maestas, 2002 UT at ¦81 (Durrant, dissenting).
Thus, the Utah Supreme Court has the authority, through the Utah Constitution, to adopt new or modified rules of evidence, either upon its own initiative or through a notice and comment process.
In fulfilling its supervisory role over the admissibility of evidence and the fair operation of our courts, the Utah Supreme Court has imposed exclusionary rules in a variety of circumstances. The Utah Supreme Court has ruled that hypnotically enhanced witness testimony is inherently unreliable and inadmissible. State v. Tuttle, 780 P.2d 1203, 1207-11 (Utah 1989). Similarly, the Utah Supreme Court has also ruled that absent stipulation, polygraph test results are not reliable and are inadmissible. State v. Eldredge, 773 P.2d 29 (Utah 1989), overruled in part by State v. Pecht, 2002 UT 20 (overruled portion of case unrelated to polygraph test).
The integrity of the judicial system is brought into question whenever a court rules on the admissibility of a challenged confession based solely upon the court's acceptance of the testimony of one of the interested parties, regardless of whether that is the interrogating officer or the defendant. Certainly, there are numerous cases where the testimony from one side or the other is intentionally false, misleading, and self-serving. But inaccurate testimony about what happened in an interrogation room is not always the product of intentional perjury. Human memory is notoriously frail and faulty. Police officers and defendants alike forget specific facts, circumstances and statements. All witnesses remember events through the filter of their own interest in the outcome. In the absence of an electronic recording of an interrogation, it is only natural that people will interpret, reconstruct and remember events differently:
It is not because a police officer is more dishonest than the rest of us that we . . . demand an objective recordation of the critical events. Rather, it is because we are entitled to assume that he is no less human - no less inclined to reconstruct and interpret past events in a light most favorable to themselves - that we should not permit him to be a "judge of his own cause."
Yale Kamisar, Forward: Brewer v. Williams - A Hard Look at a Discomfiting Record, 66 Geo. L.J. 209, 242-43 (1977).
VI. TECHNOLOGY READILY AVAILABLE
Police departments have long kept pace with advances in technology. The use of audio and videotapes in police interrogation rooms is the norm rather than the exception in today's society. It is to the advantage of police, citizens and the judiciary to record interrogations.
The videotaping of the field sobriety tests of a suspected drunk driver is a routine matter for the Utah Highway Patrol and some of the police departments along the Wasatch Front. The gap between an arresting officer's description of field sobriety tests and what can actually be observed on the videotape is startling in many cases. On the other hand, a videotape that shows a defendant stumbling and slurring his speech tends to eliminate every vestige of reasonable doubt. The use of technology assists the defense and prosecutor and ultimately serves the interest of justice. Police interrogations of juveniles and adults at a place of detention can easily utilize readily available recording devices.
VII. SWELL OF SUPPORT FOR RECORDING
The veritable cornucopia of reasons in favor of recordation has prompted the American Bar Association to unanimously adopt a resolution urging legislatures or courts to enact laws or rules:
Requiring videotaping of the entirety of custodial interrogations of crime suspects at police precincts, courthouses, detention centers, or other places where suspects are held for questioning, or, where videotaping is impractical to require the audio taping of such custodial interrogations.
A.B.A., N.Y. Country Lawyer's Ass'n, Criminal Justice Section, Report to the House of Delegates (Feb. 2004), available at http://www.abanet.org/leadership/2004/recommencations/8a.pdf.
The supreme courts in Minnesota, Alaska, and Wisconsin have utilized their supervisory authority to mandate an electronic recording requirement. Stephan v. State, 711 P.2d 1156 (Alaska 1985); State v. Scales, 518 N.W.2.d 587 (Minn. 1994); and In Re Jerrell, 699 N.W.2d 110 (Wis. 2005) (in cases involving juveniles). The Alaska Supreme Court states that "[a] general exclusionary rule is the only remedy that provides crystal clarity to law enforcement agencies, preserves judicial integrity, and adequately protects a suspect's constitutional rights." Stephan, 711 P.2d at 1164. The Supreme Court of Minnesota exercised its "supervisory power to require that all custodial interrogation of juveniles in future cases be electronically recorded where feasible and without exception when questioning occurs at a place of detention." Jerrell, 699 N.W.2d at 173.
