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COA: Expungement petitioners can’t cross-examine victims

January 23, 2019

Expungement petitioners do not have the right to cross-examine the victims of their crimes who submit victim impact statements, the Indiana Court of Appeals ruled in a Tuesday decision upholding the denial of a Marion County expungement petition.

In Jason Arthur Keene v. State of Indiana, 18A-XP-228, Jason Keene pleaded guilty in April 2009 to stalking his then-wife, Ginger. Then in May 2017, Keene petitioned to expunge the stalking conviction, but the state objected.

During an ensuing hearing, Keene “diminished his responsibility for the crime, maintained that he had merely caused Ginger emotional pain, and stated that ‘I did not stalk her,’ claiming that she had created text messages to support the stalking charge.” The state, however, moved to admit a letter from Ginger, which was admitted as evidence over Keene’s objection.

The Marion Superior Court then denied Keene’s expungement petition, citing to the “continuing trauma the victim has experienced as a result of the crime.” On appeal, Keene argued the trial court erred in admitting Ginger’s written statement, but the Indiana Court of Appeals disagreed.

Specifically, Judge John Baker wrote for the unanimous appellate panel that under Indiana Code section 35-38-9-9(d), a victim of the offense for which expungement is sought can submit a “written statement in support of or in opposition to the petition at the time of the hearing.” Keene failed to prove that statute is unconstitutional, Baker said, because expungement proceedings are civil, not criminal.

Further, under Cloum v. State, 779 N.E.2d 84, 92-93 (Ind. Ct. App. 2002), criminal defendants don’t have the right to cross-examine a victim who provides a victim impact statement, Baker said.

“We are confident that the purpose of victim statements in expungement proceedings is the same as that in criminal proceedings — to guarantee that the victim’s interests are fully and effectively represented as the trial court makes it expungement decision,” Baker wrote. “And as in criminal proceedings, we would not want to require victims to have to make their statements under oath or to subject a victim to defense cross-examination.”

“We likewise find that expungement petitioners do not have the right to cross-examine victims who provide victim statements as authorized by statute,” the judge continued. “Therefore, the fact that a cross-examination requirement was not written into the statute does not render it unconstitutional on its face, nor does the fact that Keene was not permitted to cross-examine the victim in this case render the statute unconstitutional as applied.”

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