Justices: ‘Reliable assurance’ of accident defense upholds conviction in baby’s death

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A man’s convictions of neglect of his infant daughter resulting in death was affirmed Wednesday by the Indiana Supreme Court when justices ruled it was not improper under Indiana Evidence Rule 404(b) to admit other-bad-acts evidence to show lack of accident, so long as a there was reliable assurance that an accident defense would be raised.

Jeffrey Fairbanks was convicted of murder for causing the death of his infant daughter Janna when he placed a pillow over her face to silence her while he slept. When he woke up hours later, she was dead. Fairbanks admitted to putting Janna’s body in a dumpster, and although police found the blanket she was wrapped in, her body was never recovered.

The state introduced evidence at trial that Fairbanks had placed a pillow over Janna’s face on at least two prior occasions to muffle her crying, but Fairbanks appealed to the high court in part that such evidence was inadmissible pursuant to Evidence Rule 404(b). He specifically argued that the evidence of a crime, wrong, or other act was admissible to prove lack of accident only if the defendant first claims accident, which he argued he never did.

However, the high court ruled in Jeffrey Fairbanks v. State of Indiana, 18S-CR-604, that admitting such evidence was not improper under Rule 404(b) because the state had “reliable assurance” that he would raise an accident defense at trial based on statements he made before trial to police and to news media outlets.

Writing for the unanimous panel, Chief Justice Loretta Rush posed the question: Does a criminal defendant have to affirmatively raise an accident defense before the State may introduce other-bad-acts evidence to show the charged conduct was not an accident?

Finding no “no clear-cut answer” to that question under Indiana law, the high court sought guidance Wickizer v. State, 626 N.E.2d 795, 797 (Ind. 1993). Focusing on the relationship between “lack of accident” and “intent,” as well as reasons underlying Wickizer’s narrow construction of the intent exception, the high court concluded that the lack-of-accident exception was a subset of intent, and therefore Wickizer could be applied to it.

It thus concluded that before the state could offer other-bad-acts evidence of lack of accident, one of two things must take place: (1) the State has ‘reliable assurance’ that an accident defense will be raised, or (2) the defendant places accident at issue at trial.

“Fairbanks claimed to police that although it did not look like he had rolled onto his infant daughter, it was the ‘only’ thing he could think of. And Fairbanks explained to two media outlets that he didn’t know much about ‘roll-over deaths.’ Given those statements, the State had every reason to suspect that Fairbanks would advance a theory that Janna’s death was accidental,” the high court wrote.

It also noted that Fairbanks did raise the issue of accident during trial, albeit after the evidence was introduced, and that the trial court properly found that the pillow evidence cleared Rule 403’s balancing test. 

Although the pillow evidence certainly painted Fairbanks in a bad light, its prejudicial impact was significantly trumped by the evidence’s highly probative value to show that Janna’s death was not accidental — especially considering her body was never recovered,” the high court continued.

“The accident exception was thus available to the State when it offered the 404(b) evidence in question. And because that pillow evidence’s probative value was not substantially outweighed by its prejudicial effect under Rule 403, the trial court did not abuse its discretion in admitting the evidence,” the high court concluded. “We thus affirm Fairbanks’s conviction for felony neglect of a dependent resulting in death.”

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