In New Jersey, the Supreme Court adopted the recommendations of its Special Committee on the Recordation of Custodial Interrogations on October 14, 2005. All homicide cases must be recorded beginning January 1, 2006, and by January 1, 2007 recordings must be made when suspects are charged with crimes like murder, sexual offenses, aggravated assault and crimes involving firearms.7
Twenty-one states had one or more bills introduced in 2005 to require interrogations to be recorded.8 New laws were passed in the District of Columbia9 and New Mexico.10 And in Illinois, an existing law was expanded.11
VIII. CONCLUSION
A contemporaneous electronic recording of suspect interviews at places of detention is an easy and efficient mechanism to provide the courts with an accurate and reliable record of interrogations. Recordings will prevent disputes about officer conduct, the treatment of suspects, and the statement itself. Recordation will also enable judges to conduct the nuanced reviews that the Rettenberger court was able to complete in resolving the admissibility issues of a challenged confession. With today's technology, the simple flip of a switch will generate a reliable record of everything that occurred during an interrogation. The quest for the "ground truth" (what actually happened) and the pursuit of justice demand nothing less.
1. Richard A. Leo and Richard J. Ofshe, The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation, 88 J. Crim. L. & Criminology 429, 431-32 (1998).
2. For a thorough overview of coerced juvenile confessions, see, Nashiba F. Boyd, Comment, "I Didn't Do It, I was Forced to Say that I Did:" The Problem of Coerced Juvenile Confessions, and Proposed Legislation to Prevent Them, 47 How. L.J. 395 (2004). The author identifies the Central Park Jogger case and others to demonstrate that false confessions by juveniles are a significant problem in this country. Id. at 403-405.
3. Michael Powell, Reversal Sought in Central Park Jogger Case, Wash. Post, December 6, 2002, at A1; Christine Haughney, Central Park Rape Case Convictions In Question: Man with DNA Match Confessed Attorneys Say, Wash. Post, Sept. 6, 2002, at A3.
4. State v. Dutchie, 969 P.2d 422 (Utah 1998); State v. Rettenberger, 984 P.2d 1009 (Utah 1999).
5. The FBI is well aware of the bias in favor of the credibility of the law enforcement officer. Notwithstanding that the FBI is touted as the most sophisticated police agency on the planet, the FBI reportedly prohibits the use of recording equipment without approval of the agent in charge of the local office. Thomas P. Sullivan, Electronic Recording of Custodial Interrogations: Everybody Wins, 95 J. Crim. L. & Criminology 1127, 1137-39, n.41 (2005) (citing Fed. Bureau of Investigation, U.S. Dep't of Justice, Legal Handbook for Special Agents 14 (1987)). Many federal judges have expressed their frustration with this policy. For a more detailed criticism of the FBI practice and comments from federal judges on the practice, see, Sullivan, 95 J. Crim. L. & Criminology 1127, 1137-39 (2005).
6. See, Troy L. Booher, Note, Youth Interrogations and the Utah Constitution, 2001 Utah L. Rev. 777. The author asserts that failing to record interrogations of juveniles violates Due Process under Article I, Section 7 of the Utah Constitution. Id. at 780. In support of his argument, the author compares the outcome in State v. Dutchie with State v. Rettenberger to support his position that recording of juvenile interrogations should be mandated. Id. at 785-88.
7. Report of Supreme Court Special Committee on Recordation of Custodial Interrogations, October 14, 2005, available at http://www.judiciary.state.nj.us/notices/reports/recordation.pdf.
8. Scott Ehlers, State Legislative Affairs Update, The Champion, Dec. 2005, at 49.
9. In the District of Columbia, the City Council gave the police department an opportunity to develop their own guidelines for recording custodial interrogation in 2003. When the department failed to implement such guidelines, the City Council passed legislation to require recordings in cases involving violence. See, Scott Ehlers, State Legislative Affairs Update, The Champion, Dec. 2005, at 49. Although the legislation was vetoed by the Mayor, the City Counsel overrode the Mayor's action. Id.; see, D.C. Code ¤¤ 5-116.01 (2006). A non-recorded statement is subject to a rebuttal presumption that it is involuntary. D.C. Code 116.03 (2006).
