ATTORNEYS FOR APPELLANT                               ATTORNEYS FOR APPELLEE
Gregory F. Zoeller                                    Elizabeth Flynn                     FILED
Attorney General of Indiana                           David Payne                   Mar 30 2016, 1:50 pm
                                                      Craig V. Braje
Brian Reitz                                           Braje, Nelson & Janes, LLP         CLERK
                                                                                     Indiana Supreme Court
Deputy Attorney General                               Michigan City, Indiana            Court of Appeals
                                                                                          and Tax Court
Indianapolis, Indiana
__________________________________________________________________________________


                                             In the
                          Indiana Supreme Court
                              _________________________________

                                     No. 46S04-1509-CR-552

STATE OF INDIANA,
                                                                              Appellant,

                                                 V.

BRIAN J. TAYLOR,
                                                                              Appellee.
                              _________________________________
              Appeal from the LaPorte Superior Court 1, No. 46D01-1403-MR-0110
                              The Honorable Kathleen Lang, Judge
                            _________________________________
       On Petition to Transfer from the Indiana Court of Appeals, No. 46A04-1407-CR-316
                             _________________________________

                                          March 30, 2016

Rush, Chief Justice.

       A criminal suspect’s state and federal rights to counsel and confrontation of witnesses are
essential to a fair trial. Here, police officers and a prosecutor eavesdropped on a criminal suspect’s
pre-interrogation consultation with his lawyer, overhearing information regarding both evidence
and trial strategy. Then, when called to testify about that eavesdropping in depositions and a sup-
pression hearing, the officers’ invocation of their Fifth Amendment rights against self-incrimination
left the suspect with no means of confirming what they heard. The parties agree—as well they
should—that the State’s egregious misconduct violated the suspect’s constitutional rights. Their
dispute is only how to remedy that violation.
       We hold that the State’s intrusion is presumptively prejudicial. But that presumption does
not necessarily require blanket suppression—as the trial court here ordered—of all testimony from
witnesses who pleaded the Fifth Amendment about the eavesdropping. Rather, the State can rebut
the presumption by disproving prejudice beyond a reasonable doubt for every item of tainted
evidence and testimony.

       Thus, even though the officers’ testimony is presumptively tainted by the eavesdropping,
they may yet have an independent basis for certain limited testimony, such as routine evidentiary
foundation for the unsuppressed exhibits. On those matters, their credibility may be sufficiently
“collateral” that neither their Fifth Amendment privilege nor the suspect’s confrontation or cross-
examination rights will be materially impaired. But because testimonial taint can be subtle and
difficult to detect, the State must prove an independent basis beyond a reasonable doubt for the
entire substance of each witness’s testimony. We therefore reverse and remand the prospective
blanket suppression of those witnesses’ testimony.

                                 Facts and Procedural History

       On March 14, 2014, at some time before 7:30 a.m., Brian Taylor’s grandfather dropped
him off at the Michigan City Police Department and told him not to talk to the police. Police
officers escorted the blood-covered Taylor to an interview room, where he apparently stayed while
they investigated. Within hours, police discovered the body of Taylor’s girlfriend, Simone Bush,
at her grandparents’ residence, with a fatal gunshot wound through the neck. Subsequently, at
around 3:20 p.m., police arrested Taylor and asked him to sign a document waiving his right to an
attorney. He refused.

       Around 4:00 p.m., Taylor’s attorney David Payne arrived at the police station, and Chief
Deputy Prosecutor Robert Neary and Sergeant Steve Westphal accompanied him to the interview
room. Sergeant Westphal told Attorney Payne that he should “flip a toggle switch” on the wall
“unless you want us listening to your conversation.” At 4:12 p.m., Attorney Payne flipped the
switch and began talking with his client.

       Attorney Payne’s conversation with Taylor was transmitted by a live audio feed into a large
conference room next door—known at the station as the “War Room”—where the chief deputy
prosecutor and an unknown group of police detectives were listening. For the next thirty to forty


                                                2
minutes, the War Room group listened in as Taylor and his attorney discussed “all aspects” of the
case, including location of evidence and defense trial strategy. According to Chief Deputy
Prosecutor Neary, the officers cut off the audio feed immediately after Taylor revealed the location
of a handgun. The officers searched for and retrieved that gun despite Neary’s “stern[]” instruction
to the contrary.

