Taking of oral testimony, in general: Trial court’s discretion

• The governance of the examination of witnesses in a manner which ensures adherence to the rules of evidence and procedure is the responsibility of the trial court, and the court is accorded wide latitude in carrying out that responsibility.

Allgire v. State, 575 N.E.2d 600, 606 (Ind. 1991)

• The state may not deny a criminal defendant the right to a fair opportunity to defend against the state's accusations. Chambers v. Mississippi, 410 U.S. 284 (1973). The defendant's right to present evidence is not absolute, however, for it may bow to accommodate other legitimate interests in the criminal trial process.

Baxter v. State, 522 N.E.2d 362, 368 (Ind. 1988)

• We find the trial court erred in permitting Eller to be called before the jury when all parties knew in advance that he would invoke the Fifth Amendment.

Tucker v. State, 534 N.E.2d 1110, 1111 (Ind. 1989) [The State improperly called this witness.]

Trial court control over an emotional witness

• On two different occasions, D. D. hesitated in her testimony and began to cry and sob. Each time, Defendant's counsel objected to the continuation of D. D.'s testimony because of her emotional display. The objections were overruled. When D. D. first manifested her deep distress, the trial court rhetorically questioned whether D. D. could continue and then allowed her to briefly walk outside the courtroom. Upon the second occurrence, the court kept D. D. in control by directing “next question .... next question.” Through the rest of her testimony, D. D. was generally responsive to counsel's questions.

Defendant made no motion for an admonishment of the jury or of the witness. Lewis also never moved for either a continuance or for a mistrial. It is now Defendant's contention that D. D.'s show of emotion amounted to an “evidentiary harpoon” since the trial court should not have allowed D. D. to continue before the jury. An “evidentiary harpoon” is the deliberate introduction of improper evidence by counsel to prejudice the jury, the effect of which cannot be corrected by any admonition of the trial court. It does not appear here that the State deliberately sought to manipulate D. D. so as to influence or prejudice the jury.

The very nature of D. D.'s testimony was extremely embarrassing and emotionally difficult. It is the duty of a trial judge to so manage and preside over a trial in order that all proper evidence which the parties have to bring forward is presented. The trial judge is not, however, to interpose himself into the proceedings to such an extent that his personality or authority indicate his opinions or in any other way influence the jury. In this case, the trial judge did what he was required to do. He allowed the witness to compose herself when she was overwhelmed by her feelings. The judge then permitted her to further testify as to the facts she had to bring forward. There is nothing else the judge should have been required to do.

Lewis v. State, 438 N.E.2d 289, 291 (Ind. 1982)

Witness’ attire

• Defendant next alleges that it was error for the trial court to give two final instructions dealing with aiding and abetting the commission of a crime since he was charged as a principal in the information. This issue has already been decided by this Court contrary to defendant's position. Instructions on an accused's liability as an accessory are proper where the accused is charged as a principal, providing the evidence supports such instructions. There was evidence here that several inmates participated in the beating of the victim and there was conflicting evidence as to which inmate caused the victim's fractured rib. The complained of instructions were supported by the evidence in this case.

Galmore v. State, 467 N.E.2d 1173, 1176-77 (Ind. 1984)(internal citations omitted)

Accommodations for young witnesses

• [Defendant] correctly asserts that Indiana law is “distinctly biased” against trial procedures which tend to emphasize the testimony of any single witness. However, recognizing the potential trauma facing a child in court, Indiana trial courts have permitted children to testify under special conditions despite the possibility that it would emphasize their testimony. For example, this court upheld a trial court's decision to allow child witnesses to testify with a support person sitting behind them, or a guardian sitting next to them. In addition, we approved a trial court's decision to permit a child to testify with her chair turned away from the accused and toward the jury. Finally, our supreme court has authorized child testimony by two-way closed-circuit television to help reduce the child's trauma while still protecting the constitutional right of the accused to confront a witness face-to-face. As a result, the manner in which a party is entitled to question a witness of tender years, especially in embarrassing situations, is left largely to the discretion of the trial court.

Shaffer v. State, 674 N.E.2d 1, 5 (Ind. Ct. App. 1996)(internal citations omitted)

Evid R. 614: Calling and interrogation of witnesses by court and jury

• 614(a): Calling by Court. The court may not call a witness except in extraordinary circumstances or as provided for court-appointed experts. All parties are entitled to cross-examine any witness called by the court.

Pursuant to Indiana Code section 35-36-2-2(d), the court-appointed medical witnesses "may be cross-examined by both the prosecution and the defense, and each side may introduce evidence in rebuttal to the testimony of such a medical witness." This opportunity for cross-examination and rebuttal evidence "relieves both parties of the burden of having the court-appointed physicians become their witnesses with the result that they would be bound by such testimony."

Mendenhall v. State, 963 N.E.2d 553, 566 (Ind. Ct. App. 2012)

• 614(b): Questioning by Court. The court may question a witness regardless of who calls the witness.

A judge is entitled to question a witness as long as it is not done to improperly influence a jury.

McVey v. State, 531 N.E.2d 458, 461 (Ind. 1988)

• 614(c): Objections. A party may object to the court’s calling or questioning a witness either at that time or at the next opportunity when the jury is not present.

A failure to object at trial results in waiver of the issue on appeal.

