Change of Venue: A Survey of Law Textbook

CHANGE OF VENUE
CHANGE OF
VENUE
A LAW STUDIES TEXTBOOK INCLUDING THE TRUE STORY OF AN INDIANA
TRIAL FOR TRIPLE MURDER
2014 STUDENT EDITION INCLUDING

OUTLINE AND DISCUSSION TOPICS
John R Berger
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Copyright 2008 by John R. Berger. jrb11129@yahoo.com
All rights reserved. This book or parts thereof may not be reproduced in any form without
permission of the author.
Published 2014 by Lake James Press
20 Lane 200H Lake James
Angola IN 46703
NOTE: The page references below may not be correct due to scribd formatting. However,
by downloading and selecting DOC, it should download in MS Works, the page references
should be correct, and the document can be saved, edited, selected and printed.
The entire materials in this textbook are available as a Survey of Law course in MS
PowerPoint with narration as a free MOOC (Massive Open Online Course). To access the
course go to or click on the following link
http://www.coursesites.com/s/_LAW-INTRODUCTION
Then click on Content. Then click on Change of Venue PowerPoint. Then click on Browse
as a Guest to view and listen to the entire course.
THE AUTHOR: John R. Berger is a graduate of Harvard Law School (JD 1953), Hillsdale
College (BS Summa Cum Laude 1950), and a retired Circuit Court Judge and Professor of Law,
Tri-State University. He is the author of a non fiction novel, The Red Gas Can, based upon the
triple murder trial described in Change of Venue, and his autobiography, The Bubbles Rise.
These books including Change of Venue are available in paperback at Amazon.
JOHN R. BERGER
JANUARY 1, 2014
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InmemoryofSusannaEllen
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Authors Note
This is a textbook to be used in introductory legal studies courses. The book contains a
student outline and discussion topics including sources of law, constitutional development, state
and federal courts, criminal and juvenile law and procedure, and an introduction to civil, probate,
domestic relations, labor, antitrust, and administrative law. Actual Indiana statutes are
reproduced to facilitate and teach research. Problems, Questions, and a Test Bank, all with
answers, are included.
A primary emphasis of this book is upon criminal law, criminal and trial procedure, and
constitutional law. An actual murder case over which I presided as the trial judge is set forth
beginning at the scene of the crime and continuing through the investigation, pretrial procedure,
trial, appeal, and Supreme Court opinion.
Even though portions of this book rely upon Indiana law, most state criminal law and
procedure are similar, and I think that the materials in this book would be appropriate as an
introductory course for legal studies students generally.
The facts set forth in these materials are based upon actual facts. They are taken from trial
documents, the official trial transcript, interviews with the persons directly concerned including
investigating officers, jurors and attorneys, research and my memory. I have simplified or
modified some of the materials but the basic facts are accurate. I have changed the names of the
victims, and some non police witnesses to provide privacy.
This is the tragic story of William, Elizabeth Ann and Jenny Harold who were brutally
murdered in the early morning of January 20, 1974, and of the trial of the accused, David James
Roberts. Interwoven are important legal and constitutional issues.
This is also my story as a young man, student, lawyer and judge. I was the judge for the
Roberts trial and it was the first murder trial involving the death penalty over which I presided.
I have included Notes at the end of the book which set forth additional or tangential facts
which the reader may find interesting and informative.
Follow the criminal proceedings, read the trial evidence as it unfolds, assume you were on the
jury, and decide the guilt or innocence of David James Roberts. Will you agree with the jury
decision?
John R. Berger
Angola, Indiana
January 1, 2014.
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STEUBEN COUNTY COURTHOUSE AND CIVIL WAR MONUMENT

Angola, Indiana
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JOHN R. BERGER
Judge, Steuben Circuit Court
January 1, 1971
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STATE OF INDIANA
SUPREME COURT
RANDALL T. SHEPARD, CHIEF JUSTICE
304 STATE HOUSE

INDIANAPOLIS 46204-2798
March 9, 2010
Hon. John R. Berger

20 LN 200H LK James
Angola, Indiana 46703
Dear Judge Berger:
Thanks so much for sending along a copy of your book Change of Venue, which I have
enjoyed. It is a gripping tale.
When I am done, I plan to place the book in the permanent collection of the Supreme Court
Library, so that others will have an opportunity to read it.
Congratulations on the enormous effort the book represents (and, of course, on your work
decades ago in the events it recounts).
Thank you for your many contributions to the Indiana bench and bar.
Sincerely,
Randy Shepard
Randall T. Shepard
Chief Justice of Indiana
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CONTENTS
PROLOGUE
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PART ONE: STEUBEN COUNTY AND THE CIRCUIT COURT

1.
2.
3.
4.
Steuben County 25
Steuben County Courthouse
The Judge 29
The Circuit Court 33
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PART TWO: THE TRIAL

5. The Grand Jury 37
6. Preliminary Hearing 40
7. Bail Hearing 42
8. Change of Venue Hearing 44
9. Arraignment 46
10. Omnibus Hearing 48
11. Jury Selection-1 51
12. Jury Selection-2 56
13. The Trial-Preliminary Instructions
58
14. The Trial-The State's Evidence Day 1
61
77
86
93
105
19. The Trial-The Defense Evidence Day 6 112
20. The Trial-Closing Statements and Final Instructions
21. The Trial-Duty of Jury 120
22. The Trial-Jury Deliberations 124
23. The Trial-The Verdicts 128
24. Indianapolis, Indiana 130
25. Roberts' Criminal Record 131
26. The Trial Phase Two 133
PART THREE: THE APPEAL
27.
28.
29.
30.
31.
32.
Motion to Correct Errors 143

Judicial Review 147
Cruel and Unusual Punishments 149
Indiana Supreme Court Decision 152
Northwest of Indianapolis
154
Americas Most Wanted Television Show
EPILOGUE
156
159
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AUTHOR'S COMMENTS 161
BIBLIOGRAPHY 167
NOTES 169
APPENDIX: STUDENT OUTLINE AND DISCUSSION TOPICS 188
ADDITIONAL READINGS
194 and 305
STATE AND FEDERAL COURTS 198
THE CHEROKEES 200
DIVISIONS OF AN INDIANA CIRCUIT COURT 201
ADDITIONAL BIBLIOGRAPHY 206
UNITED STATES CONSTITUTION 207
INDIANA CONSTITUTION: http://www.in.gov/legislative/ic/code/const/
INDIANA CODE PROVISIONS AND ADDITIONAL MATERIALS:
Indiana Offenses and Sentences 213
IC 35-42 Offenses Against the Person 215
IC 35-43 Offenses Against Property 230
IC 35-50 Sentences: General Provisions 242
IC 35-50 Death and Felony Sentences 243
IC 35-50-2-9 Death Penalty Sentencing Procedure 245
IC 35-50-3 Misdemeanor Sentences 249
IC 35-33 Arrest 250
IC 35-33 Arrest Warrants 254
IC 12-26 Involuntary Detention of Mentally Ill 255
IC 35-33 Search and Seizure 257
IC 35-33 Probable Cause-Initial Hearing 260
IC 35-33 Bail 263
IC 35-44-3-6 Failure to Appear 266
IC 35-41-2 Basis of Liability: Aiding-Intoxication-Attempt-Conspiracy 267
IC 35-41-3 Defenses: Self defense-Intoxication-Insanity- Mistake-Duress-Entrapment 268
IC 35-36-2 Affirmative Insanity Defense 273
IC 35-41-4 Burden of Proof and Bars to Prosecution 276
Jury Verdicts for Murder 277
Indiana Criminal Procedure Outline 278
IC 35-41 Definitions 280
IC 31-37 Juvenile Law 281
Indiana Juvenile Procedure and Waiver Checklist 293
Federal Administrative Agencies 295
Labor Law 297 Antitrust Law 299
DNA Statutes
300
The Right to Bear Arms Article 305 Sterilization Petition 309
Questions 309 Problems 311 Test Bank 314
Questions with Answers 326 Problems with Answers 330 Test Bank with Answers 334
NOTE: The entire Indiana Code can be found at http://iga.in.gov/legislative/laws/2014/ic/
The Code has 36 Titles. Title 33: Courts and Court Officers. Title 34: Civil Law and Procedure.
Title 35: Criminal Law and Procedure. Title 9: Motor Vehicles Operation. Title 31: Juvenile
Law. A citation to the code is IC 35-41-3-16 (Title 35-Article 41-Chapter 3-Section 16).
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Whoever intentionally takes the life of

another with malice aforethought shall be
guiltyofthecrimeofmurder.
Thedefinitionofmurderunder
Englishcommonlaw.
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PROLOGUE
New Whiteland, Indiana
It was about 4:30 a.m. on a cold and dark Sunday morning, January 20, 1974, in New
Whiteland, a small middle class white residential community located in Johnson County fourteen
miles south of Indianapolis, Indiana, when a passing car noticed smoke arising from the small
suburban ranch home of William and Elizabeth Ann Harold located on 915 Pine Drive. Within
five minutes the local volunteer fire department had arrived.
Upon entering the front door, the firefighters were met by a surge of fire coming from the
middle section of the house. The house was fairly airtight and therefore the fire had not spread
to the front and was mostly contained to a small den or TV room in the middle of the house. In
ten minutes the fire was brought under control and extinguished.
When the firefighters first arrived they observed through a back bedroom window a baby bed.
They broke the window, entered the bedroom and found the Harolds one year old daughter,
Jenny, in her small bed still alive but unconscious. She died on the way to the hospital from
smoke inhalation. Her first birthday was three days before.
The firefighters then searched the rest of the house. In the small den the burned bodies of
William and Elizabeth Ann were found. They were 25 and 23 years of age.
Fortunately, their four year old daughter, Marie, was spending the night with her uncle.
The Investigation
The state fire marshals office, state and local police thoroughly examined the Harold home
for evidence as to the cause of the fire and the perpetrator of the crimes.
There was no evidence of forced entry. The front door was open when firefighters and police
arrived. It was determined that the fire was caused by gasoline igniting. A red five gallon gas
can was found in the den.
No evidence, other than the red gas can, was found at the house to indicate who committed
these crimes.
Harold family members described the Harolds as a loving young couple who had been high
school sweethearts. They were married shortly after graduation from high school. They were
wonderful parents. They had two daughters, Jenny and Marie.
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The neighborhood was canvassed by the police and forty one neighbors were interviewed.
No one had seen any visitors, salesmen or delivery persons in the afternoon or evening of the
murders.
Investigators canvassed all service stations within the New Whiteland and Indianapolis areas
to determine if possible the source of the red five gallon gas can.
Investigators determined from several witnesses that on the late afternoon prior to the murders
at about 5:30 p.m. at a gas station at the corner of 16 th and Meridian Streets in Indianapolis a
black male in his late 20s, driving a 1970 tan or gold Buick Riviera, borrowed a five gallon red
gas can with $5 DEPOSIT ON THIS CAN in yellow crayon on the side and had it filled with
gasoline. One of the black employees stated to the investigator that he was the one who had sold
the gas and delivered the gas can. It was the same gas can found at the scene of the murders.
After further thorough investigation, preliminary murder charges were filed and an arrest
warrant issued for David James Roberts. Roberts was arrested and held without bail.
David James Roberts
When arrested Roberts lived in Indianapolis. He was African-American. He was 29 years
old, 63 tall, 195 lbs., had a light brown complexion, black hair, brown eyes, mustache and
slight afro haircut. He had a tattoo Carlos. He appeared to be well educated and was very
articulate. He was attractive in appearance.
David James Roberts was born in Englewood, New Jersey, on January 25, 1944, and lived
there for four years. His parents were African-American.
He had three brothers and three sisters ages 19-37. He had a deceased father and sister. His
mother, sisters and brothers all lived in the Chicago, Illinois, area.
He attended grade school in Boston, Massachusetts and in New York State and attended high
school in St. Paul, Minnesota. He did not have any attendance problems and got along well with
his teachers.
He moved to the Chicago area in 1960. His father was self employed in the trucking business
transporting frozen foods. He owned trucks and heavy equipment. He was very successful in
this business until in the early 1950s when he developed diabetes and was unable to drive a truck
or heavy equipment. Roberts worked with his father in Chicago until his father died in 1965 and
the business was dissolved.
Roberts later moved to Indianapolis and attended Indiana-Purdue University in Indianapolis
for three years. He enjoyed his college courses and received good grades.
In 1972 Roberts married Maryanne Duly. They had one child, Christopher, age 2. Roberts
classified his marriage as a good one.
Roberts had worked in a steel mill and as a quality control inspector for Detroit Diesel in
Indianapolis. He had speaking engagements at educational institutions in regard to penal reform.
Roberts enjoyed fishing and reading all types of books, especially law and literature.
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Roberts was born a Catholic and has attended church in the past. He stated that he believed in
God.
Later the Johnson County Grand Jury issued Indictments for murder and arson against
Roberts. He was formally arrested again and after several preliminary hearings before the judge
of the Johnson Circuit Court, the case of State of Indiana v. David James Roberts was transferred
for trial to the Steuben Circuit Court, Angola, Steuben County, Indiana. I was the Circuit Court
judge and the case would be tried before me and heard by a Steuben County jury.
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DAVID JAMES ROBERTS

1974
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PART ONE
STEUBEN COUNTY AND THE
CIRCUIT COURT
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1
Steuben County, Indiana
September 29, 1974
Steuben County is located in the far northeastern corner of Indiana. The history of Indiana 1
and its settlement were important ingredients in the selection of Steuben County as the Roberts
trial venue.
Indiana was first settled in the southern part of the state by people of southern origin using
water routes, primarily the Ohio River. They came from Virginia, Kentucky, North Carolina,
Tennessee and Maryland. They brought with them their southern white heritage and opinions
concerning African-Americans. By 1850 most settlers lived in the south half of Indiana.
Beginning in about 1830, settlers from Ohio, Pennsylvania, New York and other northeastern
states began to immigrate into the northeastern part of Indiana including Steuben County. Their
heritage was northern with little prior contact with African-Americans. In the first quarter of the
1800s there were few settlers in the northern part and many Miami Indians. The Miami by treaty
were removed to the Kansas Territory by 1846.
The first permanent settler in Steuben County was Gideon Langdon who built his log cabin in
Jackson Township in 1831. Shortly thereafter other settlers began coming to Steuben County,
primarily as part of the western migration of English Protestants from eastern states and New
England. Early settlements included Jackson Prairie, Vermont Settlement and Nipcondish
(Pleasant Lake). Steuben County was created in 1837 and named for Baron Frederick von
Steuben, a Continental officer in the Revolutionary War.
At the time of the trial, Steuben County had a population of about 26,000. There was one
city, Angola2, with a population of about 5,000 and a beautiful 1917 Civil War Memorial
Monument located in a large circle park in the center of the city. The monument is 85 feet tall
and honored the 1,278 soldiers from Steuben County that served in the war of whom 280 never
came home. Angola had no stop lights.
There were also several small towns in Steuben County. The county had a small industrial
and commercial base, a large farm population, a small college, 101 beautiful glacier lakes which
provided many recreational opportunities, and beautiful Pokagon State Park and Potawatomi Inn.
There was only one black family residing in Steuben County. The county had a scenic small
lake called Fox Lake with all African-American summer residents. They were mostly
professionals from the Toledo area. They were warmly accepted by the community and were
about the only African-Americans with whom Steuben County residents had become acquainted.
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From this mix of merchants, a small group of professionals, farmers, blue collar small factory
workers, public school teachers, and college professors and employees a jury would be selected.
As would be expected, the jury as finally selected did not have any African-American members.
Even though there were not any African-Americans in the jury pool, because of the northern
heritage of most Steuben County residents and their limited exposure to African-Americans,
prosecution and defense counsel thought that they could select a jury that was not biased against
African-Americans. Steuben County was a compromise as defense counsel wanted the case
venued to an urban area and the prosecutor would not agree.
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2
Steuben County Courthouse
Shortly after the Civil War, in 1867-1868, Freeborn Patterson designed and built the present
brick courthouse in Angola for Steuben County.
He built it in the style of Faneuil Hall in Boston, a building famous for its role as a meeting
place for patriots during the American Revolution. The court house is distinctive for its arched
windows set in tall sunken panels, for its raking cornice carried by pairs of brackets, and for its
curved wooden staircase. The construction cost was $26,392.00.
The courthouse was built on mostly donated land at the southeast corner of the public circle
and its high cupola can be seen for many miles. The courthouse was enlarged in 1937 by adding
to the south side at a cost of about $31,000.00. The courthouse was two stories high with a rustic
basement. The first floor contained the offices of the County Clerk of Court, County Recorder,
County Assessor and County Treasurer. The basement contained retired files and the Goodale
Abstract Office.
The large circuit courtroom with a high ceiling and large arched windows, the judges
chambers, the court reporters and bailiffs offices, and the probation officers office occupied
the entire second floor. Access was by means of two large beautiful wood staircases, one on
each side of the entrance hall.
Originally there was a balcony overlooking the courtroom which was accessed by a small
rickety winding staircase. The balcony had been closed and walled off for many years and was
used as a storage area for old furniture and miscellaneous retired court files.
When I was judge there was no courthouse security as there is today. A few years ago
someone in Oklahoma who was involved in a divorce action was not completely pleased with the
judges decision and shot His Honor dead in the courtroom. Immediately every courthouse in
the nation had to have armed security. Not to be left behind, the Steuben County Commissioners
since then have provided funds for two deputy sheriffs Monday through Friday from 7:30 a.m.
until 5 p.m. to man the courthouse door, complete with walk through and hand held wand
sensors.3
A cost comparison analysis would indicate that it would be a lot cheaper to not have security
and lose a judge now and then.
On the wall of a hallway outside the court room hung a photograph of a 1918 all male jury
that had deliberated the fate of Nora Coleman, a woman accused of murdering her mother. Old
records of the case were found which included the Coroners Report and an Affidavit by the
defendants husband.
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The Coroners Report stated that the deceased had succumbed to her death from being shot in
the head. It stated the cause of death as follows: I find that the deceased came to her death as
the result of being shot in the head with gun shot charge entering just above right ear and lodging
in the skull. These were the complete findings of cause of death. It is interesting to compare
this report to the detailed many paged coroners reports of modern times. In 1918 they did not
elaborate on the obvious.
The Affidavit of the husband stated, I, Word Coleman, being duly sworn make statement as
follows:
About 4 oclock a.m., Feb 7, 1918, my wife awoke me at which time she fixed fires and
came to bed.
She said to me that I would not need to be bothered with mother any more for she had took
the gun up there and shot her.
When I asked her why she did it she said so she would not keep harrissing (sic) me.
She gave no other reason.
She was a good wife. She kept the house warm and took care of a bothersome mother-in-law.
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3
The Judge
A trial judges legal training, prior law practice and judicial experience are very important in
formulating a judges thoughts and decisions. However, a judges background, life experiences
including military service and being a husband and father, compassion, courtesy, and an ability
to keep an open mind without bias are vital components in a judges decisions.
I was born to loving parents in Cincinnati, Ohio, on January 11, 1929. I had an older sister
and brother, Peggy and George. I was named John after my father and great grandfather. We
lived in a small house on one of the hills overlooking downtown Cincinnati.4
I attended grade school at Annunciation Catholic School, a converted church building with
four classrooms near my home. Two grades were in each room presided over by a stern and
loving Franciscan Sister. Father Kelly was the pastor of the adjoining church and each Monday
morning quizzed the faithful children on their knowledge of the Catechism. They had spent
many hours each week memorizing the answers to the questions contained therein. I still
remember the first question and answer: Question: Who made you? Correct answer: God
made me.
Three years of high school then followed at Cincinnati Country Day School, a private school
for boys, grades 1-12. There were twelve students in my junior year class and there were no
seniors. The classes were rigorous and included Latin, French, Spanish, grammar and the
classics.
After my junior year in high school, the WWII draft was still in full swing. I was seventeen.
In order to attend college before being drafted, I enrolled after my junior year in high school at
Hillsdale College, a small liberal arts college in Hillsdale, Michigan, under a wartime early
enrollment program. I was teased later in life for practicing law when I did not even have a high
school diploma.
I majored in physics at Hillsdale and was deferred from the draft and Korea. 5 Upon
graduation, I received the University of Michigan Horace Rackham Graduate School of Science
scholarship for two years of graduate study in physics. The scholarship was tempting but
prompted by excellent courses in constitutional history and business law at Hillsdale College, I
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decided to become a lawyer. I did not accept the scholarship to the great surprise and joy of the
alternate, and to the chagrin of my father who would now have to pay tuition, room and board.
Thus started my legal pursuit.
I applied to only one law school, Harvard Law School. I was accepted and in early September
of 1950, with some trepidation, at the age of twenty-one headed east on US Highway 20 in my
new bright red 1950 Ford convertible (a graduation present from my parents) toward Cambridge,
Massachusetts, and to the unknown.
Law school consisted of three years of concentrated studies including the core courses of
criminal law, torts, contracts, property law, domestic relations, commercial transactions, civil
law and procedure, administrative law, constitutional law, taxation and jurisprudence. The 19501951 first year law class consisted of about five hundred students including for the first time
twelve women. Classes were held six days a week. Classes were divided into four sections of
125 students. Each section attended class together in 150 seat stadium type classrooms. This
was a new experience for me as I had twelve students in each class at Cincinnati Country Day
School and usually twenty at Hillsdale College.
While at law school I took a tour of Faneuil Hall located in adjoining Boston, never dreaming
that one day I would be a judge presiding in a courthouse that was an exact replica.
After three years of rigorous study, I was graduated from Harvard Law School with a Doctor
of Jurisprudence degree in 1953.6
During the summer of 1953, I took and passed the two day Indiana bar examination and was
admitted to the Indiana and Federal bar in November of 1953.7
The Korean War was still ongoing in the summer of 1953 and I was drafted into the Army as
a Private at the age of twenty-four.8
Since I had an undergraduate degree in physics and a Doctorate of Law degree, the Army
decided that I should be taught to assemble bridges and would make a perfect Field Engineer. I
was assigned to Fort Leonard Wood, Missouri, for sixteen weeks of basic and advanced
training.9 An armistice had been signed at Panmunjom on July 27, 1953 which effectively ended
the fighting and, after basic, I was assigned as a field radio repair instructor at Fort Monmouth,
New Jersey for the remainder of my two year active duty requirement. The armistice still stands
and, because South Korea never has agreed to the armistice, South Korea and North Korea are
still technically at war. I am very thankful that, because of the armistice, I was not sent to the
front lines of Korea. After active duty I was required to be in the Ready Army Reserve for six
additional years during which period I was subject to active duty call up upon 24 hour notice. I
was almost called up for service during the Berlin Airlift. I received an Honorable Discharge
from the Army in December, 1961. I am very proud to have served my country.
The Berger family had spent summers at Lake James in Steuben County since 1936 and in
1946 my parents moved permanently to adjoining Jimmerson Lake. After release from Army
active duty I lived with them until my marriage in 1962 to Susanna Ellen Lemley, an attractive
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and vivacious Angola first grade teacher. Susanna and I built a home near my parents on
Jimmerson Lake. Susanna and I have two children, Susan Elizabeth (1966) and John
Christopher (1969).
I decided to start my law career in the small community of Angola rather than in a
metropolitan area. I have never regretted this decision.
In January of 1956, at the age of twenty-six, I joined two local attorneys, Donald Trennepohl,
a graduate of Indiana University Law School, and Wilson Shoup, a graduate of Georgetown
University Law School, to form the legal partnership of Trennepohl, Berger & Shoup (we flipped
a coin to determine the name sequence). The partnership continued for 15 years until I was
elected judge of the Steuben Circuit Court.10
My election for judge of the Steuben Circuit Court was hotly contested. Indiana circuit court
judges are elected on a partisan basis with a primary and general election.
Up until 1970, no doubt by virtue of the traditional egalitarian view, Indiana circuit judges
were not required to be lawyers and admitted to the bar. In 1970, Article VII of the 1851 Indiana
Constitution was amended to provide that all circuit court judges shall have been duly admitted
to practice law by the Supreme Court of Indiana.
I had to first run in the Republican primary against Olin Dygert, a friendly, fatherly and well
respected local Steuben County constitutional lawyer. I won the primary by 87 votes.
In the general election I ran against the incumbent democrat judge, Judge Louis Sisler, who
had been appointed by a democrat governor two years before to fill a vacancy. The vacancy was
created when the Steuben Circuit judge, Roger DeBruler, was appointed to the Indiana Supreme
Court in September of 1968.
Running against the incumbent is never an easy task. Further problems with my campaign
arose because I was perceived by some as an outsider (not having been born in Steuben County)
and because others were not sure that a Harvard graduate would be able to relate to the common
man. I ran a vigorous campaign. I sent out three thousand letters and posted signs on about
every telephone pole in Steuben County. I went to almost every farm house (sometimes a barn
or milking shed) in the county asking for votes. I went to many pot lucks and gave brief
presentations as to my many abilities. At one potluck in the basement of the R.E.M.C. an
aspiring J. Danforth Quayle, later to be Vice-President, was present and making his pitch to be
elected to Congress. His assistant at the potluck was Dan Coats, later to be a Senator and
Ambassador to Germany.
I won by a narrow margin. 11 Both Dans went on to worldly challenges and I stayed home to
serve my community. I am reminded of one of my favorite poems, TheVisionofSirLaunfal,
by James Russell Lowell:
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The little bird sits at his door in the sun,
Atilt like a blossom among the leaves,
And lets his illuminated being oerrun
With the deluge of summer it receives;
His mate feels the eggs beneath her wings,
And the heart in her dumb breast flutters and sings;
He sings to the wide world, and she to her nest,In the nice ear of Nature, which song is the best?
On January 1, 1971, in the old high ceiling county courtroom, I was sworn in as judge of the
Steuben Circuit Court by the clerk of court before a small group of friends, court personnel and
my loving wife and two small children. The elderly bailiff, James Jackson, and court reporter,
Iona Crain, presented me with a beautiful walnut engraved gavel which I cherish to this day.
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4
The Circuit Court
Each of the 92 counties in Indiana is served by a Circuit Court.

Originally, several counties were served by a single judge who presided over the courts of all
counties in the circuit. He would go on circuit and thus the name circuit judge. The first
circuit court that served Steuben County was established in 1839. Originally Steuben County
and DeKalb County to the south were served by one circuit judge. Then Steuben County and
LaGrange County to the west were served by one circuit judge. This was the situation until
about 1950 when Steuben and LaGrange were separated and each had its own circuit court judge.
When I became judge, the court system in Steuben County consisted of the Steuben Circuit
Court and two lower courts, a Justice of the Peace Court in the Town of Fremont and an Angola
City Court, both of which had jurisdiction limited to traffic violations and small claims. Upon
request by either party, a decision of these courts could be appealed and tried de-novo in the
Steuben Circuit Court.
The circuit court had unlimited general jurisdiction of all matters and was the basic trial court
in Indiana.
There were five divisions of the circuit court consisting of criminal, civil, juvenile, domestic
relations (divorce) and probate (wills, trusts and the administration thereof). All divisions were
interchangeable and administered at the same time by the judge of the Steuben Circuit Court.12
There was only one judge and I was the judge. My court personnel consisted of a Court
Reporter, Iona Crain, who reported all evidence, testimony and court actions by shorthand or on
an old tape recorder, a Bailiff, James Jackson, who acted as a receptionist and was in charge of
the court room and juries, and a Probation Officer who usually was a minister and was part time.
I immediately elevated the probation office to full time and appointed Thomas Hanselman, a
former Steuben County Sheriff, as Probation Officer.
Judgments of the circuit court could be appealed to the Indiana Court of Appeals or in
appropriate matters, to the Indiana Supreme Court. All murder convictions, sentences and
judgments were appealed directly to the Indiana Supreme Court.
Many people think that if an accused is found guilty that he or she can appeal to a higher
court and get a new trial before an appellate court. This concept is wrong. A defendant gets
only one chance to have a trial and that is before the circuit court.
An appellate court cannot substitute its opinion of the facts for that of the jury and trial court.
No new evidence is presented before an appellate court. The appellate court will only review the
evidence presented at the trial court. The appellate court will review whether the trial court
evidence favorable to the State is sufficient to sustain a verdict of guilty and only if it does not,
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will it reverse the conviction. A guilty verdict by a jury will be overturned only if no
reasonable person could have reached that decision. Rarely is a verdict reversed on this basis.
The appellate court primarily rules on errors of law that the trial judge may have made.
Examples of errors of law are an improper jury instruction given by the judge, or the judge
allowing improper evidence or testimony over proper objection to be introduced by counsel. The
Appellate Court must find a serious and prejudicial error of law made by the trial judge in order
to reverse a guilty verdict.
Therefore, David James Roberts realistically would get only one chance to defend himself
against the charges brought against him. He would have to seek a not guilty verdict from the
Steuben Circuit Court jury.
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PART TWO
THE TRIAL
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5
The Grand Jury
Johnson Circuit Court
March 15, 1974
Indiana law provided that a felony criminal charge could be commenced in two ways. The
prosecuting attorney of the county where the crime occurred could file a charging Information
setting forth the crime and the person charged, or a grand jury could issue an Indictment setting
forth the crime and the person charged. Both would be filed in the circuit court of the county
where the crime occurred.
A grand jury in Indiana consists of six members. It is convened by the circuit judge either by
the judge deciding to convene a grand jury or at the request of the prosecuting attorney. The
grand jury in secret hears and examines evidence presented by the prosecuting attorney
concerning crimes to determine whether an Indictment should issue charging a defendant (called
a Target under present Indiana law) with a crime. If an Indictment is issued it is called A True
Bill. If the grand jury decides that an Indictment should not be issued it is Not a True Bill,
which was originally called an Ignoramus (We know of no facts) in England.
Even though the jurors have the right to call witnesses, in practice the prosecutor decides
which crimes to present and which witnesses to call. In this way, the prosecutor may shape the
proceedings to almost ensure an Indictment being issued or to suggest that the grand jury decline
to indict. The proceedings are usually ex parte and the defendant has no knowledge thereof. Any
member of the grand jury also has the right to request his fellow jurors to commence an
investigation as to any offense.
A grand jury in issuing an Indictment does not determine the guilt of a defendant. It merely
finds that from the evidence presented to them that the defendant probably committed the crime.
An Indictment and an Information are merely methods to officially charge a defendant with a
crime. Whether the defendant is guilty (beyond a reasonable doubt) will be up to a judge or jury.
At trial, the jury is instructed by the judge that the filing of an Information or Indictment is no
evidence of guilt.
When I was judge a grand jury was required by law to annually examine the condition and
management of all county, city and town jails and file a written report with the judge. The
inmates always knew when the grand jury was in session as the meals were measurably better.
Often the grand jury option is used by a prosecuting attorney when the prosecutor does not
want the sole responsibility for charges being filed or not being filed. This usually occurs when
the facts present a circumstantial case or may have racial overtones as in the Roberts case.
The Roberts case was commenced by Grand Jury Indictment.
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All federal prosecutions for felonies can only be commenced by grand jury indictment (16 to
23 members) pursuant to the Fifth Amendment. The Founding Fathers wanted to protect the
people from arbitrary authority of the government to commence a criminal prosecution. The
grand jury would represent the people and protect their interests. Charges could not be brought
unless the people sitting on a grand jury decided that charges should be brought. This Fifth
Amendment grand jury requirement is not binding upon the states.
Indiana in the 1816 Constitution adopted the requirement of a grand jury for felony
prosecutions based upon the same theory to protect the people from arbitrary government action.
However, grand juries were increasingly commencing investigations on their own and imposing
their views as to proper public order and public virtue, and issuing Indictments based thereon.
Their deliberations were in secret and ex parte. As a result of this practice and the rise of
Jacksonian individualism, there was great pressure to repeal the Constitutional grand jury
requirement. All things done in private were suspect. A compromise was agreed upon and the
new 1851 Indiana Constitution provided that the grand jury procedure would remain but that the
legislature could provide additional methods to commence a criminal prosecution. The
legislature did so and provided that a criminal prosecution could also be brought by the
prosecuting attorney by Information. The traditional right of a grand jury to investigate crimes
and file Indictments on their own was abrogated by the Indiana legislature in 1981. Henceforth,
no Indictment could be filed with the court unless the prosecuting attorney approved.
Traditionally there were two types of first degree murder. The first type was knowingly or
intentionally taking the life of a human being with premeditation and malice. This was the law at
the time of the Roberts trial. Indiana no longer requires premeditation or malice as an element of
murder, and adds to the definition of murder knowingly or intentionally killing a fetus that has
the ability to live outside the mothers womb.
The second was taking the life of another person which resulted from the commission of a
felony (a serious crime). Intent to kill, malice and premeditation was not required. This is called
felony murder. Indiana still has felony murder.
Since the crimes were committed in Johnson County, the facts and circumstances of the
crimes were submitted to a six member Johnson Circuit Court grand jury. After hearing the
evidence presented by Joe Van Valer, prosecuting attorney of Johnson County, Indiana, the
county where New Whiteland is located, the grand jury issued its unanimous Indictment against
David James Roberts in six counts:
Count I: Murder in the First Degree by intentionally taking the life of William Harold with
premeditation and malice;
Count II: Murder in the First Degree by taking the life of William Harold while in the
commission of burglary; (felony murder)
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Count III: Murder in the First Degree by intentionally taking the life of Elizabeth Ann Harold
with premeditation and malice;
Count IV: Murder in the First Degree by taking the life of Elizabeth Ann Harold while in the
commission of burglary; (felony murder)
Count V: Murder in the First Degree by taking the life of Jenny Lynn Harold while in the
commission of Arson; (felony murder) and
Count VI: committing First Degree Arson by willfully and maliciously burning a dwelling
house.
Under Indiana law at that time Counts I, II, III, IV and V were punishable by life
imprisonment. If however Counts II, IV or V were committed by a person with a prior unrelated
conviction of robbery, then the penalty was death. Count VI was punishable by an indeterminate
sentence of five to twenty years, the exact length to be determined by the Indiana Department of
Corrections.
The six count Indictment was filed in the Johnson Circuit Court in Franklin, Indiana, and
approved by the prosecuting attorney and judge. The judge issued a formal arrest warrant for
David James Roberts to be held without bail which was served upon Roberts. Roberts was
already being held on preliminary charges in the Johnson County jail.
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6
Preliminary Hearing
March 26, 1974
On March 26, 1974, Roberts, shackled and in the custody of two deputy sheriffs, appeared
before Judge Robert Young of the Johnson Circuit Court in Franklin, Indiana, for a preliminary
hearing. Joe Van Valer, prosecuting attorney, was present. There were only three other persons
in the courtroom. Two appeared to be curious attorneys and one appeared to be a reporter.
Roberts was advised of the charges against him, the possible penalties, and his constitutional
rights including the right to be represented by an attorney at no expense to him if he could not
afford to employ an attorney.
Roberts asked that an attorney be appointed for him and the judge, after an examination of his
assets and income, determined that Roberts did not have assets or income available to him to
afford engaging private counsel and that pauper counsel should be appointed. The judge then
appointed Tom Jones, a Franklin defense attorney, to represent Roberts.
The judge then told Roberts that the matter would be set for formal arraignment after he had a
chance to confer with his attorney. At the arraignment Roberts would be again advised of his
constitutional rights and asked to enter his plea-guilty or not guilty.
Roberts then stood up and asked if he could address the court. The judge gave him
permission.
Your Honor, a terrible mistake has been made in charging me with any crime. I am innocent.
There cannot possibly be any evidence implicating me in these horrible crimes. Please release
me without posting bond on my personal recognizance. Let me return to my family and job.
The judge wondered where Roberts had learned the term personal recognizance (it was a
legal term that meant his personal promise to return to court when asked).
The judge patiently explained to Roberts that the court could not release him. With a charge
of murder the law required that he be held without bail. He should talk to his attorney, Tom
Jones, before he discussed this matter with anyone.
Judge Young then remanded Roberts to the custody of the Johnson County Sheriff to be held
without bail.
The prosecutor, Joe Van Valer and defense counsel, Tom Jones, were in their 30s,
experienced in criminal cases, well educated, intelligent and always well prepared.
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Tom Jones had never served as defense counsel in a case where the death sentence was
involved. Under present Indiana Criminal Trial Rules, he would not have been qualified to serve
as defense attorney for Roberts. Now, when a death sentence is sought, the judge must appoint
two attorneys to represent the defendant, a lead counsel and co-counsel. They must have at least
five and three years criminal litigation experience, five and three years felony jury trial
experience, one attorney must have been counsel in at least one case in which the death penalty
was sought, and both must have completed at least twelve hours of special training in defense of
capital cases within the previous two years.
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7
Bail Hearing
September 16, 1974
Even though the Eighth Amendment to the U.S. Constitution prohibits excessive bail, this
prohibition has been interpreted not to require bail when the charge is murder. The Indiana
Constitution provides that there shall be no bail for murder where the proof is evident, or the
presumption strong. This concept was incorporated in the original 1816 Indiana Constitution
and reaffirmed in the 1851 Constitution.
Therefore under Indiana law, if a defendant was being held in prison on a charge of murder
no bail was available unless the proof of guilt was not evident or the presumption of guilt was
not strong. A defendant could challenge his imprisonment without bail by filing a Petition for
Writ of Habeas Corpus and To Be Let to Bail with the circuit court asking for an evidentiary
hearing.
At such a hearing under the Indiana practice at that time, the defendant had the burden of
proving that the evidence of guilt against him was not evident nor the presumption of guilt
strong. If a defendant can sustain this burden, the court must set a reasonable bail amount and
upon posting sufficient bond, the defendant must be released from custody. This practice was
codified as of 1981. So much for the presumption of innocence. How does a defendant prove
that his guilt is not evident or the presumption of guilt is not strong? The defendant has to call
the states witnesses and ask them What evidence do you have against me?
On June 25, 2013, the Indiana Supreme Court in a 3-2 decision (Fry v. State of Indiana)
decided wisely that placing the burden of proof upon the defendant was unconstitutional
and that henceforth the burden would be upon the prosecuting attorney to prove that the
evidence of guilt was evident or that the presumption of guilt was strong. The proof must
be by a preponderance of the evidence (more likely than not).
Often an experienced criminal defense attorney would file such a petition to be able to find
out what evidence the prosecutor had against the defendant with no real expectation of being
able to obtain release of the defendant from jail on bail.
Roberts through his attorney, Tom Jones, filed such a petition and a hearing date before the
Johnson Circuit Court was set. Tom Jones did not expect to be able to obtain bail for Roberts but
took advantage of the procedure to obtain what amounted to a free deposition, an examination
under oath, of the prosecutors witnesses. Roberts surprisingly was confident that the judge
would set bail and allow him to post bond and be released.
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The hearing was held September 16, 1974. David James Roberts, Joe Van Valer, prosecuting
attorney, and Tom Jones, defense counsel, were present at the hearing before Judge Robert
Young.
At the hearing witnesses were presented and questioned by defense counsel and the
prosecuting attorney.
Surprisingly, the actual five gallon gas can which was found at the scene was neither
introduced into evidence by the prosecuting attorney nor identified by either of the next two
witnesses even though the can was available. The gas can was in the trunk of an officers car but
never brought into the court room.
Richard Roman, an employee of Renkite Shell Station, Indianapolis, was called upon to
testify concerning a red gas can and gas purchase. He testified that he had in fact sold gas and
delivered a red five gallon gas can to a black male in his late twenties at about 5:30 p.m. on the
afternoon before the murders.
He was then asked if he could identify and, if so, point to the person who had purchased the
gas and received the gas can. Richard Roman nervously looked around the courtroom and
directly at Roberts. Richard hesitated and then stated to the judge that he did not see anyone in
the courtroom who looked like the gas purchaser or the person who received the gas can.
The prosecutor, Joe Van Valer, was stunned as the police had told him that Richard Roman
had previously told the police that Roberts was that person.
William Hardy next testified. He was another gas station employee at Renkite Shell and was
a witness to the gas purchase and can delivery. He also had previously told the police that
Roberts was that person. He was asked if he could identify Roberts as the person who had
received the gas can. William Hardy gave the same response as Richard Roman. Neither
identified Roberts!
Judge Young asked the prosecutor if he had any further evidence to introduce. The prosecutor
did not offer any further evidence and Judge Young thereupon found that the evidence of guilt
was not clear and convincing, that Roberts did not pose an eminent risk of flight to avoid
prosecution, and set bail at $10,000.00.
Roberts was not surprised. He had said all along that they had the wrong man. Tom Jones
told Roberts that he would meet with Joe Van Valer and discuss a dismissal. The prosecution
obviously had no case.
Roberts immediately posted a $10,000.00 bond and was released from custody.
The prosecutor would not dismiss the case. The prosecutor was up for election in November
in a hotly contested prosecutors race. How would it look to the Johnson County voters if the
prosecutor dismissed triple murder charges approved by six honorable Johnson County grand
jurors?
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Change of Venue Hearing
September 17, 1974
Indiana law provides that in a criminal matter a defendant can request a change of venue to
transfer a case to another Indiana county. Such a transfer is discretionary with the trial judge and
can be granted if the judge believes that the defendant cannot receive a fair jury trial in the
county where the crime was committed because of prejudicial pretrial publicity.
The Harold murders and Roberts subsequent arrest received complete and repeated coverage
in the Indianapolis newspapers, which were widely circulated in Johnson County, as well as the
local Johnson County newspaper.
On September 17, 1974, one day after the bail hearing, Tom Jones filed a Motion to Change
Venue from the County with the Johnson Circuit Court contending that such publicity was highly
prejudicial to Roberts and that the defendant could not obtain a fair and impartial jury in Johnson
County. At the hearing many newspaper articles were presented to the judge and the motion was
granted.
It is not surprising that the change of venue was granted as the docket is always
overwhelming in the circuit court of a non metropolitan county with only one judge. A two or
three week jury trial would wreck havoc with the court calendar. Also, the case was certainly
inflammatory and was the type of case that a judge does not hesitate to transfer.
Counsel were instructed by the judge to try and agree on an appropriate county to which the
case would be transferred for further proceedings and trial and if they could not agree, the judge
would name three counties from which the parties would alternately strike. Counsel agreed that
a county far removed from the metropolitan Indianapolis area would be best.
After talking with several attorneys in Angola, the county seat of Steuben County, 120 miles
northeast of Indianapolis, concerning the demographic of Steuben County and the competence
and experience of the Steuben Circuit Court judge, counsel agreed that the case be transferred to
the Steuben Circuit Court, Angola, Indiana, the Honorable John R. Berger presiding. Pursuant to
the agreement, the case was so transferred.
I was the sole judge of the Steuben Circuit Court. I was first made aware of a criminal case
being transferred to Steuben County when, during a coffee break at Bassetts Restaurant across
the street from the courthouse, two local attorneys reported to me that they had been contacted
by Franklin attorneys concerning the circuit judge and the community. The local attorneys said
it was a high profile murder case with a black defendant. They wanted to know if I knew
anything about it. I didnt.
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I wondered why the defense agreed to transfer the trial of an African-American to Steuben
County rather than to an urban area with a large African-American population. The jury in
Steuben County would undoubtedly be all white. This concerned me very much.
Although a judge to whom a case will be transferred cannot refuse a transfer to the court,
usually the transferring judge will contact the judge of the court where the case will be
transferred and obtain consent. This was not done in the Roberts case, probably because Judge
Young knew there would be reluctance to accept transfer if the facts of the case were known.
When the case file was received and filed in the Steuben Circuit Court on September 23,
1974, I knew that the case would be a tremendous challenge especially since the State was
seeking the death penalty. StateofIndianav.DavidJamesRoberts was the only murder trial
involving the death penalty over which I presided as judge. A search of the docket of the
Steuben Circuit Court reveals that from its inception in 1839 until the present, except for the
Roberts case, there has not been a murder case tried where the death sentence was requested.
I had no way of knowing the physical, mental and emotional strain that there would be upon
me and my family.
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9
Arraignment
Steuben Circuit Court
October 21, 1974
On October 21, 1974, David James Roberts, Joe Van Valer, the prosecuting attorney of
Johnson County, and Tom Jones, defense counsel, appeared before me as judge of the Steuben
Circuit Court in the old court house in Angola for formal arraignment.
Just before the arrival of Roberts and Jones, I was looking out the window of my second story
chambers and noticed the arrival by car of two young men with brief cases dressed in suits with
ties. I noted to the court reporter and bailiff that two of the attorneys in the Roberts case had
arrived. It was only when the men appeared in court and after introductions that I realized that
one of the men was the defendant, Roberts. Roberts appearance, demeanor, intelligence and
communication skills were well above average. He was always dressed in a suit and tie.
After the trial, one of the jurors told me that when the jurors were first present they wondered
where the defendant was. At the defense table were defense counsel Tom Jones and David
James Roberts. They thought that Roberts was another defense attorney!
When all were present in the courtroom, upon motion, I gave Craig Benson, the Steuben
County prosecutor, permission to assist Joe Van Valer in the prosecution, and appointed Steuben
County attorney Albert Friend as co-counsel for the defense to assist Tom Jones. Local cocounsel is especially helpful in the selection of local jurors. They also present a local presence
which makes a venued cause more familiar and acceptable to the jury.
I then read to Roberts the Indictments and explained the statutes under which the Indictments
were drawn including the possible penalties (life imprisonment and death).
I further explained in detail the defendants constitutional rights including the right to be
presented with witnesses against him before an impartial judge or jury, the right to call witnesses
on his behalf, the right to a speedy trial, the right not to be compelled to be a witness against
himself and the right to a jury trial before twelve jurors selected from Steuben County.
I also explained that a judge or jury must find the defendant guilty of a crime beyond a
reasonable doubt before he can be convicted of any crime and if there is a jury trial, the jury must
be unanimous in its decision before a conviction or acquittal. Roberts then told me that he fully
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understood the charges against him and his rights, entered a plea of not guilty to all charges
and requested that all matters be tried by jury. The jury trial request was automatically granted
and bail previously set by the Johnson Circuit Court was continued without objection.
I set the matter for an Omnibus Hearing.
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10
Omnibus Hearing
March 11, 1975
At an omnibus hearing the attorneys exchange the names and addresses of prospective
witnesses with the substance of their testimony, and a list of proposed documentary and forensic
evidence. Also, any motions are considered by the judge. At this time the requirement of an
omnibus hearing was fairly new. Previously, the prosecutor and defense counsel did not know
prior to trial what witnesses or other evidence would be introduced. This made it especially
difficult to prepare a defense. We used to call it trial by ambush.
Joe Van Valer had lost his bid in November for reelection as prosecutor of Johnson County.
Charles Gantz, an accomplished Franklin attorney in his mid thirties had defeated Van Valer. In
spite of the disastrous bail hearing, Charles Gantz had refused to dismiss the Roberts case and
was preparing for trial. Mr. Gantz was convinced that Roberts was guilty.
The hearing was held March 11, 1975. At the hearing the newly elected prosecuting attorney
of Johnson County, Charles Gantz, submitted a list of forty five prospective witnesses. Defense
counsel, Tom Jones, submitted a list of eight. Defense counsel did not know at that time whether
the defendant would be testifying.
I submitted for approval or objection twenty-three Preliminary Instructions which I would
read to the jury at the commencement of the trial explaining the charges of murder, arson,
burglary, the possible penalties, the presumption of innocence, the definition of malice and
premeditation, and the fact that each juror must be convinced beyond a reasonable doubt as to
the guilt of defendant before he could return a guilty verdict. The instructions were approved.
Both the prosecutor and defense counsel filed Motions in Limine. Such motions if granted
would forbid counsel or any witness from mentioning certain facts at the trial.
Defense counsel had indicated that the defense had evidence that Buddy Harold, a prospective
witness for the prosecution and the brother of William Harold, had embezzled funds as Executor
of the Harold estates and as Guardian for the surviving Harold child, Marie, and that such
evidence would be offered to impeach his testimony. Evidence that a witness is a thief can be
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considered by the jury as evidence that the witness is not truthful in his testimony. The
prosecutor wanted any such evidence excluded unless, after a hearing out of the presence of the
jury, I found any such evidence credible.
The defense filed motions to exclude any evidence or testimony of previous charges against
Roberts. I will discuss these motions later.
I granted all motions.
The defendant also filed Notice of Alibi which stated that defendant intended to introduce
evidence that he was in fact at the Fall Creek Y.M.C.A. the evening and morning of the murders.
This notice gives the prosecutor an opportunity to investigate the alleged alibi prior to trial.
Tom Jones requested that I authorize the employment of an arson cause and reconstruction
expert at a cost of between $900.00 and $1200.00. I granted the request.
I spent considerable time preparing for the trial. Such preparation consisted mainly of
anticipating what witnesses might testify and what objections might be made by counsel to
proposed questions. Also possible objections to the introduction of any other evidence needed to
be considered. If necessary the judge needed to research the law in advance of trial as to a
proper ruling on any objections. In the heat of a fast paced murder trial the judge must be able to
rule immediately (and correctly) on all objections. A judge cannot recess the trial to do research
every time there is an objection. An incorrect ruling on the admission or exclusion of evidence
could result in an appellate court reversal and new trial.
Also adding to the pressure upon the trial judge in a jurisdiction where there is only one
judge, is the fact that the judge, in addition to presiding over the trial, must also be available to
conduct other matters within the courts jurisdiction. The judge must conduct arraignments for
new criminal cases, approve new criminal cases and order warrants to be issued, hold juvenile
hearings, make emergency orders in divorce and custody matters, and hold temporary mental
commitment hearings.
I also did considerable research in regard to recent United States Supreme Court decisions as
to the death sentence and to the qualification of jurors in respect thereto.
The constitutionality of the death sentence per se had been presented to the United States
Supreme Court many times. It had consistently been upheld. However, certain aspects of the
imposition of the death sentence had also been considered.
The United States Supreme Court on June 29, 1972, three years before the Roberts trial, in
Furmanv.Georgia had decided that the Georgia and Texas criminal statutes allowing juries,
after they had heard the evidence, to decide guilt and impose the death sentence without being
given any guidelines as to under what circumstances they could impose the death sentence rather
than a life imprisonment sentence was unconstitutional. Any such practice or law violated the
Eighth Amendment which prohibited cruel and unusual punishments and was incorporated by
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the Fourteenth Amendment. Defendant Furman, an African-American, had been surprised by a
homeowner during an attempted burglary. He tried to flee, tripped, fell and accidentally
discharged his gun killing the homeowner. The jury had sentenced him to death.
Indianas murder and death penalty criminal statutes, together with 39 other states statutes,
were similar to Georgias and therefore became unconstitutional by virtue of the Furman
decision.
The Attorney General of Indiana, Theodore Sendak, had filed a brief amicus curiae (a friend
of the court) with the Supreme Court in the Furman case urging that the Georgia and Texas
statutes be upheld. This was Indiana taxpayers money being spent on a lost cause.
On May 1, 1973, the Indiana Legislature, following the lead of many other state legislatures,
quickly passed a new murder and death penalty statute which was intended to avoid the Furman
case. The new Indiana law mandated the death sentence in certain circumstances (killing a
human being while perpetrating or attempting to perpetrate arson or burglary by a person who
has a prior unrelated felony conviction of robbery) and therefore, the legislature reasoned,
guidelines were not necessary. The death sentence was mandatory and therefore a jury would
have no discretion. No need to provide guidelines. Roberts would be tried under this new 1973
statute. If Roberts was found guilty by the jury of murder as charged, and if Roberts had a prior
robbery conviction, the jury by law would have to sentence Roberts to death!
In anticipation of a large number of prospective jurors being challenged and excused at trial, I
issued a venire to the sheriff of Steuben County to summon forty prospective jurors to appear for
trial on July 1, 1975 at 8 a.m.
The jurors selected for a particular trial were chosen from a pool of prospective jurors
selected by the Steuben County Jury Commissioners. The two Jury Commissioners are
appointed by the Circuit Court judge. Their function at the time of the Roberts trial was to meet
every three months to select a number of prospective jurors from a list of property owners in
Steuben County. In the smaller counties, the jury commissioners knew most of the property
owners and were very selective in the jurors that they chose. This process was later modified to
include voting lists to create a more representative list of jurors. The jury pool is now selected at
random from the voting lists by a jury administrator appointed by the judge. No longer are
prospective jurors selected by jury commissioners who knew them and their qualifications to be
jurors.
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11
Jury Selection
July 1, 1975
The right to trial by jury developed as part of the English common law. The first English
jurors were selected if possible from among persons who had witnessed the crime. How better to
arrive at a fair and just verdict! Jurors usually did not take very long to arrive at a verdict. To
insure promptness, no food or beverages were served to the jurors.
Traditionally jurors were white property owning men. Qualification to be a juror was often
tied to the right to vote. The original federal Constitution did not specify who was eligible to
vote-this was left to the states to decide.
In the debates by the delegates to the 1850 Indiana Constitutional Convention a resolution
was offered to grant universal suffrage. One delegate stated, According to our general
understanding of the right of universal suffrage, I have no objection to the proposed resolution
but if it be the intention of the mover of the resolution to extend the right of suffrage to females
and Negroes, I am against it. All free white males over the age of twenty-one years-I
understand this language to be the measure of universal suffrage.
What universal suffrage meant in Indiana in 1851 was clearly set forth in the 1851 Indiana
Constitution. Article 2, Section 2 states Every white male citizen of the United States of age of
twenty-one years and upwardsshall be entitled to vote. Section 5 states No Negro or
Mulatto shall have the right to suffrage.
The XV Amendment of the United States Constitution had granted the right to vote to male
Negroes in 1870. In a delayed response thereto, in 1881 Article 2 of the Indiana Constitution
was amended to delete the requirement of white and Article 5 was repealed. Male Negroes
were thus granted the right to vote by Indiana law. The 1880 Indiana census listed White,
1,938,798; Colored, 39,503, including 29 Chinese and 246 Indians and Half-Breeds.
Even though granted the right to vote, jury commissioners in examining the list of property
owners and their perceived qualifications to serve as jurors would not select Negroes to serve as
jurors for many years.
Women were granted the right to vote by the XIX Amendment of the United States
Constitution in 1920 and by the Indiana Constitution in 1921. Even after the passage of these
amendments women were still often excluded from jury service on the grounds that their primary
duty was to take care of their homes and families. Even if women could vote, strong male
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prejudice (male jury commissioners) continued to dictate that they should not be chosen as the
raw material women might hear in the course of a criminal trial would shock their delicate
sensibilities.
It was not until 1936, fifteen years after the Indiana Constitution specifically allowed women
to vote, that the first women jurors served in Steuben County.
Although the common law of England was initially incorporated by Indiana courts, several
basic changes were made including the qualifications of jurors. Jurisprudence in the United
States has adopted the rigorous rule that jurors must not have any prior knowledge of the facts
and must not have formed any opinions in regard to the facts or the guilt or innocence of the
defendant.
In order to obtain such jurors, prospective jurors are questioned as to their qualifications
before being selected to serve as a juror. The process of examination is called voir dire, a French
phrase meaning to speak the truth.
On July 1, 1975, at 9 a.m., with the defendant, all attorneys and forty prospective jurors
present, the bailiff intoned, All rise, the Honorable John R. Berger, presiding and I entered the
courtroom from a door behind my bench.
Traditionally the judges bench and chair were raised about two steps. About twenty feet in
front of the judges bench were two large desks facing me. One was on the left for defense
counsel, his assistant and the defendant, and one was on the right for the prosecutor, his assistant
and the chief investigating officer. The twelve seat jury box was to the right at a right angle to
the judges bench. The witness box was just to the right of the bench. All testimony and
proceedings would be taped or written in shorthand by the court reporter who sat just to the left
of the bench in her own box.
Historically under the common law, a jury consisted of twelve members. The Constitution
provides in the VI Amendment that all persons charged with a crime shall be granted an
impartial jury trial. The Constitution does not specify how many members there must be on an
impartial jury. The United States Supreme court decided in 1970 that a six member criminal jury
for non capital crimes pursuant to a Florida statute was constitutional. Since then many states
have passed legislation permitting less than a twelve member jury for certain crimes. Indiana in
1981 passed legislation requiring a twelve member jury for serious felonies and a six member
jury for lesser felonies (Class D) and misdemeanors. A misdemeanor is usually classified as a
crime providing for a sentence of one year imprisonment or less.
The voir dire examination in the Roberts case then began before a crowded and hushed
courtroom.
With considerable apprehension and a quiet prayer, I was about to embark upon my greatest
test as a judge.
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I welcomed the prospective jurors. I then introduced myself, all attorneys, the defendant and
the chief investigating officer. I explained briefly the charges, the possible penalties and the
procedure that would follow.
First a jury of twelve with one alternate would be selected by voir dire examination. Those
not chosen to be jurors would be excused. Then preliminary instructions will be given by me to
the jury as to the charges against the defendant and the law which the jury should apply. The
jury will then hear opening statements by the prosecutor and defense counsel. The presentation
of evidence will then be made, first by the prosecutor and then by the defense. At the close of
the evidence, the prosecutor and defense counsel will make closing arguments and I will give the
jury final instructions. The jury will then retire to deliberate. During the trial, except for the
time the jurors are in court, the jurors will be allowed to separate and carry out their normal lives.
Twelve of the prospective jurors were first seated in the twelve seat jury box and questioned.
In some courts, the judge asks all of the questions. I took the traditional approach and allowed
the attorneys to ask the questions. The questions were addressed to the initial twelve but all
other prospective jurors were instructed by me to listen to the questions. If a juror was excused,
another prospective juror was called forth and took the vacant seat in the jury box to be
questioned.
Many courts now submit to prospective jurors several weeks prior to trial a jury questionnaire
which must be answered under oath. These questionnaires contain basic questions concerning
biographical background, prior experience with the law, law enforcement or the court system,
ability to serve as a juror, and knowledge of the case and of any prospective witnesses. Some
questionnaires are over fifty pages long and subject to presentation and argument before the
judge prior to being agreed upon and submitted to the prospective jurors. The attorneys have the
opportunity to examine the answers prior to trial to assist them in determining whether to accept
or challenge a juror. The use of the questionnaire does not replace voir dire examination by the
attorneys at trial but rather supplements and shortens the voir dire.
The 1994 O.J. Simpson questionnaire was seventy-five pages long and contained three
hundred and two questions. It included the following questions.
Please state your personal belief regarding each statement. Answer the following four
questions by stating: Strongly agree? Agree? Strongly disagree? Disagree? No opinion?
1. If the prosecution goes to the trouble of bringing someone to trial, the person is probably
guilty.
2. The testimony of law enforcement officers is not entitled to any greater or lesser weight
merely because they are law enforcement officers.
3. Regardless of what the law says, a defendant in a criminal trial should be required to prove
his or her innocence.
4. A defendant in a criminal trial should testify or produce some evidence to prove that he or she
is not guilty.
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5. How big a problem do you think racial discrimination against African-Americans is in
Southern California. Serious? Somewhat serious? Not too serious? Not at all?
6. Have you ever experienced fear of an African-American? Explain.
7. How would you feel if a close family member married an African-American? Favor? Would
not approve? Would oppose it? Explain.
8. What is your view concerning the reliability of the DNA analysis to accurately identify a
person as the source of blood or hair found at a crime scene? Very reliable? Not very reliable?
Somewhat reliable? Unreliable? Dont know?
It would be interesting to know how the trial jurors under oath answered this last question as
they found him not guilty in spite of the DNA evidence of his blood found at the scene which
excluded only one out of one hundred and seventy million as a match.
The procedure for voir dire was to allow alternately the prosecuting attorney and defense
counsel to question jurors as to their backgrounds and qualifications. By statute, jurors must be a
voter, freeholder, householder, or spouse of a householder. Also, ferryman, policeman, fireman,
veterinarians and dentists and those over 65 could be excused from jury service upon request.
Grand jury qualifications were more restrictive by Indiana statute. A grand juror could not be
insane or in the habit of becoming intoxicated but a regular (petit) juror could!
The voir dire examination of jurors by the attorneys provides an excellent opportunity for the
attorneys by their questions to stress certain aspects of their case.
Roberts attorney explained to each juror the doctrine of defendants presumption of
innocence that followed throughout the trial, and the rule that before conviction a juror must be
convinced beyond a reasonable doubt that the defendant is guilty of the crime charged. Each
juror was asked if he or she understood the doctrines and if he or she would be willing to accept
and apply it. He asked this of all jurors and therefore it was emphasized over and over again.
Unlimited challenges to a juror by counsel for cause are permitted, examples of which are:
the juror is related to a victim or a prospective witness or had an opinion as to guilt.
Also, in a murder case, each party had 20 peremptory challenges without cause. No
explanation need be given to have a juror excused if peremptorily challenged. Peremptory
challenges are made by counsel to try and shape the jury to favor their client. In some well
funded high profile cases, jury consultants are hired to advise counsel as to which jurors to
accept or excuse.
In the Roberts case, defense counsel tried to eliminate women, educated, older, middle and
upper class jurors. The prosecutor tried to retain such jurors. If this case had been tried in a
metropolitan area with a large black population, perhaps peremptory challenges might have been
used by the prosecutor to challenge black jurors. A later United States Supreme Court case
declared unconstitutional the use of peremptory challenges for the sole purpose of excluding
blacks.
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The prospective imposition of the death sentence raised close questions concerning what
views a juror could hold concerning such a sentence and not be subject to a challenge for cause.
If a juror stated that he or she could never vote for a death sentence, he or she would be
excused for cause.
If however, a juror was generally opposed to the death sentence, this would not of itself be
justification for a challenge for cause. A juror would be qualified if such a juror stated that he or
she could possibly vote for the death sentence under a certain set of circumstances even though
generally opposed. In the Roberts case there were several prospective jurors who were of this
opinion and were not excused by me for cause. Even though not excused for cause, the
prosecutor peremptorily challenged them.
In a death sentence case, the typical jury questionnaire asks questions concerning the above
beliefs and often asks:
Are you in favor of the death penalty as a punishment for crime? Explain.
Do you believe that the death penalty serves any legitimate purpose in our society? Yes?
No? If so, what purpose: Punishment? Retribution? Deterrence? Prevention?
The possibility of a death sentence also posed another problem in selecting a juror. Steuben
County residents had rarely been exposed to a person accused of murder. They had never been
asked to decide whether a person should be put to death. Several prospective jurors stated that
they were not opposed to the death penalty but they could not make a decision that could lead to
a death sentence. I excused such jurors for cause.
After a long day of voir dire examination, twelve prospective jurors were accepted by the
defense. The cause was continued for further voir dire until the next morning. All prospective
jurors were admonished by me to not discuss the case with any one and not to read any articles
or listen to any radio or television reports. The jurors were then allowed to separate and directed
to return to court at 9 a.m. the next morning, July 2.
During the entire voir dire examination, no questions were asked of the jurors by defense
counsel as to a jurors opinion of African-Americans and if the juror could render a fair verdict
when an African-American was the defendant and a white woman was the victim. Only the
general question, Is there any reason why you as a juror could not render a fair and impartial
verdict was asked.
12
Jury Selection
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July 2 and November 5, 1975
On the next day, July 2, 1975, before the jury assembled, defense counsel called to my
attention an article published the previous day in the FortWayneJournalGazette, a newspaper
widely circulated and read in Steuben County.
The article described the trial about to begin in Angola and set forth in detail certain previous
unrelated charges against Roberts. Such information would not be admissible at the trial and if
read by any juror would be highly prejudicial to the defendant. Defense counsel then made a
motion that the entire jury panel be dismissed. I questioned the prospective jurors as to whether
any of them had read any article about the trial, and received answers from two jurors that they
had read the article in the JournalGazette. Since I had admonished the jurors not to read any
articles, I was not certain that the responses of the other jurors that they had not read any articles
were accurate. It would have been difficult for a juror to admit that the judges admonishment
was ignored. Because of this uncertainty and to eliminate any possibility of a tainted juror, I
dismissed the entire panel. The cause was reset for trial on November 5, 1975.
On November 5, 1975, again with an overflow courtroom, forty prospective new jurors
assembled and voir dire examination began. After two days of voir dire, twelve jurors with one
alternate were accepted by both the prosecution and the defense. The jury then took an oath to
well and truly try and determine this cause at issue and now on trial and return a true verdict
according to the law and the evidence as it is presented to you during this trial, so help you God.
The jury consisted of three women and nine men. The alternate was a woman. Each party
seemed satisfied that it would be a fair and impartial jury (and maybe by their skillful use of
peremptory challenges decide in their favor). After selection of the thirteen jurors and jurors
being peremptorily or for cause challenged and excused, only six remained of the original forty
prospective jurors. The selected jurors were admonished, excused for the day and ordered to
return at 9 a.m. on November 10.
If more jurors had been needed, the law provided that a judge could order the sheriff to go to
any public place (the street in front of the courthouse) and select more prospective jurors from
among the previously happy shoppers. They would have to immediately appear before the judge
for jury service. This law has now been changed and no longer can the judge order bystanders to
be jurors.
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13
The Trial-Preliminary Instructions
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November 10, 1975
On November 10, 1975, the courtroom was again filled to capacity with others standing
outside the large courtroom doors waiting for a vacant spectator seat. Security was high at all
times when Roberts was present including four deputy sheriffs.
Roberts two brothers and several friends were present throughout the trial. They were
thoroughly searched by the deputy sheriffs before being allowed to enter the courtroom. One
brother was overheard saying, He wont be in jail much longer. No other Roberts family
members attended the trial.
William Harolds three brothers and Elizabeth Harolds sister attended the entire trial.
However, since the Harold brothers would be witnesses, they could not be in the courtroom until
after they had testified. The Harolds parents did not attend the trial. All members of the Harold
family, except Elizabeths sister, were also searched before entering the courtroom.
Charles Gantz and his supporting staff, prosecution witnesses, and involved police officers
stayed during the entire trial at the new Holiday Inn five miles north of Angola near the Indiana
Toll Road Angola exit. Tom Jones and David James Roberts stayed at the nearby Cedar Lodge,
a small modest family owned (American) motel. The defense budget was limited by Judge
Young and the Johnson County Commissioners who had to approve all defense expenditures.
Iona Crain, the court reporter, who lived in a house in the woods near the courthouse,
remembers being so frightened during the trial that she kept all her blinds closed at night at her
house.
I welcomed the jurors and commenced by reading to the jurors the Preliminary Instructions
which included the murder and arson charges, and the fact that as to certain murder charges a
second phase of the trial may be held to determine if the death sentence should be imposed.
I explained that the trial would be bifurcated to accomplish this. That meant that there would
be two phases in the trial. The first would be the presentation of evidence as to the guilt or
innocence of the accused on all counts. The second, in the event of a finding of guilt by the
jurors on counts II, IV or V, would also be heard later by the same jury in order to decide if the
death penalty would be imposed. At the death penalty hearing, the jury could consider additional
evidence and statements of counsel.
The bifurcation procedure was not set forth in Indiana law at the time of the Roberts trial. I
adopted this procedure however to keep certain evidence that may have been very prejudicial to
the defendant that was admissible in the second life or death determination phase separate from
the guilt or innocence phase of the trial.
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I also read preliminary instructions to the jurors concerning the Presumption of InnocenceBurden of Proof, Reasonable Doubt, and Credibility of Witnesses-Weighing Evidence as
follows:
PRESUMPTION OF INNOCENCE BURDEN OF PROOF
Under the law of this State you must presume that the defendant is innocent. You must
continue to believe he is innocent throughout the trial, unless the State proves that the defendant
is guilty, beyond a reasonable doubt, of every essential element of the crimes charged.
Since the defendant is presumed to be innocent he is not required to present any evidence to
prove his innocence, or to prove or explain anything. If, at the conclusion of the trial, there
remains in your mind a reasonable doubt concerning the defendants guilt, you must find him not
guilty.
REASONABLE DOUBT
A reasonable doubt is a fair, actual and logical doubt that arises in your mind after an
impartial consideration of all of the evidence and circumstances in this case. It should be a doubt
based upon reason and common sense and not a doubt based upon imagination or speculation.
If, after considering all of the evidence, you have reached such a firm belief in the guilt of the
defendant that you would feel safe to act upon that conviction, without hesitation, in a matter of
the highest concern and importance to you, when you are not required to act at all, then you will
have reached that degree of certainty which excludes reasonable doubt and authorizes
conviction.
The rule of law which requires proof beyond a reasonable doubt applies to each juror
individually. Each of you must refuse to vote for conviction unless you are convinced beyond a
reasonable doubt of the defendants guilt. Your verdict must be unanimous.
CREDIBILITY OF WITNESSES-WEIGHING EVIDENCE
You are the exclusive judges of the evidence, the credibility of any witness and the weight to
be given to the testimony of each witness. In considering the testimony of any witness, you may
take into account his or her ability and opportunity to observe; the memory, manner and conduct
of the witness while testifying; any interest, bias or prejudice the witness may have; any
relationship with other witnesses or interested parties; and the reasonableness of the testimony of
the witness considered in the light of all of the evidence in this case.
You should attempt to fit the evidence to the presumption that the defendant is innocent and
the theory that every witness is telling the truth. You should not disregard the testimony of any
witness without a reason and without careful consideration. However, if you find that the
testimony of a witness is so unreasonable as to be unworthy of belief, or if you find so much
conflict between the testimony of witnesses that you cannot believe all of them, then you must
determine which of the witnesses you will believe and which of them you will disbelieve.
In weighing the testimony to determine what or whom you will believe, you should use your
own knowledge, experience and common sense gained from day to day living. You may find
that the number of witnesses who testify to a particular fact, or one side or the other, or the
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quantity of evidence on a particular point does not control your determination of the truth. You
should give the greatest weight to that evidence which convinces you most strongly of its
truthfulness.
14
The Trial-The States Evidence Day 1
November 10, 1975
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After I read the preliminary instructions to the jury, Charles Gantz and Tom Jones made
opening statements to the jury.
Opening statements are used by attorneys to ingratiate themselves with the jurors and to set
forth their case. The prosecutor goes first and then defense counsel.
Charles Gantz carefully described the crimes charged and the possible penalties including
death. He outlined the witnesses that he would call and the testimony that he expected to elicit.
He described the exhibits that he would offer into evidence and their relevancy. He stated that
the jurors represented the conscience of the community and, even though it would be a most
difficult task for them, he was convinced that, after hearing all of the evidence, the jury would do
their duty and find David James Roberts guilty of all charges.
Tom Jones gave a brief statement reminding the jury that, as the judge had instructed, they
must presume that the defendant did not commit any crime and that they should not form any
opinions as to guilt or innocence until they had heard all of the evidence. He stated that the
defendant did not have to prove his innocence and that the entire burden was upon the
prosecution to prove the guilt of defendant beyond a reasonable doubt. He stated that, after they
had heard all of the evidence, he believed strongly that they would not find Roberts guilty of any
charged crime.
In a criminal trial, the prosecutor presents the states evidence, subject to cross examination,
first. Next the defense counsel presents evidence subject to cross examination. The prosecutor
then may present evidence in rebuttal.
Upon motion of counsel, all prospective witnesses, except the chief investigating officer, Lt.
Robert Allen, were separated from the courtroom and admonished by me to not discuss their
testimony with anyone until after the trial. The purpose of separation of witnesses is to prevent a
prospective witness from hearing any prior or future proposed testimony and possibly altering
their testimony to comply with the other testimony.
The jurors had been instructed by me as to the law and had heard the opening statements of
the prosecution and defense. It was now time for them to hear the evidence.
In the first phase of the trial the prosecution had to present evidence to convince the jury
beyond a reasonable doubt that the defendant had:
Intentionally killed William and Elizabeth Ann Harold with malice (ill will) and
premeditation (intended to kill in advance of the killing) which required a life sentence and/or
Killed William and Elizabeth Ann Harold while committing Burglary (breaking and entering a
dwelling with intent to commit Murder or Arson) which required a life sentence and under
certain circumstances (to be determined in phase two of the trial) a death sentence and/or
Caused the death of Jenny Harold as a result of Arson (intentionally and maliciously burning
any part of a house) which required a life sentence and under certain circumstances (to be
determined in phase two of the trial) a death sentence and/or
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Committed Arson.
When any witness was called to testify, I would have the witness stand before me and the
bench, and raise his or her right hand. I would also raise my right hand, look directly into the
eyes of the witness and say, Do you swear or affirm that the testimony that you are about to give
in this matter is the truth, the whole truth and nothing but the truth, so help you God or you do so
affirm? Upon an I do from the witness I would ask the witness to be seated in the witness
box (the stand).
During the first phase of the trial the prosecutor presented forty-five witnesses.
The actual testimony of each witness or a summary thereof is presented below.
Prior to trial I had no knowledge of the facts in this case. I knew the charges that had been
filed and the fact that there had been a bail hearing at which the prosecutor had failed to present
sufficient evidence to have Roberts held without bail. Other than that, I was just like a thirteenth
juror about to hear the evidence.
The States first witness was Gary Harter.
DIRECT EXAMINATION BY MR. GANTZ:
Q. Please state your name.
A. Gary Harter.
Q. How old are you?
A. Twenty-six.
Q. Where did you live on January 19th, 1974?
A. In New Whiteland, Indiana.
Q. Calling your attention to the evening of January 19th, 1974, did you have occasion to be in
the vicinity of Pine Drive in New Whiteland.
A. Yes.
Q. Please describe what you did and saw that night and early the next morning.
A. Well, I had been out with my girlfriend, who is now my wife, and we had been to a show. I
took her home, which was at 719 Pine Drive, and we watched TV for a while. I left and came
back to her house at about 1 a.m. and we watched TV some more. I left at about 4:30 in the
morning to go home. When I was driving by the Harold house I noticed smoke coming from the
house. I contacted a friend of mine, Deputy Adams, who was cruising in the neighborhood. I
told him there was a house on fire on Pine and he said Okay and went on. He must have
notified the fire department cause they showed up a few minutes later.
Q. Then what did you do or see?
A. We both ended up at the Harold house. We went up and looked around the house, and beat
on the windows, to see if anybody was in there, and couldnt find anybody. We couldnt hear
nobody or see anything through the windows.
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Q. Well, now at the time you left your girlfriends house, who is now your wife, could that have
been earlier than 4:30?
MR. JONES: I am going to object to that, Your Honor. This is his witness. He cant impeach
him as to his testimony.
THE COURT: Its overruled. You may answer.
A. Not much before that.
Q. Did you see flames when you first saw the house?
A. Yeah, very small flames coming out the side window.
Thats all I have from this witness.
MR. JONES: I have no questions.
MR. GANTZ: At this time Your Honor, we would call Charles Long to the stand.
Q. Please state your name and address.
A. My name is Charles Long and I live in New Whiteland.
Q. What is your occupation, sir?
A. Assistant Fire Chief of the New Whiteland Volunteer Fire Department.
Q. And what are your duties?
A. I direct men at the fire and investigate fires.
Q. Did you have reason to investigate a fire on the 20th day of January, 1974, at 915 Pine Street
in New Whiteland, Indiana, belonging to William and Elizabeth Ann Harold?
A. Yes.
Q. Can you relate to the court and to the jury what you did?
A. When we first got to the scene the fire was going and we-I later went to the hospital with the
baby that we removed from the house.
Q. When did you arrive at the scene, sir?
A. Approximately 4:38 on the morning of the 20th.
Q. Okay, and what did you do upon arrival?
A. I was directing the fire trucks and laying out and connecting the hoses.
Q. What observations did you make?
A. There were flames showing from the front window of the house.
Q. Where were the flames?
A. They were coming from the top of the window of the middle room which was used as a den
or television room.
Q. What did you do next?
A. When the fire equipment arrived I was at the ambulance and when they brought the baby up
from behind the house we put the baby in the ambulance and I went with the baby in the
ambulance to the Johnson County Hospital.
Q. Do you know if the baby was alive or dead when you were in the ambulance?
MR JONES: Now show our objection to that, Your Honor, unless there is some foundation for
such an opinion. I think the cause of death requires an expert opinion.
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MR. GANTZ: I did not ask for the cause of death. I asked if the baby was dead.
THE COURT: I think you could ask the witness if she had any symptoms of life or death.
Q. Well, were there any such symptoms?
A. I could not say because I was not in the back of the ambulance with the baby.
Q. Was the baby crying or moving?
A. No.
Q. What did you do next?
A. I returned to the scene of the fire at about 5:00 oclock and entered the room where the two
bodies were. It was the den.
Q. What did you see then?
A. The body of a male victim laying face down on the floor, feet next to the door, his head
toward the television set in the corner. There was a gas can sitting right next to his shoulder.
The body of the female person laying crossways of the room with her feet on the couch face
down.
Q. Were the bodies clothed or not clothed?
A. The female body appeared not to be clothed. The male body looked like it had clothes on the
underneath side and they had been burnt off the top-or the back side, I mean. There was burned
clothing piled on top of each body.
Q. Did you observe anything else in the room?
A. Yes. There had been a fire burning in various places in the room and around the door and out
into the hallway. The chair and couch was also burned pretty badly.
Q. Did you observe other fire damage in the house?
A. Yes. There was fire damage to the wall outside the den, to the hallway leading to the kitchen,
and toward the living room. There was fire damage to the rug running out to the living room and
in the living room. There was a lot of heat damage and the drapes in the front room had caught
fire and burned. There was smoke and heat damage which caused peeling of wallpaper and this
sort of thing in other rooms in the house.
Q. Did you observe any clocks?
A. There was a clock in the hallway that leads to the kitchen. The cord on that clock had burned
in two. The clock was stopped at approximately four oclock.
MR GANTZ: No further questions.
CROSS EXAMINATION BY MR JONES:
Q. Mr. Long did you observe a bathroom in the residence?
A. Yes.
Q. Isnt it a fact, Mr. Long, that in that bathroom there was a bath tub filled to bath level with
water?
A. There was water in the tub, Im not sure of the exact depth of it, sir.
Q. And the female body was nude?
A. Yes, sir, as far as I know.
MR. JONES: No further questions.
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MR. GANTZ: No redirect examination.
The State will call John Lasiter.
Q. Please state your name, residence and occupation.
A. I am John Lasiter. I live in Johnson County and am a Deputy Sheriff of Johnson County. My
rank is Detective Lieutenant.
Q. Did you have occasion to investigate a fire on the morning of January 20, 1974, at the
Harold residence on 915 Pine Drive in New Whiteland, Indiana?
A. Yes, sir.
Q. What time did you arrive at the scene and what did you do?
A. I arrived at approximately 5:05 a.m. Shortly after I arrived the draperies in the living room
re-ignited and was extinguished by the fire department. I entered the house and went to the
family room or den where I visually viewed two bodies. The male body was lying parallel to the
south wall of the room. The female body was lying parallel and at right angle to the west wall
with one leg on the couch. There was burned clothing over the top of the female body. The
female was naked. There was debris from the room over most of the male body.
Q. Did you know the subjects that were dead in that house?
A. I knew them by name at that time-knew who lived there.
Q. What further observations did you make concerning the den or TV room?
A. The TV room was charred from obvious fire damage and had a strong odor of gasoline. I
observed a five gallon metal can. There was no male clothing in any of the closets in the TV
room. There were several neckties knotted together on the chair and floor. There was a chair
with several partially burned personal items on the seat-papers such as payment books,
checkbook, and the victims wallet or purse. All of these items were turned over to Officer Flint
for safe keeping.
Q. Was there any money or currency in the wallet or purse.
A. No.
Q. What other observations did you make concerning other rooms in the house?
A. There was a small room in the back that had a cot and several barbells, weight lifting devices.
There was a partially filled beer bottle on a small table. The room was heavily damaged by the
fire. In the master bedroom there was a rack with several guns and a bow and arrow set. In the
infants room there was a crib. In the bathroom the tub was filled to bath level and the water had
a heavy smoke skim across the top. Between the living room and the kitchen was a plastic and
wood room divider which had not been burned and was lying on the floor.
Q. Did you observe anything with regards to the front living room?
A. Yes. There was a ladies coat and a diaper bag in a chair near the front door. There was some
fire and smoke damage. There was an area of heavy fire damage on the rug, kind of like a fire
trail, leading from near the front door to the TV room where the Harold bodies were. At the start
of the trail in the living room near the front door there was a metal cap which we later found fit
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the gas can we found in the TV room. It was a cap with a long flexible pouring spout. Next to
the spout we found a book of matches and a pair of black leather mens work gloves.
MR. GANTZ: Thats all I have for this witness.
CROSS EXAMINATION BY MR. JONES:
Q. Okay, now Lieutenant, did you search the house the day you were up there?
A. The best we could do under the conditions.
Q. Did you find any male clothing in the closet of the master bedroom?
A. Yes. There was several shirts, a uniform type pants of blue wash and iron material. There
were no sports coats or suits.
Q. Were there any sport coats or suits in any closets in the entire house?
A. If my memory serves me correctly, no, there were none.
Q. Tell us whether or not you found any money in the entire residence.
A. We found no currency or coins in the house if my memory serves me correctly.
Q. Did you ever investigate a burglary case?
A. Yes, many.
Q. In the course of your career as a policeman in Johnson County, isnt it a fact that this had
many of the earmarks of a first degree burglary case?
A. With the exception of no forced entry that we found.
Q. There was no forced entry at all, was there?
A. Not that we found, no sir.
Q. In other words, whoever went into that house that night forced open no windows or doors
that you could find, isnt that correct?
A. Thats correct.
Q. And when you got there, the front door was standing wide open?
A. Thats true. The screen door was closed though.
Q. Now you indicated that there was a partition that had been knocked down before the fire?
A. Yes there was.
Q. So what you are telling us is that there was a struggle back over in this room, wasnt there?
A. That was my opinion.
Q. Well, weve got a struggle and a bathtub full of water and neckties knotted together and
money missing, but no forcible entry, right?
A. I dont know that there was money missing because I dont know that there was money in
there before.
Q. Your investigation showed that they had been out that evening-been to a movie, had some
pizza, a couple of beers before they came home. This indicates that probably there was some
money or change in the house when they got home.
A. All I know was that we did not find any money.
Q. Did you know William Harold prior to his death?
A. Yes.
Q. Did he work out with weights and was he a person who could probably take care of himself?
A. Yes, sir.
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Q. Now, in the course of your investigation did you receive information that the house had been
broken into prior to January 19th and that two mens suits had been taken?
A. Yes I did.
Q. My point being, Lieutenant, that there was a breakin that same house, wasnt there?
A. Yes, sir.
Q. Okay. Now, in the course of your investigation, did you determine whether or not there had
been any black people rent a room at the Rubys Motel four- tenths of a mile east from the
Harold house in New Whiteland?
A. Yes sir, I did.
Q. Tell the Jury what your investigation disclosed as to when these negroes or blacks arrived at
the motel.
A. I interviewed the owner and he stated that two black males and two black females rented
separate rooms from January 20, 1974, at 12:30 a.m. and left at 3:30 a.m. I showed him a series
of photos including one of Roberts and they were negative.
Q. Did he tell you any reason at all why these negroes or blacks would have left that motel at
3:30 in the morning?
A. No, sir, they did not.
Q. Incidentally thats half an hour before the clock stopped up there at Pine Drive, isnt it?
A. Thats correct.
Q. Now in the course of your investigation did you determine that a black male, or negro male,
was seen at the Harold residence driving a light tan or gold big type automobile about 6:30 a.m.
the morning of the fire?
A. Yes.
Q. The exact same type of car that you eventually looked for in connection with David Roberts,
isnt that correct?
A. Thats correct.
Q. Did you determine the identity of the black man who drove that car?
A. The volunteer fireman who saw the black man was shown six photos including a photo of
David Roberts. He said if he had to pick out one of the people, it would probably be the photo of
a person named Douglas Milford, not David Roberts.
MR. JONES: I have nothing further.
RE-DIRCT BY MR. GANTZ:
Q. Isnt it a fact that you received many leads in this case.
A. Yes, sir.
Q. And isnt it a fact that these leads led nowhere?
A. Thats correct.
Q. Did you find any leads which led elsewhere than to David James Roberts?
A. No, sir.
Q. Isnt it a fact that there were many valuables in the house including the guns and they were
not taken or missing?
A. Thats true.
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Q. Did you attach any significance to the fact that there might have been a prior burglary and
that a person named Douglas Milford may have driven by the Harold house the morning of the
fire?
A. Yes. We investigated further. We could find no leads on the burglary and determined that, in
my own mind, Douglas Milford was not involved in the murders.
Mr. GANTZ: No further questions
Some jurors wondered why the police had a photograph of David James Roberts. At this
point in the evidence there had been no evidence connecting him to the murders.
RE-CROSS BY MR. JONES:
Q. All right. You dont think that this burglary was significant or that another person was
identified at the Harold house that morning other than the defendant, or this business about the
bathtub being full, none of that you felt was too significant?
A. It cleared up the fact that there were no suits at the Harold house.
Q. So you did not follow up on any of this?
A. I personally did not follow up on the burglary.
Q. You had your suspect, didnt you?
A. Well, IQ. You werent looking for somebody other than Roberts, were you?
A. Yes, we were.
MR. JONES: Nothing further.
Mark Flint, Johnson County Deputy Sheriff was next called by Mr. Gantz.
He testified as to the following:
He arrived at the scene at 4:41 a.m. He observed smoke and fire coming from the Harold
house. He went around the house looking in the windows and observed a baby crib in the back
bedroom. With the assistance of a fireman, he broke through the window and retrieved the baby,
Jenny Harold. He went with her in the ambulance to the Johnson County Memorial Hospital and
on the way administered cardiovascular resuscitation, closed heart massage and mouth to mouth
resuscitation. They arrived at the hospital in about four minutes. Emergency doctors worked
with the child for about fifteen minutes and then declared her dead.
He returned to the scene and took photographs of the house showing the fire damage, a small
tract house built on a slab. He also took photographs of every room in the house, the gun rack,
the crib, the bodies, the fire damage, the knotted neckties, the gas can, the cap and nozzle, the
matches, the black gloves, the checkbook, wallet and purse, and the turned over room divider.
He also testified as to placing hair samples from William and Elizabeth Harold which he had
received from the coroner in plastic bags. He also obtained a sample of the liquid which was in
the gas can. There was between two and three gallons of gas left in the can. He testified that he
turned all samples and the gas can over to the sheriffs property room. He stated that he had
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been in control of all photographs and that they accurately represented what he had seen. The
photographs were entered into evidence and shown to the jury.
1.
2.
3.
4.
5.
6.
Photograph of William Harold body in den

