ILNews

High court addresses Protected Person Statute

Back to TopCommentsE-mailPrintBookmark and Share

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.

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. Bill Satterlee is, indeed, a true jazz aficionado. Part of my legal career was spent as an associate attorney with Hoeppner, Wagner & Evans in Valparaiso. Bill was instrumental (no pun intended) in introducing me to jazz music, thereby fostering my love for this genre. We would, occasionally, travel to Chicago on weekends and sit in on some outstanding jazz sessions at Andy's on Hubbard Street. Had it not been for Bill's love of jazz music, I never would have had the good fortune of hearing it played live at Andy's. And, most likely, I might never have begun listening to it as much as I do. Thanks, Bill.

  2. The child support award is many times what the custodial parent earns, and exceeds the actual costs of providing for the children's needs. My fiance and I have agreed that if we divorce, that the children will be provided for using a shared checking account like this one(http://www.mediate.com/articles/if_they_can_do_parenting_plans.cfm) to avoid the hidden alimony in Indiana's child support guidelines.

  3. Fiat justitia ruat caelum is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

  4. Indiana up holds this behavior. the state police know they got it made.

  5. Additional Points: -Civility in the profession: Treating others with respect will not only move others to respect you, it will show a shared respect for the legal system we are all sworn to protect. When attorneys engage in unnecessary personal attacks, they lose the respect and favor of judges, jurors, the person being attacked, and others witnessing or reading the communication. It's not always easy to put anger aside, but if you don't, you will lose respect, credibility, cases, clients & jobs or job opportunities. -Read Rule 22 of the Admission & Discipline Rules. Capture that spirit and apply those principles in your daily work. -Strive to represent clients in a manner that communicates the importance you place on the legal matter you're privileged to handle for them. -There are good lawyers of all ages, but no one is perfect. Older lawyers can learn valuable skills from younger lawyers who tend to be more adept with new technologies that can improve work quality and speed. Older lawyers have already tackled more legal issues and worked through more of the problems encountered when representing clients on various types of legal matters. If there's mutual respect and a willingness to learn from each other, it will help make both attorneys better lawyers. -Erosion of the public trust in lawyers wears down public confidence in the rule of law. Always keep your duty to the profession in mind. -You can learn so much by asking questions & actively listening to instructions and advice from more experienced attorneys, regardless of how many years or decades you've each practiced law. Don't miss out on that chance.

ADVERTISEMENT