Protected Person Statute

In general

• The Legislature has created special procedures for introducing evidence that is “not otherwise admissible” in cases involving crimes against children and the mentally disabled.

Pierce v. State, 677 N.E.2d 39, 43 (Ind. 1997)

See Guy v. State, 755 N.E.2d 248, 255 (Ind. Ct. App. 2001), reh’g denied, trans. denied(“The Indiana General Assembly created special procedures for introducing evidence that is ‘not otherwise admissible’ in cases involving crimes against children.”)

• These procedures have been codified in Indiana Code section 35-37-4-6[,] which is known as the “protected person” statute.

Guy v. State, 755 N.E.2d 248, 255 (Ind. Ct. App. 2001), reh’g denied, trans. denied

Cf. Jones v. State, 800 N.E.2d 624, 629-630 (Ind. Ct. App. 2003)(“IC 35-37-4-6 applies when a child's statements are not otherwise admissible in evidence.”)

• The PPS is also known as the child hearsay statute.

A.R.M. v. State, 968 N.E.2d 820, 823 n. 2 (Ind. Ct. App. 2012)

Applicability to juvenile delinquency cases

• The PPS applies in juvenile delinquency cases.

A.R.M. v. State, 968 N.E.2d 820, 824 (Ind. Ct. App. 2012)(citing J.A. v. State, 904 N.E.2d 250, 256 (Ind. Ct. App. 2009), trans. denied

See J.A. v. State, 904 N.E.2d 250, 256 n. 5 (Ind. Ct. App. 2009), trans. denied(“The child hearsay statute applies to juvenile delinquency proceedings.”)

• “[J]uvenile proceedings are civil in nature and . . . an act of juvenile delinquency is not a crime. Nonetheless, a child alleged to be delinquent is charged by the State with an act that would be a crime if committed by an adult. The criminal standard of proof remains, in that the State must prove the delinquent act beyond a reasonable doubt to achieve a true finding of delinquency. Put another way, it is the child's age and not the status, nature or class of offense that removes the case from our adult criminal system. Moreover, our supreme court has observed that the goal of the protected person statute is to reduce the child's emotional trauma caused by numerous court appearances, not to guarantee that the child will never have to face the defendant. Thus, we see no compelling reason to exclude application of the protected person statute in these circumstances, and we decline to read that statute so narrowly as to render the protected person statute inapplicable in delinquency proceedings.”

D.G.B. v. State, 833 N.E.2d 519, 524-25 (Ind. Ct. App. 2005)(quoting J.V. v. State, 766 N.E.2d 412, 414-15 (Ind. Ct. App. 2002), trans. denied)(alterations in the original)

Purpose and use

• Our Supreme Court has stated that the purpose of enacting this statute was to “reduce the child's emotional trauma caused by numerous court appearances.”

Johnson v. State, 881 N.E.2d 10, 13 (Ind. Ct. App. 2008), trans. denied(quoting Miller v. State, 517 N.E.2d 64, 73 (Ind. 1987))

See Guy v. State, 755 N.E.2d 248, 255 (Ind. Ct. App. 2001), reh’g denied, trans. denied(quoting Miller v. State, 517 N.E.2d 64, 73 (Ind. 1987))(“The Indiana Supreme Court has stated that the ‘goal of this statute is to reduce the child's emotional trauma caused by numerous court appearances.’”)

• Because the PPS represents a departure from ordinary trial procedure, it should be used only when necessary to further its basic purpose of avoiding further injury to the protected person.

Tyler v. State, 903 N.E.2d 463, 466 (Ind. 2009)

Cox v. State, 937 N.E.2d 874, 878 (Ind. Ct. App. 2010), trans. denied(quoting Tyler v. State, 903 N.E.2d 463, 466 (Ind. 2009))(alteration in the original)(“Tyler states unequivocally, ‘[b]ecause the PPS represents a departure from ordinary trial procedure, it should be used only when necessary to further its basic purpose of avoiding further injury to the protected person.’”)

