Out of Court Statements &Witnesses: Making Indiana do its Job at Trial

On February 24, 2014 the Indiana Court of Appeals took a stand against the Government's repeated attempts to use police "course of investigation" testimony at trial.   Traditionally, at trial police would testify to what they personally observed and then testify, "Mr. Smith told me he saw the Defendant walking away from the crime scene." Good Trial Attorneys would say, "Objection. That statement is hearsay - it is an out of court statement made by a person who is not on the stand. And that statement should not be admitted." The Government lawyers would respond, "It is not for the truth of the matter asserted, it is simply to show the jury why the officer went and investigated the Defendant. It is merely 'course of investigation' testimony."

Despite this type of testimony clearly being hearsay and clearly being harmful to a client's right to confront and cross examine all witnesses against him, Judges routinely let this type of testimony come into trial. That was until September 12, 2012 when a case named Kindred v. State of Indiana was published.  The Court of Appeals in Kindred put a stop to this type of testimony.  And rightfully so.  If the Government wants to put a man on trial and put him in jail, make the witnesses against him come to court and testify, and let the Defendant cross examine these witnesses - which is exactly what is guaranteed by the US Bill of Rights and the Indiana Constitution.  Don't allow testimony to come in from other witnesses through the police.

Despite Kindred being good law, this type of testimony is still going on in a bit more secretive fashion.  That is the issue in the February 24, 2014 case of Blount v. State of Indiana.  In Blount the police officer testified that witnesses, who did not appear at trial, gave the nickname of the Defendant to the Police officer and then subsequently came into contact and arrested Defendant.  The judge would not let the officer state exactly what the witnesses told him, but did let the officer testify that that the witnesses gave him a nickname and then the officer went and apprehended the Defendant.  So while the judge prevented the Officer from testify as to what these witnesses told him exactly, it was obvious that what the witnesses told the officer led the Officer to the Defendant.

The Court in Blount reversed this conviction.  The Court held that this was hearsay, it was wrongly admitted by the trial judge and the testimony, even if it was not for the truth of the matter asserted was highly prejudicial to the Defendant.  This case reaffirmed the right for a defendant to confront and cross examine a witness against them.  And that this right cannot be short circuited by the Government saying, "It is not testimonial, it is merely course of investigation testimony."

Remember, fight for your rights.  If you don't, no one else will. If you have been charged with a crime in the State of Indiana please do your best to hire a tried and true trial lawyer.  Not someone who is a "dump truck lawyer" - a lawyer that will dump you with a quick guilty plea.  If you or someone you care about has been charged with a crime please contact Attorney Lopez at (317) 632-3642 or through email.

Ineffective Assistance of Counsel

The Indiana Court of Appeals ruled earlier this week in the case of Bryant v. State that having an incompetent trial lawyer does not necessarily entitle a person to a new trial.

In this case the Defendant was strip searched after being arrested for a misdemeanor the officers.  Specifically, officers "forcibly bent" Defendant over and retrieved marijuana from the Defendant's buttocks.  The law in Indiana is that officers generally cannot strip search a Defendants accused of misdemeanors.  There is an exception if the police reasonable suspect that the Defendant is concealing contraband.

In this case the Defendant's attorney did not attempt to exclude the evidence that was forcibly extracted from the Defendant.  This was a mistake.  The Court of Appeals ruled that this was okay because the police officers testified that the Defendant leaned over in his car and that was suspicious behavior.  Thus the Court of Appeals decided that a motion to exclude would not likely have been granted.

The bottom line?  When you need to hire an attorney you need to find someone who can, if necessary, take your case to trial.  Because you only get one shot. You had better make it count.

If you have been charged with a crime or otherwise need a trial attorney, contact Indiana Trial Attorney Marc Lopez today at (317) 489-9611 or through his law firm's website.

Indiana Court of Appeals Dismisses Late Appeal

In the matter of Jeremy Phovemire v. State, the Indiana Court of Appeals ruled that a late appeal is subject to dismissal.  This is particularly troublesome as the issue in the case was that the trial court did not give the Defendant the proper number of credit days.  The most important thing to take away from this appellate case is that when dealing with an appeal it is important to recognize that the Indiana Court of Appeals is very strict with deadlines and other rules applicable in Appeals.  

The second most important thing to take away from this case is that whenever anyone is accused of any type of criminal wrongdoing that person must have a competent and capable trial lawyer.  Any law school graduate who passes the bar is a lawyer.  But being a trial lawyer takes more work than studying at law school and passing a test.  It takes someone who is willing and able to spend time learning how to be a trial lawyer.  It takes someone who is willing and able to stand up for the little guy against the Government.  It also takes someone who knows court procedure, knows the rules of evidence and has the guts to stand up to a judge that would probably be much happier, and possibly get home much earlier, if the Defendant just plead guilty. 

Attorney Marc Lopez is an Indiana Trial lawyer that spends all of this time fighting for the rights of the little guy.  If you are in need of a trial lawyer feel free to contact Attorney Marc Lopez at (317) 489-9611 or through his web page.