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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. I expressed my thought in the title, long as it was. I am shocked that there is ever immunity from accountability for ANY Government agency. That appears to violate every principle in the US Constitution, which exists to limit Government power and to ensure Government accountability. I don't know how many cases of legitimate child abuse exist, but in the few cases in which I knew the people involved, in every example an anonymous caller used DCS as their personal weapon to strike at innocent people over trivial disagreements that had no connection with any facts. Given that the system is vulnerable to abuse, and given the extreme harm any action by DCS causes to families, I would assume any degree of failure to comply with the smallest infraction of personal rights would result in mandatory review. Even one day of parent-child separation in the absence of reasonable cause for a felony arrest should result in severe penalties to those involved in the action. It appears to me, that like all bureaucracies, DCS is prone to interpret every case as legitimate. This is not an accusation against DCS. It is a statement about the nature of bureaucracies, and the need for ADDED scrutiny of all bureaucratic actions. Frankly, I question the constitutionality of bureaucracies in general, because their power is delegated, and therefore unaccountable. No Government action can be unaccountable if we want to avoid its eventual degeneration into irrelevance and lawlessness, and the law of the jungle. Our Constitution is the source of all Government power, and it is the contract that legitimizes all Government power. To the extent that its various protections against intrusion are set aside, so is the power afforded by that contract. Eventually overstepping the limits of power eliminates that power, as a law of nature. Even total tyranny eventually crumbles to nothing.

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  3. Hemp has very little THC which is needed to kill cancer cells! Growing cannabis plants for THC inside a hemp field will not work...where is the fear? From not really knowing about Cannabis and Hemp or just not listening to the people teaching you through testimonies and packets of info over the last few years! Wake up Hoosier law makers!

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