Exception to the rule against hearsay: Text

• A statement or videotape that:

(1) is made by a person who at the time of trial is a protected person;

(2) concerns an act that is a material element of an offense listed in [IC 35-37-4-6(a)] or [IC 35-37-4-6(b)] that was allegedly committed against the person; and

(3) is not otherwise admissible in evidence;

is admissible in evidence in a criminal action for an offense listed in [IC 35-37-4-6(a)] or [IC 35-37-4-6(b)] if the requirements of [IC 35-37-4-6(e)] are met.

IC 35-37-4-6(d)

Exception to the rule against hearsay: Interpretations of the text

• The Protected Person Statute (PPS), IC 35-37-4-6, allows for the admission of otherwise inadmissible hearsay evidence relating to specified crimes whose victims are deemed “protected persons.”

Tyler v. State, 903 N.E.2d 463, 465 (Ind. 2009)

Mastin v. State, 966 N.E.2d 197, 200 n. 2 (Ind. Ct. App. 2012), trans. denied(citing Tyler v. State, 903 N.E.2d 463, 465 (Ind. 2009))

See J.A. v. State, 904 N.E.2d 250, 255 (Ind. Ct. App. 2009), trans. denied(citing L.H. v. State, 878 N.E.2d 425, 428 (Ind. Ct. App. 2007))(“Indiana Code section 35-37-4-6, also known as the ‘protected person statute’ or the ‘child hearsay statute,’ provides a list of certain conditions under which evidence that would otherwise be inadmissible will be allowed in cases involving certain crimes against ‘protected persons.’”)

Definition and interpretations of “protected person”

• As used in this section, “protected person” means:

(1) a child who is less than fourteen (14) years of age;

(2) an individual with a mental disability who has a disability attributable to an impairment of general intellectual functioning or adaptive behavior that:

(A) is manifested before the individual is eighteen (18) years of age;

(B) is likely to continue indefinitely;

(D) reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services that are of lifelong or extended duration and are individually planned and coordinated; or

(3) an individual who is:

(A) at least eighteen (18) years of age; and

(B) incapable by reason of mental illness, intellectual disability, dementia, or other physical or mental incapacity of:

(i) managing or directing the management of the individual's property; or

(ii) providing or directing the provision of self-care.

IC 35-37-4-6(c)

• It is undisputed that [the victim] is a protected person because she is less than fourteen years of age.

Surber v. State, 884 N.E.2d 856, 862 n. 2 (Ind. Ct. App. 2008), trans. denied

See Johnson v. State, 881 N.E.2d 10, 13 (Ind. Ct. App. 2008), trans. denied(citation omitted)(“Section (c)(1) further defines protected person to include a child who is less than 14 years-old. The victim . . . in this case testified at trial that he was 11 years-old; therefore, this element of the statute is met.”)

Offenses listed in IC 35-37-4-6(a)

• This section applies to a criminal action involving the following offenses where the victim is a protected person under [IC 35-37-4-6(c)(1)] or [IC 35-37-4-6(c)(2)]:

(1) Sex crimes (IC 35-42-4).

(2) Battery upon a child less than fourteen (14) years of age (IC 35-42-2-1).

(3) Kidnapping and confinement (IC 35-42-3).

(4) Incest (IC 35-46-1-3).

(5) Neglect of a dependent (IC 35-46-1-4).

(6) Human and sexual trafficking crimes (IC 35-42-3.5).

(7) An attempt under IC 35-41-5-1 for an offense listed in subdivisions (1) through (6).

IC 35-37-4-6(a)

• For information about sex crimes, please review Sex Crimes.

• For information about battery, please review Battery.

• For information about kidnapping, please review Kidnapping.

• For information about criminal confinement, please review Criminal Confinement.

• For information about neglect of a dependent, please review Neglect of a Dependent.

• For information about human trafficking, please review Human Trafficking.

• For information about attempt, please review Attempt.

Offenses listed in IC 35-37-4-6(b)

• This section applies to a criminal action involving the following offenses where the victim is a protected person under [IC 35-37-4-6(c)(3)]:

(1) Exploitation of a dependent or endangered adult (IC 35-46-1-12).

(2) A sex crime (IC 35-42-4).

(3) Battery (IC 35-42-2-1).

(4) Kidnapping, confinement, or interference with custody (IC 35-42-3).

