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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.