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. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.