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.


Post a comment to this story

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
Subscribe to Indiana Lawyer
  1. Heritage, what Heritage? The New Age is dawning .... an experiment in disordered liberty and social fragmentation is upon us .... "Carmel City Council approved a human rights ordinance with a 4-3 vote Monday night after hearing about two hours of divided public testimony. The ordinance bans discrimination on the basis of sexual orientation or gender identity, among other traits. Council members Rick Sharp, Carol Schleif, Sue Finkam and Ron Carter voted in favor of it. The three council members opposing it—Luci Snyder, Kevin Rider and Eric Seidensticker—all said they were against any form of discrimination, but had issues with the wording and possible unintended consequences of the proposal." Kardashian is the new Black.

  2. Can anyone please tell me if anyone is appealing the law that certain sex offenders can't be on school property. How is somebody supposed to watch their children's sports games or graduations, this law needs revised such as sex offenders that are on school property must have another non-offender adult with them at all times while on school property. That they must go to the event and then leave directly afterwards. This is only going to hurt the children of the offenders and the father/ son mother/ daughter vice versa relationship. Please email me and let me know if there is a group that is appealing this for reasons other than voting and religion. Thank you.

  3. Should any attorney who argues against the abortion industry, or presents arguments based upon the Founders' concept of Higher Law, (like that marriage precedes the State) have to check in with the Judges and Lawyers Assistance Program for a mandatory mental health review? Some think so ... that could certainly cut down on cases such as this "cluttering up" the SCOTUS docket ... use JLAP to deny all uber conservative attorneys licenses and uber conservative representation will tank. If the ends justify the means, why not?

  4. Tell them sherry Mckay told you to call, they're trying to get all the people that have been wronged and held unlawfully to sign up on this class action lawsuit.

  5. Call Young and Young aAttorneys at Law theres ones handling a class action lawsuit