Photograph of Elizabeth Harold body in den
Photograph of gun rack
Photograph of crib
Photograph of gas can nozzle
Photograph of gas can in den
The photographs are as follows:
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PHOTOGRAPH OF WILLIAM HAROLD IN DEN
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PHOTOGRAPH OF ELIZABETH HAROLD IN DEN
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PHOTOGRAPH OF GUN RACK
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PHOTOGRAPH OF JENNYS CRIB
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GAS CAN NOZZLE FOUND NEAR FRONT DOOR
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RED GAS CAN FOUND IN DEN
He also testified that he had taken photographs during the autopsy. These photographs were
to be offered into evidence when the doctor performing the autopsies testified.
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He was asked upon cross examination if he had taken any footprint imprints, or if he had
attempted to take any fingerprints within the house, on the gas can and nozzle, or front door
knob. He stated that he had not.
Upon re-direct by Mr. Gantz, he stated that there were hundreds of footprints from the
firemen and officers and therefore it was impossible to determine any individual footprints. Also
the wet and sooty conditions did not allow valid fingerprints to be taken.
Deputy Sheriff Joe Barger then testified that he was in charge of the property room and that
the exhibits and materials obtained by Mark Flint were turned in to him and that the same
property was at all times in his possession until brought to the court.
All physical items observed at the scene including the red five gallon gas with $5 Deposit
in yellow crayon, the gas can nozzle, purse, wallet, checkbook, ties, matches and gloves were
identified and admitted into evidence.
There was no further testimony from these witnesses.
Winfrey Burton, Town Marshall of New Whiteland, was the next witness. He testified that
he had been at the scene at about 5: 30 a.m. on the 20th of January and had observed the burned
house and two bodies. He staked out the house with police ribbons. He also called the coroner,
Dr. Palmer, to come to the scene. He then visited with a brother of the Harolds and determined
that the older daughter, Marie, had been with the brother. He further testified to obtaining an
arrest warrant for David James Roberts and arresting him on January 26, 1974. Marshall Burton
also made arrangements for a 1970 gold and tan Buick Riviera found at Roberts residence to be
impounded. A search warrant was then obtained to search the vehicle and the registration of the
vehicle in the name of David James Roberts was found in the glove compartment. The
registration was admitted into evidence.
At the conclusion of this testimony I adjourned the court for the day. I allowed the jurors to
separate (to go home and not be sequestered) and admonished them not to discuss the case with
anyone, not to read, see or listen to any accounts of the trial, and not to form any opinion as to
guilt or innocence until they had heard all of the evidence, the final statements of counsel, my
final instructions as to the law applicable to this case, and had an opportunity to deliberate with
fellow jurors.
I thanked the jurors and told them to return the next day at 8 a.m.
At this point in the trial the jurors have heard no evidence connecting Roberts to the burglary,
arson and murders. The jurors were wondering why Roberts was arrested.
15
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November 11, 1975
At 8 a.m. the next morning, November 11, 1975, trial resumed. It was Veterans Day but I
decided not to take a break. Further evidence was presented by the prosecutor.
The first witnesses were Dr. Harley Palmer, Johnson County Coroner and Dr. James
Benz, forensic pathologist from Marion County General Hospital who performed the autopsies
on William, Elizabeth Ann and Jenny Harold on January 21, 1974. They described in detail the
findings. Dr. Palmers testimony as to cause of death was:
Q. Dr. what is your opinion as to the cause and manner of death of William Harold, Elizabeth
Ann Harold and Jenny Harold?
A. Well, as to William and Elizabeth, they died of asphyxia.
Q. What exactly is asphyxia?
A. Asphyxia is the same as a smothering type of death-its a lack of oxygen. It may be produced
in several ways.
Q. And what are the ways in which asphyxia can be accomplished?
A. There are numerous ways to obstruct the nasal or nose passage and the mouth passages, any
one of which would produce asphyxia.
Q. What about compression of the neck-would that be a way?
A. Yes, sir.
Q. Can you say what method of asphyxia was used on Elizabeth Harold?
A. Yes. She had bruising inside her neck structures. She had hemorrhages in her eyes-all very
characteristic of a smothering type of suffocation. She was smothered or strangled.
Q. How about William Harold?
A. He had small hemorrhages within his eyes which is also consistent with asphyxia by
smothering. He was smothered or strangled.
Q. Could knotted neckties or two inch wide tape have been used to strangle Elizabeth Harold or
close her mouth?
A. That is possible.
Q. Okay. Now in your opinion were William and Elizabeth Harolds deaths caused by
accidental means?
A. No, sir.
Q. And what was the cause of death of Jenny Harold?
A. She died of smoke inhalation and carbon monoxide intoxication.
Q. Was her death accidental?
A. No, sir.
Q. In your opinion Doctor, were William Harold and Elizabeth Harold dead when they were set
on fire?
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A. Yes.
Q. What else did you observe as to the condition of the bodies of William and Elizabeth Harold?
A. There were various bruises, abrasions or hemorrhages on the forehead, eye, nose, chin and
necks on both of them.
Q. Are such conditions indicative of having been attacked or hit by someone-of a struggle or
fight?
A. Yes, sir.
Q. Doctor, were you able to determine if Elizabeth Harold had been raped?
A. No, I was not. Because of her burned condition it was not possible to make any such
determination.
Q. Now Doctor, the tape, the knotted neckties, the asphyxia, the bruises and other conditions of
the bodies in no way indicate to you who is the guilty party-youll agree with that, wont you?
A. Thats correct.
Q. You dont have any idea about that?
A. Thats right, sir.
Q. All you know is that these people died-shall we say of unnatural causes?
A. Unnatural causes, yes, sir.
Dr. Benz testified that he had observed injuries on Elizabeth Harolds wrists which were
consistent with her arms being bound. He also observed marks on the mouth of Elizabeth Harold
possibly from having tape removed.
Many large color photographs of the autopsy showing multiple views of the bodies before the
autopsy and during each stage of the autopsy were offered as evidence. Defense counsel
objected to the introduction of the photographs claiming that defendant admits the death and
cause of death of the victims and that the only purpose of introducing the photographs was to
inflame the passions of the jury against the defendant. I carefully examined each photograph and
admitted only six as follows:
1.
2.
3.
4.
5.
6.
Morgue view of Elizabeth Harold body (back side)

Morgue view of Elizabeth Harold body (face and neck)
Morgue view of William Harold body (back side)
Morgue view of William Harold body (face and neck)
Morgue view of Jenny Harold body
Blackened throat and lung of Jenny Harold at autopsy
Photographs 1, 3, and 5 are as follows:
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AUTOPSY PHOTOGRAPH OF ELIZABETH HAROLD
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AUTOPSY PHOTOGRAPH OF WILLIAM HAROLD
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AUTOPSY PHOTOGRAPH OF JENNY HAROLD
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The next witness was Dee Corbin of the Indiana State Police Fire Marshals Office. He
testified as to his extensive training and schooling in fire investigation and eighteen years of
experience. He stated that he arrived at the scene at 7 a.m. the morning of the 20th and had made
a complete examination of the Harold house. His opinion was that the fire was caused by
gasoline igniting and that the inflammable had been contained in the red five gallon gas can
found in the den. He stated that it definitely was arson. He testified as to a fire trail on the rug
from the living room near the front door, where the gas can nozzle and match book were present,
and leading down the hallway into the den or TV room. It was apparent to him that gasoline had
also been poured on the Harolds bodies and around the den. He estimated that the fire
temperature was between 1600 and 1800 degrees.
He gave his opinion that the arsonist may have started pouring the gasoline on the rug in the
living room, then down the hallway, and ended up in the den where he poured gasoline on the
bodies and around the den. He left the gas can in the den assuming that it would be burned and
unrecognizable and returned to the living room. He then set fire to the beginning of the gas trail
and left through the front door.
He testified that he had watched Deputy Mark Flint make a drawing of the den which was an
accurate representation. The drawing was admitted into evidence and is as follows:
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DIAGRAM OF DEN
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There was a vigorous cross examination by defense counsel Albert Friend. The witness did
not change his opinion.
The next witness was James Forbes, a chemist for the Indiana State Police. He testified that
he had examined the sample of the fluid taken from the five gallon gas can and that it was
premium gasoline. There was no cross examination.
Sherrill Anspagh of the Indiana State Police then testified.
He also had examined the Harold house and stated that effective fingerprints could not be
taken because of the wet condition and soot.
He had searched Roberts gold and tan 1970 Buick Riviera automobile pursuant to a search
warrant. In addition to the registration to David James Roberts he found a hair fiber near the gas
pedal and turned it over to Ronald Eltzeroth of the Indiana State Police Crime Laboratory for
examination and comparison.
The next witness was Ronald Eltzeroth, an expert forensic scientist who worked in the
Indiana State Police Crime Laboratory.
He testified to examining and performing tests on various items turned over to him by
investigating officers in the Roberts case. No hair sample from Roberts had been turned over to
him. He did examine hair samples from the heads of William and Elizabeth Harold and pubic
hair from Elizabeth Harold. He had compared them to a human hair sample obtained from a pair
of black leather gloves found at the scene near the front door and the hair sample found in
Roberts car. They were not comparable. The hair sample on the gloves ranged in color from
brown to very black. He was asked by Mr. Gantz, Did the hair sample found on the glove bear
any characteristics similar to any particular race? The answer was, The hair maintained
characteristics of the negro race in that it had a very black, very course texture.
Mr. Eltzeroth further testified that he had examined the gas can and nozzle for latent
fingerprints. He stated, The prints found failed to exhibit a sufficient number of characteristics
to determine any identification.
He also examined for fingerprints a burned section of medical adhesive tape two inches wide
and the knotted neckties found near the bodies. No prints were found.
The cross examination by Mr. Jones was brief.
Q. Now, Professor-can I call you Professor?
A. Certainly.
Q. Are you going to tell us that that hair you found on that glove belonged to David Roberts?
A. No, sir, that was not my testimony.
Q. I didnt think it was either. I just wanted to make sure there wasnt any misunderstanding.
Thats all I have of this witness. Thank you Professor.
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The next witness was Robert Forney.
He testified that he was a medical doctor and Professor of Toxicology at the Indiana School
of Medicine. He had examined blood samples of William and Elizabeth Harold taken at the
autopsies. He found no carbon monoxide in the blood indicating that they were dead before the
fire. He found no evidence of drugs. He found that the percent of alcohol in the blood of
William Harold was consistent with two beers and the percent of alcohol in the blood of
Elizabeth Harold was consistent with two ounces of whisky.
At the conclusion of this testimony I adjourned court for the day. I again allowed the jurors to
separate and admonished them as I had at the conclusion of the first day.
I thanked the jurors and told them to return the next day, November 12, at 8 a.m.
The trial jurors still have heard no evidence connecting Roberts to the burglary, arson and
murders. The next days evidence would attempt to connect Roberts to the crimes.
I wondered why the hair sample from the glove found inside the Harolds living room near
the front door was not compared to a hair sample from Roberts. This was before DNA but it
could have been determined that Roberts hair had many similar characteristics to the hair found
on the glove. There was no evidence that a hair sample had been obtained from Roberts or if
obtained and examined, what the results were.
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16
November 12, 1975
At 8 a.m. the next morning, November 12, 1975, the cast again assembled and further
evidence was presented by the prosecutor.
Phillip Barrier and Rita Barrier were the first witnesses of the day.
They testified that they were good friends of the Harolds.
At approximately 8:30 in the evening of January 19, 1974, they stopped by the Harold house.
They went inside and visited for a few minutes with William and Elizabeth Harold (Billy and
Ann). They noticed no damage inside the house. They were familiar with the room partition and
stated that it was intact and standing up. The Harold children, Marie and Jenny, were at
Williams brothers house.
The four of them then went to the Regency Drive-In Movie Theater in Franklin. Phillip
Barrier was driving. After the movie they went to the Pizza Inn in Franklin. The boys split a
pitcher of beer and the girls had cokes.
Then they went to Green Acres Tavern in Franklin and arrived at about 2 a.m. The boys had
two beers apiece and the girls had one drink. They stayed there until about 2:45 a.m. They then
drove to New Whiteland and picked up the Barrier children.
Then they drove to the Harold house. They arrived there at about 3 a.m. or a little after that.
When they arrived at the Harold house the Harolds noticed that the porch light was not on. They
had turned the porch light on earlier and when they left the light was on.
William Harold went to the front door and Elizabeth Harold drove away in her car to pick up
their daughter Jenny.
That was the last time they saw William and Elizabeth Harold alive.
They further testified that William and Elizabeth were getting along that night and were not
arguing or fighting or anything like that.
There was no cross examination.
The next prosecution witnesses were Delores Buress and Patti Buress Regent, her now
married daughter.
They testified that at the time of the murders they lived about half a block from the Harold
house and that on the night of January 19, 1974, they had seen a goldish big car which was
between a 68 and 73 Buick, strange to the neighborhood, parked right across the street from
their house at 11 p.m. and also at about 2:15 a.m. the next morning. There was a street light right
next to the car. The car was facing away from the Harold house.
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They said that cars were never parked where the goldish car was parked unless they were
coming to their house.
The car was gone when they were awakened at 4:30 a.m. by the fire truck sirens.
When shown a photograph of Roberts car Delores Buress stated that she did not get a good
look at the goldish car and Patti Regent said, I couldnt identify it positive.
Upon cross examination they stated that they had not seen anyone in or near the car.
Cindy Jenner, a teenage neighbor of the Harolds, testified next.
She stated that she often babysat for the Harolds and that on January 19, 1974, she had
babysat for them from 7 a.m. until they got home from work at 5:30 p.m. She also stated that the
hall wall clock was working and kept accurate time.
Also while at the Harold home she received a telephone call between two and four from a
male concerning some sort of survey. The caller wanted to know if the Harolds were home and
if not, when he could talk to them. She told him that they would be home by six oclock.
Cindy further testified that the Harolds returned home about 5:30 p.m. Later when being
driven to a ballgame by her father at 8 p.m., she observed that the porch light was on at the
Harold house. On her return home at about 12 a.m. the porch light was off, the hall light was on,
and the curtains pulled in the den at the Harold house. She said that the Harolds usually turned
the porch light on when they left the house and turned the internal lights off.
Upon cross examination, Cindy stated that she had not seen anyone at or near the Harold
house. She also stated that she could not identify the callers voice as that of Roberts since she
had never heard his voice.
During the testimony of the witnesses who lived in the Harold neighborhood, I made a time
line on my yellow note pad as to when the gold car was seen, when the porch light was on or off,
and when the Harolds were home. The time line was:
January 19, 1974
7-8 p.m. No parked gold car
8 p.m. Porch light on
8:30 p.m. Harolds leave home-porch light left on
11 p.m. Parked gold car seen
January 20, 1974
12 a.m. Lights on in den and porch light off
2:15 a.m. Parked gold car seen
3-3:15 a.m. Harolds arrive home-porch light off
3:15 a.m. Elizabeth Harold returns home with Jenny
4 a.m. Clock stopped from fire
4:30 a.m. Fire observed at Harold house-gold car gone
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From the above time line it appeared that the driver of the gold car could have been parked
near the Harold house, observing or at the Harold house from 11 p.m. until 4 a.m. Perhaps the
driver left for awhile and was at the Waffle House between 1-2 a.m. looking for the Harolds (as
testified to later by Terry Harold) and then returned. All three Harolds were in the house from
about 3 a.m. until their deaths which, as to William and Elizabeth, was no later than about 4 a.m.
Winfred Buddy Harold next testified.
He testified that he was the brother of William Harold. He stated that that he was the operator
of a Standard gas station located at the intersection of U.S. 31 and Main in New Whiteland. The
station was about one mile from William Harolds house.
He stated that on January 19, 1974, he had three employees, his two brothers Terry Harold
and Elijah Junior Harold, and Joe Moore.
He further testified that in the late afternoon of January 19th at about 6 p.m. a black male in
his late 20s purchased $1.00 worth of gasoline for his car from attendant Joe Marcos Moore, 17.
He stated that the male had medium black skin, a medium afro haircut, a medium mustache, long
sideburns, and wore a black leather jacket. He was driving a 1969 or 1970 tan and gold Buick
Riviera. The car had no hubcaps and the driver side skirt was missing.
Winfred Harold later viewed several automobiles at the Indiana State Police Post and testified
that after looking at the 1970 Buick registered to David James Roberts that the car was the one,
or identical to the one he had seen at his gas station on the 19th.
He was asked by the prosecutor if the defendant, David James Roberts, sitting at the defense
table, was the person who had purchased the gas. Harold said he did not know.
Before cross examination of Winfred Harold, pursuant to the Motion in Limine, and before
me, Winfred was examined under oath by defense counsel out of the presence of the jury
concerning his alleged theft of Harold estate and guardianship funds. I ruled that there was not
creditable evidence of any such theft and that such matter could not be raised by defense counsel
upon cross examination.
Upon cross examination Winfred stated again that he could not now identify the defendant as
the person who had purchased the gas.
The defendant at the time of the trial had a short afro, no sideburns, no mustache and was
thinner than he had been in January of 1974.
Terry Harold was the next witness. He stated that he was working at the Harold gas station
at that time and verified Wilfred Harolds testimony as to the description of the black person who
had purchased the gas. He stated that the vehicle at the gas station was like the one he had seen
at the State Police Post and registered to Roberts. He could not identify the defendant in the
courtroom as the person who had been driving the gold Buick. He said he did not get a really
good look at the driver.
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Terry Harold then continued his testimony. He stated that at between 1:00 a.m. and 2 a.m. on
January 20th, the morning of the murders, he was at the New Whiteland Waffle House. Part of
his direct testimony states:
Q. Did you notice anything unusual at the Waffle House?
A. Yeah, I was waiting for my bill and there was a guy came in and looked around and he left
again.
Q. What did he look like?
A. He was colored and had a black leather coat on. He probably stood six feet. Maybe more.
He looked like the fella that I saw at the gas station earlier.
Q. OK. What drew your attention to this man?
A. Well, you know-I thought it was awful strange for a colored guy to just come in there and
look around and leave again. Well, I been goin there for about three or four years now and that
was strange-having some guy come in there, done that and just left. Also, there were no colored
that lived in New Whiteland or came to the Waffle House.
Soon after the murders, Terry Harold was shown six photos of African-American males
including Roberts and he stated that the photo of Roberts was very close to the person he had
seen at the Waffle House.
Terry also testified that he had been at his brother Williams house often and on many
occasions had observed water left in the bath tub even though no one was taking a bath.
Elijah Junior Harold was the next witness.
He stated that he also was working at the Harold gas station at that time and verified Wilfred
Harolds testimony as to the description of the black person who had purchased the gas. His
description of the car was the same given by Wilfred and Terry Harold. The car had no hubcaps
and a fender skirt was missing. He also had viewed vehicles at the State Police Post and
testified that the car at the gas station looked the same as the one at the Police Post which was
registered to Roberts. He could not identify the defendant in the court room as the person who
had been driving the gold Buick.
He further stated that he was very close to his brother Billy and often stayed overnight with
Billy and Ann. Billy and Ann were very close, got along very well and never had any
arguments. Billy had been a paratrooper in Vietnam.
Upon cross examination of Wilfred, Terry and Elijah Harold, they stated that they were not
positive that the car was Roberts car.
The prosecutor then called Joe Moore to the stand. His testimony is as follows:
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Q. State your name please.
A. Joe Marcos Moore.
Q. Okay. And where do you live, sir?
A. New Whiteland, Indiana.
Q. How old are you now?
A. Eighteen.
Q. Are you in anyway related to the Harolds of New Whiteland?
A. No.
Q. Now, drawing your attention to January 20, 1974, were you working at the Harold Service
Station that day?
A. Yes.
Q. Now, do you recall anything unusual that afternoon?
A. In what way?
Q. Did you see-ah-did you see any unusual cars?
A. No, not really.
Q. All right. Did you wait on any persons in a Buick automobile?
A. Yes.
Q. And do you recall any one sale in particular?
A. Yes, I do.
Q. All right. And when did this sale take place?
A. About 4 oclock in the afternoon.
Q. Okay. Now, did you sell some gas to someone?
A. Yes, I did.
Q. And is that your job to sell gas?
A. Yes.
Q. Did you make a sale of gas to this customer?
A. A dollars worth.
Q. What kind of gasoline was that?
A. Premium.
Q. Okay. And did you have an opportunity to look at this car?
A. Yes.
Q. And what was the appearance of this car?
A. You know-it didnt look-you know-in real good shape or anything.
Q. Did you have an opportunity to see the color of this automobile?
A. Yes. It was a brownish gold color with a vinyl top.
Q. And what kind of an automobile was this?
A. It was a Buick Riviera-about a 68 or 9.
Q. Did you have an opportunity to observe the driver of this automobile?
A. Not real close, no.
Q. Well, do you-is there anything at all that you can say as a description of this customer?
A. Just that he was a black man.
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Q. Can you say if he was a large man or a small man.
A. Well, he never got out of the car-you know-but he didnt sit to the shoulder though-you
know-just kinda-Id say about 6 1 or so-you know-the way he sat in the car.
Q. After the 20th did you have occasion to view any cars at the Indianapolis State Police Post?
A. Yes, I did.
Q. Did you individually?
A. Yes.
Q. And, did you see any cars that you recognized?
A. Maybe.
Q. And what car did you recognize?
A. A Buick Riviera.
Q. Well, Mr. Moore, was this the same Buick Riviera that you saw in the station the afternoon
of January 19, 1974 that you put gas in?
A. Im not sure. It probably was.
Q. Now, back to the gas station. How long did it take you to put gas in the car?
A. Not very long at all.
Q. Okay. And then what did you do when you put the gas in the car?
A. I put the cap back on and he gave me a dollar.
Q. Okay. Was that the end of the transaction?
A. No.
Q. Well, what else took place?
A. Well, after he gave me the dollar, he asked me ifMR. JONES: Just a moment. I want to preserve my record on this. We object to any statements
made by a third party declarant outside this courtroom and not subject to cross-examination.
This is clearly hearsay.
THE COURT: Objection is overruled-you may answer.
Q. What took place at this time?
A. Well, he gave me a dollar and as I was walking back toward the building he asked me if I
knew where Pine Drive was.
Q. And what did you tell him?
A. I just pointed that direction and gave him what streets to turn on.
Q. Is Pine Drive the same street that William and Elizabeth Harold lived on?
A. Yes it is.
MR. GANTZ: Thank you Mr. Moore. No further questions.
Q. A few questions, Marcos. How was this man in the automobile dressed?
A. Ah-well, I dont remember of him having a tie, and I dont remember him being real sloppyyou know.
Q. Is it a safe statement to say that you really dont know at this point anything except he didnt
have a coat and tie on?
A. Yes.
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Q. Now think very carefully Marcos. Was the man who bought the gas the defendant David
James Roberts?
A. I dont know. I did not get a good look at him.
MR. JONES: Okay, Marcos, thats all I have.
MR. GANTZ: No further questions.
At the conclusion of this testimony I adjourned the court for the day. I again allowed the
jurors to separate and admonished them as I had at the conclusion of the first day.
The jurors have begun to hear some evidence possibly connecting Roberts to the burglary,
arson and murders. A gold car was seen the evening and early morning of the murders parked
very near the Harold house, a gold or tan 1970 Buick Riviera driven by a black man the late
afternoon before the murders was at the Harold service station, the driver had asked directions to
Pine Drive where the Harolds lived, and the car was like the one registered to David James
Roberts. No witness could identify Roberts as the person who had asked directions to Pine
Drive. The next days evidence would attempt to further connect Roberts to the crimes and
provide a possible motive.
Tom Jones and David talked briefly on the front steps of the courthouse. They were
encouraged by the days testimony.
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November 13, 1975
At 9 a.m. on November 13, 1975, court was again called into session. All parties and counsel
were present. Further evidence was presented by the prosecutor.
The first witness called to the stand was Lt. Robert Allen of the Indiana State Police. He
was the chief investigating officer of the Harold murders.
Lt. Allen testified that he had interviewed Harold family members concerning the personal
and business lives of William and Elizabeth Harold. He was advised that William Harold
worked at an Indianapolis Sears Roebuck in the automotive department. On October 10, 1973, a
scheduled day off for William Harold, he was called in to work for another sick employee.
Further investigation revealed that on that day he sold and had installed three tires and some
muffler work done on a car for a black male in his late 20s using the name Robert Johnson. The
purchaser drove the car away without paying for the tires or muffler work. The purchaser was
later picked out by William Harold from a series of photographs. The photograph was of David
James Roberts.
The next witnesses were Dale Fleetwood, service manager at the Indianapolis Sears, and
Floyd Huckleberry, assistant manager at Sears.
They testified that William Harold worked under their supervision and that they had an
October 10, 1973 sales slip and work order signed by William Harold as the salesman which
named a Robert Johnson as the purchaser for three tires and muffler work. The sales slip and
work order contained the serial numbers of the tires, indicated that it was to be a cash transaction
and that such work had been performed. At the end of the day the car keys had not been picked
up, the purchase price had not been paid, and the car was gone.
They reported the apparent theft to the security officer at Sears, Jerry Quackenbush.
The sales slip and work order were then admitted into evidence and shown to the jury. The
purchasers name was Robert Johnson of 3357 Meadows Court and the total was $320.88. The
serial numbers of the tires and the fact that the vehicle was a tan 70 Buick was also shown.
The prosecutor called Jerry Quackenbush as the States next witness.
He stated that in October of 1973 he was a security officer for Sears and Roebuck in
Indianapolis and a police officer of the City of Indianapolis. He had eleven years experience in
criminal investigation. He had participated in the investigation of a theft of tires on the 10th of
October, 1973 at the Indianapolis Sears Roebuck automotive store and service station.
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He stated that he was the officer who had shown several photographs to William Harold and
that William Harold had picked out the photograph of David James Roberts as the person who
had ordered the tires and muffler work.
Officer Quackenbush was then asked how he knew the person in the photograph was
Roberts. He answered that he had found the identity from police records. This answer took
defense counsel by surprise and he immediately objected on the basis of hearsay and the best
evidence rule (that the actual photographs should be shown at trial to the witness). I overruled
the objections and allowed the answer to stand. The proper objection should have been that the
answer from police records indicated that Roberts had a criminal record and that evidence of a
defendants past crime is highly prejudicial and inadmissible. At the omnibus hearing I had
ordered the prosecutor and any of his witnesses not to refer to or mention anything that would
indicate a previous criminal record of Roberts. Defense counsel was in a bind though. If he
objected to the from police records statement by officer Quackenbush for the proper reason, he
would just be emphasizing to the jury that there was a police record.
Officer Quackenbush also testified that he had checked out the address on the sales slip and
no one had ever heard of Robert Johnson at that address. It was a false name and address.
He next was asked by the prosecutor:
Q. And what did you do next?
A. I went to the parole office to find out where Mr. Roberts lived and where he was employed.
MR. JONES: Your Honor, does-now wait a minute. No objection yet.
Again defense counsel was taken off guard. Pursuant to my previous order the witness should
have been instructed by the prosecutor not to refer to any inquiry at the parole office. This
definitely would call to the attention of the jury that Roberts was on parole. This was highly
prejudicial. A person is not on parole unless he has committed a serious felony. If Mr. Jones
had objected, I would have immediately sustained the objection and would have instructed the
jury to disregard the fact that officer Quackenbush had inquired at Roberts parole office. A lot
of good that would have done. Once the cat is out of the bag- - -.
Sometimes a police witness will try and help the prosecution by slipping something into their
testimony. Probably in this case it was inadvertent. I assumed that officer Quackenbush had
been instructed by Mr. Gantz not to make any statement which would indicate Roberts previous
record. I called the attorneys to the bench for a private conversation and told Mr. Gantz that,
except if Roberts testified or except in phase two of the trial, if any prosecution witness ever
again made any reference to the previous criminal record or parole of Roberts that it could lead
to a mistrial if requested by the defense. I adjourned court for a few minutes so that Mr. Gantz
again could privately instruct his witness concerning any reference to Roberts criminal record or
parole.
Officer Quackenbush then described going to Roberts employers office and viewing a
bronze 70 Buick Riviera registered to David James Roberts. He compared the serial numbers
on the three tires on the Buick to the serial numbers on the work order and they matched.
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On October 19, 1973, he later arrested David James Roberts pursuant to a charge of
misdemeanor larceny (theft) filed in the Indianapolis Municipal Court. If convicted, Roberts
could be sentenced to one year in prison and fined $5,000.00. Roberts posted bond and was
released from custody. After several trial date settings and continuances, the final trail date was
set for February 8, 1974.
Officer Quackenbush then identified the defendant sitting in the courtroom as the same person
he had arrested on the larceny charge.
The next witness prosecution witness was Deidre Edwards.
She testified that she was a Court Reporter and that on request of the attorney for David
James Roberts, Harold Chavis, she reported a written sworn Deposition given by William Harold
on January 15, 1974. Present at the Deposition were William Harold, the deponent, Harold
Chavis, attorney for David James Roberts, and Joseph Karen, an intern with the Marion County
Prosecutors Office. In the Deposition, William Harold described the entire transaction
concerning the theft of tires and positively identified David James Roberts as the person who had
ordered the tires and muffler repair.
The Deposition was offered in evidence and defense counsel strongly objected. He claimed
that defendant would have no opportunity at trial to cross examine William Harold as he was
deceased. How could defendant show any racial bias of William Harold? How could he bring
out that William Harold was not sure of the identification? How could he show that William
Harold had not dealt with many black men and therefore was not good at identification of them?
Were black faces confusing to him? How could he show that William Harold had a motive to
make a quick identification in order to get his sales commission?
I overruled the objection and admitted the Deposition into evidence. The Deposition was then
read to the jury by the prosecuting attorney.
Trial of David James Roberts was of course never held as the primary witness, William
Harold, was murdered on January 20, 1974, five days after his deposition identifying Roberts
and nineteen days before the final trial date.
The jury had now heard evidence concerning a possible motive for Roberts to kill William
Harold, the sole witness against him in the theft charge. The jury also had heard testimony that
Roberts was on parole. A theft conviction would violate Roberts parole and possibly lead to the
imposition of a prison term for parole violation in addition to whatever sentence would be
imposed on the theft conviction. Motive is not an essential element of any crime and need not be
proven by the prosecution. However evidence of motive can be introduced and is often very
persuasive on the question of guilt.
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The next witness called by the prosecution was Indiana State Police Lieutenant Robert Allen.
He had testified before.
He stated that he was the chief investigating officer in the Harold murders and in that capacity
had interviewed 41 residents who lived in the vicinity of 915 Pine Drive. He also prepared and
distributed 1000 copies of a flyer in an attempt to locate the source of the gas can found at the
scene. The flyers were distributed on January 26, 1974, to police departments in New Whiteland
and Indianapolis.
As a result of the flyer, he received information concerning the sale of a similar gas can by the
Renkite Shell gas station in Indianapolis on January 19, 1974, the afternoon before the murders.
At the Shell station he interviewed the owner, Elwin Renkite, and two employees, William
Hardy and Richard Roman.
A copy of the flyer was then admitted into evidence.
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REFERENCE: ISP Case # 44F7882