10. In New Mexico, the legislature passed H.B. 382. This law requires the electronic recording (audio and/or video) of custodial interrogations in felony cases. The Miranda warning must also be included in the recording. N.M. Stat. Ann ¤ 29-1-16 (2006).
11. In 2003, the Illinois legislature passed legislation requiring electronic recording of custodial interrogations of juvenile and adult suspects in homicide and certain sex offenses. 725 Ill. Comp. Stat. ¤ 5/103-2.1 (2005). The recording requirements took effect on July 18, 2005. In 2005, the legislature added DUI cases resulting in death to the list of crimes where suspects must be recorded. 725 Ill. Comp. Stat. ¤ 5/103-2.1(b) (2005).
Posted by BarStaff at 02:58 PM
Recent Developments in Criminal Investigation and Discovery: Access, Disclosure and Use of Information in the Criminal Defense Realm
Recent Developments in Criminal Investigation and Discovery: Access, Disclosure and Use of Information in the Criminal Defense Realm
by Ann Marie Taliaferro
Introductory Comments
The past year has brought with it both increased questions and additional obstacles for criminal defense practitioners concerning the investigation, discovery, and ultimate presentation of the facts of their cases at a criminal trial. Changes have emerged in how criminal defense practitioners may investigate their cases. Questions have been raised regarding exactly what information discovered by a criminal defense attorney must be disclosed to prosecutors. Finally, how and when a criminal attorney makes use of that discovered information has also been the subject of recent appellate discussion. While there have been several notable and far-reaching decisions issued by Utah courts this past year, this summary of developments is narrowed to those recent court decisions which have commented upon and affected the investigational techniques and overall practice of the criminal bar.
Investigation & Access to Information & Evidence
Investigation and Access to Private Documents
Some criminal practitioners voice concerns that the criminal realm is becoming inundated with our civil colleagues' rules and procedures, which may in the end cause many to forget the special protections guaranteed to criminal defendants through constitutional protections and safeguards. One such imposition of civil procedure standards in the criminal realm surfaced recently in State v. Gonzales, 2005 UT 72. In Gonzales, it came to be known that the alleged victim was undergoing psychological therapy and was on medication for a psychological condition. Therefore, the alleged victim's ability to perceive and tell the truth became a core defense issue. Appointed defense counsel served a subpoena on the University of Utah Neuropsychiatric Institute (UNI) for treatment records. After some correspondence between UNI and counsel, the records were ultimately released directly to counsel. Not long thereafter, however, UNI indicated that the records had erroneously been released and that UNI should have moved to quash the subpoena. The district court agreed, quashed the subpoenas, and further ruled that the information obtained from the records could not be used at the defendant's trial.
On appeal, Mr. Gonzales raised several issues including what the Utah Supreme Court described as the "narrow issue" as to whether the trial court erred in granting the State's motion to quash subpoenas for the mental health records. The Defendant argued that he had no duty to notify either the State or the court of his pending subpoenas, relying on Utah Rule of Criminal Procedure 14, which does not specifically require a criminal party seeking a subpoena to notify anyone of his intention. However, the Utah Supreme Court disagreed and after discussing policy concerns and victim's rights legislation, held that the notification requirement found in the civil rules of procedure applies to criminal matters where privileged information is at stake. See Utah R. Civ. P. 45(b)(1)(A). As such, the Utah Supreme Court found no error in the limited issue concerning the propriety of quashing the defendant's subpoenas.
