Rush, C.J.
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 [murder] 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 suppression 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. * * * We therefore reverse and remand the prospective blanket suppression of those witnesses’ testimony.
….
[Defense counsel]’s conversation with Taylor [at the police station] 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 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. …
On March 16, 2014, the State charged Taylor with murder. A few days later, [the chief deputy prosecutor] disclosed the eavesdropping. …
Taylor promptly deposed [five] detectives involved in the investigation…. 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. * * * The [trial] 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. …
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 Amendment 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 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). * * * Similarly, we disavowed any irrebuttable presumption of prejudice in Malinski v. State, 794 N.E.2d 1071 (Ind. 2003). * * * 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.” [Citation omitted.] We therefore decline to uphold the blanket suppression of officer testimony because … [b]arring 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.
….
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.
….
Here, … 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.
….
The eavesdropping here gives the State two unfair advantages. One is learning the whereabouts of evidence it would not otherwise discover, like the handgun. The trial court here addressed that prejudice by applying the exclusionary rule … [and] 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. [Citation omitted.] …
The State’s second unfair advantage, however—learning defense strategy—is more insidious 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. * * * [W]e believe the State must disprove this more-insidious testimonial taint beyond a reasonable doubt. [Citations omitted.] …
….
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 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.
….
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 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.
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 [murder] 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 suppression 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. * * * We therefore reverse and remand the prospective blanket suppression of those witnesses’ testimony.
….
[Defense counsel]’s conversation with Taylor [at the police station] 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 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. …
On March 16, 2014, the State charged Taylor with murder. A few days later, [the chief deputy prosecutor] disclosed the eavesdropping. …
Taylor promptly deposed [five] detectives involved in the investigation…. 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. * * * The [trial] 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. …
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 Amendment 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 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). * * * Similarly, we disavowed any irrebuttable presumption of prejudice in Malinski v. State, 794 N.E.2d 1071 (Ind. 2003). * * * 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.” [Citation omitted.] We therefore decline to uphold the blanket suppression of officer testimony because … [b]arring 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.
….
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.
….
Here, … 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.
….
The eavesdropping here gives the State two unfair advantages. One is learning the whereabouts of evidence it would not otherwise discover, like the handgun. The trial court here addressed that prejudice by applying the exclusionary rule … [and] 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. [Citation omitted.] …
The State’s second unfair advantage, however—learning defense strategy—is more insidious 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. * * * [W]e believe the State must disprove this more-insidious testimonial taint beyond a reasonable doubt. [Citations omitted.] …
….
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 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.
….
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 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.