COA strikes down law limiting depositions of alleged child sex abuse victims

In a case of first impression, the Indiana Court of Appeals has struck down a law limiting a defendant’s ability to depose an alleged victim of child abuse. The law enacted in 2020 received widespread support from lawmakers and prosecutors but had been challenged by the defense bar.

In Donnie Louis Sawyer v. State of Indiana, 20A-CR-1446,  appellant-defendant Donnie Sawyer was charged in 2019 with two counts of felony child molesting – one count each for allegations against D.S. and A.S., both of whom were under 10 years old. The minors had provided statements, as had their parent, alleging child molesting before Sawyer was charged.

While the case was in its preliminary stages, Senate Enrolled Act 206 was enacted, restricting a defendant’s ability to depose a minor alleged to be a victim of a sex offense absent prosecutorial consent or “extraordinary circumstances.” The state did not consent to Sawyer deposing D.S. or A.S., and the Hamilton Circuit Court declined to authorize the depositions.

Sawyer appealed, claiming in oral arguments in April that the statute, Indiana Code § 35-40-5-11.5, conflicted with the Indiana Trial Rules, specifically Rules 26 and 30. The appellate panel agreed, reversing in Sawyer’s favor on Wednesday.

“Considering Ind. Code § 35-40-5-11.5 in light of the Indiana Trial Rules, we find that they are incompatible to the extent that both cannot apply in Sawyer’s situation,” Judge Elaine Brown wrote. “The former contemplates that a defendant ‘may depose a child victim only in accordance with this section,’ whereas Ind. Trial Rule 26 provides that, unless in the case of protective orders, the frequency of use of discovery methods including depositions ‘is not limited,’ and Ind. Trial Rule 30(A) provides that ‘any party may take the testimony of any person, including a party, by deposition upon oral examination’ after commencement of the action.

“The statute further conflicts with the Indiana Trial Rules when it necessitates the prosecutor’s permissions … and when it requires a defendant to move for a hearing when the permission sought is not forthcoming and otherwise places the burden of proof on the defendant at the contemplated hearing,” Brown continued. “… Because the procedural provisions in the statute conflict with those of the Indiana Trial Rules, the provisions of the Indiana Trial Rules govern.”

The COA’s holding included a finding that I.C. 35-40-5-11.5 is a procedural law, not substantive, as the state had argued. Quoting Key v. State, 48 N.E.3d 333 (Ind. Ct. App. 2015), the panel noted “(i)t is a fundamental rule of Indiana law that when a procedural statute conflicts with a procedural rule adopted by the supreme court, the latter shall take precedence.”