Johnson County 7436
Arson and Homicide 1-2044
Attempt is being made to locate source of 5 gallon gasoline

can at scene. Markings on can suggest it may be a "loan
out" or "deposit" can.
Can pictured, replica of one in question and is as follows:
Five 5 gallon capacity, red in color, with yellow word
''GASOLINE" in approximately
2" letters. In smaller letters NAPA, Alcamp, Indiana USA.
Stock # 14-1872, can has yellow plastic air valve, white plastic on
handle and approximately 2 1/2' spout bears yellow crayon
markings on side: "$5.00 this can" Request checks be made
with stations to determine if they are missing red, 5 gallon can
only in past two (2) months.
Any further information contact: Det/Sgt. R. L. Allen, Indiana State Police
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Lt. Allen then stated that, pursuant to an arrest warrant, he had arrested David James Roberts
on January 26, 1974, in Indianapolis and taken him to the Johnson County jail. Roberts had a
pistol with him when arrested. Upon arrival at the jail Lt. Allen read the Miranda Rights to
Roberts, allowed Roberts to read his rights, and asked him to sign the form acknowledging that
he understood his rights. Roberts Preferred Not to Sign the form.
Lt. Allen further testified that at that time Roberts appeared to understand his rights, was not
under the influence of drugs or alcohol and made no complaints of a medical nature.
Roberts did not request an attorney at that time and stated that he was willing to answer
questions.
The Miranda Rights Form was admitted into evidence.
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CONTINUATION OF DIRECT EXAMINATION OF LT. ALLEN BY MR. GANTZ:
Q. And did you have conversations with Mr. Roberts after the reading of the rights?
A. Yes, sir.
Q. And what were those conversations?
A. I made inquiries as to his activities particularly on the dates of January 19th and January
20th, 1974. He answered that on January 19th at sometime between twelve noon and 1:00 p.m.
he had went to Ayr-Way East, which is located in Indianapolis, and purchased points and plugs
for an automobile. Then he purchased five or six dollars worth of gas at a Shell filling station
across from Ayr-Way.
Q. Did you have other conversations?
A. Yes. I asked him what he did after 1:00 p.m. He advised he was working on an automobile
behind the residence of Callie Loraine Myers, which is on Kingston Street, and behind her
mothers house, at 604 Taft Road. Callies mothers name was Florence Loraine. He worked on
the car until the conclusion of the U.C.L.A. Notre Dame basketball game.
Q. What other conversations took place?
A. I asked him who he might have talked to while at the residence. He said he had talked to
Callie Myers, her brother LeRoy Loraine, and he had a brief conversation with her brother
Dewey Loraine. I asked Roberts what he did after the ballgame and he said he left the Loraine
residence to test drive his automobile. He said that at about 6:00 p.m. that evening he and LeRoy
Loraine had went to Mandarin Inn, Indianapolis, a Chinese restaurant, and obtained some
carryout food and returned to the Loraine residence where that food was consumed. I asked him
who was present at that time and he stated that Callie Myers, Mrs. Florence Loraine, and LeRoy
Loraine were present at the meal.
Q. Were there other conversations?
A. Yes. He said that after the meal he was at the Loraine residence watching television with
LeRoy Loraine, and that at approximately 10:00 p.m. on that evening he went to Rudys Liquor
Store and purchased a half pint of vodka and some Colt 45, returning to the Loraine residence
and watching TV and drinking those beverages with LeRoy until approximately 1:30 a.m.
Q. Were there any other conversations?
A. Yes, sir. I asked him his whereabouts after 1:30 a.m. He advised that he then returned to the
Fall Creek Y.M.C.A where he was staying and upon arrival inquired of the switchboard operator
if he had any calls. He then retired. He further stated that he arose the next morning at
approximately 6:00 a.m., having went to sleep with the window open, awaking cold. He went
out into the hallway and called the switchboard again inquiring if there had been any calls for
him. He then went back to sleep until approximately 8:00 a.m. on the morning of the 20th. He
said he dressed and proceeded to the Loraine residence and did have the noon meal at the
Loraine residence.
Q. Were there any other conversations at that time which you recall?
A. Yes. I asked him if anyone else had used or borrowed his Buick Riviera over the weekend of
the 19th and 20th. He stated that he was the only one to use the car.
Q. Any other statements by Mr. Roberts?
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A. Yes, sir. Roberts asked what this was all about. There were conversations regarding the
charges he had been arrested for, as to the location of the alleged crime, and as to who the victim
was. There were conversations regarding a deposition which had been taken the proceeding
week. I asked him if he was aware of the deposition being given, he answered, Yes. I asked
him if he was aware of the individual who had given the deposition and he referred to the
individual several times as a fellow named Harris and once as Harold.
Q. Were there any other conversations?
A. Yes, sir, there were. David Roberts made the statement that, I have not murdered anyone
and I would be willing to take a polygraph on that particular subject matter. I advised him that
it was unlikely that I could arrange a polygraph that particular evening and that if he was
interested we could accommodate him on a polygraph.
Q. In the twenty-two months since that time has he or his attorney ever asked for a polygraph?
A. No, sir.
Q. Did you take certain mileage measurements?
A. Yes I did. The mileage from the Loraine residence to the Harold service station was 25
miles, from the Harold service station to the Harold house on Pine Drive was 1.1 miles, and from
the Harold house to the Waffle House was .4 miles.
Q. Did you subsequently contact the Loraines and employees at the Fall Creek Y.M.C. A. to
attempt to verify the statements of Roberts as to his whereabouts on the 19th and 20th of
January, 1974.
A. Yes, sir, I did.
Q. Lieutenant, in your interviews with the 41 residents on or near Pine Drive did anyone say that
they had seen the defendant, David James Roberts at any time on January 19th or 20th, 1974?
A. No, sir.
Q. Now Lieutenant, as the chief investigating officer, how many gold or tan 1970 Buick Riviera
automobiles did you find that are registered in Indiana?
A. I have no idea.
Q. Well then, how many in Marion County and Indianapolis?
A. We did not check that.
Q. Do you suppose that there are at least one hundred?
A. Probably not that many.
Q. OK, how about fifty?
A. I told you. We did not check.
Q. No. You did not check. Great police work Lieutenant. Thats all I have of this witness.
RE-DIRECT EXAMINATION BY MR. GANTZ:
Q. How many gold and tan 1970 Buick Riviera automobiles with the hubcaps and a fender skirt
missing are registered in Marion County?
A. I only know of one-Roberts
There was no further direct or cross examination of this witness.
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All of the previous witnesses were white. The next six witnesses will testify concerning their
knowledge of the whereabouts of David James Roberts on the 19th and 20th of January, 1974.
They were all African-American.
The next witness was Florence Loraine.
She testified that she lived on Taft Road in Indianapolis and that she had three children, Callie
Loraine, LeRoy Loraine and Dewey Loraine. Her daughter Callie lived next door. She knew
David James Roberts. Until about three or four days before January 19, 1974, he had been living
at her daughters house.
When asked if she saw Roberts on January 19, 1974, she replied, Well, truthfully, I dontIm pretty sure that I saw him that day-you know. I dont remember what time I saw him that
day or what he was doing. When asked if she saw Roberts on January 20, 1974, and was he
there for a meal, she replied, Yes, I did. I could not tell you exactly what time, but I saw him.
He was not there for a meal.
The next witness, Dewey Loraine, stated that he had been to his mothers house briefly in the
afternoon of January 19, 1974, and had seen Roberts there. He did not remember the exact time
but he thought it was about 2:30 p.m. He did not see Roberts at any other time on January 19th
or 20th.
The prosecutor then called LeRoy Loraine to the stand. According to the testimony of Lt.
Allen, Roberts had told him that Roberts was at Florence Loraines house watching television
and having a few drinks with LeRoy Loraine from after dinner on the 19th until about 1:30 a.m.
on the 20th, except for a brief trip to the liquor store at approximately 10 p.m.
LeRoy Loraine testified that he knew David James Roberts and that Roberts had been the
boyfriend of his sister, Callie. He identified Roberts in the courtroom. LeRoy lived at his
mothers house in January of 1974 and his fiance was Veronica, his present wife. He saw
Roberts working on his car in the back yard sometime in the morning of January 19, 1974. He
also saw Roberts at his mothers house watching the U.C.L.A.-Notre Dame basketball game in
the living room at about 2-3 p.m. He remembered having take-out Chinese dinner between 6-7
p.m. with Roberts, Florence, Callie and Veronica. After dinner he went into the den with
Veronica and did not see Roberts again that evening. He thinks that Roberts left the house by the
10 oclock news. LeRoy went to bed at about midnight and Roberts was not at the house. He
stated that he had not been watching television and drinking with Roberts that evening. He had
been with Veronica. He saw Roberts sometime on the 20th but could not remember when.
Upon cross examination LeRoy stated that he was not absolutely certain of the dates. He
testified, I am pretty sure. It has been twenty-two months ago, you know, but I do remember
the basketball game and the Chinese takeout
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Veronica Loraine then testified.
She stated that she was at the Florence Loraine house the afternoon and evening of January
19, 1974, with her fianc LeRoy. The only times that she remembered seeing Roberts at the
house was when he was watching the basketball game at about 2 p.m. and when they all had
Chinese food together at dinner. After dinner she and LeRoy were in the den and did not see
Roberts after that. She and LeRoy came out of the den at about 11:30 p.m. to 12:30 a.m. and
Roberts was not in the house.
The next witness was Callie Loraine Myers.
She testified that on January 19, 1974, she lived next door to her mother, Florence. She knew
David James Roberts and identified him in the courtroom. She stated that Roberts was her boy
friend and he had lived with her for about five months. He had moved to the Y.M.C.A. several
days before the murders. The prosecutor asked her if she knew that Roberts had been married
and had a small child. Callie appeared to be stunned. She whispered, No. The prosecutor
asked her to speak up so that the jury could hear. She said in a firm voice, I dont believe it.
Roberts had not told Callie that he had been married and had a one year old daughter.
Callie further testified that on January 19, 1974, she saw Roberts from noon until 3:15 when
she noticed that his car was gone. She had watched the ballgame with him. She saw Roberts
again between 5:30 and 6 p.m. at her mothers house and they ate Chinese later at about 6:30
p.m. with the family. She left her house to go out with a girl friend at 8:30 p.m. and that was the
last time she saw Roberts that day or night. She returned to her house about 3 a.m. She saw
Roberts at about 10 a.m. on the 20th.
On cross examination, she stated that Roberts had told her about the theft charge and David
was cool about it. He knew nothing was going to happen. He had passed a lie detector test and
his attorney had told him that the case was going to be dismissed. He was not upset about the
case at all.
She further stated that when she saw Roberts at about 10 a.m. on Sunday the 20th, he acted
normally and was not excited or upset. He was relatively calm. He was just like he was on all
days.
The final witness of the day was Juanita Richard, the Fall Creek Y.M.C.A. desk clerk.
She testified that she had worked at the Fall Creek Y.M.C.A. for ten years and that she was
the desk clerk. The desk clerks duties were to open the door and register anyone in if they
come, and answer the telephone. Her hours were twelve at night until eight in the morning.
Pursuant to the rules she always locked the only entrance door at twelve oclock midnight and
unlocked it between 5:30 and 6 a.m. The door was not locked during any other time of the day.
She stated that she was employed and working her regular shift on January 19 and 20, 1974. She
did not remember a David Roberts living there at the Y.M.C.A. Within a week after the murders
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she was shown a photograph of David James Roberts by a police officer and asked if she
recognized that person. She said that she did not. She also was asked, The picture that was
shown to you, do you remember at that time whether you had left this person in between the
hours of midnight and 6 a.m. on those dates? Her answer was, I dont think so.
Upon cross examination she stated that she was not positive that she had locked the door that
night but she usually did because she was supposed to. It had been a long time age so she was
not positive she worked those dates but she thought so.
She had stated that it was her duty to register anyone whom she let in. I wondered why the
registry book was not offered into evidence.
At the conclusion of this testimony I adjourned court for the day. I again allowed the jurors to
separate and admonished them as I had at the conclusion of the first day.
Today the jurors heard evidence that Roberts had been arrested on a Sears misdemeanor theft
charge which was still pending when William Harold was murdered, that the sole witness who
could identify Roberts as the tires purchaser was William Harold, that Roberts had been arrested
on the Harold murder charges, that after his arrest he gave a voluntary statement to the police as
to his whereabouts on January 19 and 20, 1974, and that important parts of his statement were
not verified and in some cases contradicted. The next days evidence would be crucial to the
prosecution. The prosecution would attempt to prove that in the late afternoon of January 19,
1974, Roberts had purchased the red five gallon gas can found in the Harold house. The
prosecution had failed to do this at the bail hearing.
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November 14, 1975
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On November 14, 1975, at 9 a.m. the next morning the trial continued. Charles Gantz
informed me and Tom Jones that the states evidence would conclude that day. That would work
out well as it was Friday and the court would be in recess over the weekend. The jury could rest
up a little. On Monday, the defense could present evidence.
The next three witnesses were African-American.
The first witness called to the stand was Elwin Renkite. He stated that in January 1974, he
was the owner of Renkite Shell Station at the corner of 16th Street and Meridian in Indianapolis.
It was in an African-American neighborhood. At that time William Hardy and Richard Roman
were his employees.
He further testified that he knew David James Roberts. He had been a good customer for
over a year. Upon direct examination the following testimony was given.
Q. Do you think you could indentify him here in the courtroom?
A. Im not real sure that I would-possibly.
Q. Well, is that person in the courtroom?
A. I wouldnt say yes. I would say possibly.
Q. Youd say possibly?
A. Possibly.
Q. And who might the person be who possibly could be David Roberts?
A. This man sitting here.
Q. Which man, sir?
A. The colored fellow right here-there. (The witness pointed to the defendant)
There was no further testimony from this witness.
William Hardy was next called as a witness for the prosecution.
He was about five feet two inches tall and very thin. He was the most nervous witness I had
ever seen. His legs shook during his entire testimony. I had to ask him several times to speak
louder.
William Hardy testified that he worked at the Renkite Shell Station at the corner of 16th and
Meridian Streets in Indianapolis. That at between 5:30 and 6 p.m. on January 19, 1974, a black
male in his late 20s, driving a 1970 tan and gold Buick Riviera, came to the Shell station. He
stated that he washed the windshield of the car. The customer then purchased from Richard
Roman, a fellow employee, some gas for the car. Also the customer obtained from Renkite Shell
a five gallon red gas can with $5 DEPOSIT ON THIS CAN marked in yellow crayon on the
side. At the customers request, the can was filled with ethyl gasoline by Richard Roman. He
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stated that previously he, William Hardy, personally had written in yellow crayon $5 DEPOSIT
ON THIS CAN and his name on the gas can.
He was shown the five gallon gas can found at the Harold house which had been previously
admitted into evidence and identified it as the one loaned to the black customer. He stated that
he could see his own handwriting on the can. He said that the gas can had never been returned to
Renkite Shell.
He stated that he knew David James Roberts and that he had been a regular customer of
Renkite Shell. He further testified that he recognized the defendant in the courtroom as David
James Roberts but that he was thinner now, did not now have a mustache as he had before, and
his afro haircut was longer then.
He stated that the vehicle being driven by the person who had purchased the gas for his car
and obtained the gas can was exactly like the car that Roberts had always driven in the past.
He also stated that the man in the car was David James Roberts.
Cross examination and re-direct examination followed.
Q. Mr. Hardy, is the Renkite station in a predominately black area?
A. Yes sir, right, yes, sir, about 9/8 of our customers is black.
Q. Now Mr. Hardy, do you remember being down in Johnson County and testifying in court at a
bail hearing over a year ago?
A. Yeah.
Q. Now do you remember me asking you at that hearing if you would point out the man that
borrowed that gas can from you on January 19, 1974? Do you remember that question?
A. Uh Huh.
Q. Do you remember that you were sworn by the judge to tell the truth?
A. Yes.
Q. And did you swear to tell the truth?
A. Yes.
Q. And do you remember tellin the judge and me and everybody else in the world that the man
who borrowed the gas can was not in the courtroom that day?
A. Yes, sir, I did.
Q. And isnt that the man that was in the courtroom that day? (pointing to the defendant David
James Roberts)
A. Yes, sir.
Q. You know David James Roberts dont you?
A. I think I do.
Q. Is this the man that borrowed the gas can from you, or do you know?
A. Im just gonna tell ya, I just dont know. I did not get a good look at him.
RE-DIRECT EXAMINATION BY MR. GANTZ:
Q. You testified that you had dealt with David James Roberts several times at the Renkite
station.
A. Oh, yes, I have.
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Q. Now, I want you to get down from the stand for a moment. I want you to get a good look
and I want you to tell me-is this the man who got the red gas can from you recognizing the
differences? (William Hardy left the witness box and stood right in front of the defendant) Is
this David James Roberts right here? (the prosecutor points directly at Roberts)
A. It is.
Q. And that is the man that bought the can, is that correct, or got the can from the station?
A. Right, yes, correct.
FURTHER CROSS EXAMINATION BY MR. JONES:
Q. Well, now, didnt you just tell me this isnt the man?
A. I dont know-Im all mixed up, man.
Q. Now, Mr. Hardy, David Roberts is on trial for first degree murder and its becoming very
evident that whoever purchased this gas can has a problem, and I want you to know, or want to
ask you, sir, is this the man-can you say beyond a reasonable doubt that this is the man who
purchased or got that gas can from you on January 19, 1974?
A. I just-I tell ya I just dont know.
There were no further questions by Mr. Gantz or Mr. Jones. The witness was excused. He
hastily left the courtroom.
The next witness for the state was Richard Roman.
He stated that he was an employee of Renkite Shell on January 19, 1974, and his duties were
to pump gas and run the wrecker. He testified as follows:
Q. Have you ever done business with David James Roberts?
A. Yes.
Q. Could you look around the courtroom and see if you could find this person that you know as
David James Roberts?
A. I see-this fella looks like David Roberts-right here in the blue coat. (The witness points at the
defendant)
Q. Now, sir, on January 19, 1974, did you have occasion to wait on David James Roberts?
A. Yes, sir, I did. I sold Mr. Roberts some gas for his car and in a can.
Q. What kind of an automobile was it he was driving?
A. It was a 1970 gold Buick Riviera.
Q. Did he have his own gas can?
A. No. We had a five gallon gas can that we had taken in and I let him have this can.
Q. Was there a deposit on this can?
A. Yes, sir. There was a $5.00 deposit on the can. He gave me his check for $5.00 as deposit
and paid for all of the gas in cash.
Q. Was the check written on the 19th of January, 1974?
A. Yeah.
Q. Now sir, did you put gas in the gas can?
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A. Yes. I filled it up.
Q. Did the gas can have a pour spout?
A. No. I got one off a two gallon can and put it on the five gallon can.
Q. And what did you do with the five gallon gas can?
A. I put it right down next to his car. Then I left to go and ring up the sale and thats the last
time I seen the can.
Q. Do you know if that can ever returned to the station?
A. No, it didnt.
Q. Ill show you what has been marked as States Exhibit #91 (the gas can found at the Harold
house) and ask if you could recognize this can, sir?
A. Yes, I recognize the can as the one I gave to Mr. Roberts.
Q. You can recognize the can?
A. Its definitely the can.
Q. How do you know, sir?
A. It says $5.00-there is part of the D-deposit. It says O-N (on) this. This is Bill Hardys
writin.
Q. And this is the same can that you put next to Mr. Roberts car?
A. Yes.
Q. Okay. Now, sir, you have testified at a previous bail hearing in Johnson County in which
you failed to identify David James Roberts, is that correct?
A. Yes, sir.
Q. And does Mr. Roberts look different today than he did at that time?
A. Yes indeed. When I sold the gas to him he had a mustache, his haircut was a little fuller than
what it is now, and he is slimmer now.
Q. Are you absolutely certain that this is David James Roberts (pointing to the defendant), the
man that you sold the gas to, the man that got the can, the man that wrote you the check for $5.00
on January 19, 1974?
A. Yes, sir.
Q. Now, lets get back to the bail hearing, Mr. Roman. At that time you told the court that it
was not David Roberts that bought or borrowed a gas can from you-did you not say that?
A. Right.
Q. Your memory was fresh then, wasnt it.
A. I guess so.
Q. Were you sworn to tell the truth at the bail hearing?
A. Yes.
Q. Did you lie before God then or just now?
A. I have just told the truth. It was Roberts who got the can. I am not proud of my testimony at
the bail hearing but I was scared to death. He had just murdered a witness against him.
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Tom Jones jumped to his feet. Objection, Your Honor. His answer was unresponsive and
very prejudicial. I move the court to strike the last statement and admonish the jury not to
consider it.
THE COURT: Objection sustained. The jury will not consider as evidence the last statement of
the witness.
I could have admonished the jury by saying, The jury will disregard and not consider the
witnesss last statement that Roberts had just murdered a witness against him. I cautiously did
not do so. Some pro-prosecution judges would have.
Q. Now, Mr. Roman, could you be incorrect on the date of January 19th about the business
about the gas can?
A. Could not be any other date.
There was no further direct or cross examination of Mr. Roman.
The State then called Edward Sheets as the next witness.
He testified that he was the Operations Manager at Midwest National Bank in Indianapolis.
His position included having custody of bank records. He stated that David James Roberts had
an account with his bank. At the request of the prosecutor he had brought accurate copies of all
checks cleared by his bank written by David James Roberts for January and February 1974. He
was asked if he had an exact copy of check number 205. He answered yes and produced the
check.
The check was numbered 205 and was drawn on the Midwest National Bank of Indianapolis.
It was dated January 19, 1974 and in the amount of Five Dollars. It was payable to the order of
Renkite Shell. The check had DAVID J. ROBERTS printed on the top and was signed David J.
Roberts. The check was offered and admitted into evidence.
The next witness for the prosecution was Douglas Buck. He stated that he was a Captain in
the Indiana State Police and in charge of the Questioned Documents Section. He had over
seventeen years experience examining and comparing handwriting.
He stated that he had examined check number 205 allegedly written by David James Roberts
to Renkite Shell for $5.00 on January 19, 1974, and compared it with known exemplars of the
writing of David James Roberts. Before he was asked to give his opinion, Mr. Jones on behalf of
the defendant stipulated that the check was written by David James Roberts. The witness was
thanked and excused.
Charles Gantz then called Laurence Phillips as the states next witness.
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Laurence Phillips stated that he was a detective sergeant with the Indiana State Police and
that he was a crime scene reconstruction specialist. He testified as to his training and experience.
He continued with his testimony as follows:
Q. Mr. Philllips, have you examined the exhibits introduced at this trial and read the
investigation report prepared by Lieutenant Robert Allen, the chief investigating officer?
A. Yes, I have.
Q. And assuming that the materials and information that you have received are accurate, do you
have an opinion as to what happened at the Harold residence in the morning of Sunday, January
20, 1974?
A. Yes, I do.
Q. And what is that opinion?
A. It is my opinion that William and Elizabeth Harold left their house at approximately 8:30 on
Saturday, January 19, 1974, with their friends and returned at approximately 3 a.m. on January
20, 1974. William Harold went into the house. Elizabeth Harold left in the family car to pick up
their daughter, Jenny, who was with a baby sitter. The murderer had probably been watching the
house for some time and had sometime before midnight unscrewed the front porch light bulb to
prevent being seen when he entered and left the house. After William Harold had gone into the
house, the murderer then entered the house through the front door which was unlocked in
anticipation of the return of Elizabeth Harold. The murderer was wearing leather gloves and
may have hidden the gas can filled with gasoline outside the front door. William Harold then
confronted the intruder and a struggle ensued in the living room and hallway. The intruder may
have had a gun. William Harold was subdued and then strangled to death. His body was
dragged into the den. Shortly thereafter, Elizabeth and Jenny returned to the house. The intruder
hid until Jenny was placed in her crib. Then the intruder attacked Elizabeth and subdued her.
Her wrists were bound with duct tape and her mouth was covered with duct tape. Her clothes
had been removed. She was probably raped and then strangled to death with several mens ties
fastened together. Her body was dragged into the den. The murderer then retrieved the gas can
and placed it in the living room near the front door. He then removed the gas can spout,
removed his gloves, placed matches on the floor and poured gas from near the front door to the
den and on top of the bodies. Clothes from the nearby closet were piled on top of the bodies. At
approximately 4 a.m. the fire started. I have no opinion as to why the gas can was left in the den
and the gas can spout, matches and gloves were left near the front door. Perhaps the murderer
then lighted the gasoline near the front door, watched as the flames followed the gas trail to the
den, and then fled believing that the can, spout, matches and gloves would be burned and
untraceable. The two to three gallons of gas found remaining in the gas can indicates that
perhaps when the murderer was pouring gas onto the bodies gas vapor had spread to the pilot
light of the gas hot water heater and a small explosion and subsequent flash fire erupted forcing
him to immediately flee leaving the possible evidence behind. The front door was found open.
Q. Thank you detective Phillips. I have no further questions of this witness.
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Q. I just have a few questions detective. You were not there at the Harold house on that
Saturday night or Sunday morning, were you?
A. No.
Q. You dont mean to tell the jury that the intruder was the defendant, David James Roberts, do
you?
A. No.
Q. In fact you have no idea who the intruder was, do you?
A. I have no idea.
Q. You dont know really what happened, do you? It is just your guess.
A. It is my expert opinion based upon the evidence presented to me.
Q. Did Lieutenant Allen tell you about a black man named Douglas Milford driving slowly by
the Harold house early that morning?
A. He may have mentioned that.
Q. Could Douglas Milford have been the person who murdered the Harolds?
A. I dont know. He could have been. Anybody could have been. As I said before, I do not
know who was in the house.
Q. Just so the jury is not confused-you are not saying that David James Roberts murdered
anyone, are you?
A. No I am not.
There was no additional direct or cross examination of this witness.
Mr. Gantz then stated that the prosecution had no further witnesses and the State rested its
case.
At the conclusion of this testimony I adjourned the court for the day. I again allowed the
jurors to separate and admonished them as I had at the conclusion of the first day.
I thanked the jurors and told them to return Monday, November 17, at 9 a.m. at which time
the defendant would have the opportunity to present evidence in his defense.
At the conclusion of the states case, the defendant filed a motion for a directed finding of not
guilty based upon the theory that I as the judge, and as the thirteenth juror, had the right to and
should enter such a not guilty finding as there was not sufficient evidence to allow a conviction.
I denied the motion.
19
The Trial-The Defense Evidence Day 6
November 17, 1975
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At 9 a.m. on Monday, November 17, 1975, the cast again assembled to hear the defense
evidence.
The jurors had been very attentive throughout the trial and were eagerly awaiting the evidence
of the defense. They were expecting the defendant to testify.
Tom Jones called Harold Chavis as the defense first witness.
He testified that he was Roberts attorney in the misdemeanor tire theft case. At his
suggestion Roberts had taken a polygraph test concerning the alleged theft and had passed. The
examiner concluded that Roberts was telling the truth when he stated that he did not commit the
theft. The polygraph test was admitted into evidence. In the polygraph test the examiner
concluded that Roberts was truthful in stating that he had never purchased any tires from Sears.
Mr. Chavis further testified that even though the positive results of a polygraph test are not
admissible in a criminal trial in Indiana to prove innocence, it had been his experience that in
misdemeanor cases a positive result would lead to a dismissal of the charges. He was
anticipating that the charges against Roberts would be dismissed. He told this to Roberts.
However, the prosecutor was dragging his feet and had not yet agreed to a dismissal.
Mr. Chavis had then taken William Harolds deposition. Roberts was aware that the
deposition had been taken and that the matter was still set for trial. He told Roberts that if the
matter went to trial that it would be his word against Harolds and that he would argue that, It
doesnt make sense if a mans gonna steal some tires to let em get all of the information about
the tire serial numbers and then steal the tires. He told Roberts, But you know judges and
juries do funny things so we better have you take a polygraph.
Mr. Chavis concluded his testimony as follows.
Q. Mr. Chavis, you stated that Mr. Roberts was aware of the trial date?
A. Correct.
Q. Had the case been set for trial before?
A. Yes. It had been set for trial two times before and then was continued.
Q. Nothing had happened to the prosecuting witness William Harold before these other prior
settings? No witnesses were murdered before those trial dates, were they?
A. No.
Q. Have you had anything to do with the homicide case we are trying today.
A. Well, no. I think David called me at home. He had been arrested, upset, and he said
something that he didnt understand what it was all about.
There was no further examination of this witness.
The defense did not offer any further evidence that Roberts was at the Y.M.C.A. at the time of
the murders as set forth in his previous Alibi Notice. When he was arrested, Roberts had told the
police that he was at the Y.M.C.A. and this was already in evidence.
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The jurors anxiously awaited the next defense witness. They thought that it would probably
be Roberts.
During the course of the trial, there had been many discussions between Tom Jones and
Roberts as to whether Roberts should testify. Jones had explained that if Roberts testified, he
would be under oath and must tell the truth. Also, Roberts had a prior conviction of a crime
(robbery) that would be brought out upon cross examination by the prosecutor. Any conviction
of theft or robbery are relevant and admissable as to Roberts truth and veracity. Once the
evidence of the prior crime was introduced and allowed on cross examination of the defendant,
evidence of Roberts parole on this prior crime could be introduced by the prosecution. The
possibility of a parole violation due to the tires theft could lead to additional time in prison. This
would be an additional motive to murder Harold. Jones told Roberts that the jury would expect
him to testify and explain why he was innocent of the theft and murders. The benefit of
testifying would have to be weighed against the danger that the previous conviction and
avoidance of additional imprisonment motive might influence the jury that he was guilty. Also,
if he testified, the jury would expect Roberts to explain where he was on the evening and
morning of the murders and why they should not believe that he borrowed the red gas can.
It is not known if Mr. Jones made any recommendation to Roberts as to whether he should
testify. The ultimate decision was Roberts.
I asked Mr. Jones to present his next witness.
Mr. Jones then stated that the defense had no further witnesses or evidence. Roberts would
not testify. The jurors were startled. They wondered why he did not want to testify. Most jurors
think an innocent person would want to testify.
There was no rebuttal evidence by the state. I admonished the jury and asked them to return
November 18 for final instructions, closing statements of counsel, and deliberation.
20
The trial-Closing Statements and Final Instructions
November 18, 1975
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On November 18, 1975, the attorneys for the parties gave closing arguments to the jury.
The prosecutor, Charles Gantz, addressed the jury first. He stood in front of the jurors and as
he talked he looked directly at them and tried to make eye contact with each one. He
meticulously described the events leading up to the murders which collectively could lead to
only one conclusion by the jury that, beyond a reasonable doubt, David James Roberts murdered
William and Elizabeth Ann Harold and caused the death of their infant daughter Jenny Harold.
He reviewed the theft charges against Roberts and the fact that Roberts might be sentenced to
one year in prison and fined $5,000.00 if convicted of the theft charge. He stressed that William
Harold had given his deposition one week before he was murdered identifying Roberts as the
person who ordered the tires and that he was the sole witness against Roberts in the theft charge.
He stated, It may be difficult for most people to imagine that anyone would murder to avoid
a theft conviction. But Roberts is not a normal person. He does not think and act as you would.
Look at the person who viciously strangled and burned William and Elizabeth Harold and you
will see a person capable of anything. He had no regard for the infant Jenny. You heard the
testimony of the crime scene specialist, Laurence Phillips. He told you what Roberts probably
did inside the Harolds house that terrible morning. Remember that Elizabeth was found naked.
You can decide for yourselves what you think happened during that horrible hour before the
murders.
OBJECTION BY MR. JONES:
I object to the last statements of Mr. Gantz. There was no evidence as to any rape and such a
statement was only made to improperly inflame the jurors. The only witness that said anything
about rape was the so called crime scene specialist detective Phillips and he was not there.
THE COURT: Overruled. You may proceed Mr. Gantz.
I overruled the objection because whether Elizabeth Harold had been raped was relevant on
the issue of malice and premeditation necessary for first degree murder. The jury could infer
from the evidence that Elizabeth had in fact been raped. Objections by counsel during closing
statements are rare. They are often made to interrupt opposing counsel and divert the jurors
attention. A standard final instruction was given by me to the jury that the closing statements by
counsel are not evidence but rather counsels interpretation of the evidence.
Mr. Gantz continued, The evidence clearly showed that on the afternoon before the Harold
murders a black male about thirty years old driving a 1970 gold Buick Riviera automobile owned
and registered to Roberts had asked at the Harold service station for directions to Pine Drive, the
street on which the Harolds lived. Even though the witnesses at the Harold station did not get a
good look at the driver and therefore could not identify the driver as Roberts, why would any
black man in a white neighborhood driving Roberts car, other than Roberts, have wanted
directions to Pine Drive late in the afternoon before the murders? There was no evidence that
any deliveries were expected by the Harolds.
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Mr. Gantz took a brief look at his notes and continued, The the red five gallon gas can found
at the Harold house was obtained at the Renkite Shell Station in Indianapolis the afternoon
before the murders by the defendant, David James Roberts. This evidence alone should convince
you beyond a reasonable doubt that David James Roberts murdered the Harolds and set fire to
them and their house. Richard Roman, the attendant at the Renkite Shell Station who knew
Roberts as a long time customer, positively identified the defendant as the person who, late in the
afternoon of January 19, 1974, drove into the station, obtained gas for his car, borrowed the red
five gallon gas can, had the gas can filled with gas, paid cash for the gas, and gave his personal
check for $5.00 dated January 19, 1974, as a deposit on the gas can. Roberts then drove away
with the gas can. This was an African-American identifying another African-American.
The writing on the red gas can was placed there previously in yellow crayon by William
Hardy. Both William Hardy and Richard Roman stated that the car being driven by Roberts was
a gold 1970 Buick Riviera which he had been driving for a long time continued Mr. Gantz.
Mr. Renkite and the two employees testified that the gas can never was returned to the Shell
station.
Mr. Gantz stated, It is understandable that William Hardy and Richard Roman did not
identify Roberts at the bail hearing in Johnson County as the person obtaining the gas can. The
survival rate of witnesses against Roberts before trial was extremely low. It took great courage
for Richard Roman to now positively identify David James Roberts.
The prosecutor then said, Remember that when questioned after his arrest, Roberts stated to
Lt. Allen that he was the only one who ever drove his 1970 gold Buick Riviera.
There was a pause and Mr. Gantz looked at his notes again. He then said, Roberts also
stated to Lt. Allen that on the 19th and 20th of January, 1974, the night and morning of the
murders, he was at the Loraine residence in Indianapolis and was watching television and having
a few drinks with his girl friends brother, LeRoy Loraine until 1:30 a.m. Roberts stated that he
then left the Loraine residence and went to the Fall Creek Y.M.C.A. where he was then living.
LeRoy Loraine stated that he had not seen Roberts after 7 p.m. and had definitely not been
watching television with him that evening and early morning. Nobody at the Loraine residence
had seen Roberts after 10 p.m. The Y.M.C.A. desk clerk testified that the only entrance door to
the Y.M.C.A. had been locked by her from midnight until about 6 a.m. on January 20, 1974, and
that she had let no one in during this period. Roberts had obviously lied to Lt. Allen as to his
whereabouts the evening of the 19th and morning of the 20th. Ill tell you where he was. He
was at the Harold house setting it on fire and maliciously murdering William, Elizabeth Ann and
Jenny Harold.
Mr. Gantz walked to his table and took a small sip of water. He returned to face the jury and
continued, Roberts had motive, means and opportunity. There was understandably no witness to
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the murders and therefore technically no direct evidence. However, the circumstantial evidence
is overwhelming and under Indiana law, a person can be convicted on solely circumstantial
evidence as the judge will instruct you in his final instructions. I implore you, as the conscience
of the community, to give closure to the Harold family and to render justice by reaching the only
possible verdict-guilty on all counts. Thank you very much for your attention. Please do your
duty.
The prosecutor returned to his table slowly. I turned to Tom Jones and said, Mr. Jones, you
may proceed.
Defense counsel, Tom Jones, then gave his closing argument. He also stood before the jury.
He had a difficult challenge. He stated to the jury that it was hard to refute a suspicion of guilt
raised by some of the testimony but suspicion was not sufficient to convict. Each juror must be
convinced beyond a reasonable doubt of guilt.
No one saw Roberts at or near the Harold house. Were the identifications of Roberts and the
car matters of honest but mistaken identity? Mistaken identity has been shown and documented
in case after case. It is the leading cause of criminal convictions being set aside. No witness
identified Roberts as the person who had asked for directions to Pine Drive at the Harold service
station.
One witness at the Renkite Shell Station, William Hardy, had even cleaned the cars
windshield. He knew Roberts well but could not identify Roberts at the bail hearing or at this
trial as the person who had purchased the gas can found at the Harold house. Another witness at
the Renkite Shell Station, Richard Roman, claimed to have loaned on deposit the five gallon gas
can to Roberts. However, both William Hardy and Richard Roman when testifying under oath at
the bail hearing in Johnson County shortly after the murders had failed to identify Roberts as the
person who had purchased the gas can. Their memories of the events at the Renkite station were
fresh then and they were under oath.
Defense counsel also asked the jury to consider whether William Harold mistakenly or
perhaps purposely identified Roberts in the tires theft case? Why would a well educated and
intelligent person such as Roberts commit such horrible crimes just to eliminate a possible
misdemeanor conviction, especially since Roberts had passed a lie detector test and expected to
be found not guilty?
Mr. Jones stated to the jury, The police had completely failed to investigate other persons
who might have committed the murders. They had their man. Why didnt the police find out
who had burglarized the Harold house and stolen clothes the week before? Why didnt they tell
the jury why Douglas Milford was not a suspect? He was seen driving a car similar to Roberts
car in front of the Harold house early on the morning of the murders. He must have been
connected to the murders and possibly committed them.
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Tom Jones continued, Roberts stated that he was at the Y.M.C.A. when the murders
occurred. The Y.M.C.A. clerk was asked by the prosecutor if she let Roberts in the door that
night or morning and she stated, I dont think so. She appeared not to be certain and was
hesitant when answering. She was not even sure of the date. She stated that she registered
everyone who entered. Why didnt the prosecution obtain the registry and show it to the jury?
Defense counsel explained that it was not the obligation of the defense to show that someone
else might have committed the crimes. It was the obligation of the prosecutor to show beyond a
reasonable doubt that it was Roberts and not someone else. He emphasized that the defendant
was presumed innocent and that this presumption continued throughout the entire trial unless and
until the state proved to each juror beyond a reasonable doubt each and every material allegation
of the charges.
Defense counsel further stated that the filing of Indictments against defendant, as Judge
Berger will instruct you, was not to be considered as any evidence of guilt as the Indictments
were merely a technical way under Indiana law to commence a criminal prosecution.
He also explained to the jury, as the judge will also instruct you, that the failure of Roberts to
testify on his own behalf cannot be construed by the jury in any way as an admission of guilt.
He stated that the jury might understandably ask why if he was innocent he did not testify. He
explained that there are many reasons why a defendant may choose not to testify: the defendant
may be very nervous when testifying and his demeanor might imply that he was lying when in
fact he was not; and the defendant may have been convicted of a prior unrelated crime which
would be brought out by the prosecutor on cross examination, which prior crime may incorrectly
influence a juror that the defendant was guilty.
Mr. Jones told the jurors to remember that even though David James Roberts had not testified,
he had entered a plea of not guilty to all charges. This plea is equivalent to a statement by him
that he did not commit the murders-that he did not borrow the gas can.
Mr. Jones stated to the jurors, Your decision as to the guilt or innocence of David James
Roberts is probably among the most difficult and important decisions that you will ever have to
make. Do not forget the possible consequences of a guilty verdict. If you find Roberts guilty of
murder in the first degree, then there will be a second phase to the trial. You will then hear
further evidence about a prior crime and if you believe such further evidence has been proven,
under Indiana law you will have to sentence David James Roberts to death. The prosecutor
might prove such further evidence at phase two of the trial and therefore if you return a guilty
verdict now of murder in the first degree you are actually sentencing Roberts to death.
Mr. Jones then explained that the judge would instruct them concerning the doctrine of lesser
includable offenses. This doctrine states that if the jury is not convinced beyond a reasonable
doubt that the defendant is guilty of first degree murder, then they may consider whether the
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defendant is guilty of murder in the second degree which calls for a life sentence rather than
death, or a sentence for a term of years; or is guilty of voluntary manslaughter which calls for a
sentence for a term of years; or is guilty of involuntary manslaughter which calls for a sentence
for a term of years.
Mr. Jones also explained that Judge Berger will instruct them concerning the jurys right to
determine the law and that they could disregard the law for a substantial reason. Mr. Jones
stated, Therefore if any juror has a substantial reason to believe that a certain law should not
apply to this case, he or she may disregard the strict application of that law and render a decision
that he or she believes is a fair and honest application of that law.
Mr. Jones declared to the jury, You have heard five days of prosecution evidence. The only
evidence that you have heard which connects David James Roberts to the crimes is the testimony
of Richard Roman concerning the gas can loan. By his plea of not guilty, Roberts has denied
that he borrowed any gas can. All the other evidence is maybe or possibly or Im not sure
or could have been. This is not the type of evidence which would allow a finding of guilt
beyond a reasonable doubt. That leaves the jury with only the testimony of Roman. Remember,
he testified under oath and before God at the bail hearing a few weeks after the crimes were
committed that David James Roberts was definitely not the purchaser of the gas can. His
memory was fresh then. Now over a year later he suddenly changes his mind. If you are not
convinced beyond a reasonable doubt that Richard Roman has spoken the truth at this trial, then
you must acquit David James Roberts. It all comes down to that. Ladies and gentlemen, I beg
you not to find David James Roberts guilty of these crimes. A guilty decision would most likely
result in a mandatory sentence of death.
Defense counsel ended by imploring the jurors not to be influenced by the type of crime
committed or by sympathy for the Harold family. He stated that such feelings would be
understandable but that the jurors had sworn to judge the facts without passion or prejudice, to
faithfully apply the law as determined by them, and to render a fair and just verdict, not only to
the State but also to David James Roberts.
Mr. Jones reminded the jury that Roberts was presumed innocent; that he had no burden to
prove his innocence; and that the entire burden was upon the state to prove guilt. Further, he
stated in conclusion that the state had failed to sustain such burden and that justice compelled the
jury to find his client, David James Roberts, not guilty of all charged offenses.
At the conclusion of closing arguments, I read to the jury the courts Final Instructions which
included most of the Preliminary Instructions with additional instructions concerning
circumstantial evidence, the failure of defendant to testify, motive, lesser includable offenses, the
duty of jurors to judge the law and the facts, and the filing of Indictments.
I further advised the jury that their sole function in this phase one of the trial was to determine
guilt or innocence on all of the charges. I also advised that a finding of guilty on either Count I or
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III would result in a mandatory sentence of life imprisonment but that a finding of guilty on
either Count II, III or VI would result in a mandatory sentence of life imprisonment and, under
certain circumstances, death. The sentence on these counts would be decided by the jury at phase
two of the trial to be held later if necessary. I further advised that a finding of guilty on Count VI
would result in a mandatory sentence for an indeterminate term of five to twenty years.
Throughout the entire trial Roberts was always dressed in a dark suit and tie. He was always
calm and attentive. He took notes and often conferred with Tom Jones.
After I gave the Final Instructions to the jury, the jury retired to the jury room to deliberate
the fate of David James Roberts. A copy of the Final Instructions was given to the jury to
consider during deliberations. It was 3 p.m. on November 18, 1975.
On the morning of November 18 while I was in my chambers preparing the final instructions,
a member of the Indiana State Police spoke with me.
The officer stated that the Indiana State Police had heard from the Illinois State Police that a
confidential informant in Chicago had heard a friend of Roberts, who had been a cell mate of
Roberts, discussing plans with others to help Roberts escape if the jury should find him guilty of
murder. The plans included possibly taking me or my wife and children as hostages to be
exchanged for the release of Roberts.
The conspirators allegedly had made plans for Roberts to fly to Algeria which had no
extradition treaty with the United States.
Roberts brothers and friends were in Steuben County. Security at the courthouse was
increased. I was advised to stay at the courthouse.
In response to the threat, I had my wife and two small children stay at the house of a friend.
They stayed there until Roberts returned to Indianapolis the next day.
21
The Trial-Duty of Jury
November 18, 1975
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There are two Indiana legal principles which give the jury great leeway in determining a
proper verdict, jury nullification and lesser included offenses.
JURY NULLIFICATION
I gave the following final instruction concerning the duty of a juror.
DUTY OF JURY
In criminal cases the Constitution of Indiana gives the jury the right to determine the law as
well as the facts. At the same time, it is my duty to instruct you concerning the law. This means
that you should pay respectful attention to the law contained in my instructions, should give the
law a fair and honest interpretation and should not ignore or disregard the law without a
substantial reason. However, in reaching your final decision, you have the right to determine the
law and the facts by which your verdict will be governed.
This instruction gave the jurors the right to determine the law and disregard it if they had a
substantial reason. They could return any verdict they thought proper, even a not guilty verdict.
What was a substantial reason had not been determined by the courts or legislature.
Jury nullification is defined as A jurys refusal to apply the law because the result dictated
by law is contrary to the jurys sense of justice, morality, or fairness. The Indiana Constitution
in Article I, Sec. 19 states, In all criminal cases, whatever, the jury shall have the right to
determine the law and the facts. Does this provision to determine the law grant to Indiana
juries the right of jury nullification? The answer is possibly yes until about 1983 and no
thereafter.
This right to determine the law was first set forth in the original 1816 Indiana Constitution
and was meant to give to the people a safeguard against oppressive government laws. This
Constitutional right was incorporated in the 1851 Indiana Constitution and has never been
repealed. Only two other states, Oregon and Georgia, have similar constitutional provisions.
Does this Constitutional right to determine the law mean that the jury can under certain
circumstances refuse to apply the law-to nullify the law? Even without a Constitutional
provision, a jury always has the power (as contrasted with the right) to disregard the law and
return a verdict of not guilty. A not guilty verdict cannot be overturned by a judge or court,
jurors do not have to give any reason for their verdict, and the defendant cannot be tried again as
this would be double jeopardy.
The above instruction which was given to the jury was based upon an instruction which was
at that time approved by the Indiana Supreme Court. Today this instruction would not be
approved. Later Indiana cases commencing in 1983 seem to state, without precedent, that a jury
in determining the law can never disregard the law, even for a substantial reason! The Indiana
Supreme Court by judicial fiat has in effect improperly repealed Article I, Sec. 19 of the Indiana
Constitution.
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LESSER INCLUDED OFFENSES
The doctrine of lesser included offenses can be described as follows. If a defendant is
charged with Killing another human being with premeditation and malice as in the Roberts
case the defendant is charged with First Degree Murder. By virtue of such a charge, under
Indiana law, the defendant was automatically also charged with three other felonies. These are
Second Degree Murder, Voluntary Manslaughter and Involuntary Manslaughter. Roberts could
have been convicted of any one of these three lesser included offenses rather than First Degree
Murder. I instructed the jury concerning this rule.
If the Roberts jury decided that Roberts did intentionally kill William and Elizabeth Harold
with malice but did not plan in advance to kill them (no premeditation), then the jury could reach
a verdict of Second Degree Murder and impose a life sentence or a definite sentence of from
fifteen to twenty five years.
If the jury thought that such killing was done without malice and premeditation and in the
heat of passion, then the jury could reach a verdict of Voluntary Manslaughter which had a
penalty of an indeterminate term of 2-14 years.
If the jury found that there was no intent to kill but that the deaths were the result of reckless
and wanton conduct, the jury could reach a verdict of Involuntary Manslaughter which had a
penalty of an indeterminate term of 1-10 years.
Defense counsel was relying heavily on these principles to avoid a conviction of First Degree
Murder and the imposition of the death penalty. If one or more jurors were not convinced
beyond a reasonable doubt of Roberts guilt as to First Degree Murder or were hesitant to reach a
verdict which would have required the death penalty, by using one or both of these principles, a
compromise verdict could have been reached by finding Roberts guilty of Second Degree
Murder or Manslaughter.
By using the above principles, juries can arrive at surprising verdicts from not guilty to a
conviction of a lesser included offense. Most are compromise verdicts. I presided over many
trials in which I believe that the jury verdicts were based upon compromise or in some cases a
complete disregard of the facts.
The following are three trials over which I presided which illustrate these principles.
TRIAL 1:
The defendant was charged with First Degree Murder: intentionally killing with malice and
premeditation.
Defendant was very jealous of his wife and thought that she was having an affair with a
fellow factory worker. At 11:30 p.m. the defendants wife was returning home by car from work
along a lane near their home. The defendant had been waiting for her and as she drove past him,
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he threw a large boulder at her car. She stopped the car and defendant ran up and opened her car
door. He pulled her out of the car and slashed at her with a knife. She was able to spray him
with pepper spray and ran down the lane away from the defendant. The defendant ran after her
and repeatedly struck her with his knife in the back and finally in the throat which was fatal. He
testified that he then lay on the ground, cradled her head on his lap, and began crying. He further
testified that he was afraid for his life as he thought she had a gun in her purse, and only stabbed
his wife in self defense.
The jury reached a verdict of voluntary manslaughter. Some jurors thought that there was an
intentional killing with malice and premeditation, and therefore murder. Some jurors thought
that the killing was not planned, was done in the heat of passion, and therefore voluntary
manslaughter. Some jurors thought that the killing was done in self defense. The final verdict
appeared to be a compromise.
TRIAL 2:
The defendant was charged with First Degree Murder: intentionally killing with malice and
premeditation.
The defendant and his wife often had heated arguments. During one such argument,
defendant testified that his wife took a large kitchen knife and lashed out at him. As a result he
received a small surface cut on his hand. He grabbed her and as they fell backward they broke a
large ceramic jug. He picked up a jagged sharp piece of the broken jug and swung at his wife.
According to his testimony, his wife stated that she was going to kick him in the balls. Upon
hearing this he stated that he had no choice but to immediately defend himself and his manhood.
He stated that he took the knife away and stabbed her to protect himself.
The evidence disclosed that the defendants wife had over thirty wounds on her body. Some
wounds were caused by the knife and some by sharp pieces of the ceramic jug. Eleven deep
wounds on the front of her hands and arms were described by an expert witness as defense
wounds, those caused by holding out your arms to defend yourself.
The jury reached a verdict of battery and sentenced the defendant to six months in prison.
Some jurors thought that there was an intentional killing with malice and premeditation, and
therefore murder. Some jurors thought that the killing was not planned, was done in the heat of
passion, and therefore voluntary manslaughter. Some jurors thought that the killing was done in
self defense. The final verdict appeared to be a compromise.
TRIAL 3:
The defendant was charged with Rape.
The victims were two girls in their twenties who were on their way home to Boston from a
vacation. They had been travelling in the western states and were hitchhiking along the Indiana
Toll Road. They were on summer vacation from a Boston College. While stopping at a toll
plaza, they accepted a ride with a truck driver who was heading east.
An Indiana State Trooper was driving along the toll road and noticed a semi tractor trailer
parked along the side of the road with the engine running. The trooper stopped to investigate and
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found the defendant and the two girls in the back sleeper portion of the tractor. One girl was
huddled in the corner. The defendant was on top of the other girl engaged in intercourse. Both
girls were crying. Both girls claimed that the defendant had beaten them and threatened them
with further harm unless they allowed him to have intercourse with them. The defendant was
arrested and charged with rape.
Within two hours the girls appeared before me to testify concerning their ordeal. The purpose
of the hearing was to determine if there was probable cause to issue a formal arrest warrant. I
found probable cause and issued the warrant. When the girls appeared in court they were still
wearing their original clothes which appeared to be torn. Also many bruises were apparent to
me.
The defendant appeared before me for preliminary hearing and bond was set. His trucking
company posted bond. At the formal arraignment hearing, the defendant did not appear. I issued
a warrant for his arrest.
The defendant was picked up for a traffic violation in Texas two years later. He waived
extradition and was returned to Steuben County for trial. At that time it was not a crime in
Indiana to jump bail. The only penalty was to forfeit the bond which of course the trucking
company had to pay.
The girls both returned to testify. The defendant testified that the girls had been pestering him
for about fifty miles to stop and have some fun. Finally, being a normal man, he said he could
not resist any longer and at their urgent request, he had intercourse with both of them.
The jury returned a verdict of not guilty! When asked why they returned a not guilty verdict,
they stated that most of the jurors felt that any decent girl would not travel across the country
hitch hiking and that if they did they were just asking for it.
The defendants in the above three cases were wise to have a jury decide their cases rather than
have it tried by the court (by me).
22
The Trial-Jury Deliberations
November 18, 1975
At 3 p.m. the twelve members of the jury entered the jury room to begin their deliberations.
The alternate juror sat alone in the courtroom, admonished not to talk to anyone during
deliberations. The door to the jury room was locked by the bailiff. The jurors would not be
allowed to leave the jury room except for meals. At any meal they would eat together and apart
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from any other diners. As admonished by me, they were not to discuss the trial during any meal.
They were in charge of the bailiff at all times.
The jury room contained a long rectangular oak table with turned legs and twelve oak ladder
back chairs. There was no other furniture.
There was one picture hung on the wall. It was an old photograph of the first Steuben County
jury that had women jurors. The year was 1936 and the photo showed eight women and four
men, all with very serious expressions. The photograph also showed a young prosecuting
attorney, Harris Hubbard, who was judge of the Circuit Court when I started law practice, and
the judge at that time, the Hon. Clyde C. Carlin.
There were two rest rooms. The bailiff had provided a large pitcher of ice water and paper
cups. Paper and pencils were available.
Under Indiana criminal trial procedure at that time, the jurors were not allowed to take notes
during the trial. The jurors also at that time were not permitted to take exhibits with them into
the jury room during deliberations. During deliberations, the jurors were not permitted to have a
copy of the final instructions that had been read to them by me.
The reason for the rule against note taking as stated by the Indiana Supreme Court was to
prevent the jury from being distracted by taking notes and perhaps missing some testimony.
The rule against having exhibits and instructions during deliberations was to prevent the
jurors from giving extra consideration to one exhibit or instruction perhaps to the exclusion of
others.
These rules completely ignored the intelligence of jurors and hindered their deliberations. I
refused to follow the rule as to the exclusion of instructions from jury deliberations and sent a
copy of the final instructions with the jury. Without the written instructions, how could jurors
remember the eight essential elements of the murder charges against Roberts that they must find
beyond a reasonable doubt to convict him? How should they reconcile contradictory evidence?
What is a reasonable doubt?
In the Roberts case, the prosecutor and defense counsel did not object to sending a copy of the
final instructions with the jury during deliberations. Defense counsel certainly should not have
objected. It was to the defendants advantage to have the jurors realize that there were eight
essential elements which must be found to convict. Without the instructions as to the elements
of each charge, the jury might remember only some of the essential elements and reach a wrong
verdict!
In an appeal from a later murder trial over which I presided wherein I had again sent the final
instructions with the jury during deliberations, defense counsel objected. The Indiana Supreme
Court held that allowing the jury to have a copy of the final instructions was error. The Court
stated however, that since the defendant had not shown how defendant was prejudiced by such
action, the error was harmless and the conviction was affirmed.
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In spite of the Indiana Supreme Court reprimand, I continued this practice in all civil and
criminal cases.
Current Indiana Supreme Court Rules of Criminal Procedure now specifically allow note
taking and the jury to have a copy of the final instructions and original exhibits with them during
deliberation. Also a juror may submit a question to the judge to be answered by a witness.
After taking seats around the long table, the jurors first agreed upon a foreman. There were
no volunteers and a well regarded farmer, Philip Michael, who lived on the family homestead
near Fremont, Indiana, reluctantly agreed to be foreman.
All jurors agreed that the first thing that they had to decide was if the evidence proved beyond
a reasonable doubt that David James Roberts intentionally killed William and Elizabeth Harold.
If they agreed that Roberts intentionally had killed them, then they would decide if the killing
was done with malice and premeditation (Counts I and III).
They also had to decide if the deaths of William and Elizabeth Harold had occurred in
connection with a burglary (Counts II and IV). Burglary required a finding of uninvited entry
into the house by Roberts through a closed door or window and that he did so with the intent to
commit arson, rape or murder.
The next decision for the jury was to decide if Roberts committed arson (Count VI) and if so,
did such arson cause the death of Jenny Harold (Count V).
There was a general discussion by the jurors of the facts and the inferences that could be
drawn. Some of the final instructions were reviewed.
The discussions were calm, deliberate and well organized.
Much weight was given to the possible identifications of Roberts car at the New Whiteland
and Indianapolis gas stations on the 19th of January, 1974; Roberts statement to Lt. Allen that
he, Roberts, was the only one who used or drove his gold 1970 Buick Riviera on the 19th and
20th; the testimony of Richard Roman wherein he positively identified Roberts as the person
who obtained the red five gallon gas can from the Renkite Shell station on the 19th; the fact that
the same gas can was found at the Harolds house; the inquiry as to directions to Pine Drive, the
street where the Harolds lived, by the driver of a car identified as Roberts car; Roberts motive
to kill the sole witness against him on the theft charge to avoid conviction and possible
imprisonment; the fact that the intruder did not take anything from the house (except possibly
cash from the wallet and purse) indicating that the intruder was not a common burglar but had
some other reason to enter the Harolds house.
Several jurors remembered the statement that Roberts parole officer was contacted. If
Roberts was on parole, he must have been sentenced to a term of years for a felony and therefore
would have to serve the remainder of the original sentence in prison as a result of any parole
violation. This would add to the motive to avoid conviction on the theft charge.
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The jurors also discussed the fact that Roberts had obviously lied to Lt. Allen as to his
whereabouts on January 19 and 20, 1974. He was not with LeRoy Loraine watching television
and drinking until 1:30 a.m. LeRoy Loraine was with his girl friend and not with Roberts.
Several jurors were concerned about a portion of the testimony of Lt. Lasiter. He stated that
a fireman at the Harold house on the morning of the murders at about 6:30 a.m. had seen a car
that looked like Roberts 1970 Buick Riviera being driven by a black male. The fireman later
was shown a group of photographs including Roberts photograph. The fireman picked out a
photograph of a person named Douglas Milford and not Roberts as the driver. Lt. Lasiter
testified that he had investigated further and personally determined that Douglas Milford was not
involved in the murders. The jurors wondered why the prosecution did not explain this further.
Why did the police have a photograph of Douglas Milford? Why was Douglas Milford driving a
car that looked like Roberts car that early morning in front of the Harold house if he was not
involved? What information did Lt. Lasiter obtain to lead him to believe that Milford was not
involved in the murders? Defense counsel had probably brought out the Milford information on
cross examination of Lt. Lasiter to raise the possibility that someone else other than Roberts was
involved and possibly committed the murders. The jurors were concerned with this apparent
lapse in the investigation.
After further lengthy discussions it was evident that all jurors thought that Roberts had
planned to kill William and Elizabeth Harold, that he had killed them, and that he intended to kill
them when he entered the house. The testimony of Richard Roman was crucial to the jurors.
They believed that he had in fact given the red five gallon gas can to Roberts the afternoon
before the murders.
As to Counts II and IV which required a finding of burglary and a breaking into the house,
some jurors thought that there was no evidence as to how Roberts entered.
Since the jurors verdict could result in the death sentence for Roberts, some jurors expressed
the opinion that they could not make a mistake and if they were not absolutely sure, perhaps they
should consider a verdict of second degree murder and impose a life sentence or perhaps a term
of years from fifteen to twenty-five years.
The jurors decided to have dinner before further deliberations and so informed the bailiff.
After dinner the foreman asked each juror to express his or her opinion as to the guilt or
innocence of Roberts. Ten of the jurors thought that Roberts was guilty on all charged counts.
Two were hesitant. They said that they thought he was guilty but that since a guilty verdict
could lead to a death sentence, they were reluctant to make such an important decision.
The jurors again reviewed the evidence. Further discussion followed.
The jurors decided to take a written secret vote. The jurors voted several times with further
discussion after each vote. Finally, the vote was unanimous.
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The foreman then knocked on the door and told the bailiff that they had reached a verdict.
All court personnel and the attorneys had stayed at or near the courtroom during all jury
deliberations anxiously awaiting the verdicts. I was available at all times in case the jury had a
question. There was a lot of nervous pacing. While the jury was deliberating, there was the
usual speculation as to how long it would take for a jury decision. A fast verdict may or may not
be a favorable one. If the jury took a long time to decide, perhaps they could not agree and there
would be a hung jury. If so, Roberts most certainly would be tried again or a plea bargain
might be agreed to for a lesser offense.
23
The Trial-The Verdicts
November 18, 1975
At 8: 30 p.m. the jury indicated to the bailiff that they had arrived at their verdict. Roberts
and counsel were advised and all returned to the courtroom.
The Bailiff led the jurors into the jury box. All was very quiet in the courtroom. The
expressions on the faces of the jurors were somber.
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I asked the foreman, Philip Michael, if the jury had reached a verdict and he answered that
they had. The verdict was handed to the bailiff who then handed it to me. I read the verdicts to
myself to see if they were in proper form. They were. I asked the defendant to stand and I read
aloud the verdicts of the jury.
We the jury find the defendant David James Roberts guilty of murder in the first degree as
charged in Count I (intentional premeditated killing of William Harold with malice) and sentence
him to life imprisonment.
charged in Count III (intentional premeditated killing of Elizabeth Ann Harold with malice) and
sentence him to life imprisonment.
charged in Count II (taking the life of William Harold while committing burglary) the sentence
to be determined after further evidence in phase two of the trial.
charged in Count IV (taking the life of Elizabeth Ann Harold while committing burglary) the
sentence to be determined after further evidence in phase two of the trial.
We the jury find the defendant David James Roberts guilty of first degree murder as charged
in Count V (taking the life of Jenny Harold as a result of arson) the sentence to be determined
after further evidence in phase two of the trial.
We the jury find the defendant David James Roberts guilty of arson in the first degree as
charged in Count VI and sentence him to five to twenty years in prison.
Roberts showed no emotion. There was no celebration. All was quiet in the court room.
At the request of Tom Jones, the jury was individually polled by me. I asked each juror if the
verdict of guilty on all counts was in fact his or her personal judgment. All answered quietly yes.
I thanked the jurors and told them to return to court on December 3, 1975, at which time they
would hear further evidence in order to determine if the death penalty would be imposed under
counts II, IV and V.
I then issued an order that the defendant be held in custody without bail and delivered
immediately to the Sheriff of Marion County, Indianapolis.
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24
Indianapolis
(Prior to Roberts Trial)
On a frigid November night in 1974 a twenty year old white woman with her six month old
son was driving her automobile in Indianapolis, Indiana, and stopped at a red light. Suddenly
the passenger door was opened and a black male entered the car brandishing a handgun. He
ordered the driver to drive to a vacant area on the outskirts of Indianapolis.
Upon arrival, he threatened to kill her if she resisted and raped her twice. She was then
locked in the trunk. He drove the car several miles and then abandoned the car.
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Later a passerby heard her pounding on the inside of the trunk and obtained her release. The
infant was not in the car. The infant was later found dead at the side of a nearby roadway. The
child had apparently been thrown from the car and died from exposure.
The police showed the woman several photographs of black males and she positively
identified David James Roberts as her assailant. Charges of rape, kidnapping and murder were
filed against Roberts in the Marion Superior Court in Indianapolis. He was immediately arrested
and held without bail.
These charges were set forth in the newspaper article which some of the first panel of jurors
had read which caused me to dismiss these jurors.
Understandably there was great condemnation in the press over the fact that, a murderer had
been released on bail by the judge to murder again. The Indiana Governor sent a special
representative to Angola to question me as to why I released this murderer on bail. I explained
to the representative that Roberts had been released on bail not by me but by the Johnson Circuit
judge, and that considering the evidence at the bail hearing, the release was required by law. The
Governors aid was not satisfied at all by the explanation and left stating something about liberal
judges and that they were going to get that law changed. The law has not been changed.
Trial of these Indianapolis charges was held after the New Whiteland Roberts murder trial in
Steuben County ended. The first Indianapolis trial of Roberts ended in a mistrial. When the jury
was deliberating, one of the jurors became ill and the deliberations could not continue. There
was no alternate juror. A second trial was held and also ended in a mistrial. A juror during
deliberations became mentally unstable and violent from the strain of the trial and had to be
hospitalized. Again there was no alternate juror. The third trial ended with a conviction and
sentencing of David James Roberts on all charges.
What courage the young woman must have had to testify in three trials.
25
Roberts Criminal Record
A criminal records check made before Roberts was charged with the Harold murders and
arson revealed that Roberts had previously served about six years of a twelve year sentence at the
Indiana State Reformatory for armed robbery in Crown Point, Indiana. The armed robbery
occurred on March 11, 1966 when Roberts was twenty-two. The Amended Affidavit charging
armed robbery stated that Roberts had obtained $1.50 from a woman by threat using a pistol.
Roberts entered a plea of guilty pursuant to a plea bargain. The armed robbery statute called for
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a determinate sentence of between ten and twenty years. The Lake Criminal Court judge
sentenced Roberts to twelve years in prison pursuant to the plea agreement.
He was on parole at the time of the Harold murders. He had served about six years of the
twelve year sentence.
He was involved in a 1969 disturbance at the prison during which one inmate was killed and
forty six others injured. As a result of injuries sustained in the disturbance, Roberts spent about
nine months in the hospital. Roberts and 12 other inmates filed a one million dollar civil suit
against the State of Indiana alleging the use of excessive force by state employee prison guards.
At the omnibus hearing the defense counsel had filed a Motion in Limine asking me to forbid
any reference to the armed robbery conviction and parole in the first phase of the trial unless
Roberts testified. I had granted the motion.
The decision by me to not allow the prosecutor to introduce evidence of or refer to the armed
robbery and parole (except for cross examination of defendant if he testified) was made by me as
a cautionary matter to avoid error. The prosecutor made a strong argument that he should be
able to introduce evidence of a possible parole violation which was very relevant on the issue of
Roberts motive to kill William Harold to avoid six more years in prison for probation violation.
I had to weigh this against the possible prejudice to Roberts if the jurors knew of a prior serious
crime having been committed by Roberts.
If Roberts had testified, the previous conviction of armed robbery would have been
admissible upon cross examination as proper impeachment testimony. When a person testifies,
the witness places credibility of the witness in issue and having committed robbery (theft from
the person) is considered relevant as to the witnesss credibility. Defense counsel did not want to
risk having the jury hear such evidence. Even though evidence of a prior crime should only be
considered by the jury as evidence of truthfulness, a juror might let the conviction influence the
decision as to guilt or innocence and defense counsel did not want to take this risk by having
Roberts testify.
Evidence of the pending Indianapolis charges of murder, rape and kidnapping against Roberts
was not admissible as these were only charges. Even if they were convictions, evidence of these
convictions would not be admissible to prove that Roberts committed the prior New Whiteland
murders or as evidence upon cross examination relating to his credibility. Under Indiana law
conviction of rape, kidnapping and murder is not evidence that a witness is not telling the truth or
that he committed a prior murder! At the omnibus hearing, pursuant to defendants Motion in
Limine, I had ordered the prosecution not to mention these charges.
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When the jurors had been deliberating the guilt or innocence of Roberts they had no
knowledge of the rape, kidnapping and murder charges pending against Roberts in Indianapolis
or of his previous conviction, imprisonment and parole for armed robbery. The jurors did not
know that a conviction on the theft charge would have resulted in revocation of parole and six
additional years of imprisonment for Roberts. This would have been a much stronger motive
than only avoiding a theft conviction.
26
The Trial Phase Two
December 3, 1975
On December 3, 1975, phase two of the trial was held. The twelve jurors and the alternate
returned to the courtroom and were welcomed again by me.
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All attorneys and David James Roberts were present. Roberts was wearing his usual suit and
tie but was shackled at his wrists and ankles. Before the jury entered the courtroom, over the
objection of the sheriff, I directed that Roberts be unshackled. I thought that it would be
prejudicial to Roberts to appear shackled. The jury would wonder why.
I first gave additional Final Instructions to the jury concerning the following.
The sole issue for determination by the jury was whether David James Roberts had been
convicted of robbery prior to the Harold murders. If he had not, the mandatory sentence on
Counts II, IV and V was life imprisonment. If he had, the mandatory sentence was death on each
of said counts. The prosecutor had the burden of proving beyond a reasonable doubt that the
defendant David James Roberts was in fact the same David James Roberts who had previously
been convicted of robbery.
At the request of the Tom Jones, I also gave the following final instruction to the jury:
The Indiana Constitution states that cruel and unusual punishments shall not be inflicted. All
penalties shall be proportional to the nature of the offense. The Indiana Constitution further
provides that the Penal Code shall not be founded on vindictive justice.
In 1983 the Indiana Supreme Court decided that the above jury instruction should not be
given to the jury. The court held that these constitutional provisions were merely limitations on
the legislature when enacting criminal laws and that the jury should not be made aware of these
provisions. The court stated without prior authority or citation, These proposed instructions
would have conveyed to the jury that it had the power of nullification, which clearly it does not
under the law.
After a brief opening statement, the prosecutor first introduced and had admitted into
evidence a certified record of the proceedings before the Lake Criminal Court on June 17, 1966,
which included Amended Affidavit of Armed Robbery, Roberts guilty plea, the judgment of the
court that David James Roberts was guilty of armed robbery, the sentence of twelve years
imprisonment in the Indiana Reformatory at Pendleton, Indiana, and the Pendleton Admission
Summary. The record disclosed that Roberts was represented by attorney Max Cohen.
The Amended Affidavit stated:
That David James Roberts on the 11th day of March, 1966, did forcibly and feloniously take
from the person of Mildred Wiscolik, by violence and by putting her in fear, certain articles of
value, to wit: $1.50 in money then and there being the personal property of Mildred Wiscolik
while the said David James Roberts was armed with a pistol.
The Admission Summary at Pendleton Reformatory contained the following:
INMATES STATEMENT:
At the time of my crime, I was by myself. I saw three ladies in a car, and approached them
and told them this is a stick-up. I took $40.00 and fled. I was apprehended six blocks from the
scene of the crime by the police.
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I was then taken to jail and questioned. I was not advised of my legal rights nor was I
permitted to call my attorney. I was then transferred to the county jail, where I stayed for
approximately 4 to 5 months. I then entered a plea of guilty, was sentenced and transferred to
the Indiana Reformatory at Pendleton.
The above is a true and exact statement given without threat or promise.
The record further showed his parole on December 18, 1972, and Division of Parole Initial
Interview. The Interview states:
REMARKS:
On 12-19-72 this writer read and discussed the rules and regulations of parole with Roberts
and Roberts stated that he was aware of his obligations.
Roberts is originally from New Jersey, however, his family now lives in the Gary, Indiana
area. Roberts had been given permission to marry a Miss Maryanne Dully, and the two should
be married by 12-29-72.
Roberts now owns a 1970 Riviera Buick which is properly licensed and insured.
TENTATIVE EVALUATION:
This writer anticipates a successful parole for David Roberts. The subject has no previous
criminal record and apparently was a good inmate while at the DOC Work Release Center.
The first witness for the prosecution was Daniel Orewiller.
He stated that he was the Director of Classification at the Pendleton Reformatory and had
been for seventeen years. He was custodian of records which included the Inmates Registry
Book, fingerprints of all inmates, and photographs of all inmates. He stated that the records
showed a David James Roberts as an inmate pursuant to a conviction of Armed Robbery in Lake
County, Indiana. The records further contained the fingerprints and photograph of David James
Roberts. He stated that he was familiar with the inmate David James Roberts and that the
defendant in the courtroom was the same identical person. The registry, fingerprints and
photograph were introduced and admitted into evidence. The photograph introduced was as
follows.
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DAVID JAMES ROBERTS PHOTOGRAPH AT PENDLETON PRISON