(5) Home improvement fraud (IC 35-43-6).

(6) Fraud (IC 35-43-5).

(7) Identity deception (IC 35-43-5-3.5).

(8) Synthetic identity deception (IC 35-43-5-3.8).

(9) Theft (IC 35-43-4-2).

(10) Conversion (IC 35-43-4-3).

(11) Neglect of a dependent (IC 35-46-1-4).

(12) Human and sexual trafficking crimes (IC 35-42-3.5).

IC 35-37-4-6(b)

• For information about child exploitation, please review Child Exploitation.

• For information about sex crimes, please review Sex Crimes.

• For information about battery, please review Battery.

• For information about kidnapping, please review Kidnapping.

• For information about criminal confinement, please review Criminal Confinement.

• For information about interference with custody, please review Interference with Custody.

• For information about identity deception and synthetic identity deception, please review Identity Deception.

• For information about theft, please review Theft.

• For information about conversion, please review Conversion.

• For information about neglect of a dependent, please review Neglect of a Dependent.

• For information about human trafficking, please review Human Trafficking.

Requirements of IC 35-37-4-6(e): Text

• A statement or videotape described in [IC 35-37-4-6(d)] is admissible in evidence in a criminal action listed in [IC 35-37-4-6(a)] or [IC 35-37-4-6(b)] if, after notice to the defendant of a hearing and of the defendant's right to be present, all of the following conditions are met:

(1) The court finds, in a hearing:

(A) conducted outside the presence of the jury; and

(B) attended by the protected person in person or by using closed circuit television testimony as described in [IC 35-37-4-6(8)(f)] and [IC 35-37-4-6(8)(f)] of this chapter;

that the time, content, and circumstances of the statement or videotape provide sufficient indications of reliability.

(2) The protected person:

(A) testifies at the trial; or

(B) is found by the court to be unavailable as a witness for one (1) of the following reasons:

(i) From the testimony of a psychiatrist, physician, or psychologist, and other evidence, if any, the court finds that the protected person's testifying in the physical presence of the defendant will cause the protected person to suffer serious emotional distress such that the protected person cannot reasonably communicate.

(ii) The protected person cannot participate in the trial for medical reasons.

(iii) The court has determined that the protected person is incapable of understanding the nature and obligation of an oath.

IC 35-37-4-6(e)

Requirements of IC 35-37-4-6(e): Holding a hearing which the protected person must attend

• [T]he statute requires the . . . court to determine whether a statement is reliable by holding a hearing outside the presence of the jury on the admissibility of the tape, and the protected person must attend the hearing in person or via closed circuit television testimony.

A.R.M. v. State, 968 N.E.2d 820, 825 (Ind. Ct. App. 2012)(citing IC 35-47-4-6(e)(1))

See Johnson v. State, 881 N.E.2d 10, 13 (Ind. Ct. App. 2008), trans. denied(citing IC 35-47-4-6(e)(1))(“Another requirement of the statute is that a hearing must be conducted outside the presence of the jury and that the trial court must find that the hearsay statement is sufficiently reliable.”)

• The hearing regarding the admissibility of the out-of-court statement may be held in a hearing before the trial date and before a jury is convened or, instead, it may be held outside the presence of the jury after a jury trial has been convened.

A.R.M. v. State, 968 N.E.2d 820, 825 n. 4 (Ind. Ct. App. 2012)

• The hearing affords a trial court an opportunity to consider the competency and credibility of the child, as well as the circumstances surrounding the out of court statement to ensure its reliability.

Stahl v. State, 497 N.E.2d 927, 929 (Ind. Ct. App. 1986)

A.R.M. v. State, 968 N.E.2d 820, 825 (Ind. Ct. App. 2012)(“The hearing affords a juvenile court an opportunity to consider the competency and credibility of the child, as well as the circumstances surrounding the out of court statement to ensure its reliability.”)

