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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. why is the State trying to play GOD? Automatic sealing of a record is immoral. People should have the right to decide how to handle a record. the state is playing GOD. I have searched for decades, then you want me to pay someone a huge price to contact my son. THIS is extortion and gestapo control. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW. OPEN THE RECORDS NOW.

  2. I haven't made some of the best choices in the last two years I have been to marion county jail 1 and two on three different occasions each time of release dates I've spent 48 to 72 hours after date of release losing a job being denied my freedom after ordered please help

  3. Out here in Kansas, where I now work as a government attorney, we are nearing the end of a process that could have relevance in this matter: "Senate Bill 45 would allow any adult otherwise able to possess a handgun under state and federal laws to carry that gun concealed as a matter of course without a permit. This move, commonly called constitutional carry, would elevate the state to the same club that Vermont, Arizona, Alaska and Wyoming have joined in the past generation." More reading here: http://www.guns.com/2015/03/18/kansas-house-panel-goes-all-in-on-constitutional-carry-measure/ Time to man up, Hoosiers. (And I do not mean that in a sexist way.)

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  5. I am terrified to see Fracking going on not only in Indiana but in Knox county. Water is the most important resource we have any where. It will be the new gold, and we can't live without it and we can live without gold. How ignorant are people?

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