AUGUST 22, 1967
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Upon cross examination by Mr. Jones, the witness stated that he was aware of the law suit
brought by the defendant against the State of Indiana for certain actions taken by guards at
Pendleton. He stated that he was also aware that the Indiana Supreme Court had decided in a
landmark case that Roberts could sue the state. Previously the Indiana law did not allow suits
against the state for action taken place in prison by guards. Mr. Jones then asked the witness if
he did not think it was unusual that Roberts had been arrested for the Harold murders just three
days after the Indiana Supreme Court decision in Roberts favor. The witness said he had no
opinion on that. Mr. Jones then asked, So you have no opinion as to whether Mr. Roberts was
arrested for the Harold murders in retaliation for suing the State of Indiana? There was
objection by Mr. Gantz and I sustained the objection.
Previously the prosecutor, in anticipation of this penalty phase, obtained an order from me
that Roberts give a fingerprint exemplar which could be compared to the fingerprints on file with
Pendleton Reformatory.
Allen Stout, Indiana State Police Trooper, then testified that he had that morning taken the
fingerprints of the defendant David James Roberts. The fingerprint exemplar was then
introduced into evidence.
The next witness, Donald Shively, Indiana State Police fingerprint expert stated that he had
compared the exemplars of fingerprints from the Pendleton records to the exemplars of
fingerprints taken from the defendant by Officer Stout, and that all prints on both cards were the
same.
There was no cross examination of the witness.
The prosecution then rested.
Tom Jones called only one witness: the defendant! The prosecutor could not object as
Roberts had the opportunity to testify that he was not the same David James Roberts that had
been convicted of robbery.
DIRECT EXAMINATION BY MR. JONES:
Q. Would you state your name to the Court, please?
A. David James Roberts.
Q. Now, Mr. Roberts, theres been testimony concerning an alleged riot at the prison in which
you were apparently involved. Tell the jury what actually transpired.
A. Ah-I had been incarcerated in the Indiana State Reformatory. There was a disturbance on the
opposite side of the reformatory. We were on a basketball court and we came around a corner
and had a reformatory guard-several of them-level shotguns at me, and told me to lie down on
my stomach. I was under the impression that this was to contain the masses-to have a mass
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arrest so to speak. This was not unusual. The crowd was orderly and they were obeying orders.
It was quiet. I no sooner lay down on my stomach in a total surrender position-the guards were
behind a cyclone fence-and for no apparent reason they opened fire on us repeatedly thirty-one
times.
Q. Were you shot up in that incident?
A. I was shot five times and had my left arm almost severed.
Q. Now, did you require medical treatment over that-your arm and that sort of thing?
A. Yes, my arm and leg for approximately nine months in the Robert Long Hospital in
Indianapolis.
In the heat of battle, sometimes really dumb questions are asked by counsel. This question is
an example. Of course after being shot five times and having an arm almost severed, medical
treatment would be required. It is like the old joke wherein a young reporter for a Washington
newspaper asks Mrs. Lincoln, Aside from the unfortunate incident with your husband, how did
you enjoy the play?
Q. Now did you file suit over this?
A. Yes, in federal and state court. The Indiana Supreme Court ruled for the first time that a
prisoner could sue the State of Indiana for actions of guards-they handed down what is
considered a landmark decision-I set a precedent in being allowed to sue the state.
Q. All right. Now when were you arrested for the offense down in New Whiteland?
A. Some three days after that decision was passed down. I think that they were out to get me.
All of the above questions and answers were not relevant to the sole issue for determination
by the jury in this phase two of the trial. The sole issue was whether Roberts had a previous
conviction for robbery. He had already been found guilty of murder in phase one. The
prosecutor did not object to any of the questions. He probably did not want to possibly alienate
the jury by objecting and appearing to limit the defendant in making his defense. He wanted to
appear fair.
FURTHER DIRECT EXAMINATION BY MR. JONES:
Q. Now, I want to ask you, Mr. Roberts, one more question. Did you unlawfully and
feloniously kill and murder anybody in New Whiteland, Indiana, on the 20th day of January,
1974 having then and there a prior unrelated conviction of the crime of robbery? I want you to
look at the jury and tell them if you did that.
OBJECTION BY MR. GANTZ:
Your Honor, the jury has already found the defendant guilty and now he is trying to say he is
not guilty. His answer is immaterial, irrelevant and self serving.
THE COURT: Objection overruled. You may answer, sir.
There was a hush in the courtroom. The jurors seemed to lean forward not to miss his
testimony.
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A. I-no, Ive never been to New Whiteland prior to being arrested-never in my life. I swear to
you before God that I did not murder the Harolds. I am innocent. I beg you to be merciful.
Roberts made no further statement.
The prosecutor did not cross examine Roberts.
There was no further evidence introduced by the defense or by the prosecution.
I told the jurors that they had now heard all of the evidence in this case and that they would
now hear the closing statements of the prosecutor and the defense.
Mr. Gantz in his closing statement reminded the jury that the sole question for their
determination was whether the defendant, David James Roberts, had a prior conviction of armed
robbery or robbery. If so, they had a duty under the law to sentence the defendant to death. The
evidence of his prior conviction was uncontroverted. The state had proved beyond a reasonable
doubt, in fact beyond all doubt, that the David James Roberts who was convicted of armed
robbery in the Lake County Criminal court was the same identical person as the defendant.
Mr. Jones in his closing argument reminded the jury that they were the judges of not only the
facts but also of the law. As you were instructed by Judge Berger, if any of you have a
substantial reason to disregard the law, then you can do so. If there ever was a substantial reason
to disregard the law, then this case is a perfect example. The evidence discloses that David
Roberts was convicted of armed robbery based upon a charge of stealing one dollar and fifty
cents! He was twenty-two and this was his first offense. He admitted to police that he had stolen
forty dollars but he was only charged with stealing one dollar and fifty cents. To sentence David
James Roberts to death for the theft of one dollar and fifty cents or even forty dollars is cruel and
unusual punishment and is not proportional punishment. It is thereby forbidden by the United
States Constitution and the Indiana Constitution. The Indiana Constitution specifically states
that all punishments must be proportional to the offense and that the penal code shall not be
founded on vindictive justice. You took an oath as a juror to render a fair verdict. The only fair
verdict in this case is to disregard the harsh strict application of the law, which Judge Berger said
you could, follow the Indiana Constitution, and determine that David James Roberts should not
be sentenced to death based upon a charge and guilty plea of stealing $1.50. If you believe that
the defendant has a prior unrelated robbery conviction, then the only fair verdict is to sentence
the defendant to life imprisonment.
After these closing arguments, I read further instructions to the jury. The jury retired to
deliberate.
After two hours of very serious deliberation, the jury returned their verdicts.
The jury sentenced David James Roberts to death on Counts II, IV and V.
Again there was no reaction from Roberts and the courtroom was quiet. The jury was again
polled and all answered that it was their individual verdict that David James Roberts be put to
death.
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I have been unable to determine from the jurors I interviewed whether there was any
discussion and sentiment by them concerning their right to judge the law and thereby refuse to
impose the death sentence solely because Roberts as a twenty-two year old had been convicted
of armed robbery of $1.50. Most probably, the circumstances of the crimes overrode any serious
consideration of this aspect and, as one juror stated to me, Three lovely lives were snuffed out
for no reason. Why should Roberts have a life?
The jury was thanked by me and excused from further service.
I then rendered Judgment of Conviction based upon the jury verdicts on all counts. I set the
sentencing hearing for December 18, 1975.
I directed Thomas Hanselman, the probation officer, to prepare and file his pre-sentence
report before that date.
Indiana law required a sentencing hearing and a pre-sentence report even though the
sentences were mandatory. The jury verdicts of life, death and five to twenty years were not
recommendations to me as judge which I could decide not to impose after a sentencing hearing.
I had no discretion and had to enter the sentences found by the jury. In order to comply with the
law however, I set and held such a sentencing hearing.
The sentencing hearing was held on December 18, 1975, with the defendant and all counsel
present.
The pre-sentence report was filed by the probation officer.
In the report under Offenders Version of Offense it was stated, The defendant told me, I
didnt do it. I am innocent. I just cant believe all of this is happening to me.
The report also under Present Attitude stated, The defendants present attitude is very
good. When I interviewed the defendant he answered my questions readily and without
hesitation. He has the feeling that some people in some parts of the system are out to get him.
He also told me that he was able to put it out of his mind. The defendant told me he has very few
regrets. One of the things he wished he would have done was become a pilot, and at one time he
would have liked to become a member of the Lake County Sheriffs department. The defendant
expressed the opinion that he could not see how the jury could have conscientiously returned
their verdict.
Without hearing any further evidence or argument of counsel (Roberts declined to make any
statement), I asked Roberts to stand and entered sentencing judgment as follows: Mr. Roberts,
pursuant to the verdict of the jury and Indiana law, I sentence you, David James Roberts, to life
imprisonment on Count I (intentional premeditated killing of William Harold with malice); to
life imprisonment on Count III (intentional premeditated killing of Elizabeth Ann Harold with
malice); to death on Count II (taking the life of William Harold while committing burglary
having committed an unrelated crime of robbery); to death on Count IV (taking the life of
Elizabeth Ann Harold while committing burglary having committed an unrelated crime of
robbery); to death on Count V (taking the life of Jenny Harold as a result of arson having
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committed an unrelated crime of robbery); and to five to twenty years imprisonment on Count VI
(arson in the first degree).
When I announced my sentences, I did not comment upon any aspect of the trial or direct any
statement to Roberts. I had made it a practice not to address a defendant at a sentencing even
when I had sentencing discretion (which I did not have in this case). Everyone knew the nature
of the crimes and the effect it had upon the victims family. Thoughts of rehabilitation were
meaningless when the sentence was death. Most judges however at sentencing lecture a
defendant as to how horrible his or her conduct was, how it had devastated the victims family,
how the punishment was justified and should be accepted by the defendant, and, if not a death
sentence, that the defendant should work hard in prison to overcome his or her past. I do not
believe that a judge should pontificate upon the obvious-that a judge should flaunt his seeming
superiority of knowledge and morality. My motto was, The less said the better.
I then entered an order staying the execution of the three sentences of death pending appeal
to the Supreme Court of Indiana. The method of execution was by electric chair (changed to
lethal injection in 1995).
The sheriff was directed to deliver the defendant to the Warden of the Indiana State Prison.
During the trial, except for determining whether there was sufficient evidence to avoid a
directed finding of not guilty, I was not concerned with the guilt or innocence of Roberts. That
was for the jury to decide. I was completely involved with making sure that the trial was fair and
that no errors of law occurred. As I now reflect upon the evidence, I wonder how I would have
decided if I had been on the jury. I believe that the evidence showed beyond a reasonable doubt
that Roberts purchased the red gas can found at the scene of the murders and that he had a
motive to murder to avoid imprisonment for the theft charge and possible parole violation. Who
else except a person with a motive would have come into this quiet middle class white
neighborhood and murdered the Harolds? But would I have been willing to find Roberts guilty
of murder knowing that he could also be sentenced to death? I am very glad that I was not on the
jury.
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PART THREE
THE APPEAL
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27
Motion to Correct Errors-Steuben Circuit Court
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February 13, 1976
On February 13, 1976, the defendant filed a Motion to Correct Errors. One purpose of such a
motion is to give the trial judge the opportunity to correct errors that he might have made at the
trial and order a new trial if necessary. As you can imagine, not many of such motions were
granted. Also, to preserve any objections for review by the appellate court, the objections had to
be set forth in the motion.
The Roberts motion set forth eight rulings at trial by me which were alleged to have been
erroneous. It was also alleged that the evidence was insufficient to support Roberts conviction.
The motion also alleged that there was not sufficient evidence that Roberts had committed
burglary, a necessary element of a conviction under Counts II and IV. The motion further alleged
that the Indiana criminal statute under which Roberts was charged was in violation of the Eighth
Amendment to the United States Constitution which prohibits cruel and unusual punishments as
incorporated in the Fourteenth Amendment.
I directed the parties to file briefs concerning these matters and set hearing on the motion for
March 11, 1976. After several continuances of the hearing date, hearing was finally held on June
14, 1976. Charles Gantz and Tom Jones were at the hearing. Legal arguments were made and I
took the matter under advisement in order to review all of the legal citations and ponder my
decision. I announced that I would render my decision on June 24, 1976.
I carefully read the relevant United States Supreme Court decisions cited by the attorneys. I
had serious reservations about the constitutionality of the Indiana death sentence statute. One
troublesome aspect of the statute was that it mandated a sentence of death for some murders and
mandated a sentence of life imprisonment for other murders without any apparent rational reason
for the distinction. As an example in the Roberts case a conviction under counts II, IV or V
mandated the death sentence for first degree murder if the defendant had an unrelated prior
robbery conviction. However, the statute mandated that the penalty for first degree murder if the
defendant had a prior unrelated first degree murder conviction was life imprisonment! If a
defendant has committed a prior armed robbery the sentence must be death but if the defendant
has previously murdered someone, the sentence must be life imprisonment! Determination of
the penalty for a criminal offense is traditionally a matter to be determined by the legislature and
courts defer to such determination. However such a distinction seemed manifestly unfair.
I was of the opinion that a more serious aspect of the Indiana death sentence statute was the
fact that a mandatory death sentence as in the Roberts case did not leave any discretion with the
jury to decide between a life sentence and a death sentence. Furman required, in determining a
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sentence of death, that there be a consideration by the jury of not only the circumstances of the
crime but also the character of the defendant. I thought that mandating a death sentence does not
allow for such consideration and therefore a statute mandating death may be unconstitutional as
cruel and unusual punishment.
I took a brief vacation with my family to Sanibel Island, Florida, to try and relax after the
emotional and mental strain of the trial. I especially wanted some quiet time to walk the beach to
consider my decision on the death penalty. I was at that time personally opposed to the death
penalty, and I did not want my personal opinion in any way to influence my legal opinion. In
my mind I went over and over the reasons why I should or should not declare the Indiana death
penalty statute unconstitutional. I remember on the last day of my vacation standing under the
beautiful and rustic Sanibel Lighthouse and reaching my decision.
On June 24, 1976, I rendered my decision.
I first denied the objections to the eleven rulings that I had made at the trial, and I further
determined that the evidence was sufficient for Roberts conviction.
I then ruled that the Indiana death statute which mandated a sentence of death if the defendant
had a prior unrelated robbery without giving the jury any discretion was unconstitutional as a
violation of the Eighth Amendment prohibiting cruel and unusual punishments as incorporated in
the Fourteenth Amendment to the United States Constitution.
I vacated the three death sentences I previously imposed under Counts II, IV and V and
imposed life sentences thereon. I let stand the two life imprisonment sentences imposed under
Counts I and III and the five to twenty years imprisonment under Count VI for Arson.
My decision to declare the Indiana mandatory death sentence statute unconstitutional and
thereby vacate the death sentences, in effect agreed with and validated the argument of Tom
Jones in the second phase of the trial. In the second phase, the jury had imposed a sentence of
death rather than life imprisonment solely by virtue of a prior armed robbery of $1.50. The jury
must have thought that a death sentence for armed robbery was not unreasonable, not unfair, not
vindictive and not disproportionate. My decision basically overturned the jurys decision. The
Indiana Constitution states in Article I, Sec. 18 that, The penal code shall be founded on the
principles of reformation and not vindictive justice. It is difficult to understand how
electrocuting a person aids his reformation.
There were no Federal or State Court decisions which directly addressed this matter except a
decision of the North Carolina Supreme Court which held that such mandatory sentences were
constitutional. This decision was on appeal to the United States Supreme Court.
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It is rare that a trial judge will declare any act of the Indiana legislature unconstitutional. The
usual practice is to accept any such law and defer any constitutional challenge to the appellate
courts. I felt strongly about this matter and was not willing to defer even though my decision
would be contrary to the decision of the North Carolina Supreme Court.
The decision declaring the Indiana death penalty unconstitutional was not binding on any
other court in Indiana and was subject to being reversed by the Indiana Supreme Court. The
decision was not popular, except with the defendant, and some editorials were written strongly
opposing the decision. I received several threatening anonymous letters. One stated that he
hoped someone would burn my wife and children alive.
On July 2, 1976, eight days after my decision, the United States Supreme Court in Woodson
v.NorthCarolina ruled unanimously that a mandatory death sentence was a violation of the
Eighth and Fourteenth Amendments and ordered the Supreme Court of North Carolina to reverse
the previous decision. The evidence disclosed that four armed men including Woodson, an
African-American, drove to a convenience store. Woodson, who claimed that he had been
forced to accompany the others, stayed in the car while two others went into the store. They shot
the clerk and a customer, took the money from the cash register and fled in the car. The clerk
died from her wounds. The jury found Woodson guilty of murder and sentenced him to death as
required by the North Carolina statute.
It is interesting to note that at the time of the adoption of the Eighth Amendment, all states
provided for mandatory death sentences for certain crimes.
By virtue of the Woodson decision of the United States Supreme Court, the Indiana death
sentence statute, which was similar to the North Carolina statute, became unconstitutional. I was
vindicated! To comply with the Woodson decision, the Indiana legislature in 1977 adopted a
comprehensive new murder statute that provided for a bifurcated trial if the death sentence was a
possible verdict, and set forth specific aggravating and mitigating circumstances which the jury
must consider and find before a death sentence could be imposed. There are no more mandatory
death sentences in the United States.
Except for death sentences, other felony mandatory sentences, such as life imprisonment
without possibility of parole, are constitutional. A Michigan statute constitutionally requires
such a mandatory sentence for possession of more than 650 grams of cocaine.
If the Roberts case had been tried under the new 1977 Indiana act, the jury would have been
able at the sentencing phase to hear evidence concerning the Indianapolis rape, kidnapping and
murder charges. The jury might very well have constitutionally sentenced David James Roberts
to death.
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28
Judicial Review
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My decision to declare the Indiana death statute unconstitutional was the exercise of the
power of a court (judicial branch of government) to declare the act of the Indiana legislature
(legislative branch of government) void.
The Indiana and United States Constitutions create three seemingly co-equal branches of
government (executive-legislative-judicial). The Constitutions do not specifically grant to the
judiciary the power to review legislative or executive acts or action and declare them void.
Where did I obtain such a power? The answer is John Marshall, third Chief Justice of the United
States Supreme Court, who served for thirty-four years beginning in 1801.
The United States Supreme Court had an inauspicious beginning. Alexander Hamilton wrote
in the Federalist, The judiciary is beyond comparison the weakest of the three departments in
power. The weakness of the early court was demonstrated by the fact that the new Capitol had
not provided for a court room or chambers for the new Supreme Court. When the Court moved
from New York to Washington in 1791, the Court held sessions in a plain room in the basement
beneath the Senate Chambers. It was not until 1935 that the court would have its own building.
The perceived weakness of the court changed drastically when President John Adams
appointed John Marshall in 1801 as Chief Justice at the age of forty-six.
Many contemporaries of John Marshall had serious doubts as to his ability to be Chief Justice.
He was born in Fauquier County, Virginia, in 1755. He had very little formal education both
generally and in the law. His formal education consisted of being schooled by a clergyman for
one year and by a tutor who lived with the family for one year. The rest of his education was
acquired from his father who himself had a very limited education. His legal education consisted
of attendance at George Wythes lectures at William and Mary College for six weeks.
George Wythe was a signer of the Declaration of Independence and a kindly and scholarly
lawyer and jurist. In 1779, William and Mary College established a professorship of Law and
Police and the Williamsburg institution appointed him to occupy the chair. It was the first law
professorship in the United States. In 1806 he was tragically murdered by his grand-nephew.
His grand-nephew, seemingly in debt and anxious to receive his legacy, poisoned Wythes
coffee. The testimony of the only witness, a cook, was inadmissible in Virginia because he was
black, and the murderer was set free.
In 1818 the Indiana legislature passed an act excluding Negroes and Indians from testifying in
courts of law in which any white person was a party in interest. The law was repealed in 1865.
In spite of such educational deficiencies, John Marshall during his tenure established the
fundamental principles of the interpretation of the Constitution. Justice Oliver Wendell Holmes
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stated, If American law were to be represented by a single figure, all would agree without
dispute that the figure could be one alone, and that one, John Marshall.
In 1803 John Marshall rendered his famous decision in Marburyv.Madison. That decision
established the doctrine that all actions of the legislative and executive branches of government
are subject to review by the judicial branch and may be declared void if in violation of the
Constitution.
Justice Marshall stated that although such power is not specifically stated in the Constitution,
such power was necessary and inherent in establishing a constitution and a government pursuant
thereto. He stated that the Constitution confirms and strengthens the principle of judicial
review. Limitations on government power set forth in a constitution would be to no avail if no
legal mechanism (the courts) was available to enforce them.
When I rendered my opinion on June 24, 1976, declaring the Indiana death statute
unconstitutional, I was exercising the power of the court established by John Marshall 173 years
before. If I had not done so, David James Roberts may have been put to death pursuant to an
unconstitutional death statute.
29
Cruel and Unusual Punishments
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The Eighth Amendment states, Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted. The prohibition against cruel and
unusual punishments was considered a basic right of the citizens and first appeared in the
MassachusettsBodyofLiberties of 1641. Such a right was set forth in the federal Bill of
Rights adopted in 1791 as the Eighth Amendment.
The prohibition against cruel and unusual punishments has two components. One component
is that the actual punishments should not be cruel and unusual. They can be cruel if they are not
unusual.
English and colonial history contain many cruel and unusual punishments. At one time using
the rack, whipping, dunking or drowning in water, the shaming post, branding, cutting off ears,
slitting noses, burying alive, beating to death and impalement were thought proper punishments.
Treason was punished by first hanging, then cutting down while still alive, then
disembowelment, then dismemberment. Such harsh and terrible punishments were never to be
allowed again.
The second component is that the punishments shall be proportional to the offense. The
Indiana Constitution states in Article 1, Section 16, Cruel and unusual punishments shall not be
inflicted. All penalties shall be proportioned to the nature of the offense. The concept of
proportionality dates back to the Old Testament which proclaims an eye for an eye not an eye,
ear and hand for an eye!
Imposing a mandatory death sentence in the Roberts case is an example of a violation of the
proportionality component in the Eighth Amendment and the Indiana Constitution. The jury
must have the opportunity not only to hear the facts of the crime but also any mitigating or
aggravating circumstances before imposing the death sentence.
As noted in my opinion and the opinion of the United States Supreme Court, mandatory death
sentences violated the United States Eighth Amendment prohibition against cruel and unusual
punishments as incorporated in the Fourteenth Amendment. The doctrine of incorporation has
a long and interesting constitutional history.
It is very important to recognize that the Bill of Rights (Amendments I-VIII) when adopted
were prohibitions against federal government action. They did not impose limitations on state
power (what a state can do). When the Bill of Rights was adopted, the citizens wanted to make
sure that this new federal government that they had recently created did not infringe upon their
rights. They were not concerned about any laws that their state might adopt and enforce.
Therefore the Eighth Amendment did not prohibit a state from adopting and enforcing cruel and
unusual punishments. For many years after the Bill of Rights was adopted and even after the
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adoption of the Fourteenth Amendment, the Bill of Rights was held by the United States
Supreme Court not to apply to state action.
The Fourteenth Amendment was adopted in 1868. The original purpose of the adoption of
the Thirteenth, Fourteenth and Fifteenth Amendments was to make the former slaves equal
citizens. Such original purpose as to the Fourteenth Amendment has been drastically expanded
by the United States Supreme Court.
The Fourteenth Amendment prohibits a state from acting (as contrasted with federal action).
The Fourteenth Amendment does not specifically prohibit a state from imposing cruel and
unusual punishments as the Eighth Amendment does. However, among the many prohibitions
against state action contained in the Fourteenth Amendment are the words nor shall any State
deprive any person of life, liberty or property without due process of law. This is known as the
due process clause.
The meaning of due process had a long and consistent history in England, the colonies and the
United States. It meant that government must use a fair procedure before a person could be
deprived of his life, liberty or property. A fair procedure included the right to be advised of the
charges against him and to be given an opportunity to defend such charges before an impartial
tribunal. This later became known as procedural due process.
As early as 1857 in DredScottv.Sandford, the United States Supreme Court incorporated a
new concept into the meaning of due process. This new concept is called substantive due
process. The DredScott case held that taking property (slaves) away from the owner by
legislation (the Missouri Compromise) was arbitrary and unjust, and if a law was arbitrary or
unjust, it violated due process and was unconstitutional. This and subsequent decisions thus
gave the judicial branch the right to inquire into all legislation to determine it was arbitrary or
unjust.
Starting during the 1925-1950 period, the United States Supreme Court began incorporating
within the due process clause another meaning never envisioned by the founding fathers. It was
determined that there were certain fundamental rights which if denied by government would
constitute a denial of substantive due process. What rights were a fundamental right and
therefore protected against federal action by the Fifth Amendment due process clause and
protected against state action by the Fourteenth Amendment due process clause would be
determined on as case by case basis.
During this period, the Supreme Court determined that the prohibition against cruel and
unusual punishments (federally prohibited by the Eighth Amendment) was a fundamental right
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and therefore incorporated in and protected by the due process clause of the Fourteenth
Amendment.
During the period 1950-2013, the United States Supreme Court on a case by case basis
ultimately incorporated all but four rights specified in the Bill of Rights into the fundamental
rights concept protected by the substantive due process clause in the Fourteenth
Amendment.13 Therefore by virtue of the Fourteenth Amendment all citizens are protected
against a state taking action which violates the rights set forth in the first eight amendments
except four. The four exceptions are (1) the Fifth Amendment right not to be prosecuted for a
felony unless charged by a grand jury (as explained above the Roberts charges could have been
brought by the prosecutor merely filing a criminal Information), (2) the Seventh Amendment
right to a civil jury trial in all actions seeking $20.00 or more in damages, (3) the Third
Amendment right not to be forced to house soldiers in peacetime (which if ever claimed would
be held to be a substantive protected right), and (4) the Eighth Amendment right prohibiting
excessive fines.
Itwasnotuntil2010thattheSecondAmendmentrighttobeararmswasdeclaredtobea
substantivedueprocessfundamentalrightprotectedagainststateactionbytheFourteenth
Amendment(McDonaldv.Chicago).Seepage305.
Thus each state can begin a criminal prosecution by a criminal Information approved only by
the prosecuting attorney and can deny or limit a jury in civil cases, all subject to the states
Constitution.
In addition to most of the first eight amendment rights being determined to be fundamental
rights and therefore incorporated in the due process clause of the Fourteenth Amendment and
binding upon the states, many other rights, based upon the values and view of justice held by the
Founding Fathers applied to modern ever changing circumstances, have been determined to be
protected fundamental rights. These include the right to an habitable environment and the very
controversial right to privacy which has been determined by the United States Supreme Court
to include the right to an abortion and the right to contraceptive information and usage.
30
Indiana Supreme Court Decision
May 5, 1978
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The ruling on the Motion to Correct Errors was duly appealed, briefed and argued before the
Indiana Supreme Court by prosecution and defense counsel. The prosecution did not appeal.
The Indiana Supreme Court consisted of five members. One member, Justice Roger
DeBruler, had previously been judge of the Steuben Circuit Court and upon his appointment to
the Supreme Court was succeeded by Judge Louis Sisler. Another member, Justice Richard
Givan, was an Indiana Law School classmate and close friend of my previous law partner.
The Indiana Supreme Court opinion in Robertsv.StateofIndiana was rendered on May 6,
1978. Justice Givan wrote the opinion of the court.
Several days after the Supreme Court decision was officially entered I received notice of the
decision by mail. As I opened the envelope I nervously wondered- Had I been reversed? Had I
made any mistakes in my rulings? Would the trial have to be held again? All of these thoughts
came rushing through my mind. With trepidation I opened the envelope and slowly read the
decision.
The trial court decision was affirmed.
The Indiana Supreme Court unanimously found that the evidence sustained the verdicts and
that no error had been committed by me in my rulings at trial. The trial rulings were objected to
on the basis of the best evidence rule, hearsay evidence being admitted (there were seven specific
objections in this category), improper foundation being laid for the introduction of documentary
evidence, inaccurate and inflammatory photographs being admitted and prejudicial questions
being allowed.
The Indiana Supreme Court further affirmed the vacation of the death sentences and the
imposition of three life sentences based upon Woodson and French. The court did however, by
virtue of a recent decision, vacate the sentence of five to twenty years rendered upon the Count
VI Arson conviction as being included in the life sentence rendered for the murder of Jenny
Harold under Count V.
Justice Prentice agreed to the opinions of the other justices except that he dissented as to the
guilty verdicts on Counts II and IV as these charges required a finding that the defendant had
committed burglary. Burglary is defined as a breaking and entering with the intention of
committing a felony. The Roberts jury had also been concerned with this aspect. Justice
Prentice believed that there was not sufficient evidence of a forceful breaking into the Harold
house (if a person enters a house through an open window or door it is not a technical breaking).
The other four justices believed that there was sufficient evidence of a breaking and stated in
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their opinion, The Jury could have reasonably inferred from the evidence of a struggle inside
the house and from the other facts leading up to the night in question that Roberts was not an
invited guest of the Harolds and that his entry was attained by force.
In Frenchv.StateofIndiana decided on May 6, 1977, the Indiana Supreme Court formally
struck down the Indiana 1973 death statute under which the Roberts case was tried based upon
Woodson, thus effectively affirming my decision in Roberts.
It is interesting to note that in the French case the trial judge did not declare the Indiana
mandatory death sentence unconstitutional as I did. The French trial judge upheld it and
sentenced French to death. The majority opinion of the Indiana Supreme Court (who were
elected at that time) stated, Although the writer of this opinion does not agree with the present
reasoning of the United States Supreme Court opinion upon the issue here involved, we have
taken an oath to support the Constitution as interpreted by that Court. We have no alternative but
to hold that the 1973 Indiana statute is unconstitutional. Justice DeBruler agreed completely
with the reasoning of the United States Supreme Court. He did not pander to the electorate.
Tom Jones filed a Petition for Rehearing before the Indiana Supreme Court which was
denied.
Roberts on his own behalf from prison obtained a complete transcript of the proceedings in
anticipation of filing a Petition for Post Conviction Relief with the Steuben Circuit Court. Such
a petition was never filed.
Roberts, still protesting his innocence and claiming that the system was out to get him, filed a
Petition for Writ of Habeas Corpus with the United States District Court for the Northern District
of Indiana. He claimed that his detention by state authorities was unlawful and wanted the
federal judge to order his release. The District Judge denied his request.
There have been no further state or federal court proceedings.
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Northwest of Indianapolis
October 25, 1986
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On the morning of October 25, 1986, I was reading the Fort Wayne Journal Gazette and on
the fifth page I saw a brief article with the headline MURDERER ESCAPES. I was in a hurry
and almost skipped reading the article. Curiosity prevailed and I read it. David James Roberts
had escaped from custody the previous day.
Roberts had been held since his convictions at the Indiana State Prison at Michigan City,
Indiana, which is fifty miles east of Chicago, Illinois. The prison was built during the civil war
to house Confederate prisoners. Three out of four of the two thousand prisoners were
imprisoned for murder, making it one of the most dangerous prisons in the country.
Roberts had chronic lung problems and was often transported by prison guards from the
Indiana State Prison to the Wishard Memorial Hospital in Indianapolis, Indiana, for treatment.
Before leaving the hospital after treatment, Roberts was strip searched and shackled. When he
was being transported back to the prison, a stop was made at a fast food restaurant. Roberts was
allowed to go to the mens room. The guards stood outside. Upon leaving the rest room Roberts
produced a .38 caliber handgun and ordered the guards to go to the parking lot. They all entered
the police cruiser and a guard drove as directed to a nearby rest stop. At the rest stop Roberts
forced the guards to unlock his shackles. The guards were handcuffed and Roberts went to a
payphone. While Roberts was on the phone, the guards ran into the adjoining woods and
escaped. Roberts then drove away in the cruiser heading northwest toward Illinois.
Obviously Roberts had help in his escape. Someone had to have placed the handgun in the
mens room. Somehow Roberts had gotten the guards to stop at the right restaurant. The police
speculated that one of Roberts cellmates may have been his accomplice. The mystery was never
solved. Both officers were subsequently disciplined for negligence in handling Roberts. One of
the guards confessed to trafficking in contraband for prisoners and was summarily dismissed.
Roberts drove twenty-five miles to the next rest stop. A nondescript older car with the
ignition keys under the front seat was waiting for him. He changed vehicles and drove north to
the Indiana Toll Road and headed east toward New York City. The Indiana State Police alerted
the police in the Gary and Chicago areas to be on the alert for Roberts. His family was closely
watched.
Because of Roberts history of revenge, the Indianapolis rape victim was moved by the police
to an undisclosed location for a week. As a precautionary matter, the Angola City Police made
extra patrols in my Angola neighborhood for several days.
Escape and kidnapping charges were filed against Roberts.
On April 27, 1987, Roberts was placed on the F.B.I. Most Wanted List.
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32
Americas Most Wanted
February 7, 1988
The first episode of the AmericasMostWanted show, hosted by John Walsh on the new Fox
Network, was aired February 7, 1988, seventeen months after the escape of David James
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Roberts. The first episode featured David James Roberts, his crimes and his escape. Although
the program launched with the challenging statement Watch Television-Capture Fugitives no
one knew if it would really work. Fox was a new network then, and AmericasMostWanted
showed only in a few areas.
Roberts was the only one featured that night, and as soon as the first commercial break
started, the hotline began to receive calls. More than seventy-five calls were received. Most of
the tips came from people in the New York City area.
One of the first calls to the hotline was from a woman in New York City claiming she was the
girlfriend of a person named Bob Lord. She stated that she lived with him and that he showed a
remarkable resemblance to David James Roberts.
She further stated that he had become ill and had gone to a hospital emergency room.
The New York City police and FBI immediately started their investigation. The woman
identified Roberts as her boyfriend after being shown his photograph.
When authorities arrived at the hospital, they discovered that Roberts had suddenly checked
out. When they went back to his room they discovered a copy of TV Guide laid on his bed
opened to the story of David James Roberts on AMW.
Further investigation uncovered the fact that he was the director of a homeless shelter for men
on Long Island and was known as Bob Lord. He had been earning an $18,000.00 annual salary.
Everyone at the shelter was shocked. He was thought to be a friendly, caring and conscientious
worker whom everyone liked.
Four days later on February 11, 1988, Roberts was captured without a struggle hiding out in
an apartment in New York City.
Roberts was the first fugitive captured who was listed on the newly established F.B.I. Most
Wanted List.
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On January 27, 1989, Roberts plead guilty to escape and kidnapping, was sentenced, and was
returned to the Indiana State Prison.
John Walsh interviewed Roberts after his capture. Roberts was asked how he felt after he had
been profiled in the AMW show. Roberts stated that he was under great pressure. He knew he
had to leave the New York area immediately. He did not know where to go. He could not go
back to the Chicago area because the police would be looking for him there.
John Walsh asked Roberts, How can you live with yourself knowing that you murdered two
adults and two infants? Roberts answered, I can live with myself because I am not guilty of
murdering anyone. Just because I was convicted does not mean that I am guilty.
Roberts further stated, The AmericasMostWanted program may have put persons who had
not committed any crime back in prison. How do feel about that, sir? John Walsh did not
answer.
Roberts then stated, Mr. Walsh, I have had many despondent periods during my
incarceration but I try to keep my spirits up. I constantly ask God why all this has happened to
me. I hope that someday justice will at last prevail and someone out there will come forward
with information that proves my innocence.
Thus ends, for now, the extraordinary tale of David James Roberts.
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EPILOGUE
David James Roberts is currently serving four concurrent life sentences at the Pendleton
Correctional Facility, Pendleton, Indiana. He is seventy years old. Roberts civil law suit for
damages against the Pendleton guards and the State of Indiana was ultimately settled. The
amount of the settlement was confidential and not revealed.
Callie Loraine Myers, Roberts girl friend, after the Roberts trial, attended law school, was
graduated with honors and entered the practice of law. She later became a well respected judge
presiding over non criminal matters.
Marie Harold was adopted by a loving aunt and uncle and has led a normal life. I recently
received an email from Marie Harold as follows: I just wanted to take this opportunity to thank
you for writing the book, Change of Venue. It was a little difficult at first to read with the
pictures and details described in the book. You see, I am the surviving daughter and sister of the
couple and baby who were murdered on January 20, 1974. The book answered many of my
questions that family members could not talk about. I just wanted to thank you for speaking and
writing the truth in regard to my family.
D. Charles Gantz founded Charles Gantz & Associates, a very successful law firm. He is still
actively engaged in the general practice of law with emphasis on criminal defense.
Joe Van Valer founded the Van Valer Law Firm after his tenure as Prosecuting Attorney. It
now consists of seven attorneys. He continued his successful legal career specializing in
construction, real estate and corporate law until his death in January of 2011.
Tom Jones was the senior founding partner of the law firm of Jones, Auger and Auger. He
specialized in criminal defense and personal injury law. He was the only Indiana lawyer listed
each year since 1987 in the categories of criminal defense and personal injury in Best Lawyers in
America. He died on February 24, 2007 as the result of an automobile accident. The
IndianapolisStar commented, With the passing of attorney Tom Jones we lost a well liked and
generous resident rooted in the history of Johnson County.
After I had served eight years on the bench as the sole judge of the Steuben Circuit Court, and
having been the only judge in the county with general jurisdiction, I was exhausted both
physically and mentally. I had begun as judge with high expectations of helping others resolve
their problems and participating in the administration of justice. I was excited to take on the
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challenges. I was nave. It did not take long before I was exposed to the raw underbelly of
society. How could people act this way without any regard to others? I had never been exposed
to or could imagine such actions. Persons appearing before me were murderers, rapists, burglars
and thieves. Some defendants had committed incest, child abuse or domestic violence. Some
were mentally ill, alcoholics or drug abusers. Married couples could no longer stand each other
and could not wait to get a divorce. My actions and decisions as judge were necessary steps in
the judicial process but I was wearing thin and it was taking its toll on me. I had given my best
but after eight years I had seen the elephant. It was time to move on and I resigned as judge.
After I retired from the bench I became Professor of Law at Tri-State University where I
taught various law courses. My wife of forty-two years, Susanna Ellen, died in 2005 of breast
cancer. My two children live in Angola. I am now doing legal research, writing and lecturing in
an attempt to help with legal education of attorneys. I would like to be a good father and keep
active as long as possible for, as in Robert Frosts insightful poem StoppingbyWoodson
SnowyEvening:
The woods are lovely, dark and deep.
But I have promises to keep,
And miles to go before I sleep,
And miles to go before I sleep.
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AUTHORS COMMENTS
The opening and closing statements of counsel at the trial were not recorded, were not a part
of the official transcript and are therefore unavailable to me. Since I do not remember these
statements after more than thirty years, I have taken the liberty of writing the statements as I
would have made them if I had been the prosecutor and defense counsel. I hope that I have done
them justice.
Since I was not privy to the jury deliberations, I have stated them as reported to me by two
surviving jurors and the widow of the foreman.
The story portrays actual characters and facts. The trial testimony and exhibits are taken from
the official Indiana Supreme Court 1400 page transcript.* I have changed the names of the
victims and non police witnesses to protect their privacy.
* Detective Laurence Phillips, the crime scene reconstruction specialist who testified for the
prosecution, is a figment of my imagination. I used his testimony to summarize some of the
evidence and possible inferences. Most of his testimony, based upon proper objection, would
have been inadmissible. An expert witness can only testify as to matters which an untrained
layman juror would be unqualified to determine without enlightenment from an expert.
In my mind there were two troublesome questions remaining after the trial.
One was the twelve year imprisonment sentence that Roberts received for the 1966 Crown
Point armed robbery of $1.50 in 1966. This seems excessive for a first offense. However, this
sentence was the result of a plea bargain agreed to by Roberts. Why would Roberts agree to
such a sentence?
Roberts explained the events to his Admissions Officer at Pendleton Reformatory as follows:
At the time of my crime, I was by myself. I saw three ladies in a car, and approached them
and told them: this is a stick-up. I took $40.00 and fled. I was apprehended six blocks from the
scene of the crime by the police.
My recent search of the Lake County Superior Court records reveals a different story. There
were actually five felony charges filed on March 15, 1966, against Roberts (involving two white
women and a white man) including the original charge of Robbery ($1.50) from Mildred
Wiscolik, which was changed by Amended Affidavit to Armed Robbery ($1.50) and to which
Roberts plead guilty; Inflicting Injury (striking, beating and wounding) Upon Mildred Wiscolik
in the Perpetration of an Attempted Rape; Robbery of a ring ($300.00) and cash ($52.00) from
Richard Lenoski; Kidnapping (forcibly kidnap, imprison and carry off) of Lynette Harnish; and
Rape (forcibly ravish and carnally know) of Lynette Harnish. As a result of the plea bargain, the
four additional charges were continued and Roberts plead guilty to an Amended Affidavit
charging only armed robbery of $1.50. Because of the severity of Roberts alleged actions and
the possible total sentence on all five charges, the agreed to twelve year sentence seems
reasonable. Roberts attorney at that time, Max Cohen, recently stated to me that he thought that
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the sentence was fair and that Judge John McKenna usually set the terms of any plea agreement.
The four additional charges were never tried and were dismissed on October 27, 1976 upon
motion of the Lake County prosecuting attorney by virtue of the Steuben County and Marion
County five life sentences. The Steuben County Roberts jury was not aware of the Lake County
four additional original charges during their deliberations.
The second question was the possible involvement of Douglas Milford who may have been
seen driving near the Harold house the morning of the fire. Lieutenant John Lasiter, the Johnson
County Deputy Sheriff who was a primary investigating officer, stated to me recently that the
New Whiteland volunteer fireman who, according to his testimony, picked out the photograph of
Douglas Milford as the probable driver of the large brown car the morning of the fire, was not
certain at all of the identification. The fireman stated to Lieutenant Lasiter that of the six photos,
the one of Milford most nearly resembled the driver. The fireman had little exposure to AfricanAmericans. There were no African-Americans living or working in the area and unless a person
worked with African-Americans routinely in Indianapolis or had other regular exposure to
African-Americans (which he did not) he could not have identified a specific African-American
with any degree of certainty. This is why Lieutenant Lasiter and Charles Gantz did not consider
Milford as a suspect. It very well could have been Roberts checking to see the extent of the fire
and if any evidence left behind was destroyed.
Lieutenant Lasiter also stated that he drove Roberts back and forth between Angola and
Indianapolis during the trial. From the statements made by Roberts on these trips, Lasiter
believed that Roberts was convinced that the white officers and prosecutors were out to get him
and that he hated all whites. All of his victims had been white.
When I taught law at Tri-State University, I used the Roberts case as the framework to teach
criminal and constitutional law and procedure.
The Roberts case was an excellent introduction to important procedural and substantive
aspects of criminal law. It allowed me to illustrate how the United States Constitution is applied
to an actual criminal case. The printed words of criminal statutes and the Constitution were
brought to life. Words and phrases such as grand jury, murder, voluntary manslaughter,
involuntary manslaughter, burglary, arson, arraignment, omnibus hearing, voir dire, jury
instructions, death sentence, lesser included offenses, jury nullification, appeal, cruel and unusual
punishments, Fourteenth Amendment and substantive due process became the fabric of a modern
criminal trial. They were no longer abstract theories or rights.
A primary question raised by the above events, assuming the jury verdict was correct, is how
could Roberts commit such heinous acts? His childhood seemed normal. He had loving and
caring parents. There was no neglect or abuse. He was educated and above average in
intelligence. Is there sometimes a defect in a persons genome which alone results in compulsive
criminal behavior without regard to the harm to others? We are told that we were created by a
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loving God for a purpose. Why was David James Roberts created? Why were William,
Elizabeth and Jenny Harold murdered?
If you have not already done so, there are two classic books that you should read which are
examples of murder without conscience: TheBadSeed by William March, an excellent fictional
story of Rhoda Penmark, age eight, and the nonfiction novel InCold Blood by Truman
Capote, a beautifully written true account of Dick Hickock and Perry Smith.
Finally, my sincere wish is that the telling of the Harold tragedy will contribute to a better
understanding of our judicial process and of the Constitution, and, most of all, thereby give some
meaning to the tragic deaths of William, Elizabeth and Jenny Harold.
John R. Berger
Angola, Indiana
January 1, 2014
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JOHN R BERGER
January 1, 2014
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BIBLIOGRAPHY
Marbury v. Madison, 5 U.S. 137, 1 Cranch 137 (1803)

