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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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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