A split Court of Appeals of Indiana has partially reversed for an accused rapist on interlocutory appeal after finding the state failed to justify the disclosure of six pages of a DNA summary after the defendant introduced just one page into evidence at a deposition.
Akinfemiwa Akinribade was charged with rape in 2021 and provided a DNA sample that was sent to a local crime lab for testing.
Crime lab DNA analyst Amanda Wilson generated a DNA profile from the sample and compared it with DNA profiles generated from samples from the alleged victim’s sexual assault kit, then compiled a report of her findings. Akinribade obtained a copy of the report and retained an expert, who prepared a seven-page “Consultation Summary.”
In June 2022, Akinribade deposed Wilson. During the deposition, Akinribade handed Wilson the consultation summary’s third page, which was entered into the record, and questioned her about it.
Following the deposition, the state filed a motion for discovery requesting disclosure of the entire summary. The Marion Superior Court granted the state’s motion without a hearing.
Akinribade then filed a motion to reconsider, acknowledging that the state is “entitled to reports and identities of any expert witnesses that [he] intends to call as witnesses at a trial or hearing.” But he also argued that he did not intend to call any expert witnesses other than Wilson, and that the expert’s consultation summary was protected by the work-product privilege.
At a hearing on the motion to reconsider, the state countered that Akinribade waived the privilege with respect to the entire summary by introducing the single page into evidence at Wilson’s deposition.
The trial court agreed with the state and an appeal ensued.
At the COA, judges were split on whether the six pages could be entered. The majority ultimately ruled for Akinribade.
“We agree with the State that Akinribade waived any privilege with respect to page three of the summary by introducing it into evidence at Wilson’s deposition — at that point, its contents were disclosed to the State, so that particular bell cannot be unrung,” Judge Terry Crone wrote. “But as for the remaining six pages of the summary, we agree with Akinribade that the State failed to make the requisite threshold showing of either substantial need or exceptional circumstances under Trial Rule 26(B), and thus we do not even reach the question of whether Akinribade waived the work-product privilege.
“… We note that the State cites no authority to support its assertion that a deposition is a court proceeding for purposes of Evidence Rule 502(a), and we leave that question for another day,” Crone continued. “We further note that both the State and the dissent overlook the fact that the issue before us is the discoverability of an expert’s report during discovery, which is governed by the Trial Rules, not the admissibility of the report in a ‘proceeding in [a court] of this State[,]’ i.e., a trial or a hearing before a judge, which is governed by the Evidence Rules. In other words, Evidence Rule 502 is inapplicable here.”
Crone was joined by Judge Leanna Weissmann in the majority while Judge Melissa May dissented with a separate, seven-page opinion.
May argued that when Akinribade introduced one page of the expert report, he opened the door to the discovery of all seven pages pursuant to Indiana Evidence Rule 502(a).
“I believe it is an accepted fact that a deposition is a court proceeding and, thus, the State was not required to set forth specific argument to demonstrate something that is well-known in trial practice,” May wrote. “… Because Akinribade waived work-product privilege when he intentionally introduced a portion of his expert’s report during a deposition, I would hold the trial court did not abuse its discretion when it refused to overturn its grant of the State’s motion for discovery of that expert’s entire report.”
The case is Akinfemiwa Akinribade v. State of Indiana, 22A-CR-1757.