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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues