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COA: Prosecutor had ability to provide use immunity

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The Indiana Court of Appeals relied on state Supreme Court precedent to find a Shelby County prosecutor could compel parents to testify by providing use immunity. The parents argued the prosecutor couldn’t grant use immunity because there were no grand jury proceedings and they hadn’t been charged with a crime.

In In Re: Prosecutor's Subpoena Regarding S.H. and S.C.; S.H. v. State of Indiana, 73A01-1109-CR-468, the prosecutor petitioned for subpoenas to compel parents S.H. and S.C. to testify about the circumstances surrounding the birth of their child in 2010. S.C. gave birth at home and when she and the baby went to the hospital, the baby showed signs of injury in the form of multiple puncture wounds.

The trial court quashed the subpoenas on the grounds that they violated the parents’ right against self-incrimination, so the prosecutor asked for use immunity to make the parents speak about the birth and injuries. The trial court granted the motion and ordered the parents to testify even though they hadn’t been formally charged with a crime. The trial court also denied the parents’ motion to correct error.

The Court of Appeals found that a prosecutor investigating a crime before charging someone and without a grand jury does have the same authority to grant use immunity as a prosecutor using a grand jury. The trial court cited In Re Order for Ind. Bell Te. To Disclose Records, 274 Ind. 131, 134-35, 409 N.E.2d 1089, 1091 (1980), in support, and determined that such authority is implicit in the office of the prosecutor itself.

The appellate judges disagreed with the judge on that point, finding that a prosecuting attorney only has powers that are prescribed by statute. But, they pointed out that Indiana Bell decided that the investigatory powers of a prosecutor parallel those of the grand jury, and that the prosecutor has the same ability to accumulate evidence as the grand jury. It doesn’t matter that the issue in Indiana Bell did not involve self-incrimination, the judges held.

“While Parents’ argument is persuasive, we cannot reconcile the result they advocate with our Indiana Supreme Court’s statement that a prosecutor has the same ability to accumulate evidence as does a grand jury. We must agree with the State that the legislature’s explicit reference to grand jury proceedings in Ind. Code § 35-34-2-8 cannot be read to restrict the right of a prosecutor to seek use immunity when prosecution is initiated by means of an information rather than an indictment,” Judge Melissa May wrote. “Nor could the legislature have intended that prosecutors have fewer investigative tools before deciding to bring charges than they do after charges are brought.”

 

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  1. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  2. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  3. Indiana up holds this behavior. the state police know they got it made.

  4. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

  5. Agreed on 4th Amendment call - that was just bad policing that resulted in dismissal for repeat offender. What kind of parent names their boy "Kriston"?

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