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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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  1. I just wanted to point out that Congressman Jim Sensenbrenner, Senator Feinstein, former Senate majority leader Bill Frist, and former attorney general John Ashcroft are responsible for this rubbish. We need to keep a eye on these corrupt, arrogant, and incompetent fools.

  2. Well I guess our politicians have decided to give these idiot federal prosecutors unlimited power. Now if I guy bounces a fifty-dollar check, the U.S. attorney can intentionally wait for twenty-five years or so and have the check swabbed for DNA and file charges. These power hungry federal prosecutors now have unlimited power to mess with people. we can thank Wisconsin's Jim Sensenbrenner and Diane Feinstein, John Achcroft and Bill Frist for this one. Way to go, idiots.

  3. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  4. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  5. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

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