• [The defendant] argues that [the protected person’s] statements and the videotape were not admissible because [the protected person] attended only one day of the four-part child hearsay hearing. . . . [The protected person] testified at the portion of the child hearsay hearing that she attended and was subject to cross examination by [the defendant’s] counsel. Other witnesses . . . testified at the remaining portions of the hearing. There is no indication in the statute . . . that [the protected person] was required to attend every minute of the child hearsay hearing. In fact, we cannot see how requiring [the] five-year-old [protected person] to attend the entire hearing and allowing [the protected person] to hear the testimony of the other witnesses concerning her prior statements would advance the goals of the protected persons statute. We conclude that [the defendant’s] argument fails.

Surber v. State, 884 N.E.2d 856, 864 (Ind. Ct. App. 2008), trans. denied

Requirements of IC 35-37-4-6(e): Determining reliability

• Considerations for determining whether a protected person's hearsay statements are sufficiently reliable include: “(1) the time and circumstances of the statement, (2) whether there was significant opportunity for coaching, (3) the nature of the questioning, (4) whether there was a motive to fabricate, (5) use of age appropriate terminology, and (6) spontaneity and repetition.”

Ennik v. State, 40 N.E.3d 868, 878 (Ind. Ct. App. 2015), trans. denied(quoting Surber v. State, 884 N.E.2d 856, 862 (Ind. Ct. App. 2008), trans. denied)

See J.A. v. State, 904 N.E.2d 250, 256 (Ind. Ct. App. 2009), trans. denied(citing L.H. v. State, 878 N.E.2d 425, 428 (Ind. Ct. App. 2007))(“Factors to be considered in the reliability determination include the time and circumstances of the statement, whether there was a significant opportunity for coaching, the nature of the questioning, whether there was a motive to fabricate, use of age-appropriate terminology, spontaneity, and repetition.”)

• “There are undoubtedly many other factors in individual cases.”

Ennik v. State, 40 N.E.3d 868, 878 (Ind. Ct. App. 2015), trans. denied(quoting Pierce v. State, 677 N.E.2d 39, 44 (Ind. 1997))

• “Doubt may be cast on the reliability of the statement or videotape if it is preceded by lengthy or stressful interviews or examinations.”

Ennik v. State, 40 N.E.3d 868, 880 (Ind. Ct. App. 2015), trans. denied(quoting Taylor v. State, 841 N.E.2d 631, 635 (Ind. Ct. App. 2006), trans. denied)

See Surber v. State, 884 N.E.2d 856, 862-63 (Ind. Ct. App. 2008), trans. denied(citing Trujillo v. State, 806 N.E.2d 317, 325 (Ind. Ct. App. 2004))(“Lengthy and stressful interviews or examinations preceding the statement may cast doubt on the reliability of the statement or videotape sufficient to preclude its admission.”)

• Corroboration should not be considered when determining the reliability of the statement because Indiana Code section 35-37-4-6 does not limit admission only to statements where there is independent corroborative evidence of the crime.

M.T. v. State, 787 N.E.2d 509, 512 (Ind. Ct. App. 2003)(citing Pierce v. State, 677 N.E.2d 39, 44 (Ind. 1997))

Ennik v. State, 40 N.E.3d 868, 880-81 (Ind. Ct. App. 2015), trans. denied(quoting M.T. v. State, 787 N.E.2d 509, 512 (Ind. Ct. App. 2003))(“[I]t is well established that ‘[c]orroboration should not be considered when determining the reliability of the statement because Indiana Code section 35-37-4-6 does not limit admission only to statements where there is independent corroborative evidence of the crime.’”)

Requirements of IC 35-37-4-6(e): Spontaneity and whether there was significant opportunity for coaching

• This passage of time tends to diminish spontaneity and increase the likelihood of suggestion.

Pierce v. State, 677 N.E.2d 39, 45 (Ind. 1997)

Taylor v. State, 841 N.E.2d 631, 636 (Ind. Ct. App. 2006), trans. denied(quoting Pierce v. State, 677 N.E.2d 39, 45 (Ind. 1997))(“We acknowledge the concern expressed in Pierce that the ‘passage of time tends to diminish spontaneity and increase the likelihood of suggestion.’”)

• While this substantial passage of time certainly casts doubt on the reliability of the . . . statements, we are mindful that it is “only one factor to be considered and is not necessarily dispositive.”