       On March 16, 2014, the State charged Taylor with murder. A few days later, Neary
disclosed the eavesdropping. He sent a letter to one of Taylor’s attorneys, admitting that

       [a]t the time Mr. Payne entered the interview room to speak with Mr. Taylor the
       recorder was disabled. However, the video/audio still ran to monitor the events in
       the interview room which could be watched/listened to in another room.
       I was present in the other room and overheard portions of Mr. Payne’s and Mr.
       Taylor’s conversation up to the point where Mr. Payne asked Mr. Taylor where the
       weapon was and Mr. Taylor’s response. At that point, the audio portion was
       disabled as well.
       . . . [T]hose present were sternly told not to search for this weapon. However,
       Monday afternoon I was informed, that despite the warnings, detectives went to the
       area and located the weapon. The weapon was now in possession of the Michigan
       City Police Department.
       I explained I did not believe the weapon to be admissible under these
       circumstances. You indicated the issue of admissibility would need to be addressed
       at a later date.
       Finally, . . . I ha[ve] self-reported myself to the Indiana Disciplinary Commission
       for my conduct. . . .

       Taylor promptly deposed Sergeant Westphal and four other detectives involved in the
investigation—Lead Detective Al Bush, Corporal Sean Steele, Detective Justin Frever, and
Detective Matthew Barr. All five officers asked to consult with counsel about their Fifth
Amendment rights against self-incrimination as to all questions relating to the eavesdropping—
thereby preventing Taylor from learning who was present in the War Room during the
eavesdropping and what information was overheard.

       Taylor sought to suppress all information and evidence, including the handgun, obtained
after the eavesdropping began at 4:12 p.m., and all testimony of any witness who invoked the Fifth
Amendment. He attached to that motion an affidavit filed by Attorney Payne, which stated that the



                                                 3
eavesdropped conversation covered “confidential matters . . . regarding the criminal defense of
charges likely to be filed.” In response to the motion to suppress, the State stipulated to the
suppression of the handgun but asserted that all other evidence and information obtained after 4:12
p.m. had an independent, untainted source.

        On what had been scheduled to be the first day of a two-week jury trial, the court held a day-
long suppression hearing. The State called Lead Detective Bush and five other officers as witnesses,
three of whom invoked the Fifth in response to all questions relating to the eavesdropping. Then
Taylor called three more officers, each of whom did likewise—once again preventing Taylor and
the court from learning the identity of the eavesdroppers and what exactly they overheard. Three
of the officers—Detectives Bush, Barr, and Frever—were among the five who had invoked their
Fifth Amendment rights in depositions. Three others—Detectives David Cooney, Gregory Jesse,
and Jason Costigan—had not previously testified.

        In Judge Kathleen Lang’s commendably thorough written order issued the next morning,
the trial court partially granted the motion to suppress. The court found that even though the officers’
assertion of the Fifth Amendment “added [a] layer of . . . difficulty,” the State had proved “an
independent source of information . . . in no way connected to the” eavesdropping for most (though
not all) of its planned exhibits. Some were recovered before 4:12 p.m. when the eavesdropping
began, and therefore were not challenged; and others were part of a standard homicide
investigation.

        The trial court then turned its attention to the officers’ invocation of their Fifth Amendment
privilege. Despite finding at least some of the post-eavesdropping evidence admissible, the court
ordered blanket suppression of trial testimony from any witness “who has asserted the Fifth Amend-
ment right of silence in a deposition or during testimony at the hearing on the Motion to Suppress,”
and stated that it would “stri[ke] in its entirety” the testimony of any witness who did so at trial. The
court was concerned that absent “exceptional circumstances,” the Fifth Amendment privilege
should not be invoked in the jury’s presence. It recognized that blanket suppression was “an
extraordinary remedy,” but found that it was warranted in view of “the egregious actions by the
police and the State,” and because the officers’ Fifth Amendment privilege would violate Taylor’s
Sixth Amendment right to confront and cross-examine them about what police overheard, who
overheard it, whom they told about what they heard, and what actions they took as a result.


