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Indiana Supreme Court to hear arguments on victim-advocate privilege

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Domestic violence victims’ advocates and criminal law attorneys are waiting on the Indiana Supreme Court’s decision in a case involving a criminal defendant’s subpoena for records from a victim’s advocacy organization in southwest Indiana.

The case, Crisis Connection, Inc. v. Ronald K. Fromme, No. 19S05-1012-CR-678 was granted transfer in mid-December and oral arguments will take place Feb. 17.

In Crisis Connection, Ronald Fromme sought records from the organization to be made available to the trial court for an in camera review. He had been charged with two counts of Class A felony child molesting, and he sought the records relating to the alleged victims and their mother.

Claiming the organization’s records were protected by the victim-advocate privilege, Crisis Connection moved to quash the subpoena on Feb. 28, 2008.
 

subpoena Kerry Hyatt Blomquist, legal director for the Indiana Coalition Against Domestic Violence, above, said subpoenas for organizations to produce victims’ files “have been piling up.” The Supreme Court will hear arguments Feb. 17 regarding the issue. (IL Photo/ Perry Reichanadter)

After filing a motion to compel in August 2008, and a renewed motion to compel in December 2008, hearings took place and on May 27, 2009, the trial court granted Fromme’s motions in part:

“1. Defendant’s above motions shall be granted as to information requested regarding any reports made to Crisis Connection by or on behalf of [redacted], subject to the restrictions below, and shall be denied as to Defendant’s request regarding similar information regarding [redacted].

“2. The response of Crisis Connection shall be delivered to the Court, and the Court shall review said records to determine the relevance of any such records. The Court will then inform the parties of its decision.

“3. In finding as above, the Court has determined that the items being sought are sufficiently identified, may be essential for the Defendant in determining the credibility of the complaining witnesses, and may be material to the Defendant’s defense,” according to the July 15, 2010, Court of Appeals opinion that referred to the May 2009 decision.

Crisis Connection then filed a motion to reconsider on June 9, 2009, which was denied on Oct. 5, 2009. The trial court denied the motion, and on Nov. 18, 2009, the Court of Appeals accepted jurisdiction.

A footnote in the Court of Appeals July 2010 decision stated that “Crisis Connection does not confirm or deny that it provided services to M.Y., D.Y., or their mother; however, for sake of appeal, Crisis Connection operates under the assumption that it possesses records responsive to the court’s order.”

In its opinion on this issue of first impression, the Court of Appeals discussed what other jurisdictions have done in similar cases and ultimately found in favor of Fromme, concluding that an in camera review was a fair way to address the situation.

“The interest in privacy asserted by Crisis Connection, while important, is not strong enough to bar an in camera review of its records. Requiring defendants to meet the three-step test before obtaining an in camera review creates the proper balance between a criminal defendant’s constitutional rights and an alleged victim’s need for privacy. This approach is consistent with our decisions addressing other privileges and with the better-reasoned opinions of other jurisdictions. Therefore, we affirm the trial court’s order,” wrote Judge Terry A. Crone.

The three-step test was outlined in Williams v. State, 819 N.E.2d 381 (Ind. Ct. App. 2004), where Williams was charged with rape of K.W.M. and sought her prescription records, which are confidential.

The three-step test comprises particularity and relevance, and if those two requirements are met, “the trial court must grant the request unless there is a showing of paramount interest in non-disclosure.”

Following the July decision, Crisis Connection, which has been represented pro bono by Jon Laramore, Matthew T. Albaugh, and Trina K. Taylor of Baker & Daniels, petitioned to transfer the case to the Supreme Court in October. The case was transferred Dec. 17.

In Crisis Connection’s petition to transfer, the attorneys write, “The Court of Appeals’ opinions, including its rehearing decision, initiate an ‘open season’ on victim-advocate records. It establishes no threshold test or requirement of any preliminary showing before a trial court may order in camera disclosure. Crisis Connection has been informed by its trade association, the Indiana Coalition Against Domestic Violence, that many victim service providers already have heard from defense lawyers that they will be subject to subpoenas or other compulsory process for victims’ records in criminal cases if the Court of Appeals’ opinion stands. Fromme is fishing, which is what any reasonable defendant would do at this stage of his case.”

In her amici brief on behalf of the Indiana Coalition Against Domestic Violence, the Indiana Coalition Against Sexual Assault, and the Battered Women’s Justice Project, Kerry Hyatt Blomquist, legal director for the ICADV, expressed concern as to what the decision could mean for other victims’ advocates.

“Amici agree with Crisis Connection that victim advocate records are privileged communication under Indiana Code Section 35-37-6-9 and that judicially created exceptions to this privilege endanger victims seeking advocacy and create both a chilling effect on potential reporters of abuse and an immediate systemic challenge to victim service providers who do not have the legal infrastructure to respond to broad ‘fishing expedition’ discovery requests,” Blomquist wrote.