Dred Scott v. Sandford, 60 U.S. 393, 19 How 393 (1857)
Buck v. Bell, 274 U.S. 200 (1927)
Mapp v. Ohio, 367 U.S. 643 (1961)
Gideon v. Wainwright, 372 U.S. 335 (1963)
Miranda v. Arizona, 384 U.S. 436 (1966)
Furman v. Georgia, 408 U.S. 238 (1972)
Woodson v. North Carolina, 428 U.S. 280 (1976)
French v. State of Indiana, 362 N.E. 2d 834 (1977)
Stump v. Sparkman, 435 U.S. 349 (1978)
Roberts v. State of Indiana, 375 N. E. 2d 215 (1978)
NOTE: Landmark United States Supreme Court cases can be found at:
http://en.wikipedia.org/wiki/Landmark_decisions_in_the_United_States
Examples of court citations: The first number is the volume number and the second the page.
Indiana Supreme Court: 303 IN 42, 12 NE2d 206
Indiana Court of Appeals: 102 Ind. App. 46, 33 NE2d 118
US Supreme Court: 1 Cranch 137 (early reports), 427 U.S. 11, 128 S. Ct. 278
US Circuit Court of Appeals: 121 F. (or F.2d) 11
US District Court: 311 F. Supp. 121
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NOTES
1. The naming of Indiana and the XI Amendment: The area compromising the present state of
Indiana was part of the Northwest Territory created by Congress in 1787. It was called Indiana
Territory and was the area left after the Ohio Territory (1800), Michigan Territory (1805) and
Illinois Territory (1809) were carved out. Indiana became a state in 1816 and included all of the
area left of the original Indiana Territory. The name Indiana was borrowed by Congress and
came from the name of about two million acres of land called Indiana (land of the Indians) in
western Virginia Colony claimed by the Indiana Company by virtue of a 1768 deed from the Six
Nations of the Iroquois. The name of this area was abandoned and available to Congress after
1798 when Virginia successfully asserted ownership of this area as Augusta County and the
Indiana Company went out of existence. The Indiana Company had filed suit (a Bill in Equity)
in the United States Supreme Court in 1792 against Virginia requesting the Supreme Court to
issue an order to Virginia to cease interfering with the Indiana Company title. Virginia ignored
all subpoenas issued by Chief Justice John Jay to appear before the Supreme Court. The
subpoenas were titled, The President of the United States to Henry Lee, Esquire, Governor of
the Commonwealth of Virginia. Virginia successfully delayed the case until passage in 1798 of
the XI Amendment which forbad such suits against a state. By virtue of this amendment, the suit
was dismissed by the Supreme Court in 1798.
See TheNamingofIndiana at www.in.gov/history/2805.htm for the complete story.
2. Angola had the dubious distinction of being the Midwest Marriage Capitol until about
1960. Indiana at that time did not require any residency or waiting period in order to be married.
All adjoining states had strict waiting period requirements and Angola, being five miles from
Michigan and Ohio, was a natural for couples who could not wait to be married (for a variety of
reasons).
The marriage procedure took about two hours and was outlined in a handy flyer available at
the Circuit Court Clerks Office. First a couple was advised to go to one of the two friendly
competing hospital labs (Elmhurst Hospital and Cameron Hospital) and have their blood tests
taken for syphilis as required by Indiana law. If either tested positive, the couple was out of luck.
Other venereal diseases were inexplicably not tested. The next step was to wait for one hour,
preferably at Ollie Bassetts restaurant (upstairs dining room and counter or newly remodeled
basement bar) until the lab tests were reported to the clerk. Katherine Hepburn and her dog had
eaten lunch at Bassetts in 1941. There was a framed photo of her and her dog hanging on the
wall.
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After the hour, the couple would go to the clerks office and apply for the marriage license.
On a usual Saturday, there would be a line of happy couples and friends stretching from the
clerks office, out the courthouse door, around the corner First National Bank and to the Post
Office one block away. Many of the brides-to-be waiting in line, some obviously pregnant, wore
complete long wedding gowns with veils. Many men wore tuxedos. Once the couple had
completed the marriage application questionnaire for the clerk (Are either of you now married?
Do either of you have any children? Are either of you insane?) the clerk would offer the couple
a choice between the standard Indiana marriage license poorly printed on cheap thin paper or the
deluxe version with faux leather cover and a genuine facsimile gold Indiana Seal for only
twenty-five dollars more. The clerk was allowed to pocket the twenty-five dollars. Naturally the
husband-to-be would choose the deluxe version to impress his beloved. Naturally, the clerks
position was highly contested at election time.
The next step was to find a justice of the peace or minister to marry the happy couple. All
were conveniently located within a block of the court house. There were two justices of the
peace, Con Smith and Harvey Shoup. Both had their wives available as official witnesses to the
marriage ceremony. Both were adept at performing a meaningful but hasty ceremony with many
quotations from the bible and other learned sources. After the ceremony, the justice signed the
marriage certificate and bid farewell to the newlyweds. Both justices were amenable to
accepting gratuities (the flyer suggested fifty dollars). The justice of the peace elections were
also highly contested. If the couple wished to have the marriage performed by a minister, a small
garden wedding chapel with flowers and an organist was available only one and a half blocks
from the courthouse according to the map drawn on the flyer (suggested price including all
services and gratuity-$100.00).
The nearby motels were filled with newlyweds. I think about half of the citizens of northern
Ohio and southern Michigan had been married in Angola.
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There were no mixed race couples waiting in line to be married. Indiana law from 1840 until
1965 made miscegenation a crime and provided that sexual intercourse or marriage between
whites and blacks could be punished by a fine not to exceed $5,000.00 and imprisonment not to
exceed twenty years. Blacks were defined as having one-eight or more Negro blood.
In addition to the Clerk of Court and Justice of the Peace positions, there was one other
position which was highly sought after. This was Sheriff of Steuben County during the
Prohibition era (1919-1933). One of the main routes for the transportation of liquor was from
Canada to Detroit, then south to Ohio near Edon, then westward along what is now U.S. 20
through Steuben County and Angola, and then continuing westward to Chicago and Al Capone
and associates. It was reported that bootleggers were often met in Steuben County at the
Indiana-Ohio line by the Steuben County Sheriff who was collecting donations to the police
benevolent society. It was an early version of the Indiana Toll Road.
According to a 1930 article in the Steuben Republican, the local newspaper:
By virtue of the Prohibition law (the 1919 Volstead Act) Steuben County has recently
suffered several black eyes. The federal government charged that Steuben County Sheriff
Charles Zimmerman aided bootleggers in transporting liquor through the county. Charles
Zimmerman faced three separate criminal law suits in federal court in Fort Wayne, two for
violating the Prohibition law and one for murder of a witness. Zimmerman was also said to have
been paid protection money by a Steuben County resident who sold and manufactured liquor in
Steuben County.
In one example dated 1927, Zimmerman allegedly transported twenty cases of whisky from
the Powers School, which is just west of the Ohio line, to Angola. To keep his illegal activity
flowing, Zimmerman allegedly paid protection money to a federal prohibition officer through an
Angola attorney. Zimmerman obtained dubious acquittals on all three charges. In one case a
witness changed his story and refused to finger the sheriff. In another case, the governments
witness, the officer to whom Zimmerman allegedly paid bribes, disappeared just prior to trial.
Zimmerman was vigorously defended by a powerful and expensive defense team. Among the
attorneys representing Zimmerman were Angola attorneys Alphonso C. Wood, soon to become
an Indiana Appellate Judge (1931-1938), his son, Theodore Wood, later to become President of
Tri-State University, and Dudley Gleason, Sr. of the firm of Gleason & Gleason.
3. I was only threatened twice. The first time was during the Roberts case. The second was
after I had left the bench. Having courthouse security would not have saved me from either
threat. In the later threat, I received a call from a Michigan probation officer after he had
completed an exit interview. He had just had a conversation with a convict named Clark who
was about to be released after five years in a Michigan prison for arson. I had sentenced Clark to
jail in Indiana for arson about ten years before for burning down a cottage at Hamilton Lake.
The officer had asked the convict what he intended to do after release, expecting an answer
concerning where he would live and work. Clark replied, Well, the first thing I am going to do
is go back to Angola and burn Judge Bergers house down and I hope he is in it. I thanked the
officer for this information and wondered what I could do about it. The next day I received
information from our local police that Clark had indeed burned a house down early that morning
but that the house was in Ashley, a town about fifteen miles away.
I guess I was lucky and someone else was higher on Clarks To Do list.
4. Cincinnati was known as the Queen City of the West by virtue of being the early
commercial metropolis of the Ohio Valley. I grew up in Cincinnati but the main attraction to me
as a seventeen year old was across the Ohio River in the city of Newport, Kentucky, and the
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Tropicana nightclub. During the Civil War and for the next hundred years Newport in Campbell
County was known as The Sin City of the South with rampant prostitution, gambling and
national-crime-syndicate operations. The story of Newport, and of the Notre Dame, New York
Yanks and Cleveland Browns quarterback hero, George Ratterman, who ran as the reform
candidate for sheriff of Campbell County in 1961, is dramatically set forth in The Great
KentuckyScandal, an October 24, 1961 article by Bill Davidson in Look Magazine. The story
starts with police entering a motel room at the Glenn Hotel (connected to the Tropicana) and
finding Ratterman allegedly clad only with a shirt and socks in bed with a long-legged stripteaser named April Flowers dressed in a slave robe with leopard-skin design with her bosom
showing. The state court trial of Ratterman for soliciting prostitution came to a sudden end
when the prosecutor dismissed the charges after hearing evidence that Ratterman may have been
drugged. The story ends just before a newly appointed United States Attorney General Bobby
Kennedy sends a young federal prosecuting attorney, Ronald Goldfarb, from Washington to
Newport to try and obtain federal indictments against the participants in Rattermans false arrest
and an attorney, Charles E. Lester, who is mentioned in the Look article and had represented
some of the defendants in prior state charges arising out of the events of that fateful night.
See www.nkyviews.com/campbell/text/txt_newport_look.htm for the full article.
1961 SHERIFF CANDIDATE

1950 NEW YORK YANKS
GEORGE RATTERMAN
My research indicates the following later events.

At the insistence of thirty-four year old newly appointed U.S. Attorney General Robert
Kennedy, the brother of President Jack Kennedy, a federal indictment was obtained and filed in
federal court in October of 1961against Charles E. Lester, a well known and respected criminal
defense attorney; Edward Marty Buccieri, the owner of the Tropicana and Glenn Hotel; Tito
Carinci, the manager of the Tropicana; and three police officers, Quitter, White and Ciafardini.
Robert Kennedy would preside over a Justice Department with over thirty thousand people. He
had limited legal experience and had never been in a courtroom.
The charges were misdemeanor conspiracy to violate the civil rights of George Ratterman.
They were charged with having a common agreement to discredit Ratterman by falsely
arresting and charging him. The government was represented by lead attorney twenty-nine year
old Ronald Goldfarb, two assisting attorneys and a special FBI consultant, Frank Staab, who was
convinced that Lester was behind much of the legal arrangements shielding illegal operations in
Newport. Staab had made an exhaustive investigation throughout the United States and had held
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over five hundred interviews in an attempt to uncover evidence against these defendants and
others. Robert Kennedy wanted to charge the defendants with kidnapping across state lines but
was unsuccessful in obtaining any evidence thereof. Goldfarb and his legal assistants were
assigned to the case by Robert Kennedy. They were special prosecutors in the Justice
Departments Organized Crime and Racketeering Section. They were sent from Washington to
prosecute these misdemeanor charges. Goldfarb was all excited. This was his big chance to
make a name for himself prosecuting mobsters.
A federal jury trial was held and the jury could not agree on a verdict. Even though a retrial
of a misdemeanor charge is rare and very expensive, the federal prosecutor, Ronald Goldfarb,
with extreme pressure from Robert Kennedy, presented the case again to a new jury. In August
of 1963, the second jury convicted Lester and Buccieri of conspiring with the police to have the
police arrest an innocent Ratterman. The jury decided however that Carinci was not guilty of
conspiracy and that the police, Quitter, White and Ciafardini, did not knowingly falsely arrest
and charge Ratterman and were found not guilty! The only evidence against Lester, as set forth
in the above Look article, was that he had asked photographer Thomas Withrow to contact
Buccieri about taking some photographs. Whose photographs, where and when was not
discussed by Lester. The photographs were never taken. Lester explained in his testimony that it
was his understanding that Withrow would be hired to take photographs of patrons at the
Tropicana nightclub, not of Ratterman in the Glenn Hotel room.
Lester and Buccieri were sentenced by federal district court Judge Swinford to twelve months
in federal prison, the maximum allowed by law. Such a severe penalty was almost unheard of.
Lester was 61 years old and had no prior felony charges.
The defendants Buccieri and Lester appealed to the federal Sixth Circuit Court of Appeals.
The defendants argued, If police officers were not guilty and did not conspire with defendants,
how could defendants conspire with the police officers? The prosecution realized that there was
a serious potential of reversible error and hoped that in the appellate judges deliberation there
might be a subconscious undertow toward upholding convictions to assure that everyone
involved would not go free. They hoped the appellate judges, who did not agree with the jurys
not guilty decisions as to the police officers, would unwittingly nullify the pure law to arrive at a
just decision upholding the guilty verdict for Buccieri and Lester.
The subconscious undertow perhaps won out. The appellate court sustained the conviction
by a split decision-two to one. The majority stated that Lester and Buccieri could be found guilty
of conspiring with innocent police officers to commit a crime which was never committed! The
United States Supreme Court declined to review the case.
Buccieri was granted an early release on parole but Lester was not granted early release. He
was first held in a minimum security federal prison in Alabama. When Robert Kennedy heard of
this he prevailed upon the justice department to have Lester transferred to a maximum security
federal prison in southern Illinois which primarily held rapists and murderers. While there,
Lester lost over forty pounds. Upon his release he slowly recovered his physical health but until
his death still carried psychological scars.
At the instigation of Robert Kennedy, the Internal Revenue Service with the assistance of the
FBI extensively pursued Lester in an attempt to prove income tax evasion. They were
unsuccessful.
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In spite of all the time, money and energy spent by Robert Kennedys Justice Department to
clean out the organized crime and mobsters in Campbell County, these two misdemeanor
convictions were the only ones obtained. Kennedys frustration was taken out on attorney Lester
and Buccieri. The true mobsters just moved on.
Ronald Goldfarb is a well known and respected Washington, D.C. attorney, speaker, author
and literary agent.
Juanita Hodges a/k/a April Flowers continued her dancing first in Louisville, then in
Alabama, and later in Port Huron, Michigan.
George Ratterman served four years as sheriff. After that he was a color commentator for
radio and television. On occasion he was a financial advisor. He never practiced law. He died
in November of 2007 at the age of eighty of complications from Alzheimers disease.
Bruce Lester, the son of Charles Lester, became a respected judge of the Kentucky Appellate
Court for over twenty years and retired recently as Chief Judge.
Two years after the Lester decision, Robert Kennedy was assassinated on June 6, 1968.
Charles E. Lester was my mothers brother, my favorite Uncle Charlie.
5. The Korean War was the forgotten war and most civilians went about their lives oblivious
to the fact that thousands of American young men were giving their lives for our country. It was
not even called a war. It was called a conflict. I had a good friend in college who had
remained in the Army reserve after active service in WW II. He was just completing his senior
year at college when he received notice in May, 1950, to report for active duty in three days. He
was killed six months later in North Korea just south of the Yalu River by soldiers of the
invading Fifteenth Chinese Field Army. He was twenty-four. He was one of the thirty-three
thousand six hundred and eighty-six soldiers who gave their lives to stop the spread of
communism.
6. In May of my last year at Harvard Law I applied for a direct commission as First Lieutenant
in the newly established contract procurement department of the Air Force located at Wright
Patterson Air Force Base in Ohio. Two other classmates and I were asked to come to the
Pentagon for interviews with the Secretary of the Air Force. We arrived by air the evening
before and I will always remember circling over Washington and seeing the lights of the
beautiful buildings and monuments of Washington.
The Pentagon and Secretarys chambers were very impressive-especially to a small town boy.
During the interview the Secretary asked us what our class standings were. The first to respond
was a classmate who was the president of the Harvard Law Review (like President Barack
Obama) who stated that he was first in our class. Next my other classmate stated that he was
third in our class. The Secretary turned to me and asked, Mr. Berger, what was your standing?
With some trepidation I answered that I was one thirty-sixth! I felt somewhat embarrassed.
We all were accepted into the program (I was swept in on my classmates coattails). I was
excited and looked forward to three years serving my country during the Korean War in Ohio.
I received a brief note from the Air Force in July that the program had been abandoned
(together with my commission).
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Determined to be an officer, I then applied to the United States Coast Guard. I had always
enjoyed boats and the water. They sent me to Cleveland for a physical and four hour written
examination. I was accepted and ordered to appear on December 1, 1953, at the Coast Guard
Academy in New London, Connecticut to be sworn in as an Ensign to begin my training. There
was one condition-I had to be released from my draft board in Cincinnati (Laura Wingerberg,
Clerk). I am glad that I did not waste money on purchasing several Coast Guard uniforms.
7. The requirements to practice law in Indiana have an interesting history. Most lawyers after
the Revolution had a difficult time being allowed to practice law. The people rejected them as
being instruments of and supporters of the English common law, and of not being loyal
supporters of the Revolution. Most had been Tories. All things thought to be English were
rejected. As a result, most states passed laws denying the right to practice law unless loyalty was
proven. New York State passed a typical law which required a jury to find that an applicant to
practice law had been a good and zealous friend to the American cause before being licensed.
By 1850 the prejudice against lawyers had diminished. However, the Jacksonian theory of
the egalitarian rights of the common man was becoming preeminent and it was thought that
every man had a natural right to practice any lawful calling he chose. As a result of this
philosophy, most states passed statutes or had constitutional provisions that did not require a
license or any other particular requirements or qualifications to practice law except being of good
moral character. One early Indiana statute added an additional requirement-the applicant had to
take an oath that he had not participated in any part of a dual since January 1, 1819. The Indiana
Constitution of 1851 in Article VII, Sec. 21, stated, Every person of good moral character,
being a voter, shall be entitled to admission to practice law in all courts of justice. Therefore,
basically the only requirements to practice law were to be a voter of good moral character,
which, as one whit put it, was the one qualification most practitioners plainly lacked. However,
egalitarianism only went so far in 1851. The same 1851 Constitution denied women and
Negroes the right to vote. Since women could not vote until 1921 and Negroes not until 1881,
were they entitled to practice law before then?
As early as 1893, a courageous white lady named Antoinette Dakin Leach applied to the
Greene Circuit Court for admission to the bar. The circuit court judge found that she was a
citizen of Indiana, over the age of twenty-one, of good moral character, and possessed sufficient
knowledge of the law to qualify her to practice. However, the circuit judge denied admission as
she was not a voter as the Indiana Constitution required. On appeal, the Indiana Supreme Court
determined that the Constitution did indeed secure the right of a voter to be admitted to practice,
but it did not affirmatively state that others (non voters) could not also have this right.
Therefore, the Court ruled Antoinette should be admitted to the practice of law.
I wonder if the justices in arriving at their decision had received advice from their wives
similar to that given by Abigail Adams to her husband John in 1776 when he was on his way to
the Constitutional Convention to remember the ladies and be more generous and favorable to
them than your ancestors when fashioning laws for the new nation.
Sixty-three years later when I first started to practice law in 1956, there was only one woman
attorney admitted to practice law in northeast Indiana. Now about half of law school students are
women.
Pursuant to this 1851 Constitutional provision, attorneys were usually admitted to the bar by
the local Circuit Court judge. There was no requirement of any law school, other formal
education, law studies or experience. Many obtained their legal training by reading law in the
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law office of an established attorney. They were basically self taught. It was not until 1932 that
the Indiana Constitution was amended to repeal the provision that any voter of good moral
character could practice law.
After 1932, Indiana by statute or Supreme Court Rule gradually set forth requirements to
practice law. Ultimately, graduation from an accredited law school and successful completion of
the bar examination would be required. These laws and rules allowed all those persons who
were currently admitted to the bar to continue to practice under grandfather clauses. They
became known as Constitutional lawyers. For a very interesting discussion of these issues and
many more see TheHistoryofIndianaLaw, 2006, Ohio University Press.
8. On a dark and wet December 14, 1953, morning at 5 a.m., I boarded a bus in Angola with ten
other draftees, all from local farm families, destination Indianapolis. Upon arrival we, together
with forty other draftees, were told to strip and get in line to be examined by a doctor. The
doctors determined that we were all physically fit even though I kept reminding the doctors that I
had rheumatic fever as a child.
We then were told to stand in a straight line facing an Army Lieutenant and to raise our right
hands. We did so and took our oath to protect and defend. We were told to take one step
forward and by doing so became a part of the United States Army.
I was issued my official identification dog tags which had impressed thereon John R.
Berger US 55448329 Blood: A Religion: C. The US in my serial number differentiated me
from those who had voluntarily enlisted. The enlistees were RA and considered to be a
different breed.
It is hard to describe my emotions upon taking the oath and being a member of the Army. I
do remember being very proud to serve my country and to begin such service as a private equally
with my fellow draftees from all walks of life. I was always very proud to wear my Army
uniform even though during the Korean Conflict some civilians looked down upon me as a
serviceman.
9. On my arrival at Fort Leonard Wood at 1 a.m. dressed in a gray tweed suit and striped tie, I
was told to report immediately to the mess hall for KP duty. My first military duties consisted of
mopping the floors and washing dishes, pots and pans until 3 p.m. I then reported to my
assigned barracks and was issued bedding, a trunk to be placed at the foot of my bunk, an M1
rifle, and basic toiletries which included a blade razor (I had only used an electric shaver before).
My only experience with a rifle was as an eight year old. I had a Red Ryder BB gun and shot
a starling. The bird tumbled to the ground and flopped around. Apparently I had broken his
wing. Immediately I felt terrible and tried to nurse him back to good health. With my gentle
care he lasted three days. I buried him with a headstone marked Sam. This was the last and
only time that I shot a rifle without cause.
Exhausted and dirty, in my gray tweed suit, my service to my country began. I was issued a
uniform three days later.
In the fourth week of basic training I was called in from the machine gun range for an
interview pursuant to my previous application to the Army Judge Advocates Office (the law
branch of the Army). In my dirty uniform and with four hours sleep I was grilled on the
intricacies of law by a panel of one Captain and two First Lieutenants. I distinctly remember one
question. I was asked to explain in detail the hearsay rule and as many of the exceptions
thereto as I could recall (there are thirty). This is probably one of the most difficult legal
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principals. The hearsay rule is an evidentiary trial rule on the admissibility of certain
testimony. The rule can be simply stated as, A witness can not testify as to what he heard
another person say in order to prove the truth of the facts stated by such person. Somehow I
stumbled through the interview.
I did not hear anything concerning my application until about twenty-two months later when I
was called in before my commanding officer. He explained to me that I had passed the
examination and had been recommended for acceptance into the Judge Advocates Office.
However, the examining board had been improperly constituted. The board should have had two
Captains instead of the one at the board examination. Therefore I would have to be examined
again. He assured me that I would undoubtedly pass the next examination and be appointed a
First Lieutenant. I would have to serve three more years of active duty in the Army. Since I was
due to be discharged in two months, I respectfully withdrew my application.
10. I remember clearly my first civil and criminal cases. Both were before the Steuben Circuit
Court judge, the Honorable Harris Hubbard. Both cases made clear to me the difficulties I would
have trying to establish a law practice in the Steuben County legal environment.
In my first civil case I represented a foreign (Chicago) supplier of minnows who had sold the
minnows to a local (a Steuben County voter) bait store. The bait store refused to pay for the
minnows claiming that the minnows had died of some mysterious disease about one week after
delivery. I obtained an expert in minnow diseases who testified that the minnows were not
diseased when delivered but were contaminated by the condition of the bait store minnow tanks.
There was no other evidence as to the cause of the disease. At the conclusion of the evidence,
Judge Hubbard announced his decision (the case was heard by the court rather than by a jury).
He stated that the evidence clearly showed that the minnows were in perfect condition when they
were delivered. I was in seventh heaven. I was about to win my first case and could represent to
prospective clients that I had never lost a case. The judge then said, However. I knew that
these words were the death knell. The judge then stated that since the delivery of the minnows
had been on a Sunday, the sales contract was void and the bait store therefore did not have to pay
for the minnows. The judges decision was erroneous, of course, as Indiana law has never
declared Sunday contracts void. To appeal the decision to the Indiana Appellate Court would
have cost about twenty times the value of the minnows! Case closed. The attorney for the bait
store, the judges brother Kenny Hubbard, had won another one.
In my first criminal case, I was appointed as pauper counsel for the defendant by Judge
Hubbard. There were about eight other eligible attorneys but Judge Hubbard obviously thought
that this case was just right for me as a young attorney trying to establish a law practice. As a
new attorney I could hardly refuse such an appointment. The defendant, a recent resident of Mt.
Clemens Michigan, who was just passing through Angola, was accused of kidnapping the
daughter of a prominent Angola businessman on her way home from grade school. Thankfully,
she was found alive a day later about fifty miles away. She identified the defendant as the person
who had kidnapped her. By representing such a person this certainly was an excellent chance for
me to become well thought of and accepted by the Angola community.
Having taken my oath as an attorney to faithfully represent a client, and being young and
nave, I earnestly began my representation. I immediately requested a change of judge which by
law had to be granted. This further endeared me to Judge Hubbard.
My client stated that he had an iron clad alibi. He told me that at the time of the abduction he
was living in Mt. Clemens and had in fact at that time been at the St. Francis Cemetery in Mt.
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Clemens placing flowers on the grave of his mother. He remembered that when visiting his
mothers grave that twin two day old boys were being interred.
I took off for Mt. Clemens, about 100 miles to the northeast and just north of Detroit, in my
parents 1952 Buick Road Master station wagon. The trip was uneventful except for the fact that
since the Buick weighed about a ton and the brakes were woefully underpowered, it was very
difficult to bring the car to a stop. Somehow I made it.
My first stop was at the address the defendant gave me for the place where he stayed. The
defendant was sure some other resident would remember him being there on the day of the
abduction. It was difficult to find the address. It was in what appeared to be a slum area. I was
somewhat hesitant to enter the building at the address.
My sociology professor at Hillsdale College had written a book (required purchase) about his
experiences at the Bowery in Brooklyn which he entitled Flophouse. I was now truly entering a
flophouse. The building was three stories. There was a small office on the first floor. The rest
of the building contained single rooms. There was filth and refuse everywhere. I found only
three persons. One was sitting in a stairwell and obviously drunk. He was unable to
communicate with me. I saw another person on the third floor through an open door lying naked
on a stained mattress, apparently asleep or passed out. I did not disturb him. The third was the
manager who was preparing some soup in a makeshift kitchen. He had no recollection of the
defendant. He did give me the direction to St. Francis Cemetery.
I was able to find the cemetery and the Rectory of the adjoining church. I located the Sextant
and he was able to examine the Record of Burials. He said that he remembered the twin boys
burials. He examined the records and they showed that the burials had been one day before the
abduction in Angola. That was the end of the alibi!
Upon return to Angola I met with the prosecuting attorney to see if a plea bargain could be
agreed upon. Both of us wanted to avoid a trial in which the little girl would have to testify. I
told the defendant that I was trying to negotiate a plea bargain. The next day the defendant sent a
demand from the jail to the judge written on a paper hand towel that the judge remove me from
representing him. The defendant stated that, I had spilled my guts to the prosecutor. The
judge, to my great relief, replaced me as the attorney for the defendant. The defendant
subsequently did enter a plea of guilty pursuant to a plea agreement.
11. There is a sad sidebar to my defeat of Judge Sisler which connected causally to three
murders. If Judge Sisler had been elected, none of the following would have happened.
After his loss of the judgeship, with the assistance of his father in law, Judge Sisler obtained a
job in Washington, D.C., as a lobbyist for the National Rifle Association. About a year after
arriving in Washington, he was confronted at his front door one evening by an armed angry
black man who stated that his sister had been raped by a middle aged white man and that the man
reportedly lived in Sislers house. An argument ensued and Judge Sisler was fatally shot.
A police investigation followed, the man was arrested and subsequently found guilty of
Voluntary Manslaughter.
The chief investigating officer was Bobby Moore. Later Bobby Moore and Barbara Sisler,
Judge Sislers widow, were married and took up residence in the Town of Fremont in the
northeast corner of Steuben County. Bobby became the Town Marshall.
About a year later, while Barbara Sisler Moore was on the phone talking with her daughter,
Barbara stated that she had to leave the phone for a minute because her husband Bobby needed
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to talk to her. Her daughter overheard an apparent argument between Barbara and Bobby and
then gunshots.
When the police arrived at the Moore home they found Barbara dead. Bobby stated to police
that there had been an argument, that Barbara had threatened to kill him with a gun, and that he
fired at her in self defense. Bobby Moore was never charged with the death of his wife.
About a month after the death of Barbara Moore, on a warm July 1988 evening just before
sun down, Bobby Moore was shot in the head by a high powered rifle discharged from some
distance away. He died minutes later. Barbaras son, Sam Sisler, reportedly was an initial
suspect but no evidence was ever found to connect him to the murder. No charges were ever
filed.
12. The matters presented to a Circuit Court judge are varied and challenging.
The matters presenting the most difficult choices to me were child custody in divorce cases,
disposition of juvenile matters, and sentencing in criminal cases. All divorce and juvenile
matters are presented to a judge for decision. A jury is not allowed.
DIVORCE:
When I was judge, in Indiana a person could obtain a divorce if there are
irreconcilable differences. This is quite different from the traditional divorce requirements of
proof of adultery or incurable insanity. Note: Indiana law now allows no fault consent divorces.
These strict rules gave rise to the hiring of private investigators who would attempt to take a
photograph of the erring partner in flagrante delicto. Also, what is incurable insanity and
how do you prove it? Therefore then in Indiana, a person could always obtain a divorce by
testifying, My wife and I disagree on almost everything and there is no chance that we can get
back together again. Unlike most other states, Indiana does not provide for alimony (support
payments) to a husband or wife unless he or she is severely mentally or physically disabled. This
does not provide much protection to the wife who drops out of school, gets a job to help her
husband through medical school, has three children while her husband is building his practice,
and is then divorced by her husband for irreconcilable differences. She is left to rear the
children while her husband marries his nurse and lives happily ever after. She will have to
support herself with only a high school education!
The Indiana divorce statute was amended when I was judge. The Indiana legislature in their
infinite wisdom thought that it was deleterious to use the term divorce and amended the law to
provide that thereafter the term would be dissolution of marriage. Therefore after the
amendment it was improper for a wife to say to her husband, If you hit me one more time Im
gunna stick your ass in jail, take the kids and divorce you. The proper comment would be,
Honey, if you cannot conform your actions to accepted standards, I might have to seek
incarceration for you and file a Petition for Dissolution of Marriage.
Presiding over divorce cases was an eye opener for me. I guess I had led a sheltered life. I
had parents that loved each other who never raised their voices in anger and a wife who was all
things wondrous. It was difficult for me to listen to testimony from people who had been in love
and had promised to love and honor until death do us part tear each other apart in the hope of
obtaining a larger property settlement. Usually custody was an afterthought. The mother
traditionally obtained custody of young children.
Occasionally both the husband and wife would seek a divorce. Each party wanted bragging
rights. The Judge gave me the divorce because of the way my husband (wife) treated me.
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In one divorce case which stands out in my memory, a childless couple in their 60s both
wanted a divorce but they could not agree on who would get the Cadillac and some wedding
presents they had received five years before. The husband was represented by Dudley Gleason,
Jr. of the firm of Gleason & Gleason (father and son), a sixty two year old constitutional lawyer
who seemed to always quote the bible when making any statement to a judge or jury. He was
about five feet tall, robust and had a deep resonant voice. It was almost like hearing God speak.
The only issue at the trial was the division of their property. I was therefore somewhat surprised
when Dudley offered into evidence on behalf of the husband, without objection of opposing
counsel, seven photographs of the wife in a Holiday Inn motel room in Florida which were taken
on a recent vacation. The photographs were taken by the husband and showed his wife
completely nude in various poses. I asked Dudley the relevancy of the photographs and he
stated, Your Honor, any woman who would allow herself to be photographed naked is immoral,
is condemned before the eyes of God, and should not be allowed to share in my clients worldly
goods. I was preoccupied with the pictures which showed a rather plump old woman with large
sagging breasts. I could not imagine anyone that old cavorting sexually around a hotel room.
Remember, I was in my early 40s. I have since changed my mind.
A divorce case was never really over until the youngest child reached eighteen. The parties
seemed to always be coming back to court to revise the amount of child support (My husband
got a new job and he is making more now or He is spending a ton of money on that fat girl
friend of his and her children); to change visitation (I do not want my daughter around that
whore he is living with); custody (I just cant handle Joshua anymore. He is out of control and
smokes pot. Its his fathers turn); and to request that the husband be put in jail for non support
or failure to abide by a visitation order (He makes a ton of money but spends it all on booze,
punch cards and girlfriends and has not paid support for four months or I have the kids ready
for visitation every other Sunday at 2 p.m. but he rarely shows up to pick them up and even if he
does, he returns them dirty and late every time).
Miracles do happen though. Often I had a father testify in a non support case that he really
wanted to catch up on his back support (usually several thousand dollars) and help his six
children, but even though he had a good job, he had no money available. About the second day
of serving an indeterminate jail sentence for contempt of court, the husband would somehow
come up with the money and pay the entire back support-a miracle!
JUVENILE:
Juvenile court was a heartbreaker. Anyone up to eighteen was considered a
juvenile in Indiana and there was a distinct body of law for them which was different from adult
criminal law. The emphasis in juvenile law was help rather than punishment. A juvenile could
not be originally charged with a criminal law violation. A juvenile was charged with An act of
delinquency, to wit: taking cash at gun point from the cash register at the Martin Gas Station.
The judge was to act as parens patriae or an enlightened father, understanding, fair, but firm.
The judge was to exercise the conscience of the community. When I first started to practice law,
a juvenile offender when caught was held in jail for a day or so and then brought before the
judge. The prosecutor presented the facts and, after the juvenile made any statement he desired,
the judge would immediately decide if the juvenile had committed the offense and if so, what
should be done about it. Usually there were no witnesses other than a police officer. The
juvenile was not represented by an attorney. His parents were allowed to be present and make a
statement. When I became judge, the law had changed. The juvenile was always represented by
an attorney (at county expense usually), the hearing was conducted like an adult criminal trial,
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and a final decision could not be made by the judge until the juvenile had been evaluated by the
probation department or other experts deemed necessary.
Most juvenile offenders were male. I had a few delinquent girls but their offenses were minor
such as shoplifting or skipping school. If the offense was serious, such as armed robbery, the
minor could be waived by the judge to adult criminal court and the prosecutor was instructed
by the judge to file adult criminal charges against the juvenile. All proceedings thereafter
including sentencing to prison were treated as if the juvenile were an adult.
In juvenile matters I tried very hard to understand the cause of the delinquency and structure a
proper response to help the juvenile. In some cases this might even entail a stay at the county
jail. Many times the probation officer and I failed to help the juvenile. Sad to say, even at
fourteen or fifteen, it was often too late.
In one juvenile case, I visited with the juvenile quietly in my chambers in an attempt to find
the cause of his acts. He had broken into four cottages around Crooked Lake and stolen some
electronics. He was seventeen, the son of a local professional and had supportive parents. I
asked him why he had broken into the cottages and his sole explanation was, Because it was
easy. Go figure. I gave up delving into juvenile psychiatry.
In another juvenile case, I thought that I may have been successful in rehabilitation. Charlie
was seventeen and had been involved in several burglaries about six months before. He had
been reporting to the probation officer on a regular basis and on one of these visits to the
probation officer, I talked with Charlie. I asked how he was doing and if there was anything I or
the probation officer could do to help him. He stated that he was doing real well, had gone back
to school and had a part time job. He wanted to thank us for helping him. I remember that
evening, while relaxing with a glass of wine (white zinfandel), telling my wife Susanna about
Charlie and how pleased we were about his apparent success. In the early morning hours of the
next day, Charlie was arrested in Michigan after blowing the door of a safe at a Sears. Under
Michigan law he was an adult at seventeen and he was later found guilty and sentenced to eight
years in prison.
CIVIL: Most of my civil suits involved automobile accidents. If the plaintiff could prove that
the defendant was negligent (that the defendant drove the vehicle below the standard of care that
a reasonable man would have exercised which was the proximate cause of damages to plaintiffs
vehicle or person), and that plaintiff was not negligent, the plaintiff was entitled to damages.
Determining personal injury damages was difficult if pain and suffering were involved. Doctor
and hospital bills and lost wages were usually easy to prove. But how much should a judge or
jury award for the loss of an eye, both legs, brain damage, paralysis or pain? I have heard
plaintiffs attorneys state to the jury to aid them in determining damages for pain, How much
money would you take per day constantly to have severe headaches every day (or not be able to
walk) for the rest of your life? Just multiply that amount by the life expectancy of the plaintiff.
I also presided over several civil cases against medical doctors for malpractice (medical
negligence). Indiana had an interesting negligence evidentiary law which was only applicable to
medical negligence. In order to prove medical negligence, the plaintiff must produce at least one
licensed medical doctor as a witness who testifies that he or she is familiar with the accepted
standard of medical care in the community and that the actions of the defendant doctor fell below
this standard. Two cases were brought by the same attorney against the same doctor.
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The first malpractice case involved a claim by a married couple for damages for the birth of
their ninth child. The first eight children joined as plaintiffs. The defendant doctor had
performed a sterilization tubal ligation upon the wife after her eighth child was born. This
procedure, as were all previous deliveries, was paid for by the County Welfare Department.
About ten months later, the wife gave birth to a normal boy. The wife claimed damages for her
pain and suffering in childbirth and for support for the ninth child until he was eighteen. The
husband claimed damages for his loss of consortium (sex) with his wife during the pregnancy
and for support for the ninth child until he was eighteen. The other eight children claimed
damages in that there would be less money for their care and less love and affection for them
since they would now have to share with a ninth child. The plaintiffs wanted the defendant
doctor to support the ninth child until he was eighteen!
The defendant denied all claims. He also claimed that there was no such negligence law in
Indiana, and that the plaintiff wife should have had an abortion or placed the child for adoption if
the child was not wanted. It was their duty to mitigate (lessen) damages. The plaintiffs stated
that they wanted and loved the child.
This type of action has become to be known as a wrongful birth action as contrasted with
the traditional wrongful death negligence action. Whether this type of negligence action
should be allowed as common law in Indiana had not been presented to any Indiana court. It was
a case of first impression and I was being asked to establish a wrongful birth negligence action
as part of the common law of Indiana. After extensive research I determined that only two states
had ruled on this. Michigan had allowed such an action and Delaware had not. The Delaware
Supreme Court thought that the benefits of having a healthy child far exceeded any damages and
therefore, as a matter of law, since plaintiffs had no damages there could not be any recovery.
The Michigan Supreme Court thought that a jury should be given the opportunity to decide if in
fact the plaintiffs were damaged. In the Michigan case the defendant was a pharmacist who had
mistakenly given the plaintiff wife sleeping pills instead of the prescribed birth control pills.
I followed the Michigan rule and allowed the matter to proceed to trial. The plaintiffs had the
required licensed doctor witness who testified not in person but by deposition. The doctor
practiced general medicine in Wyoming but stated that he was well acquainted with the medical
standards of Steuben County, Indiana, as to a proper tubal ligation since he was originally from
Steuben County. He stated that in his opinion the defendant must have failed to properly
perform the operation as a child was conceived. His deposition was read to the jury by the
plaintiffs attorney who had a deep voice and looked like a doctor. The jury did not know that in
fact the doctor had a high voice and was not impressive at all.
The defendant had two imminently qualified tubal ligation specialists as witnesses. They had
performed hundreds of such operations and testified that the procedure followed by the
defendant was according to accepted medical practice. They further testified that even with a
proper tubal ligation operation, sometimes nature would reconnect the cut tube and pregnancy
could occur. The jury found that the defendant doctor had followed proper medical procedure
and therefore no need for the jury to determine if there were any damages to plaintiffs.
The second malpractice case involved a couple in their late 50s. The plaintiffs were
represented by the same attorney and the suit was against the same medical doctor. The doctor
was alleged to have botched a vasectomy. The plaintiff husband claimed that after the operation
he had developed two nodules on his penis and as a result he had experienced extreme pain when
engaging in intercourse. This condition lasted for about three months and until the same doctor
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performed a minor procedure and removed the nodules. The husband could not claim damages
for the expense of the operations as the County Welfare Department had paid for these. He did
however claim damages for pain and suffering during intercourse for the three months. The wife
joined as a plaintiff and claimed damages for diminished pleasure during intercourse because of
the discomforting effect of the nodules. She further claimed that during intercourse her husband
perspired a lot and would keep crying out, which indicated to her that her husband was in
extreme pain. This considerably lessened her pleasure to her great damage. The plaintiff
husband claimed ten thousand dollars as damages and the plaintiff wife claimed five thousand
dollars as damages. The plaintiffs attorney on direct examination of the wife in order to attempt
to prove the extent of damages elicited the fact that they had intercourse at least once a day.
Upon cross examination the doctors attorney asked the wife, Surely you did not have relations
every day for ninety days? She replied modestly, Oh yes, we were so in love. The jurors
during all of the testimony about fell out of their chairs leaning forward to not miss a word of the
testimony. I had a hard time keeping a judicial demeanor and thought to myself fantastic. The
jury returned a verdict awarding damages of ten thousand dollars to the husband and five
thousand dollars to the wife. If my calculations are correct, and assuming the number of
assignations alleged are correct, this would amount to about $166.67 per pop (less 33% attorney
fees).
My thoughts of fantastic during the testimony of the wife came from one of my favorite
jokes. It seems that two married ladies were discussing their past summer vacations. The first
lady stated that her handsome, wonderful and generous husband had first taken her to Paris and
bought her all of the latest French perfumes. The other lady replied fantastic. The first lady
then stated that her husband had then taken her to Moscow and bought her a gorgeous full length
Russian sable coat. The other lady again replied fantastic. The first lady then stated that her
husband had then taken her to Rome and bought her many beautiful Italian leather shoes and
handbags. The other lady again replied fantastic. The first lady then inquired of the second
lady And what did you do this summer? The second lady answered that her husband had paid
tuition for her to take a two week charm school course for ladies. And what did you learn? the
first lady inquired. The second lady responded I learned to say fantastic instead of bullshit.
CRIMINAL: I presided over many criminal cases. One thing I surmised was that there must
have been a special class at the police academy which would assist an officer in testifying
concerning why he or she had searched a vehicle or arrested a driver for driving under the
influence. When the prosecutor would ask a police witness at trial why the vehicle was searched
or the defendant arrested, the reply was always, I observed what appeared to be a green leafy
plant like material (marihuana) protruding from under the front seat. or I observed what
appeared to be the butt of a gun protruding from under the front seat. or The driver had blurry
eyes, slurred speech, and there was a strong odor of alcohol. The exact words were used in
every trial!
During my tenure as judge there were not many drug charges filed. They were mostly
possession of a small amount of marihuana. Meth was unknown then. Not as now where almost
every other old farm house (and quite a few automobiles) in northeast Indiana have active and
profitable meth labs. It seems that about every week a farm house or car is blowing or burning
up due to faulty recipes.
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Two drug cases involved more serious offenses. Both incidentally involved dogs. The first
case was commenced by a request by the prosecutor that I issue a search warrant. The Fourth
Amendment provides that no search warrant shall be issued unless there is presented to a judge
an affidavit of probable cause to believe that the search will lead to the discovery of certain
described evidence. The affidavit must be made by a person who is reputable who has direct
knowledge of the facts. In this case the reputable person was a dog!
The dog had been on regular patrol for the Postal Department at the San Diego, California,
port and when sniffing a certain large package being mailed from Thailand to a person with an
address of Jimmerson Lake, Angola, Indiana, indicated that the package had hashish (a high
grade marihuana) inside. Usually a package would have had an outer layer of coffee beans to
disguise the distinct odor. The Thai dealer must have gone cheap because there were no coffee
beans. Even though the dog could not on his or her oath state the fact that the package contained
a proscribed drug, I accepted the affidavit of the postal inspector that he believed the dog was
reputable and had the necessary expertise. I issued the search warrant and upon delivery of the
package to the Angola house by the rural mail carrier about ten staked out Deputy Sheriffs, after
knocking on the front door and waiting for about ten seconds for a response, broke through the
door. The officers were almost late. Most of the hashish was disappearing down the toilet. The
propriety of the convictions and the issuance of the search warrant were later upheld on appeal
by the Indiana Appellate Court.
The second drug case involved a state police undercover officer who had infiltrated a
weapons and drug selling group in Fort Wayne, Indiana. The officer had arranged to purchase a
large quantity of cocaine from the group. The exchange of drugs and money was to take place in
the Angola Holiday Inn parking lot which was just three miles south of the Michigan state line.
The officer waited in his old car in the parking lot at the appointed time. He was wired. Two
state police were in a van nearby with radio receivers. Two Steuben County deputy sheriffs were
cruising nearby in an unmarked car. Soon a car approached the lot (a raven black 1970 Boss 302
Mustang), circled slowly by all of the parked vehicles, and departed. The officer recognized the
driver as one of the group from Fort Wayne. In the front seat was a large Doberman, a status
symbol among drug dealers. Then a second drug dealer drove into the lot and pulled up beside
the undercover officer. The drug dealer told the officer to get into the dealers car and they
drove away. This was obviously an unanticipated change of plans which was complicated by the
fact that the wire was not working. The police were frantic. They did not know where the dealer
was taking the officer and thought that his cover may have been blown.
The drug dealer drove north into Michigan and then turned west and south on a gravel road
into Indiana. The car stopped and the drug dealer jumped out and uncovered a large package
buried in a snow bank. The package was opened by the officer and the cocaine tested while the
dealer drove north just over the state line into Michigan. It tested pure cocaine and the officer
paid the dealer. All of the time the officer and the dealer were talking the officer assumed that
all of the conversations were being overheard by the other police officers. He thought that they
were near and would come to his assistance shortly. The officer pulled his hand gun and ordered
the dealer to stop the car and get out.
Just then the backup Mustang being driven north out of Indiana appeared and drove toward
the officer. The car contained a snarling Doberman and the other dealer, probably armed. The
officer with drawn pistol stood in the middle of the road to block the Mustang. The officer did
not know what he should do next. He was expecting his own backup. Luckily, the sheriffs, who
had been frantically cruising all of the back gravel roads in the area, came upon the scene and
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helped subdue both of the dealers. The Doberman was thankfully spared and tied to a tree. A
search of both vehicles disclosed more coke and several semi-automatic weapons. Both dealers
were charged in Indiana and Michigan with possession of unregistered firearms, possession and
sale of cocaine. The defendants claimed the defense of entrapment-that the idea of committing
the crimes originated with the police when the defendants had no previous intention or
disposition to break the law. The defendants also claimed that the Indiana officers had no right
to arrest them in Michigan and that the officers had no probable cause to arrest. The defendant
who was in the first car filed a motion, based upon entrapment, to dismiss the case and to
exclude all evidence of the drugs and guns as improperly obtained in Michigan. I denied the
motion. The backup defendant, who was represented by the same defense attorney, then
procured a change of venue to another judge and filed the same motion before the new judge.
The new judge, who was the Circuit Court judge of an adjoining county, granted the motion and
dismissed the case against the backup defendant. In the trial of the first defendant before me the
jury deliberated only one hour. The jury convicted the defendant of all three crimes and I
sentenced him to ten years in prison. Prior to the trial, the defendant was offered a plea bargain
by the prosecutor which would have called for a total sentence of two years. The defendant
refused such offer. His well paid attorney had assured him that he would get him off scot free!
The conviction was upheld on appeal to the Indiana Appellate Court.
My only personal brush with the criminal law illustrates the fact that sometimes the
complexities of constitutional protections do not filter down to the lower levels of police
enforcement. After retiring from the bench I stopped briefly at my old law office one day. I
parked right in front of the office. I looked out the front window and observed a lady Angola
City Police officer placing a large yellow chalk mark on my right rear tire, writing something on
a tablet and walking away. The object of the marking was to keep tabs on parked cars to see if
they violated a city ordinance against parking over two hours. I promptly went to my car and
started to rub the yellow mark off. The officer came running back to my car and told me that I
could not do that. I said that I had just parked my car, was about to leave and as she knew I was
not violating any parking ordinance. She said that she would have to give me a parking ticket
because I had rubbed some chalk off and I was not supposed to do this. She gave me a parking
ticket. After receiving the ticket I went to talk to the Angola Chief of Police. I asked him if
there was any ordinance or other law which forbad rubbing off yellow chalk marks on tires. He
said that there was no such ordinance or law but they had been having problems with people
doing that and he had instructed his officers to ticket any such action. Somewhat dismayed, I
asked him if I had heard him correctly. Did he really instruct his officers to issue misdemeanor
traffic citations to persons who had not violated any law? He said yes. He did so because
something had to be done to stop the illegal excess parking. I asked what would be done if I did
not pay the $2.00 fine for violating a law that did not exist. He said with a straight face that if I
did not pay the fine within 24 hours he would follow procedure and instruct the City Attorney to
file charges against me in Circuit Court for the $2.00 plus $25.00 per day late penalty. I paid the
$2.00.
STERILIZATION:
In 1971 I faced a decision which would test my basic beliefs as to the
right of privacy and the treatment of persons with mental disabilities.
The Steuben County Welfare Department filed a petition to have an eighteen year old woman
under their care involuntarily sterilized. The petition alleged that she was feebleminded, was
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about to be married to a man who was also feebleminded whom she had met at a mental
institution, and that if not sterilized she would most likely have several children of like mental
condition. The petition was pursuant to Indiana law and asked that a hearing date be set for the
presentation of evidence and that notice be given to the eighteen year old woman.
This procedure and authority for a judge to order sterilization was set forth in an Indiana 1927
statute. The Indiana statute was based upon a Virginia statute which had been upheld by the
United States Supreme Court in Buckv.Bell (1927). The statute gave a judge after a proper
hearing the right to order sterilization of an institutionalized male or female if the judge
determined that the respondent was feebleminded or morally delinquent.
Buckv.Bell involved Carrie Buck, an eighteen year old girl, who was declared to be a
genetic threat to society by a Virginia state court judge. According to the judges decision,
Carrie was the daughter of a socially inadequate mother and the mother herself of a similarly
afflicted daughter. Justice Oliver Wendell Holmes, Jr. of the United States Supreme Court
wrote the opinion of the court. The opinion stated, It is better for all of the world, if instead of
waiting to execute degenerate offspring for crime, or to let them starve for their imbecility,
society can prevent those who are manifestly unfit from continuing their kind. The principle that
sustains compulsory vaccination is broad enough to cover cutting Fallopian tubes.Three
generations of imbeciles are enough! The Supreme Court never reversed this decision. Thirtythree states including Indiana passed laws similar to the Virginia law authorizing involuntary
sterilization. These state laws were all repealed by the mid 1970s and Indiana repealed its law in
1974. Two thousand three hundred men and women were involuntarily sterilized in Indiana and
over sixty-five thousand nationwide.
When the petition was filed with me, I did not set a hearing date. I asked the Welfare
Department to withdraw the petition and stated to the director of the Welfare Department that
even though the Indiana law authorized such a procedure, I would never issue an involuntary
sterilization order. The Welfare Department deferred to my decision.
There is a footnote to this issue. In Stumpv.Sparkman (1978), the United States Supreme
Court upheld a 1971 decision by the judge of the DeKalb Circuit Court (the Circuit Court judge
of the county adjoining Steuben County) which authorized the sterilization of a fifteen year old
girl. The court held that the judge was immune from any liability for his decision ordering the
sterilization since it was a judicial decision. The facts of the case are startling. The girls
mother petitioned the judge to issue an order to have her daughter sterilized. The mother alleged
that the daughter was somewhat retarded.* The petition and subsequent order were never
officially filed with the court. There was no hearing and no evidence was submitted to the judge.
The girl was not notified that the petition had been filed and the judge did not appoint any
attorney or guardian-ad-litem to represent the girl. The petition was granted the same day that it
was submitted to the judge. The girl was told by her mother that she was going to have her
appendix removed. Two years later the daughter was married and upon failure to become
pregnant she learned for the first time that she had been sterilized. She and her husband sued the
judge, the doctors and the hospital for damages. Based upon the Supreme Court decision,
recovery was denied.
* See page 309 for the Petition.
The implications of this decision are frightening. The immense power given Indiana circuit
and superior court judges makes it imperative that only qualified judges, both in legal training
and moral character, be elected. Great power should always be exercised with great restraint.
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13. The case of Mirandav.Arizona (1966) is an example of the practical workings of the due
process clause. We all have watched crime dramas where the police are always giving a
suspected criminal his Miranda rights. In the Miranda case the police after a vigorous and
prolonged interrogation of the accused obtained a confession. Miranda claimed that the police
should have told him of his constitutional rights to be silent (Fifth Amendment) and to have an
attorney present at the interrogation (Sixth Amendment). The state claimed that even though the
Fifth and Sixth Amendments applied to a state criminal charge by virtue of the Fourteenth
Amendment due process clause, Arizona law and the Constitution did not require such advice
prior to interrogation. Miranda claimed that to be advised of such rights was required to provide
a fundamentally fair procedure required under procedural due process. Anyone who watches
television knows how the Supreme Court ruled. That is why Roberts was read his rights prior to
his interrogation. Note: Miranda was subsequently tried again without the confession being
admitted and was again found guilty and sentenced to 20-30 years in prison. He was stabbed to
death in a bar fight in 1976.
Two other Supreme Court decisions are also good examples of federally protected first eight
amendment rights being incorporated in the Fourteenth Amendment due process clause and
thereby binding upon the states.
In Mappv.Ohio (1961) Dollree Mapp was convicted of possession of obscene materials
seized by the police after breaking down the door of her home. The police were searching for a
suspected bombing fugitive. They did not find any fugitive but did find in a drawer in a dresser
in her basement some obscene magazines. They did not have a search warrant. A warrant was
not required by Ohio law, by federal law or federal court decisions. The Ohio Supreme Court
upheld the conviction. The United States Supreme Court decided that this was an unreasonable
search and seizure without a warrant, that the seized materials should therefore be excluded from
evidence, that the right to not be subjected to such a search was a fundamental right as required
by the Fourth Amendment and was incorporated in the Fourteenth Amendment. The charges
were therefore dismissed. Dollree was arrested, tried and convicted nine years later after police
(with a search warrant) found drugs in her apartment.
In Gideonv.Wainwright (1963) Gideon was charged with burglary in a Florida court and he
requested the court to appoint an attorney for him as he was indigent. The judge refused.
Florida law did not require that an attorney be appointed for an indigent criminal defendant.
Federal law and federal court decisions also did not require the appointment of an attorney. He
was tried, convicted and sentenced to five years in jail. Gideon sent a hand written letter directly
to the United States Supreme Court asking that they intervene. The Supreme Court allowed the
letter to be filed as an appeal and appointed Abe Fortas, himself soon to be named a Justice of
the Court, to represent Gideon. The Supreme Court decided that Gideon had a right to have an
attorney appointed for him, that such a right was a fundamental right, and that this Sixth
Amendment fundamental right was incorporated in the Fourteenth Amendment. The conviction
was vacated and the Florida court was ordered to provide Gideon with an attorney upon any
retrial. At his subsequent trial, represented by an attorney, Gideon was acquitted.
Before Mapp (1961), Gideon (1963) and Miranda (1966), in some states, a person charged
with murder could have been convicted based upon evidence seized from his home without a
search warrant, was not entitled to a court appointed attorney to help defend him if he could not
afford an attorney, and any confession obtained after a long and vigorous interrogation could be
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used against him without being advised of his right to remain silent. Such actions did not violate
the Constitution of the United States.
Indiana courts interpreted the Indiana Constitution as early as 1854 as requiring that an
indigent criminal defendant be furnished an attorney at public expense for all felonies, and as
early as 1923 as requiring that evidence obtained pursuant to an invalid search warrant or no
search warrant be excluded.
APPENDIX
STUDENT OUTLINE AND DISCUSSION TOPICS
ChangeofVenue
(State of Indiana v. David James Roberts)
INTRODUCTION-1:
The Roberts case is a state court criminal proceeding. The initial
inquiry will be into the source of substantive law in the United States. There are four primary
sources of law: legislative law, administrative law, common law, and constitutional law.
1. Legislative Law: Laws passed by Congress and the state legislatures. Ex: Federal laws
creating administrative agencies; federal criminal statute; civil rights and Labor Law (pg. 297),
state criminal statute (the Robertscase); state juvenile law; and state Uniform Commercial Code
(UCC). Note: Ecclesiastical Law: Originally English Anglican Church law (divorce and wills)
and now under legislative law-state law covers these subjects.
One source of a states right, obligation and power to pass laws is the Police Power. The
Police Power of a state may be stated as follows: Private rights including the right to contract, to
own and use property and personal freedom rights may be restricted by a state government in the
public interest to protect the public health, safety and morals. This principal was first enunciated
by Justice Taney in an 1847 opinion. The federal government has no police power and all
federal powers must be derived from the Constitution.
2. Administrative Law: Congress or state legislatures create administrative agencies by an
Enabling Act and gives them the right to make, enforce and adjudicate rules and regulations
which have the effect as if passed by Congress. To be constitutional, the enabling act must
provide the purpose, powers and duties of the agency and provide reasonable standards in
implementing the act. See Federal Administrative Agencies pg. 295.
Ex: Federal Trade Commission, Federal Securities and Exchange Commission, Federal
Interstate Commerce Commission (abolished), State Public Service Regulatory Commission, etc.
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3. Judicial Law: Judge made law (not made or created by a legislative body) which is divided
into common law and equity. First established in England by judges and adopted by the states
judges. Many areas of law previously under the common law and equity are now covered by
legislative law. Civil liability is either voluntary (contract) or involuntary (tort).
A. Common Law: Examples:
Contract law: a contract must contain mutual assent, consideration (the agreed exchange
of something of value), capacity, and legality.
Tort law: (1) intentional (Examples: battery, trespass, defamation); (2) negligence (non
intentional) which evolved as a tort c. 1850 (a duty to comply with a statute, other duty, or
reasonable man standard, and a breach which proximately causes injury or damage); and (3)
strict liability without fault (Examples: Workers Compensation laws; wild animals and blasting;
products liability, Restatement of Torts Sec. 402A, which is the liability of merchant sellers from
selling a product that is defective and unreasonably dangerous).
B. Equity: Courts of equity (Chancery Courts) were first created in England to provide
remedies not provided under the common law. The common law could award damages but
could not compel a person to do or not do something.
Equity examples: A court order to convey real estate pursuant to a contract (specific
performance); a court order to refrain from proposed construction on adjoining land
(injunction); a court order re-writing a contract to correct a mutual mistake (reformation of
documents), a court order cancelling a transaction for fraud or duress (rescission).
Note: Courts of law and equity and ecclesiastical courts (divorce) are now merged into one
court system with simplified procedure.
However, matters which were traditionally
equitable or ecclesiastic are still decided by a judge and not by a jury (Ex: divorce, probate
procedure, specific performance).
4. Constitutional Law:
Timeline:
Original 13 colonies
1774 First Continental Congress petitions England for redress
1775 Battle of Lexington and Concord between Minutemen and Redcoats The shot heard
round the world
July 4, 1776, Declaration of Independence by Second Continental Congress
1781, Articles of Confederation (single Congress, no power to tax or over commerce, no
executive or judicial branches, nine states had to agree to laws, Articles could only be amended if
all states agreed)
1783 Treaty of Paris between U.S. and Britain ends Revolutionary War
Winter 1786-June 25, 1787, Shays Rebellion in western Massachusetts
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February 21, 1787, Continental Congress approves call for a convention
May 25-September 17, 1787 (115 days) Constitutional Convention held and Constitution
adopted
June 25, 1788 Constitution ratified by nine state conventions
March 4, 1789, the Constitution goes into effect
December 15, 1791 Bill of Rights ratified by states.
The Constitutional Convention was held in Philadelphia in the summer of 1787. The
delegates consisted of fifty-five men from twelve states (Rhode Island was not represented).
Nearly all of the delegates were of considerable wealth. Most were accustomed to a standard of
living that set them apart from the people they were representing. Forty-two had served in the
Continental Congress. The average age was forty-four. At the time of the convention many men
pursued multiple careers simultaneously. Twenty-nine had undergraduate degrees. Twenty-nine
had studied law. Fourteen were merchants. Ten were in banking and finance. Sixteen were
farmers. Twenty-five owned slaves.
Against a background of strong and conflicting views concerning states rights, the respective
rights of small and large states, the right of the people to participate in national government, the
powers to be granted to the national government, and slavery, the delegates undertook the
daunting task of creating a national government and establishing a Constitution. Also
complicating their decisions was the strong belief by many delegates that the ordinary citizen
was susceptible to being improperly influenced by prejudice and passion and therefore should
not be given absolute control in the operation of the proposed new government and in the
selection of government officials. Most delegates agreed that a strong central government must
be created-the Articles of Confederation had failed. Rhode Island paper money and the
Massachusetts Shays Rebellion illustrate these issues.
RHODE ISLAND PAPER MONEY (1786)
The Rhode Island legislature is taken over by the farmers from the inland towns (vs. the
merchants) and the farmers had no money, hard (gold and silver) or soft and wanted something
to satisfy their creditors and buy new things for their families.
Legislature passed laws that issued half a million dollars in script (promissory notes of a
bankrupt government) and loaned this money to farmers and took back a mortgage on their land.
The merchants did not want this paper money and to counteract this, raised the prices of goods
and would not take the paper money at face value.
The farmers then refused to sell to the merchants and sold in other states. The farmers were
threatened with armed violence. The merchants closed up shop and would not sell at all to the
farmers.
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The legislature then passed laws that if a merchant would not accept paper money at face value,
the merchant would be fined five hundred dollars and not be able to vote. The judges refused to
enforce this law and the legislature removed them. Also laws were passed that if the script was
not accepted at par, the farmers debts was discharged. Paper money which was issued in May
was worth sixteen cents on the dollar in November.
The forcing acts were then repealed.
The Rhode Island paper money fiasco was thought by many delegates to the Constitutional
Convention to be an example of how the people (acting through their state legislatures) could not
be trusted to act in the interest of all but acted out of self interest and never act from reason
alone. Therefore, in the new federal government to be formed, the people would ultimately be
restricted to only electing one half of one third of the government (the House of
Representatives).
Note: Rhode Island did not send any representatives to the Constitutional Convention.
SHAYS REBELLION (1786-1787)

