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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. Video pen? Nice work, "JW"! Let this be a lesson and a caution to all disgruntled ex-spouses (or soon-to-be ex-spouses) . . . you may think that altercation is going to get you some satisfaction . . . it will not.

  2. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  3. wow is this a bunch of bs! i know the facts!

  4. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  5. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

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