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Inbox: Court guts medical hearsay exception for children

May 22, 2013
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Letters to the Editor

Very quietly, over the past five years, Indiana has lifted a corner of Lady Justice’s blindfold and forced her to turn a deaf ear when she sees a child.  Instead of affording justice equally to all, our legal system now refuses to listen to any evidence other than the singular voice of the lone child on the stand at trial. No corroboration may be offered in support of the child’s testimony, and no amount of courage or credibility demonstrated in the long journey to the courthouse counts either.

When the victim of a sexual assault is an adult, we trust the competency of medical professionals to communicate their purpose to their patients; we trust trial court judges to balance the probative value and prejudice of evidence; we trust the ability of juries to assess witness credibility. But for children, we do not. We have erected the highest hurdles, practically ensuring that the best evidence of our most heinous crimes will never be admitted at trial.

On May 2, 2013, the Indiana Supreme Court overturned the conviction of Gerald VanPatten and gutted the medical hearsay exception as it relates to child victims. Unlike a competent adult, a child who is found competent to testify is presumed NOT to understand the importance of telling the truth to a doctor or nurse dressed in scrubs in a medical examination room.

VanPatten is a convicted child molester, sentenced to 40 years in prison for molesting his daughter’s friend. He molested his daughter, too. Repeatedly. But he’ll never spend a day in prison for that. Unlike her friend, VanPatten’s daughter did not have the support of her family to face VanPatten in a crowded courtroom and tell a room full of strangers exactly what he did.

VanPatten’s daughter did find the courage to tell. She told her mother, she told a DCS worker, she told a nurse, and she even told a forensic interviewer in a videotaped interview. She gave graphic details of sexual acts unimaginable to most 6-year-olds; but that’s all hearsay. Two years later, alone on the witness stand, face-to-face with her father in a crowded courtroom, she did not have the courage to betray him. At trial, under pressure from her mother as well as her father, VanPatten’s daughter recanted. And even though the jury understood what was happening, what the child said under duress on the stand was the only evidence they could legally consider.

It’s not supposed to be that way. Because she was less than 14 years old at the time of the trial, VanPatten’s daughter is a “protected person” under Indiana Code 35-37-4-6. The prosecutor is supposed to be able to give notice of child’s statements to defense counsel, make the child available for cross-examination at a hearing, and let the trial court judge decide which statements are reliable and may be considered by the jury as evidence at trial. That’s the way it worked when I was a deputy prosecutor trying these cases. But not anymore.

There is one key element missing from Indiana’s Protected Person Statute: an explicit requirement that the trial court balance the probative value of each statement with any unfair prejudice to the defendant under Indiana Rule of Evidence 403. Rather than reading the statute to incorporate this basic rule of evidence, the Indiana Supreme Court decided that prosecutors must decide between the child’s live testimony at trial and a recorded statement taken soon after the event occurred. See Tyler v. State, 903 N.E. 2d 463 (Ind. 2009). The decision came as a complete surprise to the legal community, including those prosecutors who handled the case.  No one had raised the issue, no one had briefed the issue, and no one had anticipated such unwarranted judicial activism.

In 2010, our Indiana Appellate Court went a step further, overturning a child molester’s conviction because it was based solely on a reliable recorded statement properly vetted through the Protected Person Statute. See Cox v. State, 987 N.E.2d 874 (Ind.App. 2010, transfer denied 950 N.E.2d 1198). In other words, no matter how many reliable statements the child has given to a friend, trusted adult, professional interviewer or medical professional, the only thing that counts is what the child says on the stand at trial. While those professionals who work with children have made great strides in ensuring the reliability of the evidence gathered and preserving it in ways that assist judges and juries to determine independently the credibility of the child witness, our appellate courts have completely eviscerated our Protected Person Statute, significantly undermining justice for child victims of sexual assault.

There are, however, two simple solutions. The Legislature has the power to revise our Protected Person Statute so that it explicitly incorporates Evidence Rule 403, thus addressing the concerns raised in the Tyler, Cox, and VanPatten cases. Or the Indiana Supreme Court could expressly overrule the Tyler and Cox cases and allow our Protected Persons Statute to work the way that it is supposed to, allowing juries to hear all of the reliable evidence in these difficult cases.•

Laurie A. Gray, JD

Laurie Gray is a former Allen County deputy prosecutor and the founder of Socratic Parenting LLC (www.SocraticParenting.com). Ms. Gray also serves as a bilingual forensic interviewer at the Dr. Bill Lewis Center for Children and as an adjunct professor of criminal sciences at Indiana Tech.

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  • Child Protection Under the Law
    The poignant arguments Ms. Gray so aptly makes point to the incredible injustices and burdens placed on children with the way the system currently functions. Most of these travesties will be borne for a lifetime by the children whose voices get lost, stifled or ignored. Statistically, many will grow up with alcohol or drug addiction as their way of "coping" with having survived, yet were not heard because they could not tell, or were not believed. How is it possible to have child labor laws in this country that prevent harm or abuse to children in a work setting, but cannot protect a child from harm or repeated abuse in their own home? It is easy to forget that children are typically violated and hurt by the ones they they are closest to, love, and trust. But when that trust is broken, shattered or abused, society turns a blind eye? In other times, and even other modern countries, it is presumed the right of the father (or guardian or master) to treat children as chattel. Thus, a child would be denied any rights or protection. If we are outraged, as a developed society, by child labor in foreign countries, how are we not outraged by what goes on every single day in countless homes in the USA. With little recourse for the survivors of these heinous crimes, what message is manifested here? It would seem a short step from invalidating protection under the law for these young persons. If society, as a whole, with laws and legal rules cannot protect a child in the home, who will? Lest we forget, there were laws to protect animals long before children in this country. Perhaps the IN Supreme Court would consider that perspective when denying children a chance to have advocates work for them?

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  1. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  4. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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