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High court addresses Protected Person Statute

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Addressing for the first time under the current Rules of Evidence a case regarding a protected person testifying at trial as well as by videotape or other statement, the Indiana Supreme Court held that if the statements are consistent and both are otherwise admissible, testimony of a protected person can't be presented both in open court and in a pre-recorded statement through the Protected Person Statute.

In Brian Tyler v. State of Indiana, No. 69S04-0801-CR-3, the Supreme Court exercised its supervisory power to hold that a party can't introduce testimony via the Protected Person Statute if the same person testifies in open court as to the same matters.

Brian Tyler was convicted of two counts of Class A felony child molesting, two counts of Class C felony child molesting, and one count of Class D felony vicarious sexual gratification. All five child victims testified at trial and videotaped interviews of three of the children were admitted into evidence. Tyler appealed, arguing error under Indiana Rule of Evidence 403 or fundamental error in the admission of the children's taped interviews.

The majority believed admitting consistent statements through both pre-recorded media and by live testimony presents two problems aside from confrontation clause or hearsay issues. Admitting the live testimony and consistent videotape statements is cumulative evidence and can be unfairly prejudicial, wrote Justice Theodore Boehm, and if a child or protected person is mature and reliable enough to testify in live court, then using the Protected Person Statute is unnecessary.

Justice Boehm wrote the rules implemented by use of supervisory powers aren't applicable to proceedings conducted prior to publication. The majority agreed that the court didn't commit reversible error by admitting the videotaped statements. Justice Sullivan concurred in result with this holding in a separate opinion and respectfully suggested the status quo is superior to what was adopted by the Supreme Court today.

Under Indiana Appellate Rule 7(B), the majority revised Tyler's sentence, finding his 110-year prison sentence to be inappropriate. Instead of attaching the habitual offender enhancement to Tyler's Class A felony child molesting convictions, the majority attached it to his Class D felony vicarious sexual gratification conviction, resulting in a maximum enhancement of 4 ½ years instead of 30 years. The majority also concluded the enhancement of the consecutive sentences imposed for the Class A child molesting convictions above the advisory level wasn't warranted and remanded for the trial court to issue an amended sentencing order in accordance with the opinion without a hearing, leaving Tyler with a 67 ½ year sentence.

Justice Dickson dissented as to revising Tyler's sentence, writing the trial judge's evaluation and determination of the appropriate sentence doesn't warrant appellate intrusion.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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