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Prosecutor can’t grant use immunity to parents of injured infant

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The Indiana Supreme Court held Wednesday that a prosecutor can’t petition a court to compel a party to testify under the grant of use immunity when the party is the primary target of the investigation and has invoked his constitutional right against self-incrimination if no charges have been filed or a grand jury proceeding hasn’t been initiated.

The issue arose in In Re: Prosecutor's Subpoena Regarding S.H. and S.C.; S.H. v. State of Indiana, 73S01-1209-CR-563, in which the Shelby County Prosecutor’s Office was investigating multiple puncture wounds on the back of S.H.’s and S.C.’s newborn. S.C. gave birth to the child alone in their apartment; when S.H. returned and took the mother and child to the hospital, the staff saw the wounds. This led to an investigation and removal of the baby from her parents’ care.

The county prosecutor petitioned for subpoenas to compel the parents to testify. The day before they were set to testify, their attorney moved to quash the subpoenas under their constitutional rights against self-incrimination. The prosecutor then petitioned for grant of use immunity, which the trial court granted. The court also denied the parents’ motion to correct error, holding the authority to compel testimony through use immunity was implicit in the office of the prosecutor itself.

The Indiana Court of Appeals affirmed on other grounds, but the justices disagreed, reversing the trial court and sending the case back to Shelby Superior Court. Justice Mark Massa, writing for the court, held that the prosecutor had no statutory authority under I.C. 35-34-2 or 35-37-3 to request the grant of use immunity. These statutes allow a petition for grant of use immunity only when either a grand jury has been convened or the prosecutor has filed an indictment or information.

They also held that I.C. 33-39-1-4 doesn’t extend to a request for grant of use immunity. They rejected the state’s argument that In re Order for Indiana Bell Telephone to Disclose Records, 274 Ind. 131, 409 N.E.2d 1089 (1980), or any other precedent confers prosecutorial authority in the absence of express statutory language.

“We will not use Indiana Bell as a justification for a judicial expansion of that authority in contravention of the General Assembly’s express instructions. To do so would be an encroachment into the legislative purview incompatible with our constitutionally-mandated separation of powers,” he wrote.

“We also recognize that the General Assembly may have had good reason to restrict use immunity – a potent tool that permits courts to override an individual’s constitutional right against self-incrimination – to contexts in which there is substantial judicial oversight,” Massa continued. “Both grand jury proceedings and post-charge hearings and trials provide that oversight.”

 

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  1. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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