                                                   4
       On the State’s motion, the trial court stayed the trial and certified that order for interlocutory
appeal and ordered Taylor released because the seventy-day speedy trial deadline expired that day.
On appeal, the State did not challenge the requirement that it demonstrate an independent source
for evidence and information obtained after 4:12 p.m. but argued that blanket suppression was
“extreme.” State v. Taylor, 35 N.E.3d 287, 295 (Ind. Ct. App. 2015). In a split decision, the Court
of Appeals agreed with the State, reversing the pretrial blanket suppression of all testimony from
officers who pleaded the Fifth, declining to presume prejudice from the State’s conduct. Id. at 302–
03. Judge May dissented, concluding that blanket suppression of officer testimony was warranted,
even before trial, based on the State’s failure to disprove prejudice beyond a reasonable doubt. Id.
at 305 (May, J., dissenting). We granted transfer, thereby vacating the opinion of the Court of
Appeals. Ind. Appellate Rule 58(A). Additional facts are set forth below.

                                        Standard of Review

       The State, in appealing from the partial grant of Taylor’s motion to suppress, must show
the ruling was contrary to law. State v. Washington, 898 N.E.2d 1200, 1203 (Ind. 2008). We defer
to the specific findings of fact the trial court included in its order, neither reweighing evidence nor
reassessing witness credibility. State v. Keck, 4 N.E.3d 1180, 1183 (Ind. 2014). And we will affirm
if the record discloses “substantial evidence of probative value” supporting the order. Id. (quoting
State v. Quirk, 842 N.E.2d 334, 340 (Ind. 2006)). But we review de novo the trial court’s conclusions
of law, including determinations of whether Taylor’s constitutional rights have been violated. See
Speers v. State, 999 N.E.2d 850, 852 (Ind. 2013).

                                     Discussion and Decision

       The right to counsel, enshrined in both the United States and Indiana Constitutions, is
essential to liberty. The State is never more awesomely powerful, nor is the individual more vulner-
able, than in a criminal prosecution—and likewise, the individual’s ability to consult privately with
a lawyer is never more precious. No matter how gruesome and senseless a crime, or how confident
law enforcement may be about a suspect’s guilt, investigators are never justified in eavesdropping
on a suspect’s communications with counsel. The right to counsel would be a charade unless it
guarantees privacy in those consultations, because a suspect’s candor with counsel cannot come at
the price of self-incrimination.



                                                   5
       We would have hoped that principle too obvious to mention. Yet here, Chief Deputy
Prosecutor Neary’s letter confirms that more than one law enforcement official flagrantly and
unconscionably disregarded that safeguard—eavesdropping on privileged attorney-client commu-
nications while turning a deaf ear to the Constitutions they swore to uphold. Those officers have
not only violated Taylor’s constitutional rights to counsel but have also betrayed public trust.

       Our condemnation of this shameful eavesdropping, however, must not cloud our analysis
of the legal principles at stake. Before us is a motion to suppress, not a motion for sanctions—and
what constitutes an effective remedy for Taylor is not necessarily what would constitute a
proportionate punishment for the State. Our concern is to ensure the State’s egregious misconduct
does not actually prejudice Taylor—that is, that no tainted evidence or testimony is admitted
against him. Punishing the wrongdoers is a separate matter not before us today.

       From that remedial perspective, prospectively excluding all eavesdropping officer testi-
mony goes too far. Even flagrant constitutional violations, though presumptively prejudicial, are not
necessarily so—as illustrated by the trial court’s unchallenged “independent source” findings as to
many of the State’s exhibits. But while the independent-source inquiry is relatively straightforward
for tangible evidence, testimonial taint is more subtle and insidious. Having stolen Taylor’s
strategic “playbook,” these witnesses can potentially shade their testimony to undercut his de-
fense—yet, by pleading the Fifth, they impede his ability to cross-examine for such bias. Under
these circumstances, then, we will require the State to disprove taint beyond a reasonable doubt.

       The eavesdroppers’ invocation of the Fifth Amendment will make it exceedingly difficult
for the State to carry that heavy burden. But even though we share the trial court’s desire to avoid
the privilege being invoked in the jury’s presence, this record does not yet foreclose the possibility
that these witnesses might give limited foundational testimony without significantly implicating
their credibility—or their Fifth Amendment privilege—as to those matters. If the State can carry
its burden within the strictures we announce today, Taylor’s confrontation and cross-examination
rights will not be infringed. And if it cannot, perhaps the same law-enforcement personnel whose
bold misconduct sabotaged the prosecution will likewise be bold enough to personally deliver that
news to Simone Bush’s family.




