ILNews

Juvenile entitled to separate hearing

Jennifer Nelson
January 1, 2007
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The Indiana Court of Appeals reversed a juvenile court judgment after ruling the court improperly incorporated the record of a child hearsay hearing into the fact-finding hearing.

In L.H. v. State of Indiana, No. 49A04-0701-JV-45, L.H. appealed his conviction in juvenile court of child molesting, a Class C felony if committed by an adult, and battery, a Class B misdemeanor if committed by an adult. In 2006, the then 12-year-old was accused of inappropriately touching his 8-year-old cousin, A.H., over the course of four years. A.H. was taken to the Child Advocacy Center where a videotaped interview about these allegations took place.

A fact-finding hearing on the child molesting and battery charges was scheduled for November 2006. Prior to that hearing, the state filed a Child Hearsay Notice to notify L.H. it planned to introduce out-of-court statements by A.H., including the videotaped interview, and requested a hearing for determining the admissibility of this evidence pursuant to Indiana Code 35-37-4-6.

At the November hearing, the state introduced evidence, including the videotaped interview. Both the state and L.H. referred to the hearing at several points as the child hearsay hearing. The state moved for the admissibility of the hearsay statements presented during the hearing and to incorporate all the testimony and evidence entered. L.H. objected and the court granted the state's motions. It then invited arguments for the fact-finding portion of the hearing and made true findings on the child molesting and battery allegations.

L.H. appealed the juvenile court finding, contending the requirements of the child hearsay statute were not met and that incorporation denied him a fair trial.

The appellate court found there was no agreement between the two parties to incorporate, and L.H. objected several times to the incorporation. L.H. was entitled to have a fact-finding hearing at which procedural safeguards and evidentiary rules are observed, wrote Judge Margret Robb, and incorporating the testimony from a preliminary hearing on an evidentiary matter denied L.H. the hearing to which he is entitled. The majority of judges reversed the juvenile court's true findings and remanded for a fact-finding hearing.

Judge James Kirsch dissented, ruling L.H. failed to show he was prejudiced from the court incorporation of evidence from the child hearsay hearing into the fact-finding hearing. Judge Kirsch wrote he didn't see any procedural safeguards or evidentiary rules that weren't followed, and L.H. didn't bring any up in his brief. He wrote he would affirm the trial court in all respects.
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  1. 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

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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