ILNews

COA: Rule of incredible dubiosity not applicable

Back to TopCommentsE-mailPrint

The Indiana Court of Appeals affirmed a man's domestic battery conviction and sentence, concluding his wife's testimony about the altercation wasn't subject to the rule of incredible dubiosity.

In Shean West v. State of Indiana, No. 49A02-0812-CR-1084, Shean West argued because his wife's testimony contained some discrepancies compared to the police officer who testified at West's trial, the rule of incredible dubiosity should discredit Peggy West's testimony.

The appellate court concluded the rule of incredible dubiosity isn't necessarily rendered inapplicable merely because there is more than one witness who testifies for the state, wrote Senior Judge Patrick Sullivan. Peggy testified the altercation with her husband escalated from inside their apartment to outside near his truck and that he pushed her with such force she hit her head on the top of the truck and it hurt badly. The police officer testified Peggy knocked on his car window and told him that West had pushed her and she hit her head. He stated she didn't have visible injuries and she didn't want medical attention.

Peggy's testimony wasn't so incredibly dubious or inherently improbable that no reasonable trier of fact could believe it and her testimony shouldn't be disregarded merely because it doesn't precisely match other evidence or contains some discrepancies, wrote the senior judge.

"The standard for the rule is 'inherent contradiction' in the testimony of the witness under consideration, not whether that testimony may be in contradiction to the testimony of other witnesses," wrote Judge Sullivan.

The fact the police officer didn't see any visible injuries or bruises on Peggy doesn't detract from her testimony regarding hitting her head on the truck when West pushed her.

The appellate court declined to view Peggy's testimony in light of the officer's because that would be reweighing the evidence and assessing her credibility.

"Even were we to do so and note that Peggy West's trial testimony was more extensive as to the events which transpired than what she specifically told Officer Gates, such difference or differences do not indicate that her testimony is in contradiction to the testimony of the Officer," he wrote.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

ADVERTISEMENT