ILNews

Court erred in admitting child's videotaped statement

Back to TopCommentsE-mailPrintBookmark and Share

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.
 

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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

ADVERTISEMENT