                                                  6
I. Law Enforcement Eavesdropping on Attorney-Client Communications Violates Federal
   and Indiana Constitutional Rights to Counsel.

       Before discussing how to remedy the State’s constitutional misconduct, we pause briefly
to discuss the nature of these violations.

       A criminal suspect’s right to counsel is a cornerstone of a fair trial, guaranteed by both the
Sixth Amendment to the United States Constitution and Article 1, Section 13 of the Indiana State
Constitution. These separate provisions extend similar protections—the right to counsel at any
critical stage of a criminal proceeding “where counsel’s absence may derogate from the accused’s
right to a fair trial.” Caraway v. State, 891 N.E.2d 122, 126 (Ind. Ct. App. 2008). However, the
Indiana right provides greater protection because it attaches earlier—upon arrest, rather than only
when “formal proceedings have been initiated” as with the federal right. See Taylor v. State, 689
N.E.2d 699, 703–04 (Ind. 1997) (internal quotation marks omitted). Under either Constitution,
though, the right to counsel goes hand-in-hand with attorney-client privilege, which recognizes the
necessity of a defendant conferring privately with counsel.

       Here, the law-enforcement eavesdropping unquestionably interfered with that ability to
confer privately as guaranteed by both Constitutions. The Sixth Amendment right to counsel attached
when the State charged Taylor. See U.S. v. Gouveia, 467 U.S. 180, 185 (1984) (holding federal right
to counsel attaches upon initiating “formal judicial proceedings”). And the Section 13 right to
counsel attached even earlier, when the police arrested Taylor an hour before the eavesdropping
commenced. See Taylor, 689 N.E.2d at 703–04. And there appears to be no dispute that the
eavesdropping violated those rights—indeed, the parties stipulated to suppression of the handgun
and any other evidence “derived directly from the improper eavesdropping by officials of the state
of a confidential attorney privileged conversation.” As a result, the trial court suppressed any exhibit
for which it found that the State had failed to establish an independent source. Since that aspect of
the trial court’s ruling is unchallenged, we consider only what remedy is necessary as to the
potentially tainted testimony. As set forth below, we presume that testimony to be tainted, unless the
State can disprove taint beyond a reasonable doubt by establishing an independent source for the
testimony without implicating the witnesses’ Fifth Amendment privilege.




                                                   7
II. Blanket Suppression of Testimony from State Witnesses Who Invoke the Fifth Amendment
    Is Premature.

       Taylor asserts the blanket suppression imposed below is sustainable on three grounds: the
eavesdropping itself violated his Indiana and federal constitutional rights to counsel; the officers’
pleading the Fifth about the eavesdropping violated his Sixth Amendment right to confront
witnesses; and the prosecutor’s participation in the eavesdropping constituted prosecutorial
misconduct. We address each argument in turn.

       A. The right to counsel does not support prospective, blanket suppression of potentially
          untainted testimony.

       The United States Supreme Court has rejected the view that all right-to-counsel intrusions
give rise to a per se—that is, irrebuttable—presumption of prejudice. See Weatherford v. Bursey,
429 U.S. 545, 550–51 (1977). In Weatherford, after being convicted of a crime and serving his sen-
tence, Bursey brought a Section 1983 claim against an undercover police officer, alleging the officer
violated his Sixth Amendment right to counsel by sitting in on pretrial meetings between Bursey
and his lawyer. Id. at 547–48. The Court, however, held that presuming prejudice irrebuttably
would “cut[] much too broadly,” id. at 557, as it was clear under those particular circumstances
that the undercover officer’s intrusion created no “realistic possibility” of actually prejudicing
Bursey at trial, see id. at 551–52, 558. Although the undercover officer may have heard confiden-
tial information in the attorney-client meeting, the district court expressly found that he did not
communicate that information to police or the prosecution, so that “no tainted evidence” was
admitted against Bursey at trial. Id. at 549, 558.

