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COA: Court erred in admitting probable cause affidavit

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A trial court should not have admitted a probable cause affidavit that contained multiple layers of hearsay at a probation revocation hearing, the Indiana Court of Appeals concluded Wednesday.

David Robinson appealed the revocation of his probation. He was on probation for a battery conviction when he was arrested and charged following a domestic dispute with his girlfriend. The girlfriend told her story to Lawrence Police officer Brian Sharp, who then relayed it to Lawrence Police detective Thomas Zentz, who wrote up the probable cause affidavit.

The state filed notices of probation violations, one of which included the incident between Robinson and his girlfriend. At a bifurcated probation revocation hearing, the trial court allowed the probable cause affidavit by Zentz to be admitted over Robinson’s objections. Zentz, Sharp and Robinson’s girlfriend were never called to testify. The trial court found Robinson violated his probation because of the arrest, as well as not complying with counseling and drug testing requirements.

The appellate judges agreed with Robinson that the trial court abused its discretion in admitting the probable cause affidavit because it contained multiple layers of hearsay and was unreliable evidence. Even though the appeal is moot as Robinson has since served his home detention for the violation, the COA took the appeal because it is an issue that is likely to occur. The judges also noted none of their prior cases directly address the particular facts and circumstances found in this case.

In this case, Zentz stated facts as told by Latonia Green, Robinson’s girlfriend, to Sharp, who relayed them to Zentz. Zentz never observed injuries on Green or any other fact or circumstance of the alleged attack, wrote Judge Carr Darden. The trial court also never explained why Zentz’s affidavit, which is full of hearsay within hearsay within hearsay, was reliable. The trial court also incorrectly compared an arrest to a revocation of probation when deciding to allow the affidavit.

“The former involves temporary incarceration before a hearing where the defendant is afforded the full panoply of due process rights. The latter, however, involves potential long term incarceration based on hearsay. That hearsay should be substantially reliable,” wrote the judge in David Robinson v. State of Indiana, No. 49A02-1101-CR-13.

Based on the facts and circumstances in this case, the probable cause affidavit wasn’t substantially reliable. However, the state presented and the trial court found there were additional factors supporting the revocation of Robinson’s probation, so the COA affirmed.
 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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