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Panel criticizes late discovery introduction

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Even while recognizing that the state’s practice of allowing late introduction of evidence basically rewards attorneys who don’t prepare for trial, the Indiana Court of Appeals looked beyond that practice to how the rules still protect a person’s right to a fair trial.

In a unanimous ruling today, the state’s intermediate appellate court issued its decision in Richard Childress, Jr. v. State of Indiana, No. 45A03-0911-CR-520. The appeal stems from a Lake Superior case in which a jury convicted Childress of two class B felonies and robbery and criminal confinement. The sole issue in this appeal is whether the trial court erred in admitting evidence that the state didn’t disclose until the second day of trial.

At issue is how the prosecutor introduced a hooded sweatshirt, apparently worn at the time of the crime, into evidence for the first time on the second day of trial. At a bench conference, the trial court barred the state from including references to the sweatshirt in its case-in-chief but determined it could be admitted as evidence on rebuttal. Childress objected, but the court allowed the new evidence that ultimately resulted in his convictions.

The appellate panel made up of Judge Margret Robb, Patricia Riley, and Elaine Brown affirmed the convictions and determined the prosecutor’s late disclosure didn’t impair Childress’ right to a fair trial.

But most notably, the panel pointed out the nuances and intricacies in the litigation process allowing the kind of late disclosure that happened in this case.

The judges noted how the general discovery principles call for a court to strive for truth, fairness, and judicial efficiency, and that Indiana caselaw reinforces that a defendant must generally object at trial to the admission of discovery not timely disclosed. If that objection is overruled, then caselaw dictates the defendant should seek a continuance, and that continuance and evidentiary issue can be reviewed on appeal. State cases that have led to that holding are Berry v. State, 715 N.E. 2d 864, 866 (Ind. 1999) and Armstrong v. State, 499 N.E.2d 189, 191 (Ind. 1986).

“We agree with Childress’s implicit argument that this rule regrettably rewards attorneys who do not prepare by allowing admission of their untimely-produced discovery,” Judge Robb wrote for the majority. “Neither does this rule penalize the attorney who has failed to adequately investigate and prepare his or her own case or witnesses, preparation which would have led to an earlier detection of the evidence that should have been disclosed earlier. Nevertheless, we observe the wisdom of the rule as it contemplates and provides a remedy where the late disclosure has been intentional or impairs a defendant’s right to a fair trial. While the rule does not advance the practice of law toward promoting justice, it appears to allow sufficiently adequate protection of defendants’ rights to the extent courts genuinely consider whether late disclosure has impaired a defendant’s right to a fair trial. Further, we are not vested with the authority to amend this rule.”

In this case, the judges found that Childress could have requested a continuance or he could have more importantly adjusted his trial strategy going forward to counter the state’s late introduction of the sweatshirt. All of the “unfair circumstances” here could have been avoided, the panel found.

“Although we admonish the State for its failure to prepare its case to timely disclose the evidence, the late disclosure did not impair Childress’s right to a fair trial and we decline to reverse Childress’s convictions,” Judge Robb wrote.
 

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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