She continued that even if these files are reviewed by a judge in camera, “the potential disclosure contemplated by the Court of Appeals’ decision could re-victimize those persons already in crisis by mandating they choose between advocacy services and confidentiality.”

This could be particularly discouraging to victims in smaller communities where there’s a greater likelihood that the judge or others who could potentially access information from domestic violence agencies would somehow know the victim, Blomquist said.

She added that when a victim seeks to leave a violent situation, he or she is in a vulnerable position and at great risk for a lethal situation to occur between the victim and abuser.

She also said that just because someone seeks help from a shelter or other organization that helps victims, it does not automatically make that person a victim who can therefore have immunity from the law. There is a screening process, she said, and if a victim admits they committed a crime, such as child abuse, the advocate already has a responsibility to report that to the proper authorities.

Blomquist also said that it’s likely that if a defendant is seeking evidence, there are other ways of getting that evidence without seeking records from victims’ advocates.

In response to Crisis Connection’s petition to transfer, Fromme’s attorney, S. Anthony Long of Long & Mathies Law Firm in Boonville, wrote that “Crisis Connections’ argument that the opinion of the Court of Appeals declares ‘open season’ on victim-advocate records is simply wrong. As the Court of Appeals stated, the three-step test in Williams should be applied. This test is not simply a formality, but requires: 1) a sufficient designation of the items sought to be discovered; 2) that the items requested must be material to the defense; and 3) if the particularity and materiality requirements are met, the trial court must grant the request unless there is a showing of ‘paramount interest’ in non-disclosure.”

He also disagrees with the argument that the defendant is “fishing” for information.

“Based on the trial court’s decision to conduct an in camera review, neither the defendant nor his counsel will be permitted to ‘fish’ through the records,” Long wrote. “The review will be undertaken by the trial court, and it is ludicrous to believe that the trial court has any interest in the contents of the records other than relevance to the defendant’s request for discovery.”

In the meantime, Blomquist said more subpoenas similar to Fromme’s have been filed against other organizations that help victims of domestic violence and sexual abuse.

She said she was uncertain if it was common practice or not for defendants to subpoena victims’ advocates prior to this case, but that victims’ advocates are now in a holding pattern until the Supreme Court issues its decision following the oral arguments that will take place Feb. 17.•
 

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  1. All the lawyers involved in this don't add up to a hill of beans; mostly yes-men punching their tickets for future advancement. REMF types. Window dressing. Who in this mess was a real hero? the whistleblower that let the public know about the torture, whom the US sent to Jail. John Kyriakou. http://www.nytimes.com/2013/01/26/us/ex-officer-for-cia-is-sentenced-in-leak-case.html?_r=0 Now, considering that Torture is Illegal, considering that during Vietnam a soldier was court-martialed and imprisoned for waterboarding, why has the whistleblower gone to jail but none of the torturers have been held to account? It's amazing that Uncle Sam's sunk lower than Vietnam. But that's where we're at. An even more unjust and pointless war conducted in an even more bogus manner. this from npr: "On Jan. 21, 1968, The Washington Post ran a front-page photo of a U.S. soldier supervising the waterboarding of a captured North Vietnamese soldier. The caption said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk." The picture led to an Army investigation and, two months later, the court martial of the soldier." Today, the US itself has become lawless.

  2. "Brain Damage" alright.... The lunatic is on the grass/ The lunatic is on the grass/ Remembering games and daisy chains and laughs/ Got to keep the loonies on the path.... The lunatic is in the hall/ The lunatics are in my hall/ The paper holds their folded faces to the floor/ And every day the paper boy brings more/ And if the dam breaks open many years too soon/ And if there is no room upon the hill/ And if your head explodes with dark forbodings too/ I'll see you on the dark side of the moon!!!

  3. It is amazing how selectively courts can read cases and how two very similar factpatterns can result in quite different renderings. I cited this very same argument in Brown v. Bowman, lost. I guess it is panel, panel, panel when one is on appeal. Sad thing is, I had Sykes. Same argument, she went the opposite. Her Rooker-Feldman jurisprudence is now decidedly unintelligible.

  4. November, 2014, I was charged with OWI/Endangering a person. I was not given a Breathalyzer test and the arresting officer did not believe that alcohol was in any way involved. I was self-overmedicated with prescription medications. I was taken to local hospital for blood draw to be sent to State Tox Lab. My attorney gave me a cookie-cutter plea which amounts to an ALCOHOL-related charge. Totally unacceptable!! HOW can I get my TOX report from the state lab???

  5. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

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