       Similarly, we disavowed any irrebuttable presumption of prejudice in Malinski v. State,
794 N.E.2d 1071 (Ind. 2003). There, a defendant charged with murder claimed police violated his
right to counsel when they seized “legal documents” from his jail cell. Id. at 1081 (emphasis
omitted). But the legal documents were “not used at trial for any purpose”—and so, like
Weatherford, we refused to presume prejudice where no actual prejudice existed. Id. at 1082.

       In view of Weatherford and Malinski, we reiterate that even though eavesdropping on
attorney-client communications is reprehensible, “there are rare circumstances where there is no
possibility of [actual] prejudice to the defendant.” State v. Fuentes, 318 P.3d 257, 262 (Wash. 2014).
We therefore decline to uphold the blanket suppression of officer testimony because, as discussed


                                                     8
below, we do not yet know whether such a “rare circumstance[]” might manifest in this case. Just as
an irrebuttable presumption “cut[] much too broadly” in Weatherford because no tainted evidence
was admitted at trial, it would cut much too broadly here—because the officers might give certain
limited, untainted testimony, such as laying foundation for the unsuppressed evidence. As the trial
court found, the untainted evidence includes, but is not limited to, fingerprints lifted from the crime
scene, Tr. 98; bullet fragments collected at the scene, Tr. 187; blood stain swabs, Tr. 98–100; spent
shell casings, Tr. 99; hair fibers, Tr. 196; and publicly viewable content from Taylor’s Facebook
page, Tr. 159–60. Indeed, some officers testified that the decision to collect certain items of evidence
was “standard procedure” in any criminal investigation. See, e.g., Tr. 187–88 (regarding decision to
send shell casings to a firearms examiner for analysis); Tr. 190 (regarding decision to photograph
victim’s body at scene); Tr. 202 (regarding decision to send to crime lab a red stain collected at
scene); Tr. 243–44 (regarding decision to photograph blood stains at scene). Barring the State from
presenting even such limited testimony as evidentiary foundation, if it is truly untainted, would
overcompensate—going beyond eliminating actual prejudice to Taylor.

        Thus, this record does not yet support blanket suppression of officer testimony on the basis
of Taylor’s right to counsel. We now consider whether blanket suppression is sustainable on a
different ground—Taylor’s Sixth Amendment confrontation right.

        B. The confrontation right does not support prospective blanket suppression of the
           officers’ testimony, as the scope of their direct testimony at trial is not yet known.

        Taylor does not dispute that the officers are entitled to invoke the Fifth Amendment. He
asserts, rather, that their invoking the Fifth about the eavesdropping violates his Sixth Amendment
right to cross-examine them, and that this violation warrants completely barring them from testifying
at trial, before their trial testimony is known.

        The Sixth Amendment Confrontation Clause establishes that “[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. CONST.
amend. VI. The “main and essential purpose” of this Clause is to guarantee criminal defendants the
opportunity to conduct effective cross-examination at trial, testing the truthfulness of a witness’s
direct examination testimony. Delaware v. Fensterer, 474 U.S. 15, 19 (1985) (quoting Davis v.
Alaska, 415 U.S. 308, 315 (1974)).



                                                   9
       The Sixth Amendment confrontation right, however, occasionally comes into conflict with
the Fifth Amendment right against self-incrimination. This occurs where, as here, a State witness
invokes the Fifth in order to refuse to answer a question on cross-examination. Recognizing this
tension, “courts must watch vigilantly to ensure that the invocation [does] not ‘effectively . . .
emasculate the right of cross-examination itself.’” U.S. v. Zapata, 871 F.2d 616, 623 (7th Cir. 1989)
(omission in original) (quoting Fensterer, 474 U.S. at 19). Accordingly, it may become “‘necessary
to strike the direct testimony’ of a nonresponding witness,” id. at 623 (quoting Dunbar v. Harris,
612 F.2d 690, 692 (2d Cir. 1979))—or the witness’s entire testimony in “extreme” cases—to
ensure that a witness’s Fifth Amendment right does not eviscerate a party’s right to cross-examine,
id. at 624 (quoting United States v. Lord, 711 F.2d 887, 892 (9th Cir. 1983)).

