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3-step test needed to balance rights

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Indiana’s victim-advocate privilege is limited by a criminal defendant’s constitutional rights, the Indiana Court of Appeals concluded today on the matter of first impression.

Crisis Connection Inc., a nonprofit that works with domestic violence and sexual assault victims, doesn’t believe it should have to turn over records to the court for an in camera review in Ronald Keith Fromme’s criminal case. Fromme was charged with two counts of Class A felony child molesting and he sought all records from the nonprofit relating to his two alleged victims and their mother.

The trial court found the records sought by Fromme were sufficiently identified, may be essential in determining the credibility of the witnesses, and may be material to his defense. The Court of Appeals took up the issue on interlocutory appeal and affirmed the order.

In In Re Subpoena to Crisis Connection Inc., State of Indiana v. Ronald Keith Fromme, No. 19A05-0910-CR-602, the Court of Appeals explored the scope of Indiana’s victim-advocate privilege and declined to hold the privilege is absolute. The privilege is conferred on communications made to counselors and any employee or volunteer, as well as participants in support groups. The statute does exclude information regarding alleged child abuse or neglect that must be reported by law from the definition of “confidential information,” but that doesn’t apply in the instant case. The information Fromme seeks is privileged.

They then turned to rulings from other jurisdictions on whether an absolute privilege must yield to Sixth Amendment rights to decide whether the records could be produced in camera, an issue left undecided in Pennsylvania v. Ritchie, 480 U.S. 39 (1987).

The judges found People v. Stanaway, 521 N.W.2d 557 (Mich. 1994) and other cases allowing for in camera review upon sufficient showing of need to be better reasoned than other cases that upheld the statutory privilege against a Sixth Amendment challenge. Stanaway and similar cases more closely resemble the approach Indiana has applied to other privileges, noted Judge Crone.

As is the case with precedent addressing other privileges in Indiana, a three-step test should be done to determine whether information is discoverable in a criminal case: there must be a sufficient designation of the items sought to be discovered; the items requested must be material to the defense; and if those requirements are met, the trial court must grant the request unless there is a showing of “paramount interest” in non-disclosure.

This test has been applied in several cases where the discovery sought was privileged or confidential, and it provides a useful framework for balancing the victim’s interest in privacy with a defendant’s constitutional rights, even before obtaining an in camera review, wrote the judge.

“While the State undoubtedly has an important interest in protecting the victim-advocate relationship, a defendant‘s rights guaranteed by the Sixth Amendment are also of great importance,” wrote Judge Crone. “The need to discover exculpatory evidence and effectively cross-examine witnesses is especially apparent in sex offense cases, which often hinge on witness credibility and which carry heavy potential penalties.”
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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