Mitchell v. State, 726 N.E.2d 1228, 1335 (Ind. 2000)

• 614(d): Questioning by Juror. A juror may be permitted to propound questions to a witness by submitting them in writing to the judge. The judge will decide whether to submit the questions to the witness for answer. The parties may object to the questions at the time proposed or at the next available opportunity when the jury is not present. Once the court has ruled upon the appropriateness of the written questions, it must then rule upon the objections, if any, of the parties prior to submission of the questions to the witness.

Instead, a trial court should explain to jurors what the questioning procedure will entail. A trial court can inform the jurors that it will be glancing at the jury to see if any questions exist after a witness's testimony. Another mode of inquiry could be for the trial court to instruct jurors to verbally or physically indicate if they have any questions. The trial court may also choose to tell jurors that it will specifically ask for questions after each witness. In sum, the trial court may use a variety of methods to obtain jury questions but must ensure that jurors know when they will be given an opportunity to ask such questions.

Ashba v. State, 816 N.E.2d 862, 866 (Ind. Ct. App. 2004)

Evid R. 615: Excluding witnesses and separation of witnesses: Separation of witnesses, in general

At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party's representative by its attorney; or

(c) a person whose presence a party shows to be essential to presenting the party's claim or defense.

Evid. R. 615

• We acknowledge that [evidence rule] 615 requires a trial court to grant a motion for separation of witnesses.

Anderson v. State, 774 N.E.2d 906, 909 (Ind. App. 2002)

• The purpose served by separating witnesses at trial is to prevent the testimony of one witness from influencing that of another.

Bell v. State, 495 N.E.2d 526, 527 (Ind. 1986)

• While Rule 615 does not address when a motion must be made, we have stated that, "[i]deally, a motion for separation of witnesses will be made before any witness testifies."

Williams v. State, 924 N.E.2d 121, 125 (Ind. Ct. App. 2009)

• [T]his Court has held that it is discretionary with the trial court to allow a witness to testify notwithstanding a violation of the separation order.

Lowe v. State, 534 N.E.2d 1099, 1101 (Ind. 1989)

• There is a long-standing Indiana tradition of permitting a police officer to remain in the courtroom at counsel's table even though the officer may also be called as a witness. . . .

An officer may also be allowed to remain in the courtroom pursuant to the third exception if the officer is designated as an “essential witness.” To qualify as an essential witness, a witness must have “such specialized expertise or intimate knowledge of the facts of the case that a party's attorney could not effectively function without the presence and aid of the witness. . . .”

Here, [sic] the trial court erred in allowing two police representatives to remain in the courtroom despite a witness separation order and without any designation that the second officer's presence was required as an essential witness.

Stafford v. State, 736 N.E.2d 326, 329 (Ind. Ct. App. 2000)

[Stafford implies that the State may exempt two officers from a separation order. However, some cases disagree:]

• An exclusion under clause (3) [the essential witness exception in rule 615] would thus be inappropriate in cases where a person excluded under clauses (1) or (2) can provide the expertise and knowledge adequate to assist counsel. Likewise, permitting a party to retain more than one witness in the courtroom under clause (3) to assist during trial would be especially questionable

Long v. State, 743 N.E.2d 253, 256 (Ind. 2001)

• The purpose of a witness separation order is to prevent the testimony of one witness from influencing another. In the absence of connivance or collusion by the prosecutor, the court has discretion in allowing a witness to testify after the violation of a separation order.

Corley v. State, 663 N.E.2d 175, 176 (Ind. Ct. App. 1996), abrogated on other grounds by Campbell v. State, 19 N.E.3d 271, 276 (Ind. 2014)

• In the absence of connivance or collusion by the party calling the witness, the trial court may permit the testimony of a witness in violation of a separation order.

Roser v. Silvers, 698 N.E.2d 860, 865 (Ind. Ct. App. 1998)

Evid R. 616: Witness’s bias

• Rule 616 provides for the admission of evidence showing bias or prejudice of a witness without any qualifications. However, the Rule should be read in conjunction with Rule 403's required balancing of probative value against the danger of unfair prejudice.

Ingram v. State, 715 N.E.2d 405, 407 (Ind. 1999)

• In this case, however, the trial court prohibited all inquiry into the possibility that Fleetwood would be biased as a result of the State's dismissal of his pending public drunkenness charge. By thus cutting off all questioning about an event that the State conceded had taken place and that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony, the court's ruling violated respondent's rights secured by the Confrontation Clause.

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)

• If a witness in a criminal trial has a financial motive for testifying in a certain fashion, the jury should hear about those matters as they are relevant evidence of credibility.

Domangue v. State, 654 N.E.2d 1, 3 (Ind. Ct. App. 1995)

• Evidence pertaining to threats or other attempts to influence a witness is permissible on cross-examination since it reflects on the credibility of the witness.

Ingram v. State, 508 N.E.2d 805, 807 (Ind. 1987)

• Dyson introduced the testimony not to prove the fact of the matter asserted, but to demonstrate that B.D. was biased and prejudiced against him. A witness's bias, prejudice or ulterior motives are always relevant at trial in that they may discredit her or affect the weight of her testimony.

Dyson v State, 692 N.E.2d 1374, 1376 (Ind. Ct. App. 1998)(quotation marks and citation omitted)