Investigation and Access to Witnesses
Issues surrounding the questioning of witnesses during a defendant's private investigation have also arisen in a capital prosecution in which the Utah Supreme Court has recently granted an interlocutory appeal. In State v. Wade Maughan, District Court Case No. 051100355, Supreme Court Case No. 20060189-SC, the State moved to disqualify Mr. Maughan's court-appointed capital attorneys from the case.1 Relevant to the scope of this article, the State argued that by questioning potential out-of-state witnesses and allegedly telling them they shouldn't speak with others about the case, the situation presented either an actual or potential conflict of interest as the alleged instruction not to speak to others may amount to "witness tampering."2 The Defendant's attorneys countered that no instruction was ever given to witnesses not to speak about the case and that credible evidence supported their actions as at all times being both lawful and ethical. Defense counsel also asserted that the State could articulate no conflict of interest either actual or possible. Finally, the defense asserted that the investigation and questioning of witnesses is not only a duty of competent defense counsel but a guaranteed part of any accused's defense that will be chilled by the State if allowed to serve as a basis to disqualify aggressive counsel in order to hand-pick the opposition.
The trial court, without holding a requested evidentiary hearing, ultimately ruled that while the court was not making a finding that defense counsel had committed wrongdoing, there was a "reasonable possibility" that a potential conflict existed. However, in an attempt to balance the Defendant's right to be represented by an attorney of his choice, the trial court also found that any possible conflict was waiveable, but ordered the Defendant to choose one of his two appointed attorneys to remain on the case. This decision obviously begs the question that if a conflict is waiveable, it would be waiveable to both counsel and the Defendant need not choose.
Subsequently, both the State and the Defense petitioned the Utah Supreme Court for interlocutory review, which was granted May 24, 2006. This case is one to follow as it raises issues concerning a defense attorney's duty to investigate and interview witnesses and it questions the propriety of State prosecutors in seeking disqualification of those attorneys who seek to fulfill those duties.
Access and Use of Findings Made in Other Legal Arenas
Criminal practitioners know that information with evidentiary value appears in many forms, including parallel litigation involving your client. When findings and rulings favorable to your client are made in administrative proceedings, it is now an "on the books" duty of a criminal defense attorney to seek admission of that information in the client's criminal proceedings. Indeed, it amounts to ineffective assistance of counsel to fail to do so. This is the reasoning in State v. Ison, 2006 UT 26.
As the Utah Supreme Court characterized on certiorari review, the Ison appeal is the latest chapter in the saga of a Caribbean cruise that set sail in November 1995 and the alleged misdeeds of Lew Ison, the man accused of frustrating the vacation plans of would-be passengers on that cruise. Prior to his criminal trial Mr. Ison was investigated by the Utah Attorney General and the State Division of Consumer Protection (the Division) upon complaints of wrongdoing. As a result of that investigation, the Division issued a citation to Mr. Ison, to which Ison exercised his right to an administrative hearing. A hearing was held before an administrative law judge ("ALJ") who, after hearing testimony and evidence, concluded that Ison had not violated the specified statutes, had "made no misrepresentations to any passenger" and had never "assumed responsibility for the cruise and tour bookings in question." Despite the ALJ's findings, criminal charges were filed alleging felony counts of communications fraud and the case went to trial.
On appeal, the Court of Appeals considered whether the ALJ's findings were admissible and, relatedly, whether defense counsel was ineffective for failing to seek admission of those findings under Utah Rule of Evidence 803(8)(C). The appellate court concluded that the ALJ's findings were indeed admissible under the cited rule of evidence based upon a plain language interpretation of the rule. The Court of Appeals then went on to hold that defense counsel was ineffective in failing to move for admission of those findings, reasoning that since counsel was aware of the favorable decision there was simply no strategic reason for not seeking to admit findings that could have helped exonerate the Defendant. The Utah Supreme Court agreed on certiorari review. The importance of this holding is apparent, especially if prior administrative hearings (think, for example, driver's license and DOPL hearings) have rendered findings favorable to your client. As such, in investigating and representing a criminal defendant, the findings of prior or parallel administrative investigations and adjudications may become useful, if not essential, to an effective defense.