Shays rebellion started in western Massachusetts and was the reaction by up to 15,000
farmers to strict fiscal policies enacted by the Massachusetts legislature resulting in mortgage
foreclosures and seizing property for delinquent taxes. The farmers wanted to have all debts
cancelled and they forced court houses to close, threatened sheriffs and threatened a government
arsenal. The Articles of Confederation did not provide for a militia or army and the rebellion
was not stopped until the governor raised a private army which confronted and defeated the
rebellious farmers on June 25, 1787. Total fatalities in the battle were four.
The Constitutional Convention opened on May 25, 1787, and Shays Rebellion and Rhode
Island Paper Money were much on the minds of the delegates. The rebellion greatly influenced
the delegates in two ways:
1. The rebellion showed that the Articles of Confederation were inadequate. Congress could not
raise money or an army. Something drastic had to be done to strengthen the federal government
and save the experiment in liberty and union. See ART I, Sec. 8 where Congress is given the
power to call forth the militia to suppress insurrections.
2. That the people should not be in control of the new government. Even George Washington
had doubts about pure democracy. He stated that mankind, left to themselves, are unfit for their
own government.
Some delegates at the convention thought that the people of the nation at large were
inherently incapable of making a wise selection for government representatives- that the ordinary
citizens were too gullible and their votes could be too easily manipulated-that ordinary citizens
were insufficiently intelligent to make a wise choice. Tyranny could come from the impulsive
and irrational behavior of the multitude.
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Most delegates thought that the people at large were simply too ignorant. By the term
ignorant the delegates did not mean mentally deficient but rather they meant that the people did
not have available to them sufficient facts and information (newspapers, magazines or otherwise)
upon which to make a wise decision in selecting representatives. The delegates would ultimately
give the people the right to elect only the members of the House of Representatives. One
delegate stated that the Senate ought to be picked in such a way as to make it a safe and sure
check on any wild ideas coming from the democratic House.
There were no other constitutions or forms of government which could be a model to guide
the delegates. They would create an entirely new form of popular government. The Constitution
would create a representative democracy which was a democratic republic that incorporated
both republican and democratic principles in a complicated and ingenious way. In a democracy
the will of the people, with their prejudices and passions, is supreme. In a republic it is not the
will of the people but the rational consensus of the people, arrived at by learned thoughtful
statesmen who are engaged in conversation with the citizenry, which governs the people. Only
one division of this new government was elected directly by the people and truly democratic, the
House of Representatives. The other divisions, the Senate, the President, and the Supreme Court
were not elected directly by the people and were republican in nature. In the Senate, the people
elected directly the state legislatures and the state legislatures selected the two senators who were
expected to be learned thoughtful statesmen and above the prejudices and passions of the people.
The selection of the President was by Electors, chosen by the state legislatures who were elected
by the people. The Electors were also expected to be statesmen who would elect a statesman
President. Members of the Supreme Court are appointed by the President with the advice and
consent of the Senate. The people therefore had no direct vote in their selection.
Among the many issues to be decided by the Constitution Convention delegates were:
1. How should the national government be structured?
A. Unicameral or bicameral legislature?
How should members of the legislature be selected? By people, by state legislatures? If by
people, how many votes for each state?
How many members, length of term, compensation and qualifications?
Powers: express and implied; necessary and proper
B. Executive:
How many, length of term. Compensation and qualifications?
How should the Executive be selected? By people, by House or Senate, by state
legislatures, by Electors ? If by people, how many votes for each state?
Powers?
C. Judicial:
What courts should be created?
How selected, term, compensation and qualifications?
Jurisdiction and powers?
2. Slavery:
Should slavery be abolished? (Article I Sec. 9)
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Should slaves be able to vote? Should they be considered in determining the number of
Representatives?
The rights of slaves who were in free states? (Article IV Sec. 2)
Should they continue as property and be freely sold and imported? See DredScott
For an excellent description of the making of the Constitution read Plain,HonestMen by
Richard Beeman, 2009, Random House.
The Constitution when adopted created three branches of federal government and set forth
powers, duties, obligations, and limits. See pg. 207 for US Constitution.
Article I: Legislative branch: Senate and House of Representatives
Sec. 2: Members of the House of Representatives (435) are elected by the people.
Note: The original Constitution did not state who was eligible to vote. It was left
up to the states. A voter had to have the same qualifications as a voter for
the most numerous branch of the state legislature.
Sec. 3: Two senators from each state were appointed by their state legislature. Pursuant to
the XVII Amendment (1913) Senators are now elected by the people.
Sec. 8: Powers of Congress including power to regulate interstate commerce (one basis of
1964 civil rights act), to establish lower federal courts, to declare war, necessary
and proper clause and to call forth the militia to suppress insurrections.
Sec. 9: Limitations on powers: slavery shall not be abolished prior to 1808, Writ of
Habeas Corpus shall not be suspended, no Bill of Attainder or ex post facto law.
Article II: Executive branch: the President and other executive officers that are appointed
by the President.
Sec. 1: The President is elected by Electors. Each state legislature sets up method of
selecting Electors (Each state has 2 for Senators + number of state Representatives.
Total for 50 states +3 in D.C.=538 total Electors).
Sec. 2: Powers (including the right to appoint all federal judges with advice and consent
of the Senate).
Article III: The judicial branch: United States Supreme Court, U.S. Federal Circuit
Courts, U.S. Federal District Courts and Court of International Trade. The Supreme Court
has 9 members (since 1869).
Sec. 1: Vesting of judicial power, judges tenure and pay.
Sec. 2: Jurisdiction. Trial by jury for federal criminal crimes.
Article IV:
Sec. 1: Full faith and credit clause.
Sec. 2: Privileges and immunities clause. Discrimination does not violate this clause.
Escaped slaves must be delivered up to owner. Superseded by XIII Amendment.
Article V: Amendments to the Constitution. Two exceptions. Number of Senators and
slavery.
Article VI: The Constitution and the laws of the United States shall be the supreme law
of the land.
Bill of Rights, 1791, (Am. 1-10) To protect against federal action.
Note: The amendments to the Constitution protects us from certain state and federal
action, not action by an individual (except slavery in 13th Am.)
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INDEPENDENCE HALL
ADDITIONAL READINGS
1: THE MOST SUCCESSFUL REVOLUTION http://americanheritage.com/print/53137
Brief summary of an article, The Most Successful Revolution, written by Irving Kristol for our
bicentennial celebration of the revolution, AmericanHeritageMagazine, 1974.
The American political tradition has worked so well that we have not bothered to inquire why
it has worked so well. We believe that republican self government is an easy affair and when it
falters, it must be a consequence of personal incompetence or malfeasance of our elected
officials.
The Founding Fathers thought that self government was a chancy and demanding enterprise
and that successful government in a republic was a most difficult business. They understood the
frailties of human nature (that there is a degree of depravity in mankind) and that republican self
government could not exist if humanity did not possess, at some moments and to a fair degree,
the traditional republican virtues of self control, self reliance, and a disinterested concern for
the public good. They believed that a community of individual sinners could, under certain
special conditions, constitute a good community, but that such transformation will only take
place with constant, rigorous attentiveness.
The Special Conditions which are needed for our system of government to succeed is the
willingness of the individual citizen to be self-disciplined and to have and exercise the traditional
republican virtues. George Washington and Abraham Lincoln both asserted there must not only
be obedience to law but a reverence for the law.
In recognition of the frailties of human nature and the need for constant and rigorous
attentiveness, the Founders created a new form of popular government that incorporated both
republican and democratic principles in a complicated and ingenious way in our Constitution.
This form of government has been perceptively titled, a democratic republic. The framers of
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the Constitution had no desire at all to see this new country governed along strict democratic
principles.
We tend to think of the term democracy and republic as near-synonyms, but in fact they
differ significantly in their political connotations. In a democracy the will of the people is
supreme and popular passion may rule. In a republic it is not the will of the people but the
rational consensus of the people which governs. This consensus is determined by statesmensober, unglamorous, thoughtful men who make decisions for the people after deliberation, which
decisions are not bases upon what the majority may think is best for them. A Congressman who
votes as he believes a majority of his constituents want him to vote, would be acting in a
democratic way. If he voted contrary to such majority but in a way he thought was best for all
citizens, then he would be acting in a republican way. As an example, the Supreme Court of the
United States is not, and was never supposed to be, a democratic institution; it is a republican
institution that counter balances the activities of our various democratic institutions.
This system has lasted for over two centuries, which means that it has worked very well. But
we should never ever forget that it will only continue to work if each of us exercises selfdiscipline and self-reliance, and has a disinterested concern for the public good.
2: REPRESENTATIVE DELIBERATIVE DEMOCRACY
Representative Deliberative Democracy: Representatives are selected by the people and it is
the representatives rather than the people directly who govern.
In making governmental
decisions, representatives should value persuasion over rigid unyielding defense of preferences
or interests. Reasoned arguments are substituted for the simple tallying of votes dictated by
constituents preferences. After such deliberation, representatives should make their decisions
based upon what they think is best for the community common good-they should not be bound
by the majority preferences. James Madison believed that the process of deliberation could
produce results different from, and superior to, any other ideas that representatives brought with
them to an assembly.
The process of deliberation by people with diverse backgrounds, convictions, and aspirations
makes possible a form of decision making unavailable through any other form of decision
making. People who see the world through very different lenses could help each other see more
clearly. Delegates must be willing to change their minds and yield to the force of the better
argument.
3: ORIGINAL INTENT
Original Intent: Conservatives invoke the idea that the Constitution sets forth a set of
determinate rules and meanings that the Founders decided upon or intended as to what
legislatures and judges can legitimately do. This has been labeled as the originalism
interpretation of the Constitution. However, there was a depth of disagreement by the Founders
at the Constitutional Convention and by the state conventions during the process of ratification.
The Constitution resulted from a series of compromises and the decision to leave the
Constitution open to amendment testified to the framers realization that the nations
Constitution and its interpretation would have to change with American culture, albeit slowly, in
order to survive. How would originalism explain how the equal protection clause should be
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interpreted today in light of the fact that in the 1760s the founding fathers knew that most
schools were segregated even in the Federal District of Columbia, or the cruel and unusual
punishments clause when flogging was common practice on eighteenth-century ships?
The Constitution should be viewed not as a settled arrangement for American governance, but as
a creative compromise among diverse authors. The Founders were attuned to a deliberative,
open-ended way of conducting public life: an ingenious, if imperfect, solution that has endured
even as similar experiments in other countries have not, precisely because it is premised on
accommodating differences and changing peoples views, not embedding them in stone.
Most judges reject originalism and use textual language, history, context, relevant traditions,
precedent, purposes and consequences (including the effect upon other branches of the
government) to interpret the Constitution. Judges should always regard the Constitution as
containing unwavering values that must be applied to ever changing circumstances in todays
world. Only by such an interpretation can our Constitution and the courts maintain public
respect and acceptance.
The recent cases of DistrictofColumbiav.Heller (2008) and McDonaldv.Chicago (2010),
examined the right to bear arms set forth in the Second Amendment. These cases illustrate the
differing opinions as to the proper interpretation of our Constitution. In both cases the right to
prohibit the possession of a handgun was challenged. The majority of five justices stated that
this amendment had two underlying values: to protect a communities collective right of selfdefense acting through a militia, and the major underlying value which was that a person had a
personal right to bear arms for self defense as the delegates at that time were fearful of the
English Catholic King disarming the protestant colonials. This latter value acknowledged that
the right to bear arms was a fundamental right and therefore a Second Amendment right ( Heller)
and incorporated in the substantive due process clause of the Fourteenth Amendment
(McDonald). The majority did not consider changing circumstances as the minority did.
The minority of four thought that the major underlying value and purpose of the right to bear
arms set forth in the Second Amendment was to protect the militias. There was fear that the
right of Congress to regulate militias as set forth in Article I would allow Congress to weaken or
disband militias, and therefore the Founders wanted to protect militias. The minority recognized
that the individual right to bear arms for self defense was important in primarily rural America
but, in light of changing circumstances to an urban society, this right can be limited because of
the greater risk of taking lives. Protecting innocent lives by banning urban handguns does not
disproportionally burden the interest the Second Amendment seeks to protect, self defense.
Therefore, the right to possess a handgun is not now a fundamental right and is not incorporated
in the Second Amendment or substantive due process clause as to either federal or state action.
References:
The above thoughts and comments are taken in part from:
TheAudacityofHope:ThoughtsonReclaimingtheAmericanDream by Barack Obama, 2008, Vintage
ReadingObama:Dreams,Hope,andtheAmericanPoliticalTradition by James T. Kloppenberg, 2010,
Princeton University Press
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HarvardMagazine, A Nation Arguing with its Conscience, November-December 2010
MakingOurDemocracyWork by Justice Stephen Breyer, 2010, Alfred A. Knopf
Also see pg. 305 for an analysis of the Heller and McDonald decisions.
INTRODUCTION-2: In addition to the sources of the law, the function of the state and federal
courts in interpreting and applying the law as well as the applicable procedure is summarized as
follows:
Comparison of civil law: A case brought by a person (plaintiff) against another (defendant) to
compensate for injury and damages and possible punitive damages and criminal law: case
brought by government, state prosecutor or federal district attorney, to punish etc.
Examples of civil law: automobile negligence suit, suit for breach of contract or on promissory
note. Ex: A plaintiff claims in Complaint to have a cause of action for negligence, or for
breach of contract.
Examples of criminal law: murder, manslaughter, arson, burglary, theft, sale of drugs. See pg.
213 for Indiana Offenses and Sentences.
Procedure in civil law: Complaint (sets forth the plaintiffs claims), summons (notifies
defendant that suit has been filed and an answer must be filed within a certain time period),
appearance in court by defendant, answer of defendant to complaint, discovery, pre-trial
conference, trial to court or jury, verdict, judgment, and appeal. Plaintiff must prove his case
by a preponderance of the evidence. If an Appearance and Answer is not filed with the
court within the time limits set forth in the Summons, a default judgment in the full
amount of the complaint may be entered against the defendant.
Procedure in criminal law: Grand Jury Indictment or Information, arrest warrant (probable
cause), arrest, bail, Initial Hearing with plea (Arraignment), discovery, Pretrial Hearing
(Omnibus Hearing), trial to judge or jury, verdict, judgment, and appeal. The prosecutor must
prove his case beyond a reasonable doubt. See pg. 278 for Criminal Procedure Outline.
The Federal Court System: District Court (94 in all-2 in Indiana), Circuit Court of Appeals
(13), United States Supreme Court, Court of International Trade, and special courts. All judges
(except special courts) are appointed by the President for life (good behavior). Nine members of
Supreme Court since 1869. The number of Supreme Court justices is not set forth in the
Constitution.
The Supreme Court hears appeals from lower federal courts by Certiorari, has original
jurisdiction in some matters, and hears appeals from the state highest court by Certiorari.
A Petition for a Writ of Certiorari is a request to the Supreme Court to hear a matter.
Jurisdiction of Federal Courts: Set forth in Article III, Sec. 2. The main jurisdiction is to hear
cases involving federal laws, the Constitution, and controversies between citizens of different
states (the amount of damages claimed must be at least $75,000.00).
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A U.S. Supreme Court case is cited as follows: 181 US 612. The first number is the volume and
the second is the page.
The State Court System: Circuit, Probate or Superior Courts, Indiana Appellate Courts,
Indiana Supreme Court. In Indiana trial judges are elected, appellate judges are appointed with
retention vote.
A state Circuit Court has unlimited jurisdiction over all matters which are not exclusively
under federal jurisdiction. State court jurisdiction includes state criminal, civil, juvenile,
domestic relations, probate, and state and federal constitutional.
An Indiana Supreme Court case is cited as follows: 247 IN 361, 62 NE 2d 33. The first
number is the volume and the second is the page number in the volume.
NOTE: Some matters are exclusively within federal court jurisdiction (a criminal charge of
violating a federal controlled substance law); some exclusively within state court jurisdiction (a
state criminal charge of murder, which, however, can be appealed to a federal court to determine
a federal constitutional question; and matters which are within both state and federal court
jurisdiction arising between citizens of different states, called diversity of citizenship (Ex: a
civil negligence suit arising out of an automobile accident wherein the plaintiff and defendant are
citizens of different states). If a diversity of citizenship case is first filed in a state court, the
defendant may have it removed to a federal court if $75,000.00 or more.
STATE AND FEDERAL COURTS

US Supreme Court --------------Writ of Certiorari**--------Indiana Supreme Court-----!
Nine Justices *
Five Justices
^
Appointed for life by President with
Nominated and retention vote !
advice and consent of US Senate.***
^
!
^
!
!
!
!
^
Writ of Certiorari*****
!
!
^
!
!
!
!
!
US Circuit Court of Appeals
Indiana Appellate Courts
!
Thirteen Circuits-three judge
Five courts-three judge panels. !
panels. Appointed for life w/
Nominated and retention vote !
advice and consent of US Senate.
^
!
^
!
!
!
!
^
!
!
!
US District Courts -------------Diversity of Citizenship------ Indiana Circuit and---------^
Ninety-four courts
($75,000.00 or more)
Superior Courts
****
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Cases usually heard by one judge.
Appointed for life w/advice and
consent of US Senate.
Cases heard by one judge

Elected
* Number of justices not set in Constitution. Congress decides. Nine since 1869.
** Must be a federal question (involving a federal statute or the US Constitution).
*** Authority: Article I Sec. 8 cl. 9 and Article III Sec. 1.
**** Direct appeal from Circuit or Superior Court to Indiana Supreme Court in cases involving
the death sentence, life without parole sentence, and where a state statute is declared
unconstitutional by the trial court.
*****The US Supreme Court usually selects cases wherein the Circuit Courts of Appeals have
conflicting opinions.
Note 1: Total certiorari requests filed with US Supreme Court in 2011 were approximately
10,000. Approximately 100 were granted, heard and opinions issued. Total US District Court
filings of federal questions, diversity and criminal were approximately 325,000. Total US Circuit
Court of Appeals filings were approximately 55,000. Most law is made by state legislatures and
state judiciary (family law; property law, most tort, business, criminal law etc.). Over 100
million cases filed in state courts every year.
Note 2: The US Court of Appeals for the Seventh Circuit (Chicago) hears cases appealed from
the trial US District Courts in Wisconsin, Illinois and Indiana. Indiana has two US District
Courts: (1) The US District Court for the Northern District of Indiana with judges sitting in Fort
Wayne, Hammond, Lafayette and South Bend and (2) The US District Court for the Southern
District of Indiana with judges sitting in Evansville, New Albany and Indianapolis.
See: http://www.uscourts.gov/court_locator.aspx
INTRODUCTION-3: The above concepts are incorporated in and illustrated by State of
Indianav.DavidJamesRoberts.
Suggested discussion points by chapter in ChangeofVenue are as follows:
Chapter 1:
Indiana (1816) and Steuben County (1837): The naming of Indiana and the XI Amendment
(1798).
Land in western Virginia Colony from British Empire to Six Nations of the Iroquois (1768
Treaty of Fort Stanwick) to Philadelphia trading company to Indiana Land Company (1776).
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Virginia claims this land and suit filed in 1792 in Supreme Court by Indiana Land Company.
Graysonv.Virginia (1796) and Hollingsworthv.Virginia (1798). Chisholmv.Georgia(1793)
Northwest Ordinance of 1787 and Indiana Territory (1800).
Early disrespect for federal courts: Grayson and The Cherokees
See Note 1 and Note 2: Indiana miscegenation law.
THE CHEROKEES
Defeat for the rule of law
The Cherokee Indians owned land, rocks and minerals that the white Georgia settlers wanted.
In 1829 gold was found. The Cherokees held there land pursuant to a treaty with the United
States. The chief of the Cherokees was John Ross.
Georgia in the early 1830s passed laws nullifying all Cherokee laws, prohibiting the Cherokee
legislature from meeting and ordered the arrest of any Indian who argued against moving west
which the laws required. President Andrew Jackson sided with Georgia and refused to send
federal troops to protect the Cherokee treaty rights.
Attempts to enforce Cherokee rights:
1. Corn Tassle, a Cherokee, was arrested by Georgians on Indian land for allegedly committing
a crime on Indian land. He applied to the U.S. Supreme Court for relief but before his petition
could be heard, Georgia executed him.
2. The Cherokee Nation then brought suit in the U. S. Supreme Court (30 US 1 (1831) to nullify
the Georgia laws as interfering with the treaty rights. The court held it had no original
jurisdiction and dismissed the case.
3. Georgia laws required all white persons living within the Cherokee Nation to take an oath to
support Georgia laws. A missionary, Samuel Worcester, refused, was arrested and sentenced to
four years in prison. He appealed his criminal conviction to the U.S. Supreme court (Worcester
v. Georgia 31 US 515, 1832). The court upheld the treaty and said that Georgia could not enter
Cherokee lands without permission and could not apply Georgia law there. Worcester was
ordered released. The state judge would not release him. President Jackson would not intervene.
After much public pressure he was pardoned by the governor.
4. In 1835, without any authorization from Chief Ross or the Cherokee government, a small
group of Cherokees were induced to go to Washington by federal representatives and the group
signed a treaty with the United States agreeing to the removal of the tribe to the west. The
Senate promptly approved the treaty. Federal troops then forcibly removed most of the
Cherokee to Oklahoma. Seventeen thousand Cherokee were removed and many starved and died
on the Trail of Tears.
Quatie Ross, wife of John Ross, died along the trail and her burial site and tombstone are
just one mile from Little Rock Arkansas Central High School. It would be 115 years later when
federal troops would enforce the law at Central High School. Brown v. Board of Education 347
US 483 (1954).
Chapter 3:
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The judge: A judges background and the possible effect upon a judges actions and opinions.
The U.S. Senate role in federal judge appointments. Elective v. appointive judges.
See Note 7: Requirements to practice law and be a judge in Indiana: Until 1932, Article VIII of
the Indiana Constitution provided that Every person of good moral character, being a voter,
shall be entitled to admissions to practice law in all courts of justice. There was no requirement
of legal studies, law school or bar examination. Until 1970, there was no statute or Indiana
Constitutional provision that required that a judge be admitted to the practice of law.
See Note 4: Civil Rights Act and conspiracy to violate.
Chapter 4:
The Circuit Court history and jurisdiction.
The five divisions of the Circuit Court (criminal, civil, juvenile, domestic relations, and probate)
and example cases in each division.
1. Domestic relations: Requirements for divorce, custody, property division, alimony, support
and visitation.
2. Juvenile: Originally part of adult criminal law. Now separate law based upon parens
patriae for children under eighteen committing acts of delinquency. Limited sanctions. Waiver
as adult for serious offenses. See pg. 293 for Juvenile Procedure and pg. 281 for Juvenile Law.
3. Civil: Indiana procedure concerning medical malpractice (negligence): Before filing suit,
plaintiff must first present the alleged malpractice to a Medical Review Board for their non
binding written opinion. At trial, plaintiff must present at least one physicians testimony that
the defendants actions were negligent.
4. Criminal: Probable cause and search warrant (IV Amendment); hot pursuit arrests; defenses:
entrapment, defense of self and property (use of deadly force and no duty to retreat), insanity
(traditional 1843 MNaghten Rule: knowing right from wrong), Indiana Rule (pg. 272), and ALI
rule (a mental disease or defect which causes defendant not to realize that the conduct was
criminal or causes the defendant to not be able to conform his conduct to the law), and voluntary
intoxication (not a defense). The defendant has the burden of proof to prove insanity. Indiana
burden is by a preponderance of the evidence (pg. 276). Federal rule must be severe defect and
burden of proof is by clear and convincing evidence.
Sterilization case: Example of the power of a judge and changing opinions as to a
constitutional law.
See Note 12 for examples of actual cases.
DIVISIONS OF THE INDIANA CIRCUIT COURT

Divisions of the Indiana Circuit Court:
(1) Domestic Relations (2) Probate (3) Civil (4) Criminal and (5) Juvenile
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1. Domestic Relations:
a. Divorce, legal separation (A mensa et thoro, from bed and board): Legal Separation for one
year if it is intolerable for both parties to live together but the marriage should be maintained. IC
31-15-3
b. Divorce, absolute (Vinculo matrimonii, from the bond of marriage):
Traditional basis: Incurable insanity or adultery. Indiana: IC 31-15-2-3 and IC 31-15-2-13.
Indiana basis: Irretrievable breakdown, conviction of a felony subsequent to marriage,
impotence existing at marriage, and incurable insanity for a period of two years. IC 31-15-2 No
fault divorce and waiver of trial now also allowed if parties consent.
Matters to be decided: Division of property and debts, alimony, support (schedule), custody
and visitation (guidelines), and subsequent hearing for modification or contempt.
2. Probate: Wills, trusts, probate of wills, testate and intestate administration, Indiana and
federal inheritance and estate taxes, estate planning.
Related topics to estate planning: Deeds, recording act, tenancy in common, joint tenancy,
tenancy by the entireties, transfer on death real and personal property, leases, notes and
mortgages.
3. Civil: All civil liability is either voluntarily assumed as by contract, or involuntarily imposed
by law as in tort. See Equity pg. 189 for equitable remedies.
A. Contract: There are four essential elements to create a contract.
1. Mutual assent or consent: Usually involves an offer and an acceptance. A contract is void
if there is physical duress, fraud in the inducement or mutual mistake; and a contract is voidable
if threats, undue influence and fraud in the procurement.
2. Consideration: Adequacy and preexisting obligation (exchange of something of value).
3. Legality: Blue laws, licenses (regulatory or revenue), usury, exculpatory clauses.
4. Capacity: Minors, mental illness, known intoxication (voidable contract).
Voidable means by one party only (Ex: the minor or the party threatened)
Even though a contract exists, it may be unenforceable if it does not comply with the Statute
of Frauds. The statute provides that certain contracts must be evidenced by a sufficient writing
to be enforceable. The statute includes contracts for the sale of real estate, contracts not to be
performed within a year, and contracts for the sale of goods of $500.00 or more (UCC).
Under the Parole Evidence Rule, an integrated contract may not be changed by virtue of
prior or contemporaneous statements.
Remedies for breach of Contract: Monetary (compensatory and punitive), and equitable
remedies such as reformation, specific performance, rescission, and injunction.
B. Torts: There are three types of torts: intentional, unintentional as in negligence, and
unintentional strict liability as in products liability.
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1. Intentional: Assault, battery, false arrest, defamation (slander and libel), fraudulent
misrepresentation, invasion of privacy, trespass to real property, nuisance and conversion.
Damages are compensatory (Examples: the value of property damaged or cost to repair; and for
personal injuries, lost wages, hospital and doctor expenses, pain and suffering); and punitive for
intentional and outrageous conduct with fraudulent or evil motive. Amount must be reasonable
to deter such future conduct.
2. Negligence: Unintentional act which has four required elements:
a. Duty to act or refrain from acting: based upon a reasonable person standard, statutory
obligation (safety standards) or duty to act (Ex: non negligent driver hits jaywalker, baby sitter,
volunteer).
b. A breach of the duty which
c. Proximately causes
d. Injury or damages.
Defenses to a negligence charge: Contributory negligence, comparative negligence, fellow
servant and assumption of risk.
Damages are compensatory.
3. Strict Liability: Unintentional act which causes damages:
a. Abnormally dangerous activities (Ex: storing explosives and blasting); wild animals and
dangerous domestic animals (liability for trespassing cats and dogs only if owner negligent) ;
products liability and Workers Compensation Statutes.
b. Products liability: Sec. 402A Restatement of Torts. Liability for selling a product in a
defective condition which is unreasonably dangerous to the user or consumer. Manufacturer,
wholesaler and merchants are all liable.
c. Workers Compensation Statutes abolish defenses of fellow servant, contributory or
comparative negligence and assumption of risk.
Damages are compensatory.
4. Criminal: Felonies (a year or more imprisonment) and misdemeanors (a year or less
imprisonment) Infractions are not criminal.
Examples: murder, manslaughter, battery, kidnapping, rape robbery, arson theft, burglary,
fraud, trespass and drug offenses. Pg. 213
Procedure: Pg. 278
5. Juvenile:
Law: Pg 281
Procedure: Pg. 293
Jurisdiction Pg. 282
Waiver: Pg. 290 and 294
Chapter 5:
Criminal Information and Grand Jury: History of Grand Jury, V Amendment
Arrest Warrant: IV Amendment
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Bail (See also Chapter 7): VIII Amendment
Traditional Murder (with intent, malice and premeditation). Indiana law now does not require
malice or premeditation. Pg. 216
Felony murder (no intent to murder but causing death in commission of felony)
Voluntary Manslaughter: voluntary killing (intent to kill with malice but no premeditation as in
the heat of passion)
Involuntary Manslaughter (no malice, premeditation or intent to kill)
Examples of other crimes:
Theft: Exerting unauthorized control over the property of another
Battery: Intentionally touching another person in a rude or angry manner
Burglary: Breaking and entering a dwelling at night with intent to commit a felony
Arson: By means of fire to intentionally damage a dwelling
Robbery: Intentionally taking property from another person by using or threatening force or by
putting another person in fear
Chapters 6 and 9:
Arraignment: Advice of Constitutional rights, appointment of attorney if indigent, and plea.
Constitutional rights of a defendant in a criminal proceeding: the right to not testify against
himself (V Amendment); the right to a speedy and public trial by jury; the right to be informed of
the charges; the right to confront witnesses against him; the right to compulsory process to obtain
witnesses on his behalf; and the right to the assistance of counsel (VI Amendment).
Chapter 7:
Bail and Petition to be Let to Bail. VIII Amendment. Pg. 266 and Burden of Proof pgs. 263 and
42
Chapter 8:
Change of Venue: from judge, from county.
Chapter 10:
Omnibus hearing. Right to proposed witness list and exhibits. Motion in limine. Completion of
depositions and interrogatories. Setting trial date.
Chapters 11-21, 23:
Trial phase one: Reasons for bifurcation.
Ch. 11-12, History of right to vote and trial by jury; jury questionnaire, voir dire and jury
selection. DNA now available. See Indiana Statutes concerning DNA pg. 300
Ch. 13, Jury instructions (presumption of innocence, reasonable doubt, credibility of witnesses).
Ch. 14-19, The trial evidence. Chain of custody, arrest and search warrants (Ch. 14). Miranda
Rights to remain silent and to have an attorney if indigent (Ch. 17 and see Miranda Note 13).
Arrest of Roberts (Ch. 17): Discuss right of police and citizens to arrest pg. 250 and Detention of
Mentally Ill pg. 255. What order would you have used in presenting evidence? What closing
statements would you have used?
Ch. 20, Closing statements. How would you have decided-guilty or not guilty?
Ch. 21, Jury determines facts and the law (jury nullification and lesser included offenses).
Ch. 23, The verdicts. See pg. 277 for current Indiana law concerning Jury Verdicts for Murder.
Sentencing: Judge determines sentence except for jury verdict of death or life without parole.
Discuss objections to evidence throughout the trial (hearsay and best evidence) and defendants
decision not to testify.
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Chapter 26:
Trial phase two. How would you have decided-death or life?
Constitutional provisions that punishment shall be proportional and not vindictive.
Chapter 27:
Motion to Correct Errors: the trial courts decision declaring the Indiana death sentence statute
unconstitutional, Furman and Woodson.
Note that less than death sentences can be constitutionally mandatory. Ex: Mandatory life
imprisonment without the possibility of parole for possession of more than 650 grams of cocaine.
Chapter 28:
Judicial review: Marburyv.Madison and John Marshall.
Chapter 29:
Cruel and unusual punishments (two concepts: cruel and unusual, and proportional): a mandatory
death sentence is not proportional.
Bill of Rights and 14th Amendment: procedural and substantive due process:
Two concepts of substantive due process:
1. Fundamental rights: See in depth discussion in this chapter and Miranda(fundamental
rights must be explained), Mapp,Gideon (see Note 13) and Roev.Wade(9thAm.) 410 U.S.
113 (1973).
2. A law must be reasonable and not arbitrary or unjust: DredScottv.Sandford, 1857, 19
How 393, the first case establishing substantive due process. Commencing with Lochnerv.
NewYork, 1905, 198 U.S. 45, until 1937 the Supreme Court operated as a super-legislature,
rather than in performance of their constitutional function of judicial review, to determine if a
law was reasonable and if not negate social and economic legislation with which they did not
agree:SchechterPoultryv.U.S.,1935, 295 U.S. 495. In NLRBv.Jones&Laughlin, 1937,
301 U.S. 1, the court adopted the previous minority opinion of Justice Oliver Wendell Holmes,
Jr. (1902-1932) and declared that legislative acts would be upheld if rational legislators regarded
the legislation as a reasonable method or technique of reaching the desired result. Even if the
judges completely disagree, courts should not substitute their social and economic beliefs for the
judgment of legislative bodies who are elected to pass laws.
Equal protection in 14th Amendment. Plessyv.Ferguson, (separate but equal), 1896, 163 U.S.
537, and Brownv.BoardofEducation, 1954, 347 U.S. 483.
5th Amendment due process clause includes equal protection of the law as a fundamental right.
Discuss Korematsuv.UnitedStates , 1944, 323 U.S. 214. Japanese ancestry citizens removal
from California and placement in camps by virtue of a federal executive order based upon the
war powers of the legislative and executive branches of the United States government was
challenged as a violation of procedural due process and substantive due process (equal protection
fundamental right) under the Fifth Amendment.
See following Additional Bibliography
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Chapter 30: Indiana Supreme Court decision.
(1978)
Robertsv.StateofIndiana, 375 N. E. 2d 215
NOTE: Most important United States Supreme Court cases are set forth in:
http://en.wikipedia.org/wiki/Landmark_decisions_in_the_United_States
ADDITIONAL BIBLIOGRAPHY
A. Due Process: 5th Amendment for federal action and 14th Amendment for state action.
Dred Scott (1857), federal law: First case to decide that if a law is unreasonable and unjust it
violates substantive due process. Missouri Compromise held unconstitutional.
Lochner (1905), state law; and Schecter (1935), federal law: The Supreme Court, rather than
deferring to the legislature, acted as a super legislature to decide if a law was unreasonable and
unjust. Court held both laws unconstitutional.
Jones and Laughlin (1937), federal law: The Supreme Court deferred to the rational decisions
of the legislature. Overruled Lochner and Schecter. Wagner Act (labor law) upheld.
B. Equal Protection: Contained in the 5th Amendment as substantive due process. It is a
fundamental right for federal action, and 14th Amendment for state action.
Plessy (1896): separate but equal is constitutional. Train segregation upheld.
Brown (1954): School segregation unconstitutional. Overruled Plessy.
Korematsu (1944): Segregating U.S. citizens of Japanese ancestry was constitutional.
C. Interstate Commerce: Article I Sec 8.
What is commerce and what is interstate?
Gibbons v. Ogden (1824): Broad interpretation of what is commerce-more than just sale of
goods-includes transportation.
Lochner (1905), state law: Bakeries were not interstate.
Schecter (1935), federal law: Regulation of the poultry business not interstate
Jones and Laughlin (1937), federal law: Wagner Act (labor law) upheld.
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Limit on what is commerce: National Federation v. Sebelius (2012), federal law: Affordable
Care Act. Mandatory purchase of health insurance by individuals not a proper exercise of the
"commerce clause" power. (It is constitutional however under the power to tax). 5-4 decision.
D. Necessary and Proper Clause: Article I Sec. 8.
McCulloch v. Maryland (1819): The powers of Congress are not limited to those expressly
stated in the Constitution. Congress also has implied powers from the express powers to do
what is necessary and proper for the good of the nation. Power to create nation bank upheld
although no express powers to do so in Sec. 8.
National Federation v. Sebelius (2012). See above: The act is not a proper exercise of the
"necessary and proper" power.
United States Constitution (1788)

(Some provisions are omitted)
ARTICLE I
Section 2
The House of Representatives shall be composed of Members chosen every second Year by the
People of the several States, and the Electors in each State shall have the Qualifications requisite
for Electors of the most numerous Branch of the State Legislature.
Section 3
The Senate of the United States shall be composed of two Senators from each State, chosen by
the Legislature thereof, for six Years; and each Senator shall have one vote.
Section 8
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the
debts and provide for the common defense and general welfare of the United States; but all
duties, imposts and excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate commerce with foreign nations, and among the several states, and with the Indian
tribes;
To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies
throughout the United States;
To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights
and measures;
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To provide for the punishment of counterfeiting the securities and current coin of the United
States;
To establish post offices and post roads;
To promote the progress of science and useful arts, by securing for limited times to authors and
inventors the exclusive right to their respective writings and discoveries;
To constitute tribunals inferior to the Supreme Court;
To define and punish piracies and felonies committed on the high seas, and offenses against the
law of nations;
To declare war, grant letters of marque and reprisal, and make rules concerning captures on land
and water;
To raise and support armies, but no appropriation of money to that use shall be for a longer term
than two years;
To provide and maintain a navy;
To make rules for the government and regulation of the land and naval forces;
To provide for calling forth the militia to execute the laws of the union, suppress insurrections
and repel invasions;
To provide for organizing, arming, and disciplining, the militia, and for governing such part of
them as may be employed in the service of the United States, reserving to the states respectively,
the appointment of the officers, and the authority of training the militia according to the
discipline prescribed by Congress;
To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten
miles square) as may, by cession of particular states, and the acceptance of Congress, become the
seat of the government of the United States, and to exercise like authority over all places
purchased by the consent of the legislature of the state in which the same shall be, for the
erection of forts, magazines, arsenals, dockyards, and other needful buildings;
And
To make all laws which shall be necessary and proper for carrying into execution the foregoing
powers, and all other powers vested by this Constitution in the government of the United States,
or in any department or officer thereof.
Section 9
The migration or importation of such persons as any of the states now existing shall think proper
to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred
and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for
each person.
The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of
rebellion or invasion the public safety may require it.
No bill of attainder or ex post facto Law shall be passed.
No capitation, or other direct, tax shall be laid, unless in proportion to the census or enumeration
herein before directed to be taken.
No tax or duty shall be laid on articles exported from any state.
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No preference shall be given by any regulation of commerce or revenue to the ports of one state
over those of another: nor shall vessels bound to, or from, one state, be obliged to enter, clear or
pay duties in another.
No money shall be drawn from the treasury, but in consequence of appropriations made by law;
and a regular statement and account of receipts and expenditures of all public money shall be
published from time to time.
No title of nobility shall be granted by the United States: and no person holding any office of
profit or trust under them, shall, without the consent of the Congress, accept of any present,
emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.
ARTICLE II
Section 1
The President shall be elected as follows: Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators
and Representatives to which the State may be entitled in the Congress. The Electors shall meet
in their respective States, and vote by Ballot for two persons. The person having the greatest
number of votes shall be the President. The person having the next greatest number of votes
shall be the Vice President. Note: The above section has additional provisions.
Section 2
The President shall be commander in chief of the Army and Navy of the United States, and of
the militia of the several states, when called into the actual service of the United States; he may
require the opinion, in writing, of the principal officer in each of the executive departments, upon
any subject relating to the duties of their respective offices, and he shall have power to grant
reprieves and pardons for offenses against the United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties,
provided two thirds of the Senators present concur; and he shall nominate, and by and with the
advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls,
judges of the Supreme Court, and all other officers of the United States, whose appointments are
not herein otherwise provided for, and which shall be established by law: but the Congress may
by law vest the appointment of such inferior officers, as they think proper, in the President alone,
in the courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of the
Senate, by granting commissions which shall expire at the end of their next session.
ARTICLE III
Section 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of
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the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at
stated Times, receive for their Services a Compensation which shall not be diminished during
their Continuance in Office.
Section 2
The judicial power shall extend to all cases, in law and equity, arising under this Constitution,
the laws of the United States, and treaties made, or which shall be made, under their authority;-to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty
and maritime jurisdiction;--to controversies to which the United States shall be a party;--to
controversies between two or more states;--between a state and citizens of another state;-between citizens of different states;--between citizens of the same state claiming lands under
grants of different states, and between a state, or the citizens thereof, and foreign states, citizens
or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state
shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before
mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with
such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be
held in the state where the said crimes shall have been committed; but when not committed
within any state, the trial shall be at such place or places as the Congress may by law have
directed.
ARTICLE IV
Section 2
The citizens of each state shall be entitled to all privileges and immunities of citizens in the
several states.
A person charged in any state with treason, felony, or other crime, who shall flee from justice,
and be found in another state, shall on demand of the executive authority of the state from which
he fled, be delivered up, to be removed to the state having jurisdiction of the crime.
No person held to service or labor in one state, under the laws thereof, escaping into another,
shall, in consequence of any law or regulation therein, be discharged from such service or labor,
but shall be delivered up on claim of the party to whom such service or labor may be due.
ARTICLE V
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The Congress, whenever two thirds of both houses shall deem it necessary, shall propose
amendments to this Constitution, or, on the application of the legislatures of two thirds of the
several states, shall call a convention for proposing amendments, which, in either case, shall be
valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of
three fourths of the several states, or by conventions in three fourths thereof, as the one or the
other mode of ratification may be proposed by the Congress; provided that no amendment which
may be made prior to the year one thousand eight hundred and eight shall in any manner affect
the first and fourth clauses in the ninth section of the first article; and that no state, without its
consent, shall be deprived of its equal suffrage in the Senate.
ARTICLE VI
Clause 1: All Debts contracted and Engagements entered into, before the Adoption of this
Constitution, shall be as valid against the United States under this Constitution, as under the
Confederation.
Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
Clause 3: The Senators and Representatives before mentioned, and the Members of the several
State Legislatures, and all executive and judicial Officers, both of the United States and of the
several States, shall be bound by Oath or Affirmation, to support this Constitution; but no
religious Test shall ever be required as a Qualification to any Office or public Trust under the
United States.
AMENDMENT I (1791)
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble and to petition the Government for a redress of grievances.
AMENDMENT II (1791)
A well regulated Militia, being necessary to the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.
AMENDMENT III (1791)
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No Soldier shall, in time of peace be quartered in any house, without the consent of the
Owner, not in time of war, but in a manner to be prescribed by law.
AMENDMENT IV (1791)
The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon
probable cause, supported by Oath or affirmation and particularly describing the place to be
searched, and the persons or things to be seized.
AMENDMENT V (1791)
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in the cases in the land or naval forces, or
in the Militia, when in actual service in time of War or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself; nor be deprived of life, liberty, or property,
without due process of law; nor shall private property be taken for public use, without just
compensation.
AMENDMENT VI (1791)
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by
an impartial jury of the state and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor; and to have the Assistance of Counsel for his defense.
AMENDMENT VII (1791)
In suits at common law, where the value in controversy shall exceed twenty dollars, the
right of trial by jury shall be preserved, and no fact tried by jury, shall be otherwise
reexamined in any Court of the United States, than according to the rules of the common law.
AMENDMENT VIII (1791)
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.
AMENDMENT IX (1791)
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The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people.
AMENDMENT X (1791)
The powers not delegated to the United States by the Constitution, nor prohibited by the States,
are reserved to the States respectively, or to the people.
Note: The rights in the bold sections above apply only to federal action.
AMENDMENT XI (1798)
The Judicial power of the United States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.
AMENDMENT XIII (1865)
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party
shall have been duly convicted, shall exist within the United States, or any place subject to their
jurisdiction.
The Congress shall have the power to enforce this article by appropriate legislation.
Note: Mississippi did not ratify until 2013.
AMENDMENT XIV (1868)
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction
thereto, are citizens of the United States, and the State wherein they reside. No State shall make
or enforce any law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the laws.
AMENDMENT XV (1870)
The right of the citizens of the United States to vote shall not be denied or abridged by the
United States or by any State on account of race, color, or previous condition of servitude.
The Congress shall have the power to enforce this article by appropriate legislation.
Note: Tennessee did not ratify until 1997.
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INDIANA OFFENSES AND SENTENCES
OFFENSES AGAINST THE PERSON
Homicide
216 (Intentional Murder, Felony Murder, Voluntary Manslaughter, Involuntary
Manslaughter, Reckless Homicide)
Battery 218
Kidnapping 222
Rape 223
Robbery 229
OFFENSES AGAINST PROPERTY
Arson-Mischief: 230 Class B or A Felony
Burglary : 232 Class C or B Felony
Trespass: 232 Class A Misdemeanor or Class D Felony
Theft: 235 Class D to C Felony
Conversion: 237 Class A Misdemeanor to Class D Felony
Forgery: 237 Class D to C Felony
Fraud: 240 Class D Felony
Check Deception: 241 Class A Misdemeanor to Class D Felony
MISCELLANEOUS
Controlled Substances: IC 35-48-4
Motor Vehicle Operation Violations: IC 9-21-8
Attempt: 267
Aiding (Accessory) 267
Conspiracy 268
FELONY SENTENCES 243