       The test for determining whether to strike direct testimony of a nonresponding witness distills
into two simple principles. If the witness’s refusal to answer prevents the defendant from “directly
assailing the truth of the witness’ testimony,” then the court should strike the relevant portion of the
testimony. Id. at 623 (emphasis added) (quoting United States v. Humphrey, 696 F.2d 72, 75 (8th Cir.
1982)). But if the refusal to answer “relates only to collateral matters, such as credibility,” then the
danger to defendant is considerably less, and no testimony need be stricken. Id. at 624 (emphasis
added) (quoting Humphrey, 696 F.2d at 75). This test, therefore, depends on the exact scope of direct
examination testimony.

       Here, though, the testimony at the suppression hearing focused on establishing an
independent source for the various exhibits, shedding little light on what the scope of the officers’
testimony about those exhibits might be. But the extent to which they were able to establish an
independent source for those exhibits without implicating their Fifth Amendment privilege lends
credence to the State’s argument that those witnesses are potentially untainted as to limited matters
such as establishing foundation for the unsuppressed exhibits. If the State can make that showing as
discussed below, the eavesdropping, and its implications for the witnesses’ credibility, may constitute
a “collateral” matter that does not eviscerate Taylor’s cross-examination right. Blanket suppression
was therefore premature.

III. The State As the Wrongdoer Must Disprove Taint Beyond a Reasonable Doubt for All
     Presumptively Tainted Testimony.

       Even though, again, we find the State’s abhorrent misconduct inimical to a free society, that
outrage cannot cloud our legal analysis. In Lafler v. Cooper, the United States Supreme Court


                                                  10
directed that a Sixth Amendment remedy “must ‘neutralize the taint’ of a constitutional violation,
while at the same time not grant a windfall to the defendant or needlessly squander the considerable
resources the State properly invested in the criminal prosecution.” 566 U.S. ___, ___, 132 S. Ct.
1376, 1388–89 (2012) (citation omitted). On this not-fully-developed record, the trial court’s pretrial
blanket suppression of officer testimony “overcorrects.” It amounts to finding an irrebuttable pre-
sumption of prejudice—which crosses the line from rightly shielding Taylor from actual prejudice
to granting him a windfall against a potentially still-viable murder prosecution. We conclude that a
presumption of taint, rebuttable only beyond a reasonable doubt, strikes a better balance.

       The eavesdropping here gives the State two unfair advantages. One is learning the where-
abouts of evidence it would not otherwise discover, like the handgun. The trial court here addressed
that prejudice by applying the exclusionary rule, under which unconstitutionally seized evidence
“is generally not admissible in a prosecution . . . absent evidence of a recognized exception” to the
rule. Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013). One such exception is the “ultimate discovery
exception,” which applies when the State can show “by a preponderance of the evidence” that it
had an independent source for discovering the evidence. Nix v. Williams, 467 U.S. 431, 444 (1984).
Here the court applied that exception to the other various exhibits and neither party challenges the
court’s “independent source” findings.

       The State’s second unfair advantage, however—learning defense strategy—is more insidi-
ous and therefore warrants a unique and more stringent remedy. Having stolen Taylor’s strategic
“playbook,” tainted witnesses can preemptively shade their testimony to undermine that strategy.
Shading testimony based on ill-gotten strategic insight is more difficult to detect, but just as
damaging to the fairness of an adversarial proceeding. Unfortunately, the extent to which the State
actually prejudiced Taylor by capitalizing on both these advantages is, in the State’s words,
“shrouded in a fog of uncertainty,” especially considering the officers’ refusal to reveal what was
overheard and by whom.

       But because the State placed Taylor in that “fog,” the State should likewise bear the burden
of disproving prejudice. Unlike the exclusionary rule for tangible evidence, though, we believe the
State must disprove this more-insidious testimonial taint beyond a reasonable doubt. See Harden
v. State, 576 N.E.2d 590, 593 (Ind. 1991) (“Before a constitutional error can be held harmless, the
Court must be sufficiently confident to declare the error harmless beyond a reasonable doubt.”);


                                                  11
see also Fuentes, 318 P.3d at 262 (holding in virtually identical circumstances that “[t]he proper
standard the trial court must apply is proof beyond a reasonable doubt with the burden on the
State”). We are well aware that the officers’ invocation of the Fifth Amendment will make
disproving taint difficult. And if that means a loss for the prosecution, so be it. The State cannot be
permitted to put Taylor in this “trick bag,” and then demand that he bear the burden of getting out
of it. Nor may the State demand that he tolerate lingering doubts about the extent to which he has
been prejudiced by its own misdeeds.

