ILNews

Indiana Supreme Court to hear arguments on victim-advocate privilege

Back to TopCommentsE-mailPrintBookmark and Share

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.•
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

ADVERTISEMENT