Disclosure of Information
All criminal practitioners know of the "Brady" duties which stem from the United States Supreme Court case Brady v. Maryland, 373 U.S. 83 (1963) and its progeny. In general, it is a well-established precept that the government is obligated to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. A prosecutor is also bound by both statutory and ethical duties and a prosecutor's failure to disclose material evidence violates a defendant's state and federal constitutional rights to due process. This duty, well-known to the criminal bar, has again been recently applied in Tillman v. State of Utah, 2005 UT 56, wherein the Utah Supreme Court upheld the vacation of the defendant's death sentence and ordered new sentencing proceedings. The Utah Court noted that the State's failure to disclose partial transcripts of interviews with key prosecution witnesses was sufficient to undermine confidence in the death sentence and thus constituted a cognizable Brady violation.
Criminal practitioners are also well aware of their statutory "expert notice" duties in felony cases, of which the State's failure to comply created a reversal in State v. Torres-Garcia, 2006 UT App 45. Therein, the Utah Court of Appeals found that the trial court abused its discretion in refusing to grant Defendant's requested continuance where the State did not substantially comply with the statutory notice requirements for expert witnesses. While the duty to disclose evidence has thus far been noted in the context of prosecutorial violations, the question has been raised as to a Defendant's duty to disclose information to the prosecution, if any exists. State v. McNearney, 2005 UT App 133, brings this issue to light. In McNearney, the prosecutor moved for discovery under Rule 16(c) of the Utah Rules of Criminal Procedure, requesting a broad scope of information including: 1) Names, addresses, telephone numbers, and dates of birth of all witnesses the defense intended to call for trial; 2) Copies of any reports prepared by defense investigators during the course of the investigation; 3) Copies of any reports prepared by defense investigators where the defense intended calling the investigator as a witness; and 4) Copies of that portion of any reports prepared by defense investigators concerning statements made by witnesses the defense intended calling at trial. Defense counsel objected to the requests not only on the grounds of failure to show "good cause" as required by the criminal procedure rule, but also reasoning that if reciprocal discovery such as that requested were ordered, a criminal defense attorney would be impermissibly compelled to provide information against the client and to produce privileged work product. The trial court granted discovery with some modifications.
On the specific facts of the case, the Court of Appeals found that the trial court's order requiring the revelation of the witnesses Defendant intended to call did not violate his right against self-incrimination, nor the work product doctrine based upon the waiver of the privilege in the case. Importantly, however, the Court of Appeals also recognized that a trial court must analyze a prosecutorial discovery request in light of the privileges asserted by the accused and that a defendant's protection against self-incrimination prevents extensive prosecution discovery and is paramount. Moreover, the Court of Appeals did not determine whether the defense witness list is privileged under the work-product doctrine, nor did the appeals court decide whether requiring a defendant to produce witness statements of anticipated witnesses violates a myriad of protections including the work-product doctrine, the right to due process, the right against self-incrimination, the right to full representation of counsel, and the attorney-client privilege. Consequently, this case leaves for another day the question as to whether these types of prosecutorial discovery requests are permissible.
Timing and Use of the Acquired Information
One pervasive and complicated decision a criminal attorney continually faces focuses on what to do with the information acquired through investigation, and whether such information should tactically be disclosed prior to trial. As McNearney above points out, criminal proceedings implicate a number of ethical duties and constitutional protections that must be safeguarded at all stages in the process.
At least with regard to cases involving sexual assaults, the Utah Supreme Court has recently held that if evidence is available that the alleged victim may have made a prior false allegation of rape, a hearing must be held pretrial at which the Defendant has the burden of showing the falsity of the prior allegation. See State of Utah v. Tarrants, 2005 UT 50. While a "Rule 412 hearing"3 has been required by the Utah rules for some time, when it comes to information that the accuser has made prior false accusations of sexual misconduct in the past, the Tarrants Court articulated the specific standard a Defendant must meet pretrial for the admission of that evidence. Specifically, the Court held that allegations of prior false rape claims are inadmissible under Rule 412 unless their falsity can be demonstrated by a preponderance of the evidence. The Court reasoned this must be so because while evidence of false statements of past unrelated sexual assaults are not excluded by the "rape shield rule" per se, any potential probative value these prior allegations hold depends upon them being false.
