COA again strikes down statute limiting depositions of alleged child sex abuse victims

The Indiana Court of Appeals has once again ruled against a statute limiting the deposition of alleged victims in child molesting cases, finding that the Indiana Trial Rules take precedence over the statute’s procedural elements.

The ruling against Indiana Code § 35-40-5-11.5 was handed down Thursday in State of Indiana v. Aaron L. Riggs, II, 20A-CR-2144,  with Judge Terry Crone writing for an unanimous panel that included judges Patricia Riley and Paul Mathias.

At issue is the case against Aaron Riggs, who in 2019 was charged in two causes with felony and misdemeanor counts related to allegations of child molesting against his 9-year-old stepdaughter. While those cases were pending, the Indiana General Assembly enacted I.C. 35-40-5-11.5, known as the child deposition statute, limiting a criminal defendant’s ability to conduct an oral deposition of an alleged sex offense victim who is less than 16 years old.

Thus, the prosecutor on Riggs’ case declined to consent to the deposition of the alleged victim, as was required under the statute. But Riggs argued the statute conflicted with Indiana Trial Rules 26 and 30, and the Daviess Superior Court agreed.

In upholding the trial court’s ruling, the Court of Appeals found that the statute “contains procedural provisions that are subject to the general rule that the trial rules take precedence over conflicting procedural statutes.”

The COA initially considered the statute as an issue of first impression April,  then struck it down in May in the case of Donnie Louis Sawyer v. State of Indiana, 20A-CR-1446. Although the result was the same here, Thursday’s panel noted previous rulings “did not address the State’s arguments as articulated in the State’s brief in this case.”

Here, the state argued the statute was a substantive law and “embodies the legislature’s decision not to grant a criminal defendant the substantive right to a discovery deposition in the context of a limited class of cases unless extraordinary circumstances exist.” It pointed to State ex rel. Hatcher v. Lake Superior Court, Room Three, 500 N.E.2d 737 (Ind. 1986), in support of that argument.

But the statute in Hatcher “did not address the time, manner, or method of exercising the substantive right to a change of venue … . In contrast, the Child Deposition Statute prescribes the manner and method governing a defendant’s right to depose witnesses … ,” Crone wrote.

“Specifically, the Child Deposition Statute requires the defendant to seek the prosecutor’s consent, requires the trial court upon the defendant’s motion to hold a hearing if the prosecutor does not consent, sets forth the burden of proof, and places the burden of proof on the defendant,” Crone wrote. “These provisions are procedural.”

The COA instead looked to State ex rel. Blood v. Gibson Cir. Ct., 239 Ind. 394, 400, 157 N.E.2d 475, 478 (1959), which “concluded that even though (a) statute granted the substantive right to a change of judge in a levee proceeding, the timing for filing for a change of judge was procedural and thus that statutory provision was trumped by the trial rule.”

“Based on Blood, we conclude that regardless of whether the Child Deposition Statute embodies matters of substantive law, any and all procedural provisions of the Child Deposition Statute are subject to the well-established rule of law that a procedural statute that conflicts with a trial rule is a nullity,” Crone wrote.

Here, the procedural provisions of the child deposition statute conflict with the trial rules “by providing that a defendant may depose a child victim only in accordance with the Statute, by requiring the defendant to seek the prosecutor’s permission, by requiring the defendant to move for a hearing when the prosecutor does not grant permission, and by placing the burden of proof on the defendant to establish that there is a reasonable likelihood that the child victim will be unavailable for trial and the deposition is necessary to preserve the child victim’s testimony and/or that the deposition is necessary due to the existence of extraordinary circumstances and in the interest of justice.”

“Trial Rules 26 and 30 and the Child Deposition Statute are incompatible because both cannot apply in Riggs’s situation. As such, the trial rules prevail,” Crone concluded. “… We conclude that the trial court did not err in finding that the Child Deposition Statute is unenforceable. Therefore, we affirm.”