Substantial Proposed Change to Criminal Rules Regarding Child Victim Depositions

Earlier this month, substantial changes to the Indiana Rules of Court were submitted for public comment. The proposed changes can be found here, and comments are being accepted through August 10, 2021.

One proposed change is of particular interest to criminal defense practitioners. Indiana Trial Rule 26 provides parties with the ability to depose potential witnesses. In some situations, a protective order can be obtained to place limits on the deposition or prevent the deposition from occurring altogether. But those situations are rare and require a court order.

Effective March 2020, the Indiana General Assembly enacted a new statute, Indiana Code section 35-40-5-11.5, which gave the prosecutor the discretion to deny a criminal defendant the opportunity to depose a child victim of a sex offense who was under the age of 16. The statute laid out the procedure to be utilized in the event the defendant was denied the opportunity and wished to seek a court order for the deposition.

Indiana Code section 34-8-1-3 provides, however, that the Supreme Court holds exclusive authority to determine rules of procedure in Indiana courts, and any statutes that conflict with those rules have no force or effect.

Yesterday, in State v. Aaron Riggs, II, the Court of Appeals held that Indiana’s new child deposition statute conflicted with the Indiana Trial Rules regarding discovery and depositions. Consequently, the new statute had no force or effect. This was not the first opinion handed down from the Court of Appeals that held the new statute was unenforceable. The earliest case to do so was Sawyer v. State, handed down on May 19, 2021. A request to transfer jurisdiction to the Indiana Supreme Court is pending in Sawyer.

Nevertheless, in July one of the substantial changes being proposed to the Indiana Rules of Criminal Procedure appears to address this issue. Proposed Criminal Rule 2.5(E)(4) provides, in pertinent part: “Except as provided by this rule and Indiana Code, parties may take and use depositions of witnesses in accordance with the Ind. Trial Rules.”

If this proposed change is adopted by the Supreme Court of Indiana, it will be the Indiana General Assembly, and not the Indiana Supreme Court, who will decide whether parties in a criminal proceeding are permitted to conduct depositions of witnesses, including the victim.

Perhaps most concerning in this context is the impact such a change would have on the child victims Indiana is seeking to protect. The strength of the State’s case is often determined by the information the defense attorney learns during the discovery process. It is not uncommon for a defense attorney to seek to depose a child victim to see whether the child’s testimony is consistent with the child’s initial allegations and whether the child has a credible demeanor while testifying. If the testimony is indeed consistent and the attorney believes the child will appear credible to a jury, oftentimes the defendant will be more amenable to entering into a plea agreement. This spares the child victim from having to appear in court, in front of a room full of strangers, to testify.

Even where the defendant still opts to go to trial after a deposition, the deposition may still provide the child victim with some benefit by preparing the child for the child’s upcoming testimony in court. If defense attorneys are no longer permitted to depose child victims, however, the defendant may be much more likely to take his chance at trial, forcing the victim to have to endure the trauma of appearing in court and testifying about sensitive topics.

What about those rare occasions where even a deposition may be too traumatic for a child victim? Indiana Trial Rules 26 and 30 provide the prosecutor with the ability to limit the deposition, to terminate it once it has begun, or to prohibit the deposition altogether. Given the fact that the Trial Rules already provide protection to child victims, giving the Legislature unfettered discretion to define the deposition process in criminal proceedings is unnecessary, unfair, and perhaps unconstitutional.