Ennik v. State, 40 N.E.3d 868, 879 (Ind. Ct. App. 2015), trans. denied(quoting Mishler v. State, 894 N.E.2d 1095, 1100 (Ind. Ct. App. 2008), trans. denied)

• “[T]he lack of spontaneity between the child's first molestation revelation and the time that statement is videotaped, standing alone, does not render the statement inadmissible under [IC] 35-37-4-6.”

A.R.M. v. State, 968 N.E.2d 820, 825 (Ind. Ct. App. 2012)(quoting Stahl v. State, 497 N.E.2d 927, 930 (Ind. Ct. App. 1986))

Requirements of IC 35-37-4-6(e): Testifying at trial and the availability of the protected person for cross-examination

• [I]n general, one of the requirements for admitting the statement [is] that the protected person must testify at trial.

Johnson v. State, 881 N.E.2d 10, 14 (Ind. Ct. App. 2008), trans. denied(citing IC 35-37-4-6(e)(2)(A))

• This requirement has been interpreted to be consistent with protecting a defendant's right to cross-examine the witnesses brought to testify against him.

Johnson v. State, 881 N.E.2d 10, 14 (Ind. Ct. App. 2008), trans. denied

• [O]ur supreme court has held that a defendant must have an opportunity to cross-examine the victim for the Protected Person Statute to comply with the Indiana Constitution.

D.G.B. v. State, 833 N.E.2d 519, 525 (Ind. Ct. App. 2005)(citing Miller v. State, 517 N.E.2d 64, 73 (Ind. 1987))

• Thus, the statute requires that the accused be afforded full right to cross-examine and confront the witness, which includes the opportunity for a physical, immediate face-to-face confrontation.

D.G.B. v. State, 833 N.E.2d 519, 525 (Ind. Ct. App. 2005)(citing Miller v. State, 531 N.E.2d 466, 470 (Ind. 1988))

• If a protected person is unavailable to testify at the trial for a reason listed in [IC 35-37-4-6(e)(2)(B)], a statement or videotape may be admitted in evidence under [IC 35-37-4-6] only if the protected person was available for cross-examination:

(1) at the hearing described in [IC 35-37-4-6(e)(1)]; or

(2) when the statement or videotape was made.

IC 35-37-4-6(f)

Notice: Text

• A statement or videotape may not be admitted in evidence under this section unless the prosecuting attorney informs the defendant and the defendant's attorney at least ten (10) days before the trial of:

(1) the prosecuting attorney's intention to introduce the statement or videotape in evidence; and

(2) the content of the statement or videotape.

IC 35-37-4-6-(g)

Notice: Interpretation of the text

• IC 35-37-4-6(e)[recodified without substantive changes at IC 35-37-4-6(g)] provides that a statement is not admissible unless the prosecutor informs the defendant and his attorney at least ten days before the trial that the State intends to introduce the statement into evidence.

Poffenberger v. State, 580 N.E.2d 995, 997 (Ind. Ct. App. 1991), trans. denied

If a statement or videotape is admitted: Instructing the jury

• If a statement or videotape is admitted in evidence under this section, the court shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement or videotape and that, in making that determination, the jury shall consider the following:

(1) The mental and physical age of the person making the statement or videotape.

(2) The nature of the statement or videotape.

(3) The circumstances under which the statement or videotape was made.

(4) Other relevant factors.

IC 35-37-4-6(h)

• The child hearsay statute also provides that if such a videotape is admitted, the trial judge must outline certain criteria for the jury to consider.

Rickey v. State, 661 N.E.2d 18, 21 (Ind. Ct. App. 1996), trans. denied(citing IC 35-37-4-6(g) [recodified without substantive changes at IC 35-37-4-6-(h)])

If a statement or videotape is admitted: Admitting a transcript or videotape of the hearing held under IC 35-37-4-6(e)(1)

• If a statement or videotape described in [IC 35-37-4-6(d)] is admitted into evidence under this section, a defendant may introduce a:

(1) transcript; or

(2) videotape;

of the hearing held under [IC 35-37-4-6(e)(1)] into evidence at trial.

IC 35-37-4-6(i)