ILNews

Juvenile entitled to separate hearing

Jennifer Nelson
January 1, 2007
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The Indiana Court of Appeals reversed a juvenile court judgment after ruling the court improperly incorporated the record of a child hearsay hearing into the fact-finding hearing.

In L.H. v. State of Indiana, No. 49A04-0701-JV-45, L.H. appealed his conviction in juvenile court of child molesting, a Class C felony if committed by an adult, and battery, a Class B misdemeanor if committed by an adult. In 2006, the then 12-year-old was accused of inappropriately touching his 8-year-old cousin, A.H., over the course of four years. A.H. was taken to the Child Advocacy Center where a videotaped interview about these allegations took place.

A fact-finding hearing on the child molesting and battery charges was scheduled for November 2006. Prior to that hearing, the state filed a Child Hearsay Notice to notify L.H. it planned to introduce out-of-court statements by A.H., including the videotaped interview, and requested a hearing for determining the admissibility of this evidence pursuant to Indiana Code 35-37-4-6.

At the November hearing, the state introduced evidence, including the videotaped interview. Both the state and L.H. referred to the hearing at several points as the child hearsay hearing. The state moved for the admissibility of the hearsay statements presented during the hearing and to incorporate all the testimony and evidence entered. L.H. objected and the court granted the state's motions. It then invited arguments for the fact-finding portion of the hearing and made true findings on the child molesting and battery allegations.

L.H. appealed the juvenile court finding, contending the requirements of the child hearsay statute were not met and that incorporation denied him a fair trial.

The appellate court found there was no agreement between the two parties to incorporate, and L.H. objected several times to the incorporation. L.H. was entitled to have a fact-finding hearing at which procedural safeguards and evidentiary rules are observed, wrote Judge Margret Robb, and incorporating the testimony from a preliminary hearing on an evidentiary matter denied L.H. the hearing to which he is entitled. The majority of judges reversed the juvenile court's true findings and remanded for a fact-finding hearing.

Judge James Kirsch dissented, ruling L.H. failed to show he was prejudiced from the court incorporation of evidence from the child hearsay hearing into the fact-finding hearing. Judge Kirsch wrote he didn't see any procedural safeguards or evidentiary rules that weren't followed, and L.H. didn't bring any up in his brief. He wrote he would affirm the trial court in all respects.
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  1. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  2. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

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