COA again knocks down law limiting deposition of alleged child victims

For at least the fourth time, the Indiana Court of Appeals has found a law passed by the Indiana General Assembly in 2020 which limited defendants’ ability to depose alleged victims of molestation “impermissibly conflicts” with the Indiana Rules of Trial Procedure.

Randy Pate has been charged with two counts of child molesting, as Class A felonies, and two counts of child molesting, as Level 1 felonies, for allegedly molesting his granddaughter. When he sought to dispose his granddaughter, the prosecutor denied the request, citing the Child Deposition Statute, Indiana Code Section 35-40-5-11.5.

The statute, which took effect March 18, 2020, restricts a criminal defendant’s ability to conduct an oral deposition of a child under the age of 16 who is alleged to be the victim of a sex offense.

When the Hendricks Superior Court denied his motion to depose a child witness, Pate filed an interlocutory appeal.

The Court of Appeals reversed and remanded in Randy Pate v. State of Indiana, 21A-CR-287. Noting this is not the first time the appellate court has considered this issue, the panel cited to previous decisions which found the statute is a procedural law and is incompatible with the court’s trial rules.

Writing for the court, Judge Edward Najam provided the following overview of the previous cases, “The previous cases are Sawyer v. State, ___N.E.3d___, No. 20A-CR-1446, 2021 WL 1991699, at *5 (Ind. Ct. App. May 19, 2021), trans. pending. Shortly thereafter, this Court cited Sawyer and reiterated that the Statute “is a procedural law.” Church v. State___N.E.3d___, No. 21A-CR-68, 2021 WL 2644110, at *3 (Ind. Ct. App. June 28, 2021), not yet certified. And, following Church, a third panel again reached the same conclusion. See State v. Riggs, ___N.E.3d___, No. 20A-CR-2144, 2021 WL 3200826, at *6 (Ind. Ct. App. July 29, 2021), not yet certified.”

Najam concluded, “We agree with the analysis in each of those cases and, for the same reasons, we again hold that the Statute conflicts with provision of Trial Rules 26 and 30 such that they cannot both apply to Pate’s situation. We therefore hold that the Trial Rules govern and that the Statute is nullity.”

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