Child molestation conviction turns on child testimony - if child is determined available by the court, their deposition testimony will not be admitted

Howard v. State
2006 Ind. LEXIS 792
Supreme Court of Indiana

After being convicted of child molesting, the defendant argued on appeal that the trial court erroneously admitted the pre-trial deposition testimony of a child witness who refused to testify further at the trial because (1) the child was not unavailable to testify at trial within the meaning of Crawford and (2) he was denied the right of cross-examination as required by Crawford.

The Supreme Court of Indiana agreed, setting aside the conviction and remanding the cause for further proceedings.

Because Crawford did not define “Unavailability” as to a witness, the Supreme Court of Indiana referred to its Fowler decision in which it held that “a witness who takes the stand but refuses to answer questions, with no claim of privilege, is “available” until she refuses to answer questions after being ordered to do so.” The Court also deferred to Indiana's Protected Person Statute which provides that a “determination that a child witness is unavailable may be predicated only upon a trial court finding (1) from testimony of a psychiatrist, physician, or psychologist and other evidence, if any, that the child will suffer emotional distress such that she cannot reasonably communicate if testifying in the physical presence of the defendant, (2) the child cannot participate at trial for medical reasons, or (3) the child is legally incompetent to testify.” If any of the foregoing circumstances are met, the trial court can admit the child’s deposition.

Here, the Supreme Court of Indiana found that the trial court admitted the child’s deposition in error as the child witness was not unavailable as within meaning of the Protected Person Statute. And, because the child was present at trial and took the stand but refused to testify, the child was not “unavailable.”

The Supreme Court of Indiana also addressed if a proper unavailability determination is made, whether the child’s pre-trial deposition may be admitted into evidence. This Court observed that the defense counsel “conducted a vigorous and lengthy examination” during the course of the child’s pre-trial deposition and that the deposition lasted “approximately two hours and resulted in ninety-two typewritten pages, nearly all of which constitute [defense] counsel’s examination of [child].” And the record shows that the defense counsel deposed the child on two separate occasions. This Court rejected the defendant’s claim that he was denied his right of confrontation. “[Defendant] had full, fair, and adequate opportunity to confront and cross-examine [child], within meaning of the Sixth Amendment, when her pre-trial deposition was taken. Accordingly, subject to a trial court finding of unavailability consistent with the protected person statute, [child’s] deposition may be introduced into evidence at any subsequent trial.”