        And given that this stringent rebuttable presumption requires the State not just to prove a
negative, but to do so beyond a reasonable doubt, the State must be given a full opportunity to meet
that burden—an opportunity it has not yet had, since the suppression hearing focused on disproving
taint only as to the State’s exhibits, not the officers’ testimony. Because Weatherford suggests that a
“realistic possibility” of prejudice is all it takes, 429 U.S. at 558—a fairly low threshold—these
witnesses are probably tainted for nearly any aspect of their testimony.

        But “nearly” is not “all.” For example, again, the State suggests that the tainted officers
could still testify to lay foundation for the extensive evidence the trial court did not suppress.1 As
the State points out, such testimony might be sufficiently routine that there would be no “realistic
possibility” of the officers’ misconduct contaminating that portion of their testimony. Barring the
State from presenting even that much before determining whether it can disprove taint would be a
windfall to Taylor, disproportionate to the prejudice he has actually suffered from the intrusion
into the attorney-client communications.

        In other circumstances, it is quite possible that the taint of a “stolen playbook” would be
so pervasive and insidious that no remedy short of barring the tainted witnesses entirely would be
adequate. But we need not decide that larger question today—and we hope no future case of this

1
  As previously discussed, the list of evidence allegedly obtained before 4:12 p.m. or otherwise untainted
is extensive. According to the detectives’ testimony at the suppression hearing, such evidence includes, but
is not limited to, the following: photographs of the victim taken at the scene, Tr. 190; fingerprints lifted
from a blood stain, Tr. 98; a copper piece of metal from the couch at the crime scene, Tr. 98; a red stain
swab from the heater vent, Tr. 98; a red stain swab from a window curtain, Tr. 98; a red stain swab from
window glass and frame, Tr. 99; a red stain swab from the floor, Tr. 99; a red stain swab from the wall, Tr.
100; a red stain swab from the steering wheel of a gray Buick, Tr. 100; fingerprint swabs from Taylor, Tr.
101–02; buccal swabs from Taylor, Tr. 102; a backpack full of .40 caliber bullets, Tr. 100; eleven spent .40
caliber shell casings, Tr. 99; three spent .380 caliber shell casings, Tr. 99; a bullet fragment, Tr. 187; and
hair fibers from the wall, Tr. 196.


                                                     12
type forces us to do so. Under these facts, the extent to which the officers were able to testify before
invoking the Fifth persuades us that at least part of their testimony might be untainted. We leave it
to the trial court on remand to weigh the evidence and assess witness credibility on that point.

IV. Taylor’s Prosecutorial Misconduct Claim Need Not Yet Be Addressed.

        We review a prosecutorial misconduct claim using a two-step analysis. First, there must be
misconduct; and second, the misconduct must have placed the defendant in a position of grave peril.
Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014). “The gravity of the peril is measured by the probable
persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of
the conduct.” Id.

        But here, in light of the State’s heavy burden at trial to disprove prejudice beyond a reason-
able doubt, it is far from inevitable that the fruits of the prosecutor’s misconduct (ill-gotten evidence
and defense strategy) will even reach the jury. Therefore, although we find the prosecutor’s malfeas-
ance reprehensible, Taylor’s prosecutorial misconduct claim cannot carry the day—not yet, at least.

                                              Conclusion

        We conclude that a presumption of prejudice, rebuttable only by proof beyond a reasonable
doubt, adequately protects Taylor from prejudice caused by the officers’ eavesdropping and their
assertion of the Fifth Amendment privilege about their actions. Thus, prospectively imposing blanket
suppression of all testimony from witnesses pleading the Fifth Amendment is inappropriate.

        We reverse the blanket suppression of testimony from witnesses who invoke the Fifth
Amendment and remand with instructions to determine as to each presumptively tainted witness
whether the State has proven beyond a reasonable doubt an independent source for that witness’s
testimony without implicating the witness’s Fifth Amendment privilege—and therefore without
derogating Taylor’s right of confrontation. The trial court may, in its discretion, either hold a new
suppression hearing or proceed directly to a new trial at which the State may attempt to meet its
burden through offers to prove outside the presence of the jury. In all other respects, we affirm the
trial court.

Dickson, Rucker, David, and Massa, JJ., concur.




                                                   13
