Federal Evidence Review

Seventh Circuit rejects defense proposed jury instruction and cross-examination of detective concerning possible violation of state law requiring interrogations be recorded, since any violation of state law was irrelevant, in United States v. Bruce, _ F.3d _ (7th Cir. Dec. 18, 2008) (No. 07-3675)

In federal court, if a state officer violates state law or policies during an interrogation, can the jury learn of the violation? The Seventh Circuit denied an instruction and cross-examination on this issue as irrelevant.

In the case, defendant Bruce was taken into custody when the officers learned of an outstanding warrant during a traffic alert. His girlfriend ultimately consented to a search of her residence. During the search, the officers found $2,580 in cash in the defendant’s jacket, a bag with crack cocaine and pepper inside the engine compartment of a van, and other drug paraphernalia. In interviewing the defendant at the station, one detective turned on an audio recorder before commencing. After making initial denials about knowledge concerning the money or drugs, the defendant ultimately admitted ownership of the money and acknowledged there were “about two ounces” of crack in the van. The officers asked the defendant to cooperate with law enforcement. The defendant agreed to help and mentioned the name and location of a dealer. At this point, the recorder was turned off. The remaining twenty minutes of the interview were unrecorded. Subsequently, the defendant was charged with possessing crack cocaine with intent to distribute.

The defense suggested that the detective had violated Wisconsin law in turning off his recorder. See Wis. Stat. § 968.073(2) (“It is the policy of this state to make an audio or audio and visual recording of a custodial interrogation of a person suspected of committing a felony unless . . . good cause is shown.”). In trying to let the jury know about the state law violation, the defense requested a jury instruction reporting that state law required the interrogation to be recorded and the “unrecorded oral statements made by a defendant out of court to a law enforcement officer should be viewed with caution.” Bruce, _ F.3d at _ n.1. The trial court declined the defense instruction since “any violation of state law by the police was irrelevant to Mr. Bruce’s guilt or innocence under federal law.” Bruce, _ F.3d at _.

Second, the defense sought to cross-examine the detective about the state law violation which was also denied. After the defendant was convicted by the jury, on appeal he claimed he was denied a fair trial based on the exclusion of the state law violation.

The circuit agreed with the trial court rulings. First, on the instruction, the circuit explained:

“Assuming that Detective Rietzler violated state law by turning off the recorder, that violation was irrelevant in this federal case. Federal law, not state law, governs the admissibility of evidence in federal criminal trials, and there is no federal requirement that criminal interrogations be recorded. Mr. Bruce nevertheless submits that the purported violation was relevant here because it casts doubt on the reliability of his unrecorded statements. However, any relevance the absence of a recording might have stems from the fact that Detective Rietzler chose to stop recording the interview -- of which the jury was made aware -- not from the presence or absence of a state law governing recordings.”

Bruce, _ F.3d at _ (citing United States v. Wilderness, 160 F.3d 1173, 1175 (7th Cir. 1998) ("Indiana would not have permitted" juvenile confession "to be used in a state prosecution unless the juvenile's rights were waived "in the presence of his custodial parent, guardian, custodian, guardian ad litem, or attorney, and if the waiver [was] made knowingly and voluntarily.” But federal rather than state law determines the admissibility of evidence in federal prosecutions, and the voluntariness of a confession depends on public officials' compliance with constitutional norms, not on any rule of state law. We have held repeatedly that evidence may be used whether or not its acquisition violated state law."; admitting in federal trial evidence acquired through violation of state law)).

Second, there was no error in limiting the cross-examination as the defense was “not entitled to cross-examine witnesses on irrelevant matters.” Bruce, _ F.3d at _ (citing United States v. Jackson, 540 F.3d 578, 591 (7th Cir. 2008) (“A district judge has wide discretion to impose reasonable limits on cross-examination, and may do so based on concerns about, inter alia, prejudice, confusion of the issues, or questioning that is only marginally relevant.”) (citation omitted)). The defendant was able to fully cross-examine the detective concerning the manner and substance of the interrogation.

Finally, the circuit further noted there were questions whether the detective actually violated state law since the statute involved a recording “policy” and contained exceptions. In presenting evidence of this state law matter, the circuit noted: “Mr. Bruce’s position would require the judge either to hold a mini-trial on the alleged state law violation, or to allow the parties to submit sufficient evidence to allow the jury to weigh whether there was such a violation. We do not believe that the court was obligated to go so far afield from the central issues in the case.” Bruce, _ F.3d at _.