Murder: 45-65 years plus $10,000.00 Advisory: 55 years. Judge decides sentence.
However, if death or life without parole requested by the prosecutor, the jury and not the judge
decides the sentence. 247
The judge decides the sentence in all of the following:
Class A: 20-50 years plus $10,000.00 Advisory: 30 years
Class B: 6-20 years plus $10,000.00 Advisory: 10 years
Class C: 2-8 years plus $10,000.00 Advisory: 4 years
Class D: 6 months - 3 years plus $10,000.00 Advisory: 1 1/2 years
May be reduced to a Class A Misdemeanor
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Habitual Offender; With 3 felonies an additional penalty can be added equal to the advisory
sentence up to three times the advisory sentence not to exceed 30 years. IC 35-50-2-8
MISDEMEANOR SENTENCES 249
Class A: Not more than 1 year plus $5,000.00
Class B: Not more than 180 days plus $1,000.00
Class C: Not more than 60 days plus $500.00
INFRACTION SENTENCES IC 34-28-5-4 (Fines only plus court costs-no imprisonment)
Class A: Max. $10,000.00
Class B: Max. $1,000.00
Class C: Max. $500.00
Class D: Max. $25.00
NOTE: The Indiana Criminal Code was amended substantially, effective July 1, 2014.
The law assigns new penalties to many crimes; adds, changes and deletes some crimes; and
changes the classification of felonies from four Classes (A-D) to six Levels (1-6).
IC 35-50-2-4 to IC 35-50-2-7
Level 1:
Level 2:
Level 3:
Level 4:
Level 5:
Level 6:
20-50 years, advisory 30 years, $10,000.00 fine

10-30 years, advisory 17years, $10,000.00 fine
6-30 months, advisory 1 year, $10,000.00 fine
INDIANA CODE
http://iga.in.gov/legislative/laws/2014/ic/
IC 35-42
ARTICLE 42. OFFENSES AGAINST THE PERSON
IC 35-42-1
Chapter 1. Homicide
IC 35-42-1-0.5
Abortions exempt
Sec. 0.5. Sections 1, 3, and 4 of this chapter do not apply to an abortion performed in
compliance with:
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(1) IC 16-34; or
(2) IC 35-1-58.5 (before its repeal).
As added by P.L.261-1997, SEC.2.
IC 35-42-1-1
Murder
Sec. 1. A person who:
(1) knowingly or intentionally kills another human being;
(2) kills another human being while committing or attempting to commit arson, burglary,
child molesting, consumer product tampering, criminal deviate conduct, kidnapping, rape,
robbery, human trafficking, promotion of human trafficking, sexual trafficking of a minor, or
carjacking;
(3) kills another human being while committing or attempting to commit:
(A) dealing in or manufacturing cocaine or a narcotic drug (IC 35-48-4-1);
(B) dealing in or manufacturing methamphetamine (IC 35-48-4-1.1);
(C) dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2);
(D) dealing in a schedule IV controlled substance (IC 35-48-4-3); or
(E) dealing in a schedule V controlled substance; or
(4) knowingly or intentionally kills a fetus that has attained viability (as defined in IC 1618-2-365); commits murder, a felony.
As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.25; P.L.3261987, SEC.2; P.L.296-1989, SEC.1; P.L.230-1993, SEC.2; P.L.261-1997, SEC.3; P.L.17-2001,
SEC.15; P.L.151-2006, SEC.16; P.L.173-2006, SEC.51; P.L.1-2007, SEC.230.
IC 35-42-1-2
Causing suicide
Sec. 2. A person who intentionally causes another human being, by force, duress, or
deception, to commit suicide commits causing suicide, a Class B felony.
As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.26.
IC 35-42-1-2.5
Assisting suicide
Sec. 2.5. (a) This section does not apply to the following:
(1) A licensed health care provider who administers, prescribes, or dispenses medications or
procedures to relieve a person's pain or discomfort, even if the medication or procedure may
hasten or increase the risk of death, unless such medications or procedures are intended to cause
death.
(2) The withholding or withdrawing of medical treatment or life-prolonging procedures by a
licensed health care provider, including pursuant to IC 16-36-4 (living wills and life-prolonging
procedures), IC 16-36-1 (health care consent), or IC 30-5 (power of attorney).
(b) A person who has knowledge that another person intends to commit or attempt to commit
suicide and who intentionally does either of the following commits assisting suicide, a Class C
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felony:
(1) Provides the physical means by which the other person attempts or commits suicide.
(2) Participates in a physical act by which the other person attempts or commits suicide.
As added by P.L.246-1993, SEC.1. Amended by P.L.1-1994, SEC.167.
IC 35-42-1-3
Voluntary manslaughter
Sec. 3. (a) A person who knowingly or intentionally:
(1) kills another human being; or
(2) kills a fetus that has attained viability (as defined in IC 16-18-2-365);
while acting under sudden heat commits voluntary manslaughter, a Class B felony. However, the
offense is a Class A felony if it is committed by means of a deadly weapon.
(b) The existence of sudden heat is a mitigating factor that reduces what otherwise would be
murder under section 1(1) of this chapter to voluntary manslaughter.
As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.27; P.L.3211987, SEC.1; P.L.261-1997, SEC.4.
IC 35-42-1-4
Involuntary manslaughter
Sec. 4. (a) As used in this section, "child care provider" means a person who provides child
care in or on behalf of:
(1) a child care center (as defined in IC 12-7-2-28.4); or
(2) a child care home (as defined in IC 12-7-2-28.6);
regardless of whether the child care center or child care home is licensed.
(b) As used in this section, "fetus" means a fetus that has attained viability (as defined in
IC 16-18-2-365).
(c) A person who kills another human being while committing or attempting to commit:
(1) a Class C or Class D felony that inherently poses a risk of serious bodily injury;
(2) a Class A misdemeanor that inherently poses a risk of serious bodily injury; or
(3) battery;
commits involuntary manslaughter, a Class C felony. However, if the killing results from the
operation of a vehicle, the offense is a Class D felony.
(d) A person who kills a fetus while committing or attempting to commit:
(1) a Class C or Class D felony that inherently poses a risk of serious bodily injury;
(2) a Class A misdemeanor that inherently poses a risk of serious bodily injury;
(3) battery; or
(4) a violation of IC 9-30-5-1 through IC 9-30-5-5 (operating a vehicle while intoxicated);
commits involuntary manslaughter, a Class C felony. However, if the killing results from the
operation of a vehicle, the offense is a Class D felony.
(e) If:
(1) a child care provider recklessly supervises a child; and
(2) the child dies as a result of the child care provider's reckless supervision;
the child care provider commits involuntary manslaughter, a Class D felony.
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As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.28; P.L.2611997, SEC.5; P.L.133-2002, SEC.65; P.L.7-2010, SEC.1.
IC 35-42-1-5
Reckless homicide
Sec. 5. A person who recklessly kills another human being commits reckless homicide, a
Class C felony.
As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.29; Acts 1980,
P.L.83, SEC.6.
IC 35-42-1-6
Feticide
Sec. 6. A person who knowingly or intentionally terminates a human pregnancy with an
intention other than to produce a live birth or to remove a dead fetus commits feticide, a Class B
felony. This section does not apply to an abortion performed in compliance with:
(1) IC 16-34; or
(2) IC 35-1-58.5 (before its repeal).
As added by Acts 1979, P.L.153, SEC.3. Amended by P.L.2-1995, SEC.126; P.L.40-2009, SEC.1.
IC 35-42-2
Chapter 2. Battery and Related Offenses
IC 35-42-2-1
Battery
Sec. 1. (a) A person who knowingly or intentionally touches another person in a rude,
insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is:
(1) a Class A misdemeanor if:
(A) it results in bodily injury to any other person;
(B) it is committed against a law enforcement officer or against a person summoned and
directed by the officer while the officer is engaged in the execution of the officer's official duty;
(C) it is committed against an employee of a penal facility or a juvenile detention facility
(as defined in IC 31-9-2-71) while the employee is engaged in the execution of the employee's
official duty;
(D) it is committed against a firefighter (as defined in IC 9-18-34-1) while the firefighter
is engaged in the execution of the firefighter's official duty;
(E) it is committed against a community policing volunteer:
(i) while the volunteer is performing the duties described in IC 35-41-1-4.7; or
(ii) because the person is a community policing volunteer; or
(F) it is committed against the state chemist or the state chemist's agent while the state
chemist or the state chemist's agent is performing a duty under IC 15-16-5;
(2) a Class D felony if it results in bodily injury to:
(A) a law enforcement officer or a person summoned and directed by a law enforcement
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officer while the officer is engaged in the execution of the officer's official duty;
(B) a person less than fourteen (14) years of age and is committed by a person at least
eighteen (18) years of age;
(C) a person of any age who has a mental or physical disability and is committed by a
person having the care of the person with a mental or physical disability, whether the care is
assumed voluntarily or because of a legal obligation;
(D) the other person and the person who commits the battery was previously convicted of
a battery in which the victim was the other person;
(E) an endangered adult (as defined in IC 12-10-3-2);
(F) an employee of the department of correction while the employee is engaged in the
execution of the employee's official duty;
(G) an employee of a school corporation while the employee is engaged in the execution
of the employee's official duty;
(H) a correctional professional while the correctional professional is engaged in the
execution of the correctional professional's official duty;
(I) a person who is a health care provider (as defined in IC 16-18-2-163) while the health
care provider is engaged in the execution of the health care provider's official duty;
(J) an employee of a penal facility or a juvenile detention facility (as defined in IC 31-92-71) while the employee is engaged in the execution of the employee's official duty;
(K) a firefighter (as defined in IC 9-18-34-1) while the firefighter is engaged in the
execution of the firefighter's official duty;
(L) a community policing volunteer:
(i) while the volunteer is performing the duties described in IC 35-41-1-4.7; or
(ii) because the person is a community policing volunteer;
(M) a family or household member (as defined in IC 35-41-1-10.6) if the person who
committed the offense:
(i) is at least eighteen (18) years of age; and
(ii) committed the offense in the physical presence of a child less than sixteen (16)
years of age, knowing that the child was present and might be able to see or hear the offense; or
(N) a department of child services employee while the employee is engaged in the
execution of the employee's official duty;
(3) a Class C felony if it results in serious bodily injury to any other person or if it is
committed by means of a deadly weapon;
(4) a Class B felony if it results in serious bodily injury to a person less than fourteen (14)
years of age and is committed by a person at least eighteen (18) years of age;
(5) a Class A felony if it results in the death of a person less than fourteen (14) years of age
and is committed by a person at least eighteen (18) years of age;
(6) a Class C felony if it results in serious bodily injury to an endangered adult (as defined
in IC 12-10-3-2);
(7) a Class B felony if it results in the death of an endangered adult (as defined in IC 12-103-2); and
(8) a Class C felony if it results in bodily injury to a pregnant woman and the person knew
the woman was pregnant.
(b) For purposes of this section:
(1) "law enforcement officer" includes an alcoholic beverage enforcement officer; and
(2) "correctional professional" means a:
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(A) probation officer;
(B) parole officer;
(C) community corrections worker; or
(D) home detention officer.
IC 35-42-2-1.3
Domestic battery
Sec. 1.3. (a) A person who knowingly or intentionally touches an individual who:
(1) is or was a spouse of the other person;
(2) is or was living as if a spouse of the other person as provided in subsection (c); or
(3) has a child in common with the other person;
in a rude, insolent, or angry manner that results in bodily injury to the person described in
subdivision (1), (2), or (3) commits domestic battery, a Class A misdemeanor.
(b) However, the offense under subsection (a) is a Class D felony if the person who committed
the offense:
(1) has a previous, unrelated conviction:
(A) under this section (or IC 35-42-2-1(a)(2)(E) before its repeal); or
(B) in any other jurisdiction, including a military court, in which the elements of the
crime for which the conviction was entered are substantially similar to the elements described in
this section; or
(2) committed the offense in the physical presence of a child less than sixteen (16) years of
age, knowing that the child was present and might be able to see or hear the offense.
(c) In considering whether a person is or was living as a spouse of another individual in
subsection (a)(2), the court shall review the following:
(1) the duration of the relationship;
(2) the frequency of contact;
(3) the financial interdependence;
(4) whether the two (2) individuals are raising children together;
(5) whether the two (2) individuals have engaged in tasks directed toward maintaining a
common household; and
(6) other factors the court considers relevant.
As added by P.L.188-1999, SEC.6. Amended by P.L.47-2000, SEC.3; P.L.221-2003, SEC.18;
P.L.129-2006, SEC.1.
IC 35-42-2-1.5
Aggravated battery
Sec. 1.5. A person who knowingly or intentionally inflicts injury on a person that creates a
substantial risk of death or causes:
(1) serious permanent disfigurement;
(2) protracted loss or impairment of the function of a bodily member or organ; or
(3) the loss of a fetus;
commits aggravated battery, a Class B felony.
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IC 35-42-2-2
Criminal recklessness; element of hazing; liability barred for good faith report or judicial
participation
Sec. 2. (a) As used in this section, "hazing" means forcing or requiring another person:
(1) with or without the consent of the other person; and
(2) as a condition of association with a group or organization;
to perform an act that creates a substantial risk of bodily injury.
(b) A person who recklessly, knowingly, or intentionally performs:
(1) an act that creates a substantial risk of bodily injury to another person; or
(2) hazing;
commits criminal recklessness. Except as provided in subsection (c), criminal recklessness is a
Class B misdemeanor.
(c) The offense of criminal recklessness as defined in subsection (b) is:
(1) a Class A misdemeanor if the conduct includes the use of a vehicle;
(2) a Class D felony if:
(A) it is committed while armed with a deadly weapon; or
(B) the person committed aggressive driving (as defined in IC 9-21-8-55) that results in
serious bodily injury to another person; or
(3) a Class C felony if:
(A) it is committed by shooting a firearm into an inhabited dwelling or other building or
place where people are likely to gather; or
(B) the person committed aggressive driving (as defined in IC 9-21-8-55) that results in
the death of another person.
(d) A person who recklessly, knowingly, or intentionally:
(1) inflicts serious bodily injury on another person; or
(2) performs hazing that results in serious bodily injury to a person;
commits criminal recklessness, a Class D felony. However, the offense is a Class C felony if
committed by means of a deadly weapon.
(e) A person, other than a person who has committed an offense under this section or a
delinquent act that would be an offense under this section if the violator was an adult, who:
(1) makes a report of hazing in good faith;
(2) participates in good faith in a judicial proceeding resulting from a report of hazing;
(3) employs a reporting or participating person described in subdivision (1) or (2); or
(4) supervises a reporting or participating person described in subdivision (1) or (2);
is not liable for civil damages or criminal penalties that might otherwise be imposed because of
the report or participation.
(f) A person described in subsection (e)(1) or (e)(2) is presumed to act in good faith.
(g) A person described in subsection (e)(1) or (e)(2) may not be treated as acting in bad faith
solely because the person did not have probable cause to believe that a person committed:
(1) an offense under this section; or
(2) a delinquent act that would be an offense under this section if the offender was an adult.
P.L.300, SEC.1; P.L.323-1987, SEC.1; P.L.216-1996, SEC.17; P.L.1-2003, SEC.94; P.L.752006, SEC.3.
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IC 35-42-2-3
Provocation
Sec. 3. A person who recklessly, knowingly, or intentionally engages in conduct that is likely
to provoke a reasonable man to commit battery commits provocation, a Class C infraction.
IC 35-42-2-9
Strangulation
Sec. 9. (a) This section does not apply to a medical procedure.
(b) A person who, in a rude, angry, or insolent manner, knowingly or intentionally:
(1) applies pressure to the throat or neck of another person; or
(2) obstructs the nose or mouth of the another person;
in a manner that impedes the normal breathing or the blood circulation of the other person
commits strangulation, a Class D felony.
IC 35-42-3
Chapter 3. Kidnapping and Confinement
IC 35-42-3-1
Definition
Sec. 1. As used in this chapter, "confine" means to substantially interfere with the liberty of a
person.
IC 35-42-3-2
Kidnapping
Sec. 2. (a) A person who knowingly or intentionally confines another person:
(1) with intent to obtain ransom;
(2) while hijacking a vehicle;
(3) with intent to obtain the release, or intent to aid in the escape, of any person from lawful
detention; or
(4) with intent to use the person confined as a shield or hostage;
commits kidnapping, a Class A felony.
(b) A person who knowingly or intentionally removes another person, by fraud, enticement,
force, or threat of force, from one place to another:
(1) with intent to obtain ransom;
(2) while hijacking a vehicle;
(3) with intent to obtain the release, or intent to aid in the escape, of any person from lawful
detention; or
(4) with intent to use the person removed as a shield or hostage;
commits kidnapping, a Class A felony.
P.L.144, SEC.4.
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IC 35-42-3-3
Criminal confinement
(1) confines another person without the other person's consent; or
(2) removes another person, by fraud, enticement, force, or threat of force, from one (1)
place to another;
commits criminal confinement. Except as provided in subsection (b), the offense of criminal
confinement is a Class D felony.
(b) The offense of criminal confinement defined in subsection (a) is:
(1) a Class C felony if:
(A) the person confined or removed is less than fourteen (14) years of age and is not the
confining or removing person's child;
(B) it is committed by using a vehicle; or
(C) it results in bodily injury to a person other than the confining or removing person; and
(2) a Class B felony if it:
(A) is committed while armed with a deadly weapon;
(B) results in serious bodily injury to a person other than the confining or removing
person; or
(C) is committed on an aircraft.
P.L.299, SEC.1; P.L.183-1984, SEC.2; P.L.278-1985, SEC.8; P.L.49-1989, SEC.21; P.L.592002, SEC.2; P.L.70-2006, SEC.1.
IC 35-42-4
Chapter 4. Sex Crimes
IC 35-42-4-1
Rape
Sec. 1. (a) Except as provided in subsection (b), a person who knowingly or intentionally has
sexual intercourse with a member of the opposite sex when:
(1) the other person is compelled by force or imminent threat of force;
(2) the other person is unaware that the sexual intercourse is occurring; or
(3) the other person is so mentally disabled or deficient that consent to sexual intercourse
cannot be given;
commits rape, a Class B felony.
(b) An offense described in subsection (a) is a Class A felony if:
(1) it is committed by using or threatening the use of deadly force;
(2) it is committed while armed with a deadly weapon;
(3) it results in serious bodily injury to a person other than a defendant; or
(4) the commission of the offense is facilitated by furnishing the victim, without the victim's
knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in
IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled substance
without the victim's knowledge.
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As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.36; P.L.3201983, SEC.23; P.L.16-1984, SEC.19; P.L.297-1989, SEC.1; P.L.31-1998, SEC.3.
IC 35-42-4-2
Criminal deviate conduct
Sec. 2. (a) A person who knowingly or intentionally causes another person to perform or
submit to deviate sexual conduct when:
(1) the other person is compelled by force or imminent threat of force;
(2) the other person is unaware that the conduct is occurring; or
(3) the other person is so mentally disabled or deficient that consent to the conduct cannot
be given;
commits criminal deviate conduct, a Class B felony.
(b) An offense described in subsection (a) is a Class A felony if:
(2) it is committed while armed with a deadly weapon;
(3) it results in serious bodily injury to any person other than a defendant; or
IC 35-42-4-3
Child molesting
Sec. 3. (a) A person who, with a child under fourteen (14) years of age, performs or submits
to sexual intercourse or deviate sexual conduct commits child molesting, a Class B felony.
However, the offense is a Class A felony if:
(1) it is committed by a person at least twenty-one (21) years of age;
(2) it is committed by using or threatening the use of deadly force or while armed with a
deadly weapon;
(3) it results in serious bodily injury; or
(b) A person who, with a child under fourteen (14) years of age, performs or submits to any
fondling or touching, of either the child or the older person, with intent to arouse or to satisfy the
sexual desires of either the child or the older person, commits child molesting, a Class C felony.
However, the offense is a Class A felony if:
(2) it is committed while armed with a deadly weapon; or
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(c) It is a defense that the accused person reasonably believed that the child was sixteen (16)
years of age or older at the time of the conduct, unless:
(1) the offense is committed by using or threatening the use of deadly force or while armed
with a deadly weapon;
(2) the offense results in serious bodily injury; or
P.L.82, SEC.2; Acts 1981, P.L.301, SEC.1; P.L.79-1994, SEC.12; P.L.33-1996, SEC.8; P.L.2161996, SEC.18; P.L.31-1998, SEC.5; P.L.216-2007, SEC.42.
IC 35-42-4-5
Vicarious sexual gratification; sexual conduct in presence of a minor
Sec. 5. (a) A person eighteen (18) years of age or older who knowingly or intentionally
directs, aids, induces, or causes a child under the age of sixteen (16) to touch or fondle himself or
another child under the age of sixteen (16) with intent to arouse or satisfy the sexual desires of a
child or the older person commits vicarious sexual gratification, a Class D felony. However, the
offense is:
(1) a Class C felony if a child involved in the offense is under the age of fourteen (14);
(2) a Class B felony if:
(A) the offense is committed by using or threatening the use of deadly force or while
armed with a deadly weapon; or
(B) the commission of the offense is facilitated by furnishing the victim, without the
victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as
defined in IC 35-48-1-9) or knowing that the victim was furnished with the drug or controlled
substance without the victim's knowledge; and
(3) a Class A felony if it results in serious bodily injury.
(b) A person eighteen (18) years of age or older who knowingly or intentionally directs, aids,
induces, or causes a child under the age of sixteen (16) to:
(1) engage in sexual intercourse with another child under sixteen (16) years of age;
(2) engage in sexual conduct with an animal other than a human being; or
(3) engage in deviate sexual conduct with another person;
with intent to arouse or satisfy the sexual desires of a child or the older person commits vicarious
sexual gratification, a Class C felony. However, the offense is a Class B felony if any child
involved in the offense is less than fourteen (14) years of age, and it is a Class A felony if the
offense is committed by using or threatening the use of deadly force, if it is committed while
armed with a deadly weapon, if it results in serious bodily injury, or if the commission of the
offense is facilitated by furnishing the victim, without the victim's knowledge, with a drug (as
defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or knowing
that the victim was furnished with the drug or controlled substance without the victim's
knowledge.
(c) A person eighteen (18) years of age or older who knowingly or intentionally:
(1) engages in sexual intercourse;
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(2) engages in deviate sexual conduct; or
(3) touches or fondles the person's own body;
in the presence of a child less than fourteen (14) years of age with the intent to arouse or satisfy
the sexual desires of the child or the older person commits performing sexual conduct in the
presence of a minor, a Class D felony.
P.L.118-2002, SEC.1; P.L.123-2003, SEC.1.
IC 35-42-4-6
Child solicitation
Sec. 6. (a) As used in this section, "solicit" means to command, authorize, urge, incite,
request, or advise an individual:
(1) in person;
(2) by telephone;
(3) in writing;
(4) by using a computer network (as defined in IC 35-43-2-3(a));
(5) by advertisement of any kind; or
(6) by any other means;
to perform an act described in subsection (b) or (c).
(b) A person eighteen (18) years of age or older who knowingly or intentionally solicits a child
under fourteen (14) years of age, or an individual the person believes to be a child under fourteen
(14) years of age, to engage in:
(1) sexual intercourse;
(2) deviate sexual conduct; or
(3) any fondling or touching intended to arouse or satisfy the sexual desires of either the
child or the older person;
commits child solicitation, a Class D felony. However, the offense is a Class C felony if it is
committed by using a computer network (as defined in IC 35-43-2-3(a)), and a Class B felony if
the person commits the offense by using a computer network (as defined in IC 35-43-2-3(a)) and
has a previous unrelated conviction for committing the offense by using a computer network (as
defined in IC 35-43-2-3(a)).
(c) A person at least twenty-one (21) years of age who knowingly or intentionally solicits a
child at least fourteen (14) years of age but less than sixteen (16) years of age, or an individual
the person believes to be a child at least fourteen (14) years of age but less than sixteen (16)
years of age, to engage in:
(1) sexual intercourse;
(2) deviate sexual conduct; or
(3) any fondling or touching intended to arouse or satisfy the sexual desires of either the
child or the older person;
commits child solicitation, a Class D felony. However, the offense is a Class C felony if it is
committed by using a computer network (as defined in IC 35-43-2-3(a)), and a Class B felony if
the person commits the offense by using a computer network (as defined in IC 35-43-2-3(a)) and
has a previous unrelated conviction for committing the offense by using a computer network (as
defined in IC 35-43-2-3(a)).
(d) In a prosecution under this section, including a prosecution for attempted solicitation, the
state is not required to prove that the person solicited the child to engage in an act described in
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subsection (b) or (c) at some immediate time.
P.L.216-1996, SEC.20; P.L.118-2002, SEC.2; P.L.124-2005, SEC.1; P.L.216-2007, SEC.44.
IC 35-42-4-7
Child seduction
Sec. 7. (a) As used in this section, "adoptive parent" has the meaning set forth in IC 31-9-2-6.
(b) As used in this section, "adoptive grandparent" means the parent of an adoptive parent.
(c) As used in this section, "charter school" has the meaning set forth in IC 20-18-2-2.5.
(d) As used in this section, "child care worker" means a person who:
(1) provides care, supervision, or instruction to a child within the scope of the person's
employment in a shelter care facility;
(2) is employed by a:
(A) school corporation;
(B) charter school;
(C) nonpublic school; or
(D) special education cooperative;
attended by a child who is the victim of a crime under this chapter; or
(3) is:
(A) affiliated with a:
(i) school corporation;
(ii) charter school;
(iii) nonpublic school; or
(iv) special education cooperative;
attended by a child who is the victim of a crime under this chapter, regardless of how or
whether the person is compensated;
(B) in a position of trust in relation to a child who attends the school or cooperative;
(C) engaged in the provision of care or supervision to a child who attends the school or
cooperative; and
(D) at least four (4) years older than the child who is the victim of a crime under this
chapter.
The term does not include a student who attends the school or cooperative.
(e) As used in this section, "custodian" means any person who resides with a child and is
responsible for the child's welfare.
(f) As used in this section, "military recruiter" means a member
of the armed forces of the United States (as defined in IC 20-33-10-2) or the Indiana National
Guard whose primary job function, classification, or specialty is recruiting individuals to enlist
with the armed forces of the United States or the Indiana National Guard.
(g) As used in this section, "nonpublic school" has the meaning set forth in IC 20-18-2-12.
(h) As used in this section, "school corporation" has the meaning set forth in IC 20-18-2-16.
(i) As used in this section, "special education cooperative" has the meaning set forth in IC 2035-5-1.
(j) As used in this section, "stepparent" means an individual who is married to a child's
custodial or noncustodial parent and is not the child's adoptive parent.
(k) If a person who:
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(1) is at least eighteen (18) years of age; and
(2) is:
(A) the:
(i) guardian, adoptive parent, adoptive grandparent, custodian, or stepparent of; or
(ii) child care worker for; or
(B) a military recruiter who is attempting to enlist;
a child at least sixteen (16) years of age but less than eighteen (18) years of age;
engages with the child in sexual intercourse, deviate sexual conduct (as defined in IC 35-41-1-9),
or any fondling or touching with the intent to arouse or satisfy the sexual desires of either the
child or the adult, the person commits child seduction, a Class D felony.
P.L.228-2001, SEC.5; P.L.161-2003, SEC.10; P.L.1-2005, SEC.228; P.L.125-2009, SEC.7.
IC 35-42-4-8
Sexual battery
Sec. 8. (a) A person who, with intent to arouse or satisfy the person's own sexual desires or
the sexual desires of another person, touches another person when that person is:
(1) compelled to submit to the touching by force or the imminent threat of force; or
(2) so mentally disabled or deficient that consent to the touching cannot be given;
commits sexual battery, a Class D felony.
(b) An offense described in subsection (a) is a Class C felony if:
(2) it is committed while armed with a deadly weapon; or
IC 35-48-1-9) or knowing that the victim was furnished with the
drug or controlled substance without the victim's knowledge.
IC 35-42-4-9
Sexual misconduct with a minor
Sec. 9. (a) A person at least eighteen (18) years of age who, with a child at least fourteen (14)
years of age but less than sixteen (16) years of age, performs or submits to sexual intercourse or
deviate sexual conduct commits sexual misconduct with a minor, a Class C felony. However, the
offense is:
(1) a Class B felony if it is committed by a person at least twenty-one (21) years of age; and
(2) a Class A felony if it is committed by using or threatening the use of deadly force, if it is
committed while armed with a deadly weapon, if it results in serious bodily injury, or if the
commission of the offense is facilitated by furnishing the victim, without the victim's knowledge,
with a drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-19) or knowing that the victim was furnished with the drug or controlled substance without the
victim's knowledge.
(b) A person at least eighteen (18) years of age who, with a child at least fourteen (14) years of
age but less than sixteen (16) years of age, performs or submits to any fondling or touching, of
either the child or the older person, with intent to arouse or to satisfy the sexual desires of either
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the child or the older person, commits sexual misconduct with a minor, a Class D felony.
However, the offense is:
(1) a Class C felony if it is committed by a person at least twenty-one (21) years of age; and
(2) a Class B felony if it is committed by using or threatening the use of deadly force, while
armed with a deadly weapon, or if the commission of the offense is facilitated by furnishing the
victim, without the victim's knowledge, with a drug (as defined in IC 16-42-19-2(1)) or a
controlled substance (as defined in IC 35-48-1-9) or knowing that the victim was furnished with
the drug or controlled substance without the victim's knowledge.
(c) It is a defense that the accused person reasonably believed that the child was at least
sixteen (16) years of age at the time of the conduct. However, this subsection does not apply to
an offense described in subsection (a)(2) or (b)(2).
(d) It is a defense that the child is or has ever been married. However, this subsection does not
apply to an offense described in subsection (a)(2) or (b)(2).
(e) It is a defense to a prosecution under this section if all the following apply:
(1) The person is not more than four (4) years older than the victim.
(2) The relationship between the person and the victim was a dating relationship or an
ongoing personal relationship. The term "ongoing personal relationship" does not include a
family relationship.
(3) The crime:

(A) was not committed by a person who is at least twenty-one (21) years of age;
(B) was not committed by using or threatening the use of deadly force;
(C) was not committed while armed with a deadly weapon;
(D) did not result in serious bodily injury;
(E) was not facilitated by furnishing the victim, without the victim's knowledge, with a
drug (as defined in IC 16-42-19-2(1)) or a controlled substance (as defined in IC 35-48-1-9) or
knowing that the victim was furnished with the drug or controlled substance without the victim's
knowledge; and
(F) was not committed by a person having a position of authority or substantial influence
over the victim.
(4) The person has not committed another sex offense (as defined in IC 11-8-8-5.2)
(including a delinquent act that would be a sex offense if committed by an adult) against any
other person.
P.L.31-1998, SEC.8; P.L.266-2003, SEC.1; P.L.216-2007, SEC.45.
IC 35-42-5
Chapter 5. Robbery
IC 35-42-5-1
Robbery
Sec. 1. A person who knowingly or intentionally takes property from another person or from
the presence of another person:
(1) by using or threatening the use of force on any person; or
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(2) by putting any person in fear;
commits robbery, a Class C felony. However, the offense is a Class B felony if it is committed
while armed with a deadly weapon or results in bodily injury to any person other than a
defendant, and a Class A felony if it results in serious bodily injury to any person other than a
defendant.
As added by Acts 1977, P.L.340, SEC.39. Amended by Acts 1982, P.L.204, SEC.34; P.L.1861984, SEC.1.
IC 35-42-5-2
Carjacking
Sec. 2. A person who knowingly or intentionally takes a motor vehicle from another person or
from the presence of another person:
(1) by using or threatening the use of force on any person; or
(2) by putting any person in fear;
commits carjacking, a Class B felony.
OFFENSES AGAINST PROPERTY

IC 35-43-1
Chapter 1. Arson, Mischief, and Tampering
IC 35-43-1-1
Arson
Sec. 1. (a) A person who, by means of fire, explosive, or destructive device, knowingly or
intentionally damages:
(1) a dwelling of another person without the other person's consent;
(2) property of any person under circumstances that endanger human life;
(3) property of another person without the other person's consent if the pecuniary loss is at
least five thousand dollars ($5,000); or
(4) a structure used for religious worship without the consent of the owner of the structure;
commits arson, a Class B felony. However, the offense is a Class A felony if it results in either
bodily injury or serious bodily injury to any person other than a defendant.
(b) A person who commits arson for hire commits a Class B felony. However, the offense is a
Class A felony if it results in bodily injury to any other person.
(c) A person who, by means of fire, explosive, or destructive device, knowingly or
intentionally damages property of any person with intent to defraud commits arson, a Class C
felony.
(d) A person who, by means of fire, explosive, or destructive device, knowingly or
intentionally damages property of another person without the other person's consent so that the
resulting pecuniary loss is at least two hundred fifty dollars ($250) but less than five thousand
dollars ($5,000) commits arson, a Class D felony.
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P.L.159, SEC.4; Acts 1981, P.L.302, SEC.1; Acts 1982, P.L.204, SEC.35; P.L.88-1999, SEC.1;
P.L.123-2002, SEC.36.
IC 35-43-1-2
Criminal mischief; penalties
Sec. 2. (a) A person who:
(1) recklessly, knowingly, or intentionally damages or defaces property of another person
without the other person's consent; or
(2) knowingly or intentionally causes another to suffer pecuniary loss by deception or by an
expression of intention to injure another person or to damage the property or to impair the rights
of another person;
commits criminal mischief, a Class B misdemeanor. However, the offense is:
(A) a Class A misdemeanor if:
(i) the pecuniary loss is at least two hundred fifty dollars ($250) but less than two
thousand five hundred dollars ($2,500);
(ii) the property damaged was a moving motor vehicle;
(iii) the property damaged contained data relating to a person required to register as a
sex or violent offender under IC 11-8-8 and the person is not a sex or violent offender or was not
required to register as a sex or violent offender;
(iv) the property damaged was a locomotive, a railroad car, a train, or equipment of a
railroad company being operated on a railroad right-of-way;
(v) the property damaged was a part of any railroad signal system, train control system,
centralized dispatching system, or highway railroad grade crossing warning signal on a railroad
right-of-way owned, leased, or operated by a railroad company;
(vi) the property damaged was any rail, switch, roadbed, viaduct, bridge, trestle,
culvert, or embankment on a right-of-way owned, leased, or operated by a railroad company; or
(vii) the property damage or defacement was caused by paint or other markings; and
(B) a Class D felony if:
(i) the pecuniary loss is at least two thousand five hundred dollars ($2,500);
(ii) the damage causes a substantial interruption or impairment of utility service
rendered to the public;
(iii) the damage is to a public record;
(iv) the property damaged contained data relating to a person required to register as a
sex or violent offender under IC 11-8-8 and the person is a sex or violent offender or was
required to register as a sex or violent offender;
(v) the damage causes substantial interruption or impairment of work conducted in a
scientific research facility;
(vi) the damage is to a law enforcement animal (as defined in IC 35-46-3-4.5); or
(vii) the damage causes substantial interruption or impairment of work conducted in a
food processing facility.
(b) A person who recklessly, knowingly, or intentionally damages:
(1) a structure used for religious worship;
(2) a school or community center;
(3) the grounds:
(A) adjacent to; and
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(B) owned or rented in common with;
a structure or facility identified in subdivision (1) or (2); or
(4) personal property contained in a structure or located at a
facility identified in subdivision (1) or (2);
without the consent of the owner, possessor, or occupant of the property that is damaged,
commits institutional criminal mischief, a Class A misdemeanor. However, the offense is a Class
D felony if the pecuniary loss is at least two hundred fifty dollars ($250) but less than two
thousand five hundred dollars ($2,500), and a Class C felony if the pecuniary loss is at least two
thousand five hundred dollars ($2,500).
(c) If a person is convicted of an offense under this section that involves the use of graffiti, the
court may, in addition to any other penalty, order that the person's operator's license be
suspended or invalidated by the bureau of motor vehicles for not more than one (1) year.
(d) The court may rescind an order for suspension or invalidation under subsection (c) and
allow the person to receive a license or permit before the period of suspension or invalidation
ends if the court determines that:
(1) the person has removed or painted over the graffiti or has made other suitable
restitution; and
(2) the person who owns the property damaged or defaced by the criminal mischief or
institutional criminal mischief is satisfied with the removal, painting, or other restitution
performed by the person.
IC 35-43-2
Chapter 2. Burglary and Trespass
IC 35-43-2-1
Burglary
Sec. 1. A person who breaks and enters the building or structure of another person, with intent
to commit a felony in it, commits burglary, a Class C felony. However, the offense is:
(1) a Class B felony if:
(A) it is committed while armed with a deadly weapon; or
(B) the building or structure is a:
(i) dwelling; or
(ii) structure used for religious worship; and
(2) a Class A felony if it results in:
(A) bodily injury; or
(B) serious bodily injury;
to any person other than a defendant.
P.L.204, SEC.36; P.L.88-1999, SEC.2.
IC 35-43-2-1.5
Residential entry
Sec. 1.5. A person who knowingly or intentionally breaks and enters the dwelling of another
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person commits residential entry, a Class D felony.
IC 35-43-2-2
Criminal trespass; denial of entry; permission to enter; exceptions
(1) not having a contractual interest in the property, knowingly or intentionally enters the
real property of another person after having been denied entry by the other person or that
person's agent;
(2) not having a contractual interest in the property, knowingly or intentionally refuses to
leave the real property of another person after having been asked to leave by the other person or
that person's agent;
(3) accompanies another person in a vehicle, with knowledge that the other person
knowingly or intentionally is exerting unauthorized control over the vehicle;
(4) knowingly or intentionally interferes with the possession or use of the property of
another person without the person's consent;
(5) not having a contractual interest in the property, knowingly or intentionally enters the
dwelling of another person without the person's consent;
(6) knowingly or intentionally:
(A) travels by train without lawful authority or the railroad carrier's consent; and
(B) rides on the outside of a train or inside a passenger car, locomotive, or freight car,
including a boxcar, flatbed, or container without lawful authority or the railroad carrier's consent;
(7) not having a contractual interest in the property, knowingly or intentionally enters or
refuses to leave the property of another person after having been prohibited from entering or
asked to leave the property by a law enforcement officer when the property is:
(A) vacant or designated by a municipality or county enforcement authority to be
abandoned property; and
(B) subject to abatement under IC 32-30-6, IC 32-30-7, IC 32-30-8, IC 36-7-9, or IC 367-36; or
(8) knowingly or intentionally enters the property of another person after being denied entry
by a court order that has been issued to the person or issued to the general public by conspicuous
posting on or around the premises in areas where a person can observe the order when the
property:
(A) has been designated by a municipality or county enforcement authority to be a vacant
property or an abandoned property; and
(B) is subject to an abatement order under IC 32-30-6, IC 32-30-7, IC 32-30-8, IC 36-7-9,
or IC 36-7-36;
commits criminal trespass, a Class A misdemeanor. However, the offense is a Class D felony if it
is committed on a scientific research facility, on a key facility, on a facility belonging to a public
utility (as defined in IC 32-24-1-5.9(a)), on school property, or on a school bus or the person has
a prior unrelated conviction for an offense under this section concerning the same property.
(b) A person has been denied entry under subdivision (a)(1) of this section when the person
has been denied entry by means of:
(1) personal communication, oral or written;
(2) posting or exhibiting a notice at the main entrance in a manner that is either prescribed
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by law or likely to come to the attention of the public; or
(3) a hearing authority or court order under IC 32-30-6, IC 32-30-7, IC 32-30-8, IC 36-7-9,
or IC 36-7-36.
(c) A law enforcement officer may not deny entry to property or ask a person to leave a
property under subsection (a)(7) unless there is reasonable suspicion that criminal activity has
occurred or is occurring.
(d) A person described in subsection (a)(7) violates subsection (a)(7) unless the person has the
written permission of the owner, owner's agent, enforcement authority, or court to come onto the
property for purposes of performing maintenance, repair, or demolition.
(e) A person described in subsection (a)(8) violates subsection (a)(8) unless the court that
issued the order denying the person entry grants permission for the person to come onto the
property.
(f) Subsections (a), (b), and (e) do not apply to the following:
(1) A passenger on a train.
(2) An employee of a railroad carrier while engaged in the performance of official duties.
(3) A law enforcement officer, firefighter, or emergency response personnel while engaged
in the performance of official duties.
(4) A person going on railroad property in an emergency to rescue a person or animal from
harm's way or to remove an object that the person reasonably believes poses an imminent threat
to life or limb.
(5) A person on the station grounds or in the depot of a railroad carrier:
(A) as a passenger; or
(B) for the purpose of transacting lawful business.
(6) A:
(A) person; or
(B) person's:
(i) family member;
(ii) invitee;
(iii) employee;
(iv) agent; or
(v) independent contractor;
going on a railroad's right-of-way for the purpose of crossing at a private crossing site
approved by the railroad carrier to obtain access to land that the person owns, leases, or operates.
(7) A person having written permission from the railroad carrier to go on specified railroad
property.
(8) A representative of the Indiana department of transportation while engaged in the
performance of official duties.
(9) A representative of the federal Railroad Administration while engaged in the
(10) A representative of the National Transportation Safety Board while engaged in the
IC 35-43-4
Chapter 4. Theft, Conversion, and Receiving Stolen Property
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IC 35-43-4-1
Definitions
Sec. 1. (a) As used in this chapter, "exert control over property" means to obtain, take, carry,
drive, lead away, conceal, abandon, sell, convey, encumber, or possess property, or to secure,
transfer, or extend a right to property.
(b) Under this chapter, a person's control over property of another person is "unauthorized" if
it is exerted:
(1) without the other person's consent;
(2) in a manner or to an extent other than that to which the other person has consented;
(3) by transferring or encumbering other property while failing to disclose a lien, adverse
claim, or other legal impediment to the enjoyment of that other property;
(4) by creating or confirming a false impression in the other person;
(5) by failing to correct a false impression that the person knows is influencing the other
person, if the person stands in a relationship of special trust to the other person;
(6) by promising performance that the person knows will not be performed;
(7) by expressing an intention to damage the property or impair the rights of any other
person; or
(8) by transferring or reproducing:
(A) recorded sounds; or
(B) a live performance;
without consent of the owner of the master recording or the live performance, with intent to
distribute the reproductions for a profit.
(c) As used in this chapter, "receiving" means acquiring possession or control of or title to
property, or lending on the security of property.
P.L.300, SEC.1; P.L.180-1991, SEC.7.
IC 35-43-4-2
Theft; receiving stolen property
Sec. 2. (a) A person who knowingly or intentionally exerts unauthorized control over property
of another person, with intent to deprive the other person of any part of its value or use, commits
theft, a Class D felony. However, the offense is a Class C felony if:
(1) the fair market value of the property is at least one hundred thousand dollars ($100,000);
or
(2) the property that is the subject of the theft is a valuable metal (as defined in IC 25-37.51-1) and:
(A) relates to transportation safety;
(B) relates to public safety; or
(C) is taken from a:
(i) hospital or other health care facility;
(ii) telecommunications provider;
(iii) public utility (as defined in IC 32-24-1-5.9(a)); or
(iv) key facility;
and the absence of the property creates a substantial risk of bodily injury to a person.
(b) A person who knowingly or intentionally receives, retains, or disposes of the property of
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another person that has been the subject of theft commits receiving stolen property, a Class D
felony. However, the offense is a Class C felony if:
(1) the fair market value of the property is at least one hundred thousand dollars ($100,000);
or
(2) the property that is the subject of the theft is a valuable metal (as defined in IC 25-37.51-1) and:
(A) relates to transportation safety;
(B) relates to public safety; or
(C) is taken from a:
(i) hospital or other health care facility;
(ii) telecommunications provider;
(iii) public utility (as defined in IC 32-24-1-5.9(a)); or
(iv) key facility;
and the absence of the property creates a substantial risk of bodily injury to a person.
P.L.300, SEC.2; P.L.320-1985, SEC.1; P.L.158-2009, SEC.8.
IC 35-43-4-2.5
Auto theft; receiving stolen auto parts
Sec. 2.5. (a) As used in this section, "motor vehicle" has the meaning set forth in IC 9-13-2105(a).
(b) A person who knowingly or intentionally exerts unauthorized control over the motor
vehicle of another person, with intent to deprive the owner of:
(1) the vehicle's value or use; or
(2) a component part (as defined in IC 9-13-2-34) of the vehicle;
commits auto theft, a Class D felony. However, the offense is a Class C felony if the person has a
prior conviction of an offense under this subsection or subsection (c).
(c) A person who knowingly or intentionally receives, retains, or disposes of a motor vehicle
or any part of a motor vehicle of another person that has been the subject of theft commits
receiving stolen auto parts, a Class D felony. However, the offense is a Class C felony if the
person has a prior conviction of an offense under this subsection or subsection (b).
As added by P.L.321-1985, SEC.1. Amended by P.L.136-1987, SEC.6; P.L.2-1991, SEC.106.
IC 35-43-4-2.7
Unlawful entry of motor vehicle; defense; rebuttable presumption
Sec. 2.7. (a) This section does not apply to the following:
(1) A public safety officer (as defined in IC 35-47-4.5-3) or state police motor carrier
inspector acting within the scope of the officer's or inspector's duties.
(2) A motor vehicle that must be moved because the motor vehicle is abandoned,
inoperable, or improperly parked.
(3) An employee or agent of an entity that possesses a valid lien on a motor vehicle who is
expressly authorized by the lienholder to repossess the motor vehicle based upon the failure of
the owner or lessee of the motor vehicle to abide by the terms and conditions of the loan or lease
agreement.
(b) As used in this section, "authorized operator" means a person who is authorized to operate
a motor vehicle by an owner or a lessee of the motor vehicle.
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(c) As used in this section, "motor vehicle" has the meaning set forth in IC 9-13-2-105(a).
(d) A person who:
(1) enters a motor vehicle knowing that the person does not have the permission of an
owner, a lessee, or an authorized operator of the motor vehicle to enter the motor vehicle; and
(2) does not have a contractual interest in the motor vehicle;
commits unauthorized entry of a motor vehicle, a Class B misdemeanor.
(e) The offense under subsection (d) is:
(1) a Class A misdemeanor if the motor vehicle has visible steering column damage or
ignition switch alteration as a result of an act described in subsection (d)(1); or
(2) a Class D felony if a person occupies the motor vehicle while the motor vehicle is used
to further the commission of a crime, if the person knew or should have known that a person
intended to use the motor vehicle in the commission of a crime.
(f) It is a defense to a prosecution under this section that the accused person reasonably
believed that the person's entry into the vehicle was necessary to prevent bodily injury or
property damage.
(g) There is a rebuttable presumption that the person did not have the permission of an owner,
a lessee, or an authorized operator of the motor vehicle to enter the motor vehicle if the motor
vehicle has visible steering column damage or ignition switch alteration.
IC 35-43-4-3
Conversion
Sec. 3. (a) A person who knowingly or intentionally exerts unauthorized control over property
of another person commits criminal conversion, a Class A misdemeanor.
(b) The offense under subsection (a) is a Class D felony if committed by a person who exerts
unauthorized control over the motor vehicle of another person with the intent to use the motor
vehicle to assist the person in the commission of a crime.
(c) The offense under subsection (a) is a Class C felony if:
(1) committed by a person who exerts unauthorized control over the motor vehicle of
another person; and
(2) the person uses the motor vehicle to assist the person in the commission of a felony.
IC 35-43-5
Chapter 5. Forgery, Fraud, and Other Deceptions
IC 35-43-5-2
Forgery; counterfeiting; application fraud
(1) makes or utters a written instrument in such a manner that it purports to have been
made:
(A) by another person;
(B) at another time;
(C) with different provisions; or
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(D) by authority of one who did not give authority; or
(2) possesses more than one (1) written instrument knowing that the written instruments
were made in a manner that they purport to have been made:
(A) by another person;
(B) at another time;
(C) with different provisions; or
(D) by authority of one who did not give authority;
commits counterfeiting, a Class D felony.
(b) A person who, with intent to defraud, makes, utters, or possesses a written instrument in
such a manner that it purports to have been made:
(1) by another person;
(2) at another time;
(3) with different provisions; or
(4) by authority of one who did not give authority;
commits forgery, a Class C felony.
(c) This subsection applies to a person who applies for a driver's license (as defined in IC 913-2-48). A person who:
(1) knowingly or intentionally uses a false or fictitious name or gives a false or fictitious
address in an application for a driver's license or for a renewal or a duplicate of a driver's license;
or
(2) knowingly or intentionally makes a false statement or conceals a material fact or
otherwise commits fraud in an application for a driver's license;
commits application fraud, a Class D felony.
(d) This subsection applies to a person who applies for a state identification card (as issued
under IC 9-24-16). A person who:
(1) knowingly or intentionally uses false information in an application for an identification
card or for a renewal or duplicate of an identification card; or
(2) knowingly or intentionally makes a false statement or otherwise commits fraud in an
application for an identification card;
commits application fraud, a Class D felony.
IC 35-43-5-3
Deception
(1) being an officer, manager, or other person participating in the direction of a credit
institution, knowingly or intentionally receives or permits the receipt of a deposit or other
investment, knowing that the institution is insolvent;
(2) knowingly or intentionally makes a false or misleading written statement with intent to
obtain property, employment, or an educational opportunity;
(3) misapplies entrusted property, property of a governmental entity, or property of a credit
institution in a manner that the person knows is unlawful or that the person knows involves
substantial risk of loss or detriment to either the owner of the property or to a person for whose
benefit the property was entrusted;
(4) knowingly or intentionally, in the regular course of business, either:
(A) uses or possesses for use a false weight or measure or other device for falsely
determining or recording the quality or quantity of any commodity; or
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(B) sells, offers, or displays for sale or delivers less than the represented quality or
quantity of any commodity;
(5) with intent to defraud another person furnishing electricity, gas, water,
telecommunication, or any other utility service, avoids a lawful charge for that service by scheme
or device or by tampering with facilities or equipment of the person furnishing the service;
(6) with intent to defraud, misrepresents the identity of the person or another person or the
identity or quality of property;
(7) with intent to defraud an owner of a coin machine, deposits a slug in that machine;
(8) with intent to enable the person or another person to deposit a slug in a coin machine,
makes, possesses, or disposes of a slug;
(9) disseminates to the public an advertisement that the person knows is false, misleading,
or deceptive, with intent to promote the purchase or sale of property or the acceptance of
employment;
(10) with intent to defraud, misrepresents a person as being a physician licensed under
IC 25-22.5; or
(11) knowingly and intentionally defrauds another person furnishing cable TV service by
avoiding paying compensation for that service by any scheme or device or by tampering with
facilities or equipment of the person furnishing the service;
commits deception, a Class A misdemeanor.
(b) In determining whether an advertisement is false, misleading, or deceptive under
subsection (a)(9), there shall be considered, among other things, not only representations
contained or suggested in the advertisement, by whatever means, including device or sound, but
also the extent to which the advertisement fails to reveal material facts in the light of the
representations.
P.L.144, SEC.5; P.L.182-1984, SEC.4; P.L.237-1989, SEC.2; P.L.247-1993, SEC.2; P.L.2221996, SEC.1.
IC 35-43-5-3.5
Identity deception
Sec. 3.5. (a) Except as provided in subsection (c), a person who knowingly or intentionally
obtains, possesses, transfers, or uses the identifying information of another person, including the
identifying information of a person who is deceased:
(1) without the other person's consent; and
(2) with intent to:
(A) harm or defraud another person;
(B) assume another person's identity; or
(C) profess to be another person;
commits identity deception, a Class D felony.
(b) However, the offense defined in subsection (a) is a Class C felony if:
(1) a person obtains, possesses, transfers, or uses the identifying information of more than
one hundred (100) persons;
(2) the fair market value of the fraud or harm caused by the offense is at least fifty thousand
dollars ($50,000); or
(3) a person obtains, possesses, transfers, or uses the identifying information of a person
who is less than eighteen (18) years of age and is:
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(A) the person's son or daughter;
(B) a dependent of the person;
(C) a ward of the person; or
(D) an individual for whom the person is a guardian.
(c) The conduct prohibited in subsections (a) and (b) does not apply to:
(1) a person less than twenty-one (21) years of age who uses the identifying information of
another person to acquire an alcoholic beverage (as defined in IC 7.1-1-3-5);
(2) a minor (as defined in IC 35-49-1-4) who uses the identifying information of another
person to acquire:
(A) a cigarette or tobacco product (as defined in IC 6-7-2-5);
(B) a periodical, a videotape, or other communication medium that contains or depicts
nudity (as defined in IC 35-49-1-5);
(C) admittance to a performance (live or film) that prohibits the attendance of the minor
based on age; or
(D) an item that is prohibited by law for use or consumption by a minor; or
(3) any person who uses the identifying information for a lawful purpose.
(d) It is not a defense in a prosecution under subsection (a) or (b) that no person was harmed
or defrauded.
P.L.137-2009, SEC.14.
IC 35-43-5-4
Fraud
Sec. 4. A person who:
(1) with intent to defraud, obtains property by:
(A) using a credit card, knowing that the credit card was unlawfully obtained or retained;
(B) using a credit card, knowing that the credit card is forged, revoked, or expired;
(C) using, without consent, a credit card that was issued to another person;
(D) representing, without the consent of the credit card holder, that the person is the
authorized holder of the credit card; or
(E) representing that the person is the authorized holder of a credit card when the card has
not in fact been issued;
(2) being authorized by an issuer to furnish property upon presentation of a credit card, fails
to furnish the property and, with intent to defraud the issuer or the credit card holder, represents
in writing to the issuer that the person has furnished the property;
(3) being authorized by an issuer to furnish property upon presentation of a credit card,
furnishes, with intent to defraud the issuer or the credit card holder, property upon presentation
of a credit card, knowing that the credit card was unlawfully obtained or retained or that the
credit card is forged, revoked, or expired;
(4) not being the issuer, knowingly or intentionally sells a credit card;
(5) not being the issuer, receives a credit card, knowing that the credit card was unlawfully
obtained or retained or that the credit card is forged, revoked, or expired;
(6) with intent to defraud, receives a credit card as security for debt;
(7) receives property, knowing that the property was obtained in violation of subdivision (1)
of this section;
(8) with intent to defraud the person's creditor or purchaser, conceals, encumbers, or
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transfers property;
(9) with intent to defraud, damages property; or
(10) knowingly or intentionally:
(A) sells;
(B) rents;
(C) transports; or
(D) possesses;
a recording for commercial gain or personal financial gain that does not conspicuously
display the true name and address of the manufacturer of the recording;
commits fraud, a Class D felony.
P.L.82, SEC.3; P.L.180-1991, SEC.9; P.L.193-1991, SEC.3; P.L.1-1992, SEC.180; P.L.1802001, SEC.3; P.L.181-2005, SEC.6.
IC 35-43-5-5
Check deception
Sec. 5. (a) A person who knowingly or intentionally issues or delivers a check, a draft, or an
order on a credit institution for the payment of or to acquire money or other property, knowing
that it will not be paid or honored by the credit institution upon presentment in the usual course
of business, commits check deception, a Class A misdemeanor. However, the offense is a Class
D felony if the amount of the check, draft, or order is at least two thousand five hundred dollars
($2,500) and the property acquired by the person was a motor vehicle.
(b) An unpaid and dishonored check, a draft, or an order that has the drawee's refusal to pay
and reason printed, stamped, or written on or attached to it constitutes prima facie evidence:
(1) that due presentment of it was made to the drawee for payment and dishonor thereof;
and
(2) that it properly was dishonored for the reason stated.
(c) The fact that a person issued or delivered a check, a draft, or an order, payment of which
was refused by the drawee, constitutes prima facie evidence that the person knew that it would
not be paid or honored. In addition, evidence that a person had insufficient funds in or no
account with a drawee credit institution constitutes prima facie evidence that the person knew
that the check, draft, or order would not be paid or honored.
(d) The following two (2) items constitute prima facie evidence of the identity of the maker of
a check, draft, or order if at the time of its acceptance they are obtained and recorded, either on
the check, draft, or order itself or on file, by the payee:
(1) Name and residence, business, or mailing address of the maker.
(2) Motor vehicle operator's license number, Social Security number, home telephone
number, or place of employment of the maker.
(e) It is a defense under subsection (a) if a person who:
(1) has an account with a credit institution but does not have sufficient funds in that
account; and
(2) issues or delivers a check, a draft, or an order for payment on that credit institution;
pays the payee or holder the amount due, together with protest fees and any service fee or
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charge, which may not exceed the greater of twenty-seven dollars and fifty cents ($27.50) or five
percent (5%) (but not more than two hundred fifty dollars ($250)) of the amount due, that may be
charged by the payee or holder, within ten (10) days after the date of mailing by the payee or
holder of notice to the person that the check, draft, or order has not been paid by the credit
institution. Notice sent in the manner set forth in IC 26-2-7-3 constitutes notice to the person that
the check, draft, or order has not been paid by the credit institution. The payee or holder of a
check, draft, or order that has been dishonored incurs no civil or criminal liability for sending
notice under this subsection.
(f) A person does not commit a crime under subsection (a) when:
(1) the payee or holder knows that the person has insufficient funds to ensure payment or
that the check, draft, or order is postdated; or
(2) insufficiency of funds or credit results from an adjustment to the person's account by the
credit institution without notice to the person.
IC 35-43-5-12
Check fraud
Sec. 12. (a) As used in this section, "financial institution" refers to a state or federally
chartered bank, savings bank, savings association, or credit union.
(b) A person who knowingly or intentionally obtains property, through a scheme or artifice,
with intent to defraud:
(1) by issuing or delivering a check, a draft, an electronic debit, or an order on a financial
institution:
(A) knowing that the check, draft, order, or electronic debit will not be paid or honored
by the financial institution upon presentment in the usual course of business;
(B) using false or altered evidence of identity or residence;
(C) using a false or an altered account number; or
(D) using a false or an altered check, draft, order or electronic instrument;
(2) by:
(A) depositing the minimum initial deposit required to open an account; and
(B) either making no additional deposits or making insufficient additional deposits to
insure debits to the account; or
(3) by opening accounts with more than one (1) financial institution in either a consecutive
or concurrent time period;
commits check fraud, a Class D felony. However, the offense is a Class C felony if the person
has a prior unrelated conviction under this section or the aggregate amount of property obtained
is at least twenty-five thousand dollars ($25,000).
IC 35-50
SENTENCES
IC 35-50-1
Chapter 1. General Provisions
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IC 35-50-1-1
Authority to sentence (Authors note: Except for jury verdict of death or life w/o parole.)
Sec. 1. The court shall fix the penalty of and sentence a person convicted of an offense.
Death Sentence and Sentences for Felonies and Habitual Offenders
IC 35-50-2-1
Definitions
Sec. 1. (a) As used in this chapter, "Class D felony conviction" means a conviction of a Class
D felony in Indiana and a conviction, in any other jurisdiction at any time, with respect to which
the convicted person might have been imprisoned for more than one (1) year. However, it does
not include a conviction with respect to which the person has been pardoned, or a conviction of a
Class A misdemeanor under section 7(b) of this chapter.
(b) As used in this chapter, "felony conviction" means a conviction, in any jurisdiction at any
time, with respect to which the convicted person might have been imprisoned for more than one
(1) year. However, it does not include a conviction with respect to which the person has been
pardoned, or a conviction of a Class A misdemeanor under section 7(b) of this chapter.
(c) As used in this chapter, "minimum sentence" means:
(1) for murder, forty-five (45) years;
(2) for a Class A felony, twenty (20) years;
(3) for a Class B felony, six (6) years;
(4) for a Class C felony, two (2) years; and
(5) for a Class D felony, one-half (1/2) year.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977, P.L.340, SEC.114; P.L.3341983, SEC.1; P.L.98-1988, SEC.8; P.L.243-2001, SEC.2 and P.L.291-2001, SEC.225.
IC 35-50-2-1.3
Advisory sentences
Sec. 1.3. (a) For purposes of sections 3 through 7 of this chapter, "advisory sentence" means a
guideline sentence that the court may voluntarily consider as the midpoint between the maximum
sentence and the minimum sentence.
(b) Except as provided in subsection (c), a court is not required to use an advisory sentence.
(c) In imposing:
(1) consecutive sentences for felony convictions that are not crimes of violence (as defined
in IC 35-50-1-2(a)) arising out of an episode of criminal conduct, in accordance with IC 35-50-12;
(2) an additional fixed term to an habitual offender under section 8 of this chapter; or
(3) an additional fixed term to a repeat sexual offender under section 14 of this chapter;
a court is required to use the appropriate advisory sentence in imposing a consecutive sentence or
an additional fixed term. However, the court is not required to use the advisory sentence in
imposing the sentence for the underlying offense.
(d) This section does not require a court to use an advisory sentence in imposing consecutive
sentences for felony convictions that do not arise out of an episode of criminal conduct.
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IC 35-50-2-3
Murder
Sec. 3. (a) A person who commits murder shall be imprisoned for a fixed term of between
forty-five (45) and sixty-five (65) years, with the advisory sentence being fifty-five (55) years. In
addition, the person may be fined not more than ten thousand dollars ($10,000).
(b) Notwithstanding subsection (a), a person who was:
(1) at least eighteen (18) years of age at the time the murder was committed may be
sentenced to:
(A) death; or
(B) life imprisonment without parole; and
(2) at least sixteen (16) years of age but less than eighteen (18) years of age at the time the
murder was committed may be sentenced to life imprisonment without parole;
under section 9 of this chapter unless a court determines under IC 35-36-9 that the person is
an individual with mental retardation.
As added by Acts 1976, P.L.148, SEC.8. Amended by Acts 1977, P.L.340, SEC.116; P.L.3321987, SEC.1; P.L.250-1993, SEC.1; P.L.164-1994, SEC.2; P.L.158-1994, SEC.5; P.L.2-1995,
SEC.128; P.L.148-1995, SEC.4; P.L.117-2002, SEC.1; P.L.71-2005, SEC.6; P.L.99-2007,
SEC.212.
IC 35-50-2-4
Class A felony
Sec. 4. A person who commits a Class A felony shall be imprisoned for a fixed term of
between twenty (20) and fifty (50) years, with the advisory sentence being thirty (30) years. In
IC 35-50-2-5
Class B felony
Sec. 5. A person who commits a Class B felony shall be imprisoned for a fixed term of
between six (6) and twenty (20) years, with the advisory sentence being ten (10) years. In
IC 35-50-2-6
Class C felony; commission of nonsupport of child as Class D felony
Sec. 6. (a) A person who commits a Class C felony shall be imprisoned for a fixed term of
between two (2) and eight (8) years, with the advisory sentence being four (4) years. In addition,
the person may be fined not more than ten thousand dollars ($10,000).
(b) Notwithstanding subsection (a), if a person has committed nonsupport of a child as a Class
C felony under IC 35-46-1-5, upon motion of the prosecuting attorney, the court may enter
judgment of conviction of a Class D felony under IC 35-46-1-5 and sentence the person
accordingly. The court shall enter in the record detailed reasons for the court's action when the
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court enters a judgment of conviction of a Class D felony under this subsection.
IC 35-50-2-7
Class D felony
Sec. 7. (a) A person who commits a Class D felony shall be imprisoned for a fixed term of
between six (6) months and three (3) years, with the advisory sentence being one and one-half (1
1/2) years. In addition, the person may be fined not more than ten thousand dollars ($10,000).
(b) Notwithstanding subsection (a), if a person has committed a Class D felony, the court may
enter judgment of conviction of a Class A misdemeanor and sentence accordingly. However, the
court shall enter a judgment of conviction of a Class D felony if:
(1) the court finds that:
(A) the person has committed a prior, unrelated felony for which judgment was entered
as a conviction of a Class A misdemeanor; and
(B) the prior felony was committed less than three (3) years before the second felony was
committed;
(2) the offense is domestic battery as a Class D felony under IC 35-42-2-1.3; or
(3) the offense is possession of child pornography (IC 35-42-4-4(c)).
The court shall enter in the record, in detail, the reason for its action whenever it exercises the
power to enter judgment of conviction of a Class A misdemeanor granted in this subsection.
P.L.204, SEC.40; P.L.334-1983, SEC.3; P.L.136-1987, SEC.7; P.L.167-1990, SEC.2; P.L.1881999, SEC.9; P.L.98-2003, SEC.3; P.L.71-2005, SEC.10.
IC 35-50-2-9
Death penalty sentencing procedure
Sec. 9. (a) The state may seek either a death sentence or a sentence of life imprisonment
without parole for murder by alleging, on a page separate from the rest of the charging
instrument, the existence of at least one (1) of the aggravating circumstances listed in subsection
(b). In the sentencing hearing after a person is convicted of murder, the state must prove beyond
a reasonable doubt the existence of at least one (1) of the aggravating circumstances alleged.
However, the state may not proceed against a defendant under this section if a court
determines at a pretrial hearing under IC 35-36-9 that the defendant is an individual with
mental retardation.
(b) The aggravating circumstances are as follows:
(1) The defendant committed the murder by intentionally killing the victim while
committing or attempting to commit any of the following:
(A) Arson (IC 35-43-1-1).
(B) Burglary (IC 35-43-2-1).
(C) Child molesting (IC 35-42-4-3).
(D) Criminal deviate conduct (IC 35-42-4-2).
(E) Kidnapping (IC 35-42-3-2).
(F) Rape (IC 35-42-4-1).
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(G) Robbery (IC 35-42-5-1).
(H) Carjacking (IC 35-42-5-2).
(I) Criminal gang activity (IC 35-45-9-3).
(J) Dealing in cocaine or a narcotic drug (IC 35-48-4-1).
(2) The defendant committed the murder by the unlawful detonation of an explosive with
intent to injure person or damage property.
(3) The defendant committed the murder by lying in wait.
(4) The defendant who committed the murder was hired to kill.
(5) The defendant committed the murder by hiring another person to kill.
(6) The victim of the murder was a corrections employee, probation officer, parole officer,
community corrections worker, home detention officer, fireman, judge, or law enforcement
officer, and either:
(A) the victim was acting in the course of duty; or
(B) the murder was motivated by an act the victim performed while acting in the course
of duty.
(7) The defendant has been convicted of another murder.
(8) The defendant has committed another murder, at any time, regardless of whether the
defendant has been convicted of that other murder.
(9) The defendant was:
(A) under the custody of the department of correction;
(B) under the custody of a county sheriff;
(C) on probation after receiving a sentence for the commission of a felony; or
(D) on parole;
at the time the murder was committed.
(10) The defendant dismembered the victim.
(11) The defendant burned, mutilated, or tortured the victim while the victim was alive.
(12) The victim of the murder was less than twelve (12) years of age.
(13) The victim was a victim of any of the following offenses for which the defendant was
convicted:
(A) Battery as a Class D felony or as a Class C felony under IC 35-42-2-1.
(B) Kidnapping (IC 35-42-3-2).
(C) Criminal confinement (IC 35-42-3-3).
(D) A sex crime under IC 35-42-4.
(14) The victim of the murder was listed by the state or known by the defendant to be a
witness against the defendant and the defendant committed the murder with the intent to prevent
the person from testifying.
(15) The defendant committed the murder by intentionally discharging a firearm (as defined
in IC 35-47-1-5):
(A) into an inhabited dwelling; or
(B) from a vehicle.
(16) The victim of the murder was pregnant and the murder resulted in the intentional
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killing of a fetus that has attained viability (as defined in IC 16-18-2-365).
(c) The mitigating circumstances that may be considered under this section are as
follows:
(1) The defendant has no significant history of prior criminal conduct.
(2) The defendant was under the influence of extreme mental or emotional disturbance
when the murder was committed.
(3) The victim was a participant in or consented to the defendant's conduct.
(4) The defendant was an accomplice in a murder committed by another person, and the
defendant's participation was relatively minor.
(5) The defendant acted under the substantial domination of another person.
(6) The defendant's capacity to appreciate the criminality of the defendant's conduct or to
conform that conduct to the requirements of law was substantially impaired as a result of mental
disease or defect or of intoxication.
(7) The defendant was less than eighteen (18) years of age at the time the murder was
committed.
(8) Any other circumstances appropriate for consideration.
(d) If the defendant was convicted of murder in a jury trial, the jury shall reconvene for the
sentencing hearing. If the trial was to the court, or the judgment was entered on a guilty plea, the
court alone shall conduct the sentencing hearing. The jury or the court may consider all the
evidence introduced at the trial stage of the proceedings, together with new evidence presented at
the sentencing hearing. The court shall instruct the jury concerning the statutory penalties for
murder and any other offenses for which the defendant was convicted, the potential for
consecutive or concurrent sentencing, and the availability of good time credit and clemency. The
court shall instruct the jury that, in order for the jury to recommend to the court that the death
penalty or life imprisonment without parole should be imposed, the jury must find at least one
(1) aggravating circumstance beyond a reasonable doubt as described in subsection (l) and shall
provide a special verdict form for each aggravating circumstance alleged. The defendant may
present any additional evidence relevant to:
(1) the aggravating circumstances alleged; or
(2) any of the mitigating circumstances listed in subsection (c).
(e) For a defendant sentenced after June 30, 2002, except as provided by IC 35-36-9, if
the hearing is by jury, the jury shall recommend to the court whether the death penalty or
life imprisonment without parole, or neither, should be imposed. The jury may
recommend:
(1) the death penalty; or
(2) life imprisonment without parole;
only if it makes the findings described in subsection (l). If the jury reaches a sentencing
recommendation, the court shall sentence the defendant accordingly. After a court
pronounces sentence, a representative of the victim's family and friends may present a
statement regarding the impact of the crime on family and friends.
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The impact statement may be submitted in writing or given orally by the representative. The
statement shall be given in the presence of the defendant.
(f) If a jury is unable to agree on a sentence recommendation after reasonable
deliberations, the court shall discharge the jury and proceed as if the hearing had been to
the court alone.
(g) If the hearing is to the court alone, except as provided by IC 35-36-9, the court shall:
(1) sentence the defendant to death; or
(2) impose a term of life imprisonment without parole;
only if it makes the findings described in subsection (l).
(h) If a court sentences a defendant to death, the court shall order the defendant's execution to
be carried out not later than one (1) year and one (1) day after the date the defendant was
convicted. The supreme court has exclusive jurisdiction to stay the execution of a death sentence.
If the supreme court stays the execution of a death sentence, the supreme court shall order a new
date for the defendant's execution.
(i) If a person sentenced to death by a court files a petition for post-conviction relief, the court,
not later than ninety (90) days after the date the petition is filed, shall set a date to hold a hearing
to consider the petition. If a court does not, within the ninety (90) day period, set the date to hold
the hearing to consider the petition, the court's failure to set the hearing date is not a basis for
additional post-conviction relief. The attorney general shall answer the petition for postconviction relief on behalf of the state. At the request of the attorney general, a prosecuting
attorney shall assist the attorney general. The court shall enter written findings of fact and
conclusions of law concerning the petition not later than ninety (90) days after the date the
hearing concludes. However, if the court determines that the petition is without merit, the court
may dismiss the petition within ninety (90) days without conducting a hearing under this
subsection.
(j) A death sentence is subject to automatic review by the supreme court. The review, which
shall be heard under rules adopted by the supreme court, shall be given priority over all other
cases. The supreme court's review must take into consideration all claims that the:
(1) conviction or sentence was in violation of the:
(A) Constitution of the State of Indiana; or
(B) Constitution of the United States;
(2) sentencing court was without jurisdiction to impose a sentence; and
(3) sentence:
(A) exceeds the maximum sentence authorized by law; or
(B) is otherwise erroneous.
If the supreme court cannot complete its review by the date set by the sentencing court for the
defendant's execution under subsection (h), the supreme court shall stay the execution of the
death sentence and set a new date to carry out the defendant's execution.
(k) A person who has been sentenced to death and who has completed state post-conviction
review proceedings may file a written petition with the supreme court seeking to present new
evidence challenging the person's guilt or the appropriateness of the death sentence if the person
serves notice on the attorney general. The supreme court shall determine, with or without a
hearing, whether the person has presented previously undiscovered evidence that undermines
confidence in the conviction or the death sentence. If necessary, the supreme court may remand
the case to the trial court for an evidentiary hearing to consider the new evidence and its effect on
the person's conviction and death sentence. The supreme court may not make a determination in
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the person's favor nor make a decision to remand the case to the trial court for an evidentiary
hearing without first providing the attorney general with an opportunity to be heard on the
matter.
(l) Before a sentence may be imposed under this section, the jury, in a proceeding under
subsection (e), or the court, in a proceeding under subsection (g), must find that:
(1) the state has proved beyond a reasonable doubt that at least one (1) of the aggravating
circumstances listed in subsection (b) exists; and
(2) any mitigating circumstances that exist are outweighed by the aggravating circumstance
or circumstances.
As added by Acts 1977, P.L.340, SEC.122. Amended by P.L.336-1983, SEC.1; P.L.212-1986,
SEC.7; P.L.80-2002, SEC.1; P.L.117-2002, SEC.2; P.L.1-2003, SEC.97; P.L.147-2003, SEC.1;
P.L.1-2006, SEC.550; P.L.99-2007, SEC.213.
IC 35-50-2-11
Firearm used in commission of offense; separate charge; additional sentence
Sec. 11. (a) As used in this section, "firearm" has the meaning set forth in IC 35-47-1-5.
(b) As used in this section, "offense" means:
(1) a felony under IC 35-42 that resulted in death or serious bodily injury;
(2) kidnapping; or
(3) criminal confinement as a Class B felony.
(c) The state may seek, on a page separate from the rest of a charging instrument, to have a
person who allegedly committed an offense sentenced to an additional fixed term of
imprisonment if the state can show beyond a reasonable doubt that the person knowingly or
intentionally used a firearm in the commission of the offense.
(d) If the person was convicted of the offense in a jury trial, the jury shall reconvene to hear
evidence in the enhancement hearing. If the trial was to the court, or the judgment was entered
on a guilty plea, the court alone shall hear evidence in the enhancement hearing.
(e) If the jury (if the hearing is by jury) or the court (if the hearing is to the court alone) finds
that the state has proved beyond a reasonable doubt that the person knowingly or intentionally
used a firearm in the commission of the offense, the court may sentence the person to an
additional fixed term of imprisonment of five (5) years.
Sentences for Misdemeanors