Additionally, State v. Cornejo, 2006 UT App 215 (slip op.) illuminates the tactical considerations that must be made as to whether to address an issue pretrial, or instead wait until trial and object to the opposition's anticipated lack of evidence. In Cornejo, the accused was charged with various violations including felony DUI. Prior to jury selection on the day of trial, the parties met in chambers and at this time the defense revealed its claim that the blood draw was taken involuntarily. Defense counsel explained that he had not moved to suppress the blood sample earlier because he wanted to use the facts surrounding the involuntary blood draw to demonstrate police misconduct. Defense counsel also made the court aware of his further intent to object to the admissibility of the blood test results.
Based on this legal issue, the court intended to hold a brief evidentiary hearing prior to empaneling the jury. The State objected, contending that the issue had been waived because Defendant had not filed a motion to suppress the blood sample at least five days before trial in accordance with the Rules of Criminal Procedure. The State also requested a continuance, explaining that it was not prepared to present evidence as to the admissibility of the blood sample and had not subpoenaed the individual who had authorized the blood withdrawal. The trial court denied the continuance explaining that the State must be prepared when a trial is set, not only to present its evidence, but also to have a legal basis for the admission of that evidence. The trial court further found that the State wrongfully assumed that Defendant's failure to file a suppression motion meant that Defendant could not simply object to the introduction of the evidence at trial. The Court of Appeals ultimately disagreed and found that denial of the continuance was unreasonable. In doing so, however, the appellate court did note that while Utah Rule of Criminal Procedure 12 states that motions to suppress must be raised at least five days prior to trial or else the issue is waived, the Rule also allows the court to grant relief for cause shown.
A related issue in DUI cases has also arisen in both justice courts and district courts throughout Utah regarding "Crawford motions" objecting to the admission of affidavits which purportedly verify the calibration and proper maintenance of intoxilyzer testing machines. Accord Crawford v. Washington, 124 S.Ct. 1354 (2004). The general defense argument is that intoxilyzer affidavits are inadmissible hearsay under Crawford; therefore, the intoxilyzer test results are inadmissible if the certified breath test technician who maintains and checks the machine is unavailable for trial to lay the proper foundation for the results. The prosecutors argue, as in Cornejo above, that this issue must be raised in a "motion to suppress" at least five days prior to the trial of the matter, or else the issue is waived. The defense then counters that it is the duty of the State to lay the foundation for its own evidentiary admissions, and as such, the defense objection to admission of these affidavits is a proper foundational objection not unlike hundreds of other foundational objections made during trials everyday. At most, the request to exclude the affidavits could be considered a motion in limine, which is not required to be filed prior to trial.
While this timing issue, as well as the more particularized question as to whether Crawford applies to intoxilyzer affidavits, has not yet been decided at the appellate level, justice court and district court decisions have provided mixed results. However, the Utah Court of Appeals has recently granted interlocutory review on the issues and hopefully will provide some guidance soon.
In Sum....
As summarized herein, recent developments in Utah law have placed additional hurdles in the path of an accusedÕs access to information in preparation of his or her defense. The recent developments have also raised questions as to what information a defendant must provide to a prosecutor and the timing of that disclosure. Many questions remain open, however, and criminal practitioners will seek to answer these questions and continue to navigate the criminal process with not only rules of procedure and precedent in mind, but also with an eye toward upholding those inviolate constitutional guarantees afforded to those accused of crimes.
1. In the interest of full disclosure, the author's law firm aided Mr. Maughan's appointed attorneys in the preparation of briefing and argument of these issues in the district court.
2. The situation at issue is both controversial, adamantly denied, and complicated by the fact that one of the defendant's court appointed attorneys and his investigator were arrested out of state based upon their questioning of witnesses. No charges have been filed against either the attorney or his investigator.
3. Utah Rule of Evidence 412 is Utah's "rape shield" protection, and requires that the admissibility of an alleged victimÕs sexual behavior or alleged sexual predisposition be determined prior to trial and in accordance with the specified procedures of the rule.
Posted by BarStaff at 02:30 PM
