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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. He called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

  2. JOE CLAYPOOL candidate for Superior Court in Harrison County - Indiana This candidate is misleading voters to think he is a Judge by putting Elect Judge Joe Claypool on his campaign literature. paragraphs 2 and 9 below clearly indicate this injustice to voting public to gain employment. What can we do? Indiana Code - Section 35-43-5-3: Deception (a) A person who: (1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent; (2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity; (3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted; (4) knowingly or intentionally, in the regular course of business, either: (A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or (B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity; (5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service; (6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property; (7) with intent to defraud an owner of a coin machine, deposits a slug in that machine; (8) with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug; (9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;

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  4. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  5. 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

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