ILNews

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. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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