Justices address judicial-temperance presumption

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Supreme Court used an opinion Thursday to reaffirm the limitation described in Fletcher v. State on the judicial-temperance presumption.

Joshua Konopasek appealed his Class C felony conviction of battery causing serious bodily injury. At his trial, Konopasek claimed he pushed the victim in self defense, but he didn’t cause the victim’s broken jaw. On direct examination, Konopasek’s attorney elicited testimony from Konopasek regarding his probationary status; on cross-examination, the state asked Konopasek “And you’ve got quite a bit of time hanging over your head?” Konopasek objected, but the judge allowed the question.

On appeal, Konopasek argued, among other things, that the trial court abused its discretion when admitting evidence elicited by the state regarding his probation. The Indiana Court of Appeals found the court shouldn’t have admitted the evidence, but it was a harmless error. The judges concluded that Konopasek didn’t overcome the judicial-temperance presumption – the presumption that in a bench trial, the judge will disregard inadmissible and irrelevant evidence.

The Indiana Supreme Court granted transfer to address the admissibility of the evidence in question and to reaffirm Fletcher v. State, 264 Ind. 132, 340 N.E.2d 771 (1976), as it relates to the judicial-temperance presumption. The justices affirmed the Court of Appeals on the remaining issues and affirmed Konopasek’s conviction and sentence.

In Joshua Konopasek v. State of Indiana, No. 25S03-1012-CR-669, the Supreme Court reviewed the admission of Konopasek’s testimony on the length of his suspended sentence only, and only considered the relevancy of the testimony in question. The justices found the testimony was a classic “he said-he said” case, wrote Justice Steven David, and evidence impeaching Konopasek was significantly relevant. They also held the probative value of the evidence wasn’t outweighed by unfair prejudice.

Turning to Fletcher, Justice David explained that the Supreme Court set parameters on the judicial-temperance presumption in cases where a defendant makes a specific objection to the admission of evidence. The justices decided not to apply the judicial-temperance presumption to the instant case because the evidence in question was relevant and admissible.

The justices then went on to reaffirm the limits on the presumption as explained in Fletcher and clarified the interplay between the presumption and harmless-error analysis.

“On appeal, when a defendant challenges the admissibility of evidence at a bench trial and the evidence in fact was inadmissible, the judicial-temperance presumption comes into play. One way a defendant can overcome the presumption is by showing the trial court admitted the evidence over a specific objection, as in Fletcher,” wrote the justice. “If a defendant does overcome the presumption, the reviewing court then engages in full harmless-error analysis: the error is harmless if the ‘reviewing court is satisfied that the conviction is supported by substantial independent evidence of guilt so that there is no substantial likelihood that the challenged evidence contributed to the conviction.’ Meadows v. State, 785 N.E.2d 1112, 1122 (Ind. Ct. App. 2003). If a defendant cannot overcome the presumption, a reviewing court presumes the trial court disregarded the improper evidence and accordingly finds the error harmless.”


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. Lori, you must really love wedding cake stories like this one ... happy enuf ending for you?

  2. This new language about a warning has not been discussed at previous meetings. It's not available online. Since it must be made public knowledge before the vote, does anyone know exactly what it says? Further, this proposal was held up for 5 weeks because members Carol and Lucy insisted that all terms used be defined. So now, definitions are unnecessary and have not been inserted? Beyond these requirements, what is the logic behind giving one free pass to discriminators? Is that how laws work - break it once and that's ok? Just don't do it again? Three members of Carmel's council have done just about everything they can think of to prohibit an anti-discrimination ordinance in Carmel, much to Brainard's consternation, I'm told. These three 'want to be so careful' that they have failed to do what at least 13 other communities, including Martinsville, have already done. It's not being careful. It's standing in the way of what 60% of Carmel residents want. It's hurting CArmel in thT businesses have refused to locate because the council has not gotten with the program. And now they want to give discriminatory one free shot to do so. Unacceptable. Once three members leave the council because they lost their races, the Carmel council will have unanimous approval of the ordinance as originally drafted, not with a one free shot to discriminate freebie. That happens in January 2016. Why give a freebie when all we have to do is wait 3 months and get an ordinance with teeth from Day 1? If nothing else, can you please get s copy from Carmel and post it so we can see what else has changed in the proposal?

  3. Here is an interesting 2012 law review article for any who wish to dive deeper into this subject matter: Excerpt: "Judicial interpretation of the ADA has extended public entity liability to licensing agencies in the licensure and certification of attorneys.49 State bar examiners have the authority to conduct fitness investigations for the purpose of determining whether an applicant is a direct threat to the public.50 A “direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services as provided by § 35.139.”51 However, bar examiners may not utilize generalizations or stereotypes about the applicant’s disability in concluding that an applicant is a direct threat.52"

  4. We have been on the waiting list since 2009, i was notified almost 4 months ago that we were going to start receiving payments and we still have received nothing. Every time I call I'm told I just have to wait it's in the lawyers hands. Is everyone else still waiting?

  5. I hope you dont mind but to answer my question. What amendment does this case pretain to?