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Court erred in admitting child's videotaped statement

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A trial court improperly allowed a videotaped statement by a victim of child molesting into evidence instead of having the child participate in live direct examination, the Indiana Court of Appeals ruled today in its reversal of a man’s molesting convictions.

Larry Cox appealed his convictions of 10 counts of Class A felony child molesting and five counts of Class C felony child molesting. The son of Cox’s ex-girlfriend claimed Cox had molested him. The son, D.H., was interviewed by the Tippecanoe County Prosecutor’s Office, and the interview was videotaped. The state was allowed to introduce the videotape into evidence, over Cox’s objection, instead of questioning D.H. on direct examination. He was subject to cross-examination.

Admitting the videotaped interview was an error, the appellate court concluded after examining the Protected Person Statute and Tyler v. State, 903 N.E.2d 463 (Ind. 2009). In Tyler, the Indiana Supreme Court held that testimony of a protected person may be presented in court or by pre-recorded statement through the PPS but not both except as authorized by the Indiana Rules of Evidence.

The state and trial court thought they were complying with Tyler by not allowing D.H. to give direct testimony on the stand and letting him be cross-examined, but that violated the spirit and general principles announced in Tyler, wrote Judge Michael Barnes in Larry Cox v. State of Indiana,  No. 79A04-0912-CR-741.

The Tyler court emphasized that a videotaped interview should only be introduced after considering if the child will be traumatized by testifying in open court. It found that if a child is sufficiently mature to testify in open court, then there is no need to resort to the Protected Person Statute.

“Of course, the procedure employed by the trial court here did not raise the specter of unfairly prejudicial cumulative evidence bolstering the in-court testimony of an alleged molestation victim,” wrote the judge. “Still, our system of justice clearly prefers live, in-court testimony given under oath, as evidenced in part by the Confrontation Clause and the hearsay rule.”

The appellate court found the introduction of the videotape to be a reversible error because there was no trial testimony regarding the charged crimes and any statement D.H. made on the stand wasn’t made under any kind of oath.

They also held that Cox may be retried and remanded for further proceedings.
 

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