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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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