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. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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