Mimesis Law
11 December 2017

Miami Beach Cops to Record “Hallway Interviews”? By All Means

Mar. 31, 2016 (Mimesis Law) — Here’s the scenario: It’s a beautiful, scolding hot morning in Miami, and a misdemeanor DUI trial is about to begin.  After both sides announce ready for trial, defense counsel requests to interview the arresting officer in the hallway.  The officer agrees, and while the jury panel is brought out by the judge, both defense attorney and witness go outside to discuss the case.  The officer answers all questions, and reluctantly concedes that the driver was polite, compliant, and was generally steady on his feet during the field sobriety exercises.

The defense attorney takes diligent notes of this exchange, but this is not sworn testimony, and there is always a chance that the officer turns out to be a faux bonhomme, who later goes on to tell the jury how the defendant fell out of his truck while yelling expletives and stinking of booze.  If only there was something that could help the defense bind the officer to his statements in the hallway . . .

Before we go any further, here are some of the parameters regarding the significance of an officer’s testimony in Florida’s misdemeanor/traffic cases: (i) while these hallway interviews are voluntary on the part of the officers or civilian witnesses, their custom (so far) is to acquiesce to the interviews, and the trial judges encourage it; (ii) unlike felony cases, depositions of witnesses are not permitted by Florida Rule of Criminal Procedure 3.220(h), absent showing good cause; and (iii) most police departments in Florida shun dash cam footage.

This means that most of these types of cases rest on the officer’s testimony. There are not many tools as readily available and reliable as video footage that can be used to impeach, should the officer’s testimony differ from what he said in the hallway.  That is why I was surprised to read that an assistant Miami public defender recently objected when a Miami Beach Police Officer used his body camera to record a hallway interview:

A Miami Beach cop, worried about his words being twisted at trial, recently used his newly outfitted “body camera” to record a hallway interview by a defense attorney — without telling her first.

The episode and backlash have spurred Miami Beach police to ban officers from using the new technology at such so-called hallway depositions.

Well, so much for that. Video recordings of these hallways interviews would generally bind the officers to their answers or face impeachment through video evidence in front of the jury.  If the public records request that will be made by the public defender’s office to determine how many times officers have recorded these hallway interviews — and if these videos are ordered produced — they could be used to  impeach these officers’ testimony in future cases, if they provided inconsistent statements in the stand.  The fact that at least one officer voluntarily recorded a hallway interview, and the public defender’s reaction was to try to block it, is mind boggling.

Yours truly has never seen an officer turn down a hallway interview for these types of cases. At most, an officer has requested the presence of the prosecutor or another officer during the interview, which is fine for the defense, as it is simply more ears that are privy to his statements regarding the facts of the case.

While public defender Carlos Martinez gives a hostage to fortune when he says he believes that officers “will stop consenting to the informal interviews,” the chances of that happening across the board aren’t great.  This practice of “hallway interviews” has been going on for years, in many courtrooms, with the blessing of many police departments across Miami-Dade county.
But if this did stop hallway depositions, it would mean that more defense attorneys would be filing motions to depose before trial, requiring hearings on the motions, further clogging the dockets and “delaying” trials, and ordering cops’ appearance at a time and date apart from their only other required appearance, trial.  In other words, more work for all involved.  What is more like to happen, however, is that officers will be more en garde during these interviews, and more police departments will follow/learn from Miami Beach Police, and forbid their officers from recording hallway interviews to avoid creating a record the defense can use.

The stakes are high in Florida misdemeanor cases, especially DUIs, which carry significant mandatory minimum penalties and driving restrictions for each conviction. The PD’s office has an extensive guide of its own when it comes to collateral consequences for criminal convictions, ranging from housing to employment. With no depositions, dash cam videos, or recording of hallway interviews in the defense attorney’s quiver, a body camera recording of the interviews would be discoverable and potentially beneficial.

The issue of body cameras is a complex one, and some police departments’ actions when it comes to selective recordings, depending on the type of case at hand, has been downright disgraceful. But if a police officer simply wants to record a hallway interview before trial, which he is allowed to do in Florida, by all means let him.

Absent the defense attorney saying something to his client’s detriment while the cameras are rolling, a problem over which he has complete control to avoid, this is something that can truly aid the defense by keeping the police officer honest.  And the police union wants its officers to be allowed to turn the cameras in the hallways!

The decision was met with dismay from the union, which while not in favor of body cameras in general, thinks they should be allowed so that officers can “protect their rights.”

There’s nothing wrong with embracing the rare occasion when you are on the receiving end once in a while. Don’t spoil it.

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