3-step test needed to balance rights

Indiana’s victim-advocate privilege is limited by a criminal defendant’s constitutional rights, the Indiana Court
of Appeals concluded today on the matter of first impression.

Crisis Connection Inc., a nonprofit that works with domestic violence and sexual assault victims, doesn’t believe it
should have to turn over records to the court for an in camera review in Ronald Keith Fromme’s criminal case. Fromme
was charged with two counts of Class A felony child molesting and he sought all records from the nonprofit relating to his
two alleged victims and their mother.

The trial court found the records sought by Fromme were sufficiently identified, may be essential in determining the credibility
of the witnesses, and may be material to his defense. The Court of Appeals took up the issue on interlocutory appeal and affirmed
the order.

In In
Re Subpoena to Crisis Connection Inc., State of Indiana v. Ronald Keith Fromme
, No. 19A05-0910-CR-602, the Court
of Appeals explored the scope of Indiana’s victim-advocate privilege and declined to hold the privilege is absolute.
The privilege is conferred on communications made to counselors and any employee or volunteer, as well as participants in
support groups. The statute does exclude information regarding alleged child abuse or neglect that must be reported by law
from the definition of “confidential information,” but that doesn’t apply in the instant case. The information
Fromme seeks is privileged.

They then turned to rulings from other jurisdictions on whether an absolute privilege must yield to Sixth Amendment rights
to decide whether the records could be produced in camera, an issue left undecided in Pennsylvania v. Ritchie, 480
U.S. 39 (1987).

The judges found People v. Stanaway, 521 N.W.2d 557 (Mich. 1994) and other cases allowing for in camera review upon
sufficient showing of need to be better reasoned than other cases that upheld the statutory privilege against a Sixth Amendment
challenge. Stanaway and similar cases more closely resemble the approach Indiana has applied to other privileges,
noted Judge Crone.

As is the case with precedent addressing other privileges in Indiana, a three-step test should be done to determine whether
information is discoverable in a criminal case: there must be a sufficient designation of the items sought to be discovered;
the items requested must be material to the defense; and if those requirements are met, the trial court must grant the request
unless there is a showing of “paramount interest” in non-disclosure.

This test has been applied in several cases where the discovery sought was privileged or confidential, and it provides a
useful framework for balancing the victim’s interest in privacy with a defendant’s constitutional rights, even
before obtaining an in camera review, wrote the judge.

“While the State undoubtedly has an important interest in protecting the victim-advocate relationship, a defendant‘s
rights guaranteed by the Sixth Amendment are also of great importance,” wrote Judge Crone. “The need to discover
exculpatory evidence and effectively cross-examine witnesses is especially apparent in sex offense cases, which often hinge
on witness credibility and which carry heavy potential penalties.”

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