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Chardon Shooting Suspect's Attorneys Say Police Recorded Family Without Consent

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As the funerals of victims of the mass shooting in Newtown Connecticut continue this week, the suspect in another shooting here in Ohio is preparing an insanity defense for his trial that starts in less than a month. Eighteen year old TJ lane is charged with killing three people and wounding three others after opening fire in the Chardon High School cafeteria.

Yesterday Lane was in court with his attorney and several family members to make the case that recordings OF those family members talking amongst themselves at the Chardon police station be excluded as evidence. They claim they didn't know they were being recorded and had an expectation of privacy.

ideastream's Nick Castele was in the courtroom watching the proceedings. He talked yesterday with All Things Considered host Bill Rice.

Wednesday, December 19, 2012 at 6:27 pm

Nick, the prosecution says there is no expectation of privacy in a police station, but there is a compelling legal question here. Tell us – from what you’re able to discern from the testimony you heard today – about these recordings and how they were made.

I heard Lane’s mother, father and grandfather testify that, on the day of the shooting, they went to the police station to find Lane’s sister. There they said they encountered people who may have been related to victims of the shooting, and there was a commotion, people were yelling. And the police moved the family into a room with a one-way mirror marked as an interview room.

And this is where they were recorded, and that was explained today by Chardon Police Lt. Troy Duncan, who was in charge of the investigation. As he described it on the stand, a camera and microphone in the room automatically begin recording once a sensor detects motion. So as family members entered the room, they were caught on camera, and their conversation was caught on tape.

Do we know at all what was on those tapes?

Not too much, really. The family says they talked about their shock and their sadness, and they wondered where T.J. was. But in the courtroom they said it was hard to recall specifics.

So what exactly was the defense arguing?

The defense says that the family didn’t realize they were being recorded, that they didn’t give their permission, and that the police didn’t ask for it. And therefore, the defense says, the recording was made illegally and should be excluded from the evidence.

Now the prosecution says that the family was in a police station, one that was full of law enforcement. And therefore a reasonable person in a police interview room with a one-way mirror would expect that they might be recorded by police.

But since they have been recorded by police, what would prosecutors want to do with that tape?

Well, Nick Burling, the assistant prosecutor in Geauga, told me outside the courtroom that the recording might help the prosecution question the credibility of witnesses in future hearings. If a family member says something from the stand that conflicts with what they said in the recording, prosecutors could point out that discrepancy.

What about precedent? Is there any precedent in any prior case to this question of are these people who were recorded by police who are not suspects, do they have any expectation of privacy?

Right, the defense and prosecution referred to several cases in which suspects and people talking with suspects were recorded without their permission. But what makes this case different is that the suspect, T.J. Lane, wasn’t even there. It was just recordings of his family we’re talking about.

When will the judge rule?

Judge David Fuhry says soon, maybe within a week.

And the full trial for T.J. Lane begins on Jan. 14 Nick Castele, thanks a lot.

Thanks for having me.

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