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High court addresses Protected Person Statute

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Addressing for the first time under the current Rules of Evidence a case regarding a protected person testifying at trial as well as by videotape or other statement, the Indiana Supreme Court held that if the statements are consistent and both are otherwise admissible, testimony of a protected person can't be presented both in open court and in a pre-recorded statement through the Protected Person Statute.

In Brian Tyler v. State of Indiana, No. 69S04-0801-CR-3, the Supreme Court exercised its supervisory power to hold that a party can't introduce testimony via the Protected Person Statute if the same person testifies in open court as to the same matters.

Brian Tyler was convicted of two counts of Class A felony child molesting, two counts of Class C felony child molesting, and one count of Class D felony vicarious sexual gratification. All five child victims testified at trial and videotaped interviews of three of the children were admitted into evidence. Tyler appealed, arguing error under Indiana Rule of Evidence 403 or fundamental error in the admission of the children's taped interviews.

The majority believed admitting consistent statements through both pre-recorded media and by live testimony presents two problems aside from confrontation clause or hearsay issues. Admitting the live testimony and consistent videotape statements is cumulative evidence and can be unfairly prejudicial, wrote Justice Theodore Boehm, and if a child or protected person is mature and reliable enough to testify in live court, then using the Protected Person Statute is unnecessary.

Justice Boehm wrote the rules implemented by use of supervisory powers aren't applicable to proceedings conducted prior to publication. The majority agreed that the court didn't commit reversible error by admitting the videotaped statements. Justice Sullivan concurred in result with this holding in a separate opinion and respectfully suggested the status quo is superior to what was adopted by the Supreme Court today.

Under Indiana Appellate Rule 7(B), the majority revised Tyler's sentence, finding his 110-year prison sentence to be inappropriate. Instead of attaching the habitual offender enhancement to Tyler's Class A felony child molesting convictions, the majority attached it to his Class D felony vicarious sexual gratification conviction, resulting in a maximum enhancement of 4 ½ years instead of 30 years. The majority also concluded the enhancement of the consecutive sentences imposed for the Class A child molesting convictions above the advisory level wasn't warranted and remanded for the trial court to issue an amended sentencing order in accordance with the opinion without a hearing, leaving Tyler with a 67 ½ year sentence.

Justice Dickson dissented as to revising Tyler's sentence, writing the trial judge's evaluation and determination of the appropriate sentence doesn't warrant appellate intrusion.

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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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