IC 35-50-3-1
Suspension; probation
Sec. 1. (a) The court may suspend any part of a sentence for a misdemeanor.
(b) Except as provided in subsection (c), whenever the court suspends in whole or in part a
sentence for a Class A, Class B, or Class C misdemeanor, it may place the person on probation
under IC 35-38-2 for a fixed period of not more than one (1) year, notwithstanding the maximum
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term of imprisonment for the misdemeanor set forth in sections 2 through 4 of this chapter.
However, the combined term of imprisonment and probation for a misdemeanor may not exceed
one (1) year.
(c) Whenever the court suspends a sentence for a misdemeanor, if the court finds that the use
or abuse of alcohol, drugs, or harmful substances is a contributing factor or a material element of
the offense, the court may place the person on probation under IC 35-38-2 for a fixed period of
not more than two (2) years. However, a court may not place a person on probation for a period
of more than twelve (12) months in the absence of a report that substantiates the need for a
period of probation that is longer than twelve (12) months for the purpose of completing a course
of substance abuse treatment. A probation user's fee that exceeds fifty percent (50%) of the
maximum probation user's fee allowed under IC 35-38-2-1 may not be required beyond the first
twelve (12) months of probation.
IC 35-50-3-2
Class A misdemeanor
Sec. 2. A person who commits a Class A misdemeanor shall be imprisoned for a fixed term of
not more than one (1) year; in addition, he may be fined not more than five thousand dollars
($5,000).
IC 35-50-3-3
Class B misdemeanor
Sec. 3. A person who commits a Class B misdemeanor shall be imprisoned for a fixed term of
not more than one hundred eighty (180) days; in addition, he may be fined not more than one
thousand dollars ($1,000).
IC 35-50-3-4
Class C misdemeanor
Sec. 4. A person who commits a Class C misdemeanor shall be imprisoned for a fixed term of
not more than sixty (60) days; in addition, he may be fined not more than five hundred dollars
($500).
IC 35-33-1
Chapter 1. Arrest
IC 35-33-1-1
Law enforcement officer; federal enforcement officer
Sec. 1. (a) A law enforcement officer may arrest a person when the officer has:
(1) a warrant commanding that the person be arrested;
(2) probable cause to believe the person has committed or attempted to commit, or is
committing or attempting to commit, a felony;
(3) probable cause to believe the person has violated the provisions of IC 9-26-1-1(1), IC 926-1-1(2), IC 9-26-1-2(1), IC 9-26-1-2(2), IC 9-26-1-3, IC 9-26-1-4, or IC 9-30-5;
(4) probable cause to believe the person is committing or attempting to commit a
misdemeanor in the officer's presence;
(5) probable cause to believe the person has committed a:
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(A) battery resulting in bodily injury under IC 35-42-2-1; or
(B) domestic battery under IC 35-42-2-1.3.
The officer may use an affidavit executed by an individual alleged to have direct knowledge
of the incident alleging the elements of the offense of battery to establish probable cause;
(6) probable cause to believe that the person violated IC 35-46-1-15.1 (invasion of privacy);
(7) probable cause to believe that the person violated IC 35-47-2-1 (carrying a handgun
without a license) or IC 35-47-2-22 (counterfeit handgun license);
(8) probable cause to believe that the person is violating or has violated an order issued
under IC 35-50-7;
(9) probable cause to believe that the person is violating or has violated IC 35-47-6-1.1
(undisclosed transport of a dangerous device); or
(10) probable cause to believe that the person is:
(A) violating or has violated IC 35-45-2-5 (interference with the reporting of a crime);
and
(B) interfering with or preventing the reporting of a crime involving domestic or family
violence (as defined in IC 34-6-2-34.5).
(b) A person who:
(1) is employed full time as a federal enforcement officer;
(2) is empowered to effect an arrest with or without warrant for a violation of the United
States Code; and
(3) is authorized to carry firearms in the performance of the person's duties;
may act as an officer for the arrest of offenders against the laws of this state where the person
reasonably believes that a felony has been or is about to be committed or attempted in the
person's presence.
IC 35-33-1-1.5
Crime involving domestic or family violence; duties of law enforcement officers;
confiscation of firearm, ammunition, or deadly weapon
Sec. 1.5. (a) A law enforcement officer responding to the scene of an alleged crime involving
domestic or family violence shall use all reasonable means to prevent further violence, including
the following:
(1) Transporting or obtaining transportation for the alleged victim and each child to a
designated safe place to meet with a domestic violence counselor, local family member, or
friend.
(2) Assisting the alleged victim in removing toiletries, medication, and necessary clothing.
(3) Giving the alleged victim immediate and written notice of the rights under IC 35-40.
(b) A law enforcement officer may confiscate and remove a firearm, ammunition, or a deadly
weapon from the scene if the law enforcement officer has:
(1) probable cause to believe that a crime involving domestic or family violence has
occurred;
(2) a reasonable belief that the firearm, ammunition, or deadly weapon:
(A) exposes the victim to an immediate risk of serious bodily injury; or
(B) was an instrumentality of the crime involving domestic or family violence; and
(3) observed the firearm, ammunition, or deadly weapon at the scene during the response.
(c) If a firearm, ammunition, or a deadly weapon is removed from the scene under subsection
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(b), the law enforcement officer shall provide for the safe storage of the firearm, ammunition, or
deadly weapon during the pendency of a proceeding related to the alleged act of domestic or
family violence.
IC 35-33-1-1.7
Mandatory hold on person arrested for domestic violence
Sec. 1.7. (a) A facility having custody of a person arrested for a crime of domestic violence
(as described in IC 35-41-1-6.3) shall keep the person in custody for at least eight (8) hours from
the time of the arrest.
(b) A person described in subsection (a) may not be released on bail until at least eight (8)
hours from the time of the person's arrest.
IC 35-33-1-2
Judge
Sec. 2. A judge may arrest, or order the arrest of a person in his presence, when he has
probable cause to believe the person has committed a crime.
As added by Acts 1981, P.L.298, SEC.2.
IC 35-33-1-3
Coroner
Sec. 3. A coroner has the authority to arrest any person when performing the duties of the
sheriff under IC 36-2-14-4 and authority to arrest the sheriff under IC 36-2-14-5.
IC 35-33-1-4
Any person
Sec. 4. (a) Any person may arrest any other person if:
(1) the other person committed a felony in his presence;
(2) a felony has been committed and he has probable cause to believe that the other person
has committed that felony; or
(3) a misdemeanor involving a breach of peace is being committed in his presence and the
arrest is necessary to prevent the continuance of the breach of peace.
(b) A person making an arrest under this section shall, as soon as practical, notify a law
enforcement officer and deliver custody of the person arrested to a law enforcement officer.
(c) The law enforcement officer may process the arrested person as if the officer had arrested
him. The officer who receives or processes a person arrested by another under this section is not
liable for false arrest or false imprisonment.
IC 35-33-1-5
Definition
Sec. 5. Arrest is the taking of a person into custody, that he may be held to answer for a
crime.
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IC 35-33-1-6
Chart to determine detention time before release pending trial
Sec. 6. A law enforcement agency may use the following chart to determine the minimum
number of hours that a person arrested for an alcohol-related offense should be detained before
his release pending trial:
HOURS AFTER INITIAL READING
BLOOD OR
IS TAKEN
BREATH
ALCOHOL
LEVEL IN
GRAMS 1 2 3 4 5 6 7 8 9 10 11 12 13 14
.09 .075 .06 .045 .03 .015 .00 .000 .00 .000 .00 .000 .00 .000 .00
.10 .085 .07 .055 .04 .025 .01 .000 .00 .000 .00 .000 .00 .000 .00
.11 .095 .08 .065 .05 .035 .02 .005 .00 .000 .00 .000 .00 .000 .00
.12 .105 .09 .075 .06 .045 .03 .015 .00 .000 .00 .000 .00 .000 .00
.13 .115 .10 .085 .07 .055 .04 .025 .01 .000 .00 .000 .00 .000 .00
.14
.15
.16
.125 .11 .095 .08 .065 .05 .035 .02 .005 .00 .000 .00 .000 .00
.135 .12 .105 .09 .075 .06 .045 .03 .015 .00 .000 .00 .000 .00
.145 .13 .115 .10 .085 .07 .055 .04 .025 .01 .000 .00 .000 .00
1 2 3 4 5 6 7 8 9 10 11 12 13 14
.17 .155 .14 .125 .11 .095 .08 .065 .05 .035 .02 .005 .00 .000 .00
.18 .165 .15 .135 .12 .105 .09 .075 .06 .045 .03 .015 .00 .000 .00
.19 .175 .16 .145 .13 .115 .10 .085 .07 .055 .04 .025 .01 .000 .00
.20 .185 .17 .155 .14 .125 .11 .095 .08 .065 .05 .035 .02 .005 .00
.21 .195 .18 .165 .15 .135 .12 .105 .09 .075 .06 .045 .03 .015 .00
.22 .205 .19 .175 .16 .145 .13 .115 .10 .085 .07 .055 .04 .025 .01
.23 .215 .20 .185 .17 .155 .14 .125 .11 .095 .08 .065 .05 .035 .02
.24 .225 .21 .195 .18 .165 .15 .135 .12 .105 .09 .075 .06 .045 .03
.25 .235 .22 .205 .19 .175 .16 .145 .13 .115 .10 .085 .07 .055 .04
.26 .245 .23 .215 .20 .185 .17 .155 .14 .125 .11 .095 .08 .065 .05
Note: In order to find when a person will reach the legal blood or breath alcohol level, find the
blood or breath alcohol level reading in the left hand column, go across and find where the blood
or breath alcohol level reading is an alcohol concentration equivalent (as defined in IC 9-13-22.4) to below eight-hundredths (0.08) gram of alcohol per one hundred (100) milliliters of the
person's blood or per two hundred ten (210) liters of the person's breath, then read up that
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column to find the minimum number of hours before the person can be released.
Chapter 2. Arrest Warrants

IC 35-33-2-1
Grounds; indictment or information filed; probable cause
Sec. 1. (a) Except as provided in chapter 4 of this article, whenever an indictment is filed and
the defendant has not been arrested or otherwise brought within the custody of the court, the
court, without making a determination of probable cause, shall issue a warrant for the arrest of
the defendant.
(b) Whenever an information is filed and the defendant has not been arrested or otherwise
brought within the custody of the court, the court shall issue a warrant for the arrest of the
defendant after first determining that probable cause exists for the arrest.
(c) No warrant for arrest of a person may be issued until:
(1) an indictment has been found charging him with the commission of an offense; or
(2) a judge has determined that probable cause exists that the person committed a crime and
an information has been filed charging him with a crime.
IC 35-33-2-2
Contents; form
Sec. 2. (a) A warrant of arrest shall:
(1) be in writing;
(2) specify the name of the person to be arrested, or if his name is unknown, shall designate
such person by any name or description by which he can be identified with reasonable certainty;
(3) set forth the nature of the offense for which the warrant is issued;
(4) state the date and county of issuance;
(5) be signed by the clerk or the judge of the court with the title of his office;
(6) command that the person against whom the indictment or information was filed be
arrested and brought before the court issuing the warrant, without unnecessary delay;
(7) specify the amount of bail, if any; and
(8) be directed to the sheriff of the county.
(b) An arrest warrant may be in substantially the following form:
TO: ______________
You are hereby commanded to arrest ___________ forthwith, and hold that person to bail in
the sum of _______ dollars, to answer in the _______ Court of ________ County, in the State of
Indiana, an information or indictment for ____________.
And for want of bail commit him to the jail of the County, and thereafter without unnecessary
delay to bring him before the said court.
IN WITNESS WHEREOF, I, ___________ (Clerk/Judge) of said
Court, hereto affix the seal thereof, and subscribe my name at __________ this ________ day of
_______ A.D. 20__.
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______________________
Clerk or Judge of the Court
IC 35-33-2-3
Issuance; service or arrests; forcible entry; wrongful entry, recovery of damages
Sec. 3. (a) The warrant is issued to the sheriff of the county where the indictment or
information is filed. This warrant may be served or arrests on it made:
(1) by any law enforcement officer;
(2) on any day of the week; and
(3) at any time of the day or night.
(b) A law enforcement officer may break open any outer or inner door or window in order to
execute an arrest warrant, if he is not admitted following an announcement of his authority and
purpose.
(c) The accused person shall be delivered to the sheriff of the county in which the indictment
or information was filed, and the sheriff shall commit the accused person to jail or hold him to
bail as provided in this article.
(d) A person or persons whose property is wrongfully damaged or whose person is wrongfully
injured by any law enforcement officer or officers who wrongfully enter may recover such
damage from the responsible authority and the law enforcement officer or officers as the court
may determine. The action may be filed in the circuit court, superior court or county court in the
county where the wrongful entry took place.
As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982, P.L.204, SEC.8; P.L.320-1983,
SEC.4.
INVOLUNTARY DETENTIONS OF MENTALLY ILL

I. Involuntary Detention or Commitment
A. IC 12-26-1-1 refers to four types of involuntary detention or commitment:
1. Immediate Detention (24 hour)
2. Emergency Detention (72 hour)
3. Temporary Commitment (90 day)
4. Regular Commitment
B. All of the above require that the individual be (1) mentally ill and (2) either (1) dangerous to
self or others or gravely disabled (Immediate Detention not available if only gravely disabled).
II. Definitions:
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A. Mental illness (IC 12-7-2-130): a psychiatric disorder that (1) substantially disturbs an
individuals thinking, feeling, or behavior and (2) impairs the individuals ability to function.
The term includes mental retardation, alcoholism, and addiction to narcotics or drugs.
B. Dangerous (IC 12-7-2-53): a condition in which an individual as a result of mental illness
presents a substantial risk that the individual will harm themselves or others.
C. Gravely Disabled (IC 12-7-2-96): a condition in which an individual as a result of mental
illness is in danger of coming to harm because the individual:
1. Is unable to provide for that individuals food, clothing, shelter or other essential human
needs; or
2. Has a substantial impairment or an obvious deterioration of that individuals judgment,
reasoning or behavior that results in the individuals inability to function independently.
III. Immediate Detention (IC 12-26-4) (Commonly known as a 24 hour detention). Often used
by a Crisis Intervention Team program. Note: This type of detention does not require the
approval of a judge.
A. A law enforcement officer, having reasonable grounds to believe that:
1. An individual is (1) mentally ill and (2) dangerous and (3) in immediate need of
hospitalization and treatment may:
(a) Apprehend and transport the individual to the nearest appropriate facility (not a state
institution) for emergency treatment to preserve the individuals health and safety.
(b) Charge the individual with an offense if applicable. The officer does not have immunity
from civil liability but will not be liable if the officer has reasonable grounds to believe.
The officer shall submit to the facility a written statement containing the basis for the officers
conclusion that reasonable grounds exist for the detention.
B. The detention may not be for more than 24 hours commencing from the time of admission
to the facility. The facility shall provide emergency treatment. If the attending physician
believes that the individual should be detained for more than 24 hours, an application for
Emergency 72 hour Detention should be filed.
IV. Emergency Detention (IC 12-26-5) (Commonly known as a 72 hour detention).
A. Initiated by written application for detention. The application must contain (1) a statement
from the applicant that the applicant believes the person is mentally ill and either dangerous or
gravely disabled and (3) in need of immediate restraint. A law enforcement officer may be an
applicant. The application must contain a statement by at least one physician that is based upon
an examination or information given to the physician that the individual may be mentally ill and
is either dangerous or gravely disabled.
B. The application is filed with a judge and if approved, the judge issues an order that the
individual be taken into custody and transported to an appropriate facility. The officer executing
the order has immunity from civil liability.
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C. The detention may not be for more than 72 hours commencing from the time of admission
to the facility. The facility shall provide emergency treatment. If the attending physician
believes that there is probable cause to believe that the individual is mentally ill and dangerous or
gravely disabled and requires continuing care and treatment and therefore should be detained for
more than 72 hours, a petition for involuntary commitment should be prepared and filed with the
court prior to the expiration of the 72 hour detention.
D. Upon the filing of the petition for involuntary commitment with the court, the court within
48 hours of receiving the report shall hold a hearing to determine if there is clear and convincing
evidence that such facts are true, and if so, whether a temporary (90 day) or regular commitment
order should be issued.
V. Temporary Commitment (IC 12-26-6-1) (Commonly known as a 90 day commitment).
A. After the hearing set forth in D above, the Court can order the individual committed to an
appropriate facility for a period of not to exceed 90 days or order the individual to participate in
out-patient treatment not to exceed 90 days. The commitment may be extended by the court for
an additional 90 days.
VI. Regular Commitment (IC 12-26-7) (Ends with discharge by facility or court order)
May be ordered by the court after a hearing set forth in D above, after a 90 day commitment
or after a hearing on an initial petition for regular commitment if the court expects the individual
to require custody, care or treatment in a facility for a period exceeding 90 days. The court may
order a commitment for a period exceeding 90 days if the court finds by clear and convincing
evidence that the individual is mentally ill and either dangerous or gravely disabled and that care
and treatment will exceed 90 days. Annual review by court unless discharged earlier.
IC 35-33-5
Chapter 5. Search and Seizure
IC 35-33-5-1
Issuance by court; probable cause; oath and affirmation; "place" defined; objects of search
Sec. 1. (a) A court may issue warrants only upon probable cause, supported by oath or
affirmation, to search any place for any of the following:
(1) Property which is obtained unlawfully.
(2) Property, the possession of which is unlawful.
(3) Property used or possessed with intent to be used as the means of committing an offense
or concealed to prevent an offense from being discovered.
(4) Property constituting evidence of an offense or tending to show that a particular person
committed an offense.
(5) Any person.
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(6) Evidence necessary to enforce statutes enacted to prevent cruelty to or neglect of
children.
(7) A firearm possessed by a person who is dangerous (as defined in IC 35-47-14-1).
(b) As used in this section, "place" includes any location where property might be secreted or
hidden, including buildings, persons, or vehicles.
As added by Acts 1981, P.L.298, SEC.2. Amended by Acts 1982, P.L.204, SEC.10; P.L.1872005, SEC.1; P.L.1-2006, SEC.526.
IC 35-33-5-2
Affidavit; descriptions; information to establish credibility of hearsay; form
Sec. 2. (a) Except as provided in section 8 of this chapter, no warrant for search or arrest shall
be issued until there is filed with the judge an affidavit:
(1) particularly describing:
(A) the house or place to be searched and the things to be searched for; or
(B) particularly describing the person to be arrested;
(2) alleging substantially the offense in relation thereto and that the affiant believes and has
good cause to believe that:
(A) the things as are to be searched for are there concealed; or
(B) the person to be arrested committed the offense; and
(3) setting forth the facts then in knowledge of the affiant or information based on hearsay,
constituting the probable cause.
(b) When based on hearsay, the affidavit must either:
(1) contain reliable information establishing the credibility of the source and of each of the
declarants of the hearsay and establishing that there is a factual basis for the information
furnished; or
(2) contain information that establishes that the totality of the circumstances corroborates
the hearsay.
(c) An affidavit for search substantially in the following form shall be treated as sufficient:
STATE OF INDIANA
)
) SS:
COUNTY OF __________ )
A B swears (or affirms, as the case may be) that he believes and has good cause to
believe (here set forth the facts and information constituting the probable cause) that (here
describe the things to be searched for and the offense in relation thereto) are concealed in or
about the (here describe the house or place) of C D, situated in the county of
_____________________, in said state.
Subscribed and sworn to before me this _____ day of _______ 20__.
SEC.1; P.L.1-1991, SEC.190; P.L.2-2005, SEC.117.
IC 35-33-5-3
Form
Sec. 3. A search warrant in substantially the following form shall be sufficient:
STATE OF INDIANA
)
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) SS:
COUNTY OF __________ ) IN THE _______ COURT OF _____________________
To _______________ (herein insert the name, department or classification of the law
enforcement officer to whom it is addressed)
You are authorized and ordered, in the name of the State of Indiana, with the necessary and
proper assistance to enter into or upon ________________________ (here describe the place to
be searched), and there diligently search for ________________ (here describe property which is
the subject of the search). You are ordered to seize such property, or any part thereof, found on
such search.
Dated this ____ day of ______, 20___, at the hour of ___ __M.
_________________________
(Signature of Judge)
Executed this ___ day of ______, 20___, at the hour of ____ ___M.
________________________________
(Signature of Law Enforcement Officer)
As added by Acts 1981, P.L.298, SEC.2. Amended by P.L.2-2005, SEC.118.
IC 35-33-5-8
Issue of warrant without affidavit; types of sworn testimony; procedures; perjury
Sec. 8. (a) A judge may issue a search or arrest warrant without the affidavit required under
section 2 of this chapter, if the judge receives sworn testimony of the same facts required for an
affidavit:
(1) in a nonadversarial, recorded hearing before the judge;
(2) orally by telephone or radio; or
(3) in writing by facsimile transmission (FAX).
(b) After reciting the facts required for an affidavit and verifying the facts recited under
penalty of perjury, an applicant for a warrant under subsection (a)(2) shall read to the judge from
a warrant form on which the applicant enters the information read by the applicant to the judge.
The judge may direct the applicant to modify the warrant. If the judge agrees to issue the
warrant, the judge shall direct the applicant to sign the judge's name to the warrant, adding the
time of the issuance of the warrant.
(c) After transmitting an affidavit, an applicant for a warrant under subsection (a)(3) shall
transmit to the judge a copy of a warrant form completed by the applicant. The judge may
modify the transmitted warrant. If the judge agrees to issue the warrant, the judge shall transmit
to the applicant a duplicate of the warrant. The judge shall then sign the warrant retained by the
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judge, adding the time of the issuance of the warrant.
(d) If a warrant is issued under subsection (a)(2), the judge shall record the conversation on
audio tape and order the court reporter to type or transcribe the recording for entry in the record.
The judge shall certify the audio tape, the transcription, and the warrant retained by the judge for
entry in the record.
(e) If a warrant is issued under subsection (a)(3), the judge shall order the court reporter to the
retype or copy the facsimile transmission for entry in the record. The judge shall certify the
transcription or copy and warrant retained by the judge for entry in the record.
(f) The court reporter shall notify the applicant who received a warrant under subsection (a)(2)
or (a)(3) when the transcription or copy required under this section is entered in the record. The
applicant shall sign the typed, transcribed, or copied entry upon receiving notice from the court
reporter.
IC 35-33-7
Chapter 7. Probable Cause; Initial Hearing
IC 35-33-7-1
Arrest without warrant; initial hearing; venue
Sec. 1. (a) A person arrested without a warrant for a crime shall be taken promptly before a
judicial officer:
(1) in the county in which the arrest is made; or
(2) of any county believed to have venue over the offense committed; for an initial hearing
in court.
(b) Except as provided in subsection (c), if the person arrested makes bail before the person's
initial hearing before a judicial officer, the initial hearing shall occur at any time within twenty
(20) calendar days after the person's arrest.
(c) If a person arrested under IC 9-30-5 makes bail before the person's initial hearing before a
judicial officer, the initial hearing must occur within ten (10) calendar days after the person's
arrest.
SEC.103.
IC 35-33-7-2
Probable cause; affidavit or oral presentation under oath; record; determination; detention
or release
Sec. 2. (a) At or before the initial hearing of a person arrested without a warrant for a crime,
the facts upon which the arrest was made shall be submitted to the judicial officer, ex parte, in a
probable cause affidavit. In lieu of the affidavit or in addition to it, the facts may be submitted
orally under oath to the judicial officer. If facts upon which the arrest was made are submitted
orally, the proceeding shall be recorded by a court reporter, and, upon request of any party in the
case or upon order of the court, the record of the proceeding shall be transcribed.
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(b) If the judicial officer determines that there is probable cause to believe that any crime was
committed and that the arrested person committed it, the judicial officer shall order that the
arrested person be held to answer in the proper court. If the facts submitted do not establish
probable cause or if the prosecuting attorney informs the judicial officer on the record that no
charge will be filed against the arrested person, the judicial officer shall order that the arrested
person be released immediately.
IC 35-33-7-3
Filing of indictment or information; recess or continuation of initial hearing; informing
accused of rights
Sec. 3. (a) When a person is arrested for a crime before a formal charge has been filed, an
information or indictment shall be filed or be prepared to be filed at or before the initial hearing,
unless the prosecuting attorney has informed the court that there will be no
charges filed in the case.
(b) If the prosecuting attorney states that more time is required to evaluate the case and
determine whether a charge should be filed, or if it is necessary to transfer the person to another
court, then the court shall recess or continue the initial hearing for up to seventy-two (72) hours,
excluding intervening Saturdays, Sundays, and legal holidays.
(c) Before recessing the initial hearing and after the ex parte probable cause determination has
been made, the court shall inform a defendant charged with a felony of the rights specified in
subdivisions (1), (2), (3), (4), and (5) of section 5 of this chapter.
IC 35-33-7-3.5
Conformity of initial hearing to summons; probable cause
Sec. 3.5. The initial hearing of a person issued a:
(1) summons; or
(2) summons and promise to appear;
must take place according to the terms of the summons. At such an initial hearing, a
determination of probable cause is not required unless the prosecuting attorney requests on the
record that the person be held in custody before his trial.
IC 35-33-7-4
Arrest under warrant; jurisdiction; time of initial hearing
Sec. 4. A person arrested in accordance with the provisions of a warrant shall be taken
promptly for an initial hearing before the court issuing the warrant or before a judicial officer
having jurisdiction over the defendant. If the arrested person has been released in accordance
with the provisions for release stated on the warrant, the initial hearing shall occur at any time
within twenty (20) days after his arrest.
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IC 35-33-7-5
Informing of accused
Sec. 5. At the initial hearing of a person, the judicial officer shall inform him orally or in
writing:
(1) that he has a right to retain counsel and if he intends to retain counsel he must do so
within:
(A) twenty (20) days if the person is charged with a felony; or
(B) ten (10) days if the person is charged only with one (1) or more misdemeanors;
after this initial hearing because there are deadlines for filing motions and raising defenses,
and if those deadlines are missed, the legal issues and defenses that could have been raised will
be waived;
(2) that he has a right to assigned counsel at no expense to him
if he is indigent;
(3) that he has a right to a speedy trial;
(4) of the amount and conditions of bail;
(5) of his privilege against self-incrimination;
(6) of the nature of the charge against him; and
(7) that a preliminary plea of not guilty is being entered for him and the preliminary plea of
not guilty will become a formal plea of not guilty:
(A) twenty (20) days after the completion of the initial hearing; or
(B) ten (10) days after the completion of the initial hearing if the person is charged only
with one (1) or more misdemeanors;
unless the defendant enters a different plea.
In addition, the judge shall direct the prosecuting attorney to give the defendant or his attorney
a copy of any formal felony charges filed or ready to be filed. The judge shall, upon request of
the defendant, direct the prosecuting attorney to give the defendant or his attorney a copy of any
formal misdemeanor charges filed or ready to be filed.
IC 35-33-7-6
Indigent defendant; assignment of counsel; payment to supplemental public defender
services fund
Sec. 6. (a) Prior to the completion of the initial hearing, the judicial officer shall determine
whether a person who requests assigned counsel is indigent. If the person is found to be indigent,
the judicial officer shall assign counsel to the person.
(b) If jurisdiction over an indigent defendant is transferred to another court, the receiving court
shall assign counsel immediately upon acquiring jurisdiction over the defendant.
(c) If the court finds that the person is able to pay part of the cost of representation by the
assigned counsel, the court shall order the person to pay the following:
(1) For a felony action, a fee of one hundred dollars ($100).
(2) For a misdemeanor action, a fee of fifty dollars ($50).
The clerk of the court shall deposit fees collected under this subsection in the county's
supplemental public defender services fund established under IC 33-40-3-1.
(d) The court may review the finding of indigency at any time during the proceedings.
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SEC.139.
IC 35-33-7-7
Order of release not to bar further proceedings
Sec. 7. An order releasing a person under this chapter does not bar further proceedings in the
case.
Chapter 8. Bail and Bail Procedure
IC 35-33-8-1
"Bail bond" defined
Sec. 1. As used in this chapter, "bail bond" means a bond executed by a person who has been
arrested for the commission of an offense, for the purpose of ensuring:
(1) the person's appearance at the appropriate legal proceeding;
(2) another person's physical safety; or
(3) the safety of the community.
IC 35-33-8-1.5
"Publicly paid costs of representation" defined
Sec. 1.5. As used in this chapter, "publicly paid costs of representation" means the portion of
all attorney's fees, expenses, or wages incurred by the county that are:
(1) directly attributable to the defendant's defense; and
(2) not overhead expenditures made in connection with the maintenance or operation of a
governmental agency.
IC 35-33-8-2
Murder; other offenses
Sec. 2. (a) Murder is not bailable when the proof is evident or the presumption strong. In all
other cases, offenses are bailable.
(b) A person charged with murder has the burden of proof that he should be admitted to bail.
As added by Acts 1981, P.L.298, SEC.2. Overruled by Indiana Supreme Court see pg. 42.
IC 35-33-8-3.2
Conditions to assure appearance; remittance of deposit; collection of fees
Sec. 3.2. (a) A court may admit a defendant to bail and impose any of the following
conditions to assure the defendant's appearance at any stage of the legal proceedings, or, upon a
showing of clear and convincing evidence that the defendant poses a risk of physical danger to
another person or the community, to assure the public's physical safety:
(1) Require the defendant to:
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(A) execute a bail bond with sufficient solvent sureties;
(B) deposit cash or securities in an amount equal to the bail;
(C) execute a bond secured by real estate in the county, where thirty-three hundredths
(0.33) of the true tax value less encumbrances is at least equal to the amount of the bail;
(D) post a real estate bond; or
(E) perform any combination of the requirements described in clauses (A) through (D).
If the court requires the defendant to deposit cash or cash and another form of security as
bail, the court may require the defendant and each person who makes the deposit on behalf of the
defendant to execute an agreement that allows the court to retain all or a part of the cash to pay
publicly paid costs of representation and fines, costs, fees, and restitution that the court may
order the defendant to pay if the defendant is convicted. The defendant must also pay the fee
required by subsection (d).
(2) Require the defendant to execute:
(A) a bail bond by depositing cash or securities with the clerk of the court in an amount
not less than ten percent (10%) of the bail; and
(B) an agreement that allows the court to retain all or a part of the cash or securities to
pay fines, costs, fees, and restitution that the court may order the defendant to pay if the
defendant is convicted.
A portion of the deposit, not to exceed ten percent (10%) of the monetary value of the
deposit or fifty dollars ($50), whichever is the lesser amount, may be retained as an
administrative fee. The clerk shall also retain from the deposit under this subdivision fines, costs,
fees, and restitution as ordered by the court, publicly paid costs of representation that shall be
disposed of in accordance with subsection (b), and the fee required by subsection (d). In the
event of the posting of a real estate bond, the bond shall be used only to insure the presence of
the defendant at any stage of the legal proceedings, but shall not be foreclosed for the payment of
fines, costs, fees, or restitution. The individual posting bail for the defendant or the defendant
admitted to bail under this subdivision must be notified by the sheriff, court, or clerk that the
defendant's deposit may be forfeited under section 7 of this chapter or retained under subsection
(b).
(3) Impose reasonable restrictions on the activities, movements, associations, and residence
of the defendant during the period of release.
(4) Except as provided in section 3.6 of this chapter, require the defendant to refrain from
any direct or indirect contact with an individual and, if the defendant has been charged with an
offense under IC 35-46-3, any animal belonging to the individual, including if the defendant has
not been released from lawful detention.
(5) Place the defendant under the reasonable supervision of a probation officer, pretrial
services agency, or other appropriate public official. If the court places the defendant under the
supervision of a probation officer or pretrial services agency, the court shall determine whether
the defendant must pay the pretrial services fee under section 3.3 of this chapter.
(6) Release the defendant into the care of a qualified person or organization responsible for
supervising the defendant and assisting the defendant in appearing in court. The supervisor shall
maintain reasonable contact with the defendant in order to assist the defendant in making
arrangements to appear in court and, where appropriate, shall accompany the defendant to court.
The supervisor need not be financially responsible for the defendant.
(7) Release the defendant on personal recognizance unless:
(A) the state presents evidence relevant to a risk by the defendant:
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(i) of nonappearance; or
(ii) to the physical safety of the public; and
(B) the court finds by a preponderance of the evidence that the risk exists.
(8) Require a defendant charged with an offense under IC 35-46-3 to refrain from owning,
harboring, or training an animal.
(9) Impose any other reasonable restrictions designed to assure the defendant's presence in
court or the physical safety of another person or the community.
(b) Within thirty (30) days after disposition of the charges against the defendant, the court that
admitted the defendant to bail shall order the clerk to remit the amount of the deposit remaining
under subsection (a)(2) to the defendant. The portion of the deposit that is not remitted to the
defendant shall be deposited by the clerk in the supplemental public defender services fund
established under IC 33-40-3.
(c) For purposes of subsection (b), "disposition" occurs when the indictment or information is
dismissed or the defendant is acquitted or convicted of the charges.
(d) Except as provided in subsection (e), the clerk of the court shall:
(1) collect a fee of five dollars ($5) from each bond or deposit required under subsection (a)
(1); and
(2) retain a fee of five dollars ($5) from each deposit under subsection (a)(2).
The clerk of the court shall semiannually remit the fees collected under this subsection to the
board of trustees of the public employees' retirement fund for deposit in the special death benefit
fund. The fee required by subdivision (2) is in addition to the administrative fee retained under
subsection (a)(2).
(e) With the approval of the clerk of the court, the county sheriff may collect the bail posted
under this section. The county sheriff
shall remit the bail to the clerk of the court by the following business day and remit monthly the
five dollar ($5) special death benefit fee to the county auditor.
(f) When a court imposes a condition of bail described in subsection (a)(4):
(1) the clerk of the court shall comply with IC 5-2-9; and
(2) the prosecuting attorney shall file a confidential form prescribed or approved by the
division of state court administration with the clerk.
IC 35-33-8-4
Amount of bail; order; indorsement; facts taken into account
Sec. 4. (a) The court shall order the amount in which a person charged by an indictment or
information is to be held to bail, and the clerk shall enter the order on the order book and indorse
the amount on each warrant when issued. If no order fixing the amount of bail has been made,
the sheriff shall present the warrant to the judge of an appropriate court of criminal jurisdiction,
and the judge shall indorse on the warrant the amount of bail.
(b) Bail may not be set higher than that amount reasonably required to assure the defendant's
appearance in court or to assure the physical safety of another person or the community if the
court finds by clear and convincing evidence that the defendant poses a risk to the physical safety
of another person or the community. In setting and accepting an amount of bail, the judicial
officer shall take into account all facts relevant to the risk of nonappearance, including:
(1) the length and character of the defendant's residence in the community;
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(2) the defendant's employment status and history and his ability to give bail;
(3) the defendant's family ties and relationships;
(4) the defendant's character, reputation, habits, and mental condition;
(5) the defendant's criminal or juvenile record, insofar as it demonstrates instability and a
disdain for the court's authority to bring him to trial;
(6) the defendant's previous record in not responding to court appearances when required or
with respect to flight to avoid criminal prosecution;
(7) the nature and gravity of the offense and the potential penalty faced, insofar as these
factors are relevant to the risk of nonappearance;
(8) the source of funds or property to be used to post bail or to pay a premium, insofar as it
affects the risk of nonappearance; and
(9) any other factors, including any evidence of instability and a disdain for authority, which
might indicate that the defendant might not recognize and adhere to the authority of the court to
bring him to trial.
IC 35-33-8.5-6
Murder; admittance to bail
Sec. 6. When any person is indicted for murder, the court in which the indictment is pending,
upon motion, upon application by writ of habeas corpus, may admit the defendant to bail when it
appears upon examination that the defendant is entitled to be let to bail.
IC 35-44-3-6
Failure to appear
Sec. 6. (a) A person who, having been released from lawful detention on condition that he
appear at a specified time and place in connection with a charge of a crime, intentionally fails to
appear at that time and place commits failure to appear, a Class A misdemeanor. However, the
offense is a Class D felony if the charge was a felony charge.
(b) It is no defense that the accused person was not convicted of the crime with which he was
originally charged.
(c) This section does not apply to obligations to appear incident to release under suspended
sentence or on probation or parole.
IC 35-41-2
Chapter 2. Basis of Criminal Liability
IC 35-41-2-1
Voluntary conduct
Sec. 1. (a) A person commits an offense only if he voluntarily engages in conduct in violation
of the statute defining the offense. However, a person who omits to perform an act commits an
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offense only if he has a statutory, common law, or contractual duty to perform the act.
(b) If possession of property constitutes any part of the prohibited conduct, it is a defense that
the person who possessed the property was not aware of his possession for a time sufficient for
him to have terminated his possession.
IC 35-41-2-2
Culpability
Sec. 2. (a) A person engages in conduct "intentionally" if, when he engages in the conduct, it
is his conscious objective to do so.
(b) A person engages in conduct "knowingly" if, when he engages in the conduct, he is aware
of a high probability that he is doing so.
(c) A person engages in conduct "recklessly" if he engages in the conduct in plain, conscious,
and unjustifiable disregard of harm that might result and the disregard involves a substantial
deviation from acceptable standards of conduct.
(d) Unless the statute defining the offense provides otherwise, if a kind of culpability is
required for commission of an offense, it is required with respect to every material element of the
prohibited conduct.
IC 35-41-2-4
Aiding, inducing, or causing an offense (Accessory)
Sec. 4. A person who knowingly or intentionally aids, induces, or causes another person to
commit an offense commits that offense, even if the other person:
(1) has not been prosecuted for the offense;
(2) has not been convicted of the offense; or
(3) has been acquitted of the offense.
IC 35-41-2-5
Intoxication
Sec. 5. Intoxication is not a defense in a prosecution for an offense and may not be taken into
consideration in determining the existence of a mental state that is an element of the offense
unless the defendant meets the requirements of IC 35-41-3-5.
IC 35-41-5
Chapter 5. Offenses of General Applicability
IC 35-41-5-1
Attempt
Sec. 1. (a) A person attempts to commit a crime when, acting with the culpability required for
commission of the crime, he engages in conduct that constitutes a substantial step toward
commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same
class as the crime attempted. However, an attempt to commit murder is a Class A felony.
(b) It is no defense that, because of a misapprehension of the circumstances, it would have
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been impossible for the accused person to commit the crime attempted.
IC 35-41-5-2
Conspiracy
Sec. 2. (a) A person conspires to commit a felony when, with intent to commit the felony, he
agrees with another person to commit the felony. A conspiracy to commit a felony is a felony of
the same class as the underlying felony. However, a conspiracy to commit murder is a Class A
felony.
(b) The state must allege and prove that either the person or the person with whom he agreed
performed an overt act in furtherance of the agreement.
(c) It is no defense that the person with whom the accused person is alleged to have conspired:
(1) has not been prosecuted;
(2) has not been convicted;
(3) has been acquitted;
(4) has been convicted of a different crime;
(5) cannot be prosecuted for any reason; or
(6) lacked the capacity to commit the crime.
IC 35-41-5-3
Multiple convictions
Sec. 3. (a) A person may not be convicted of both a conspiracy and an attempt with respect to
the same underlying crime.
(b) A person may not be convicted of both a crime and an attempt to commit the same crime.
IC 35-41-3
Chapter 3. Defenses Relating to Culpability
IC 35-41-3-1
Legal authority
Sec. 1. A person is justified in engaging in conduct otherwise prohibited if
he has legal authority to do so.
IC 35-41-3-2
Use of force to protect person or property
Sec. 2. (a) In enacting this section, the general assembly finds and declares that it is the policy of
this state to recognize the unique character of a citizen's home and to ensure that a citizen feels
secure in his or her own home against unlawful intrusion by another individual or a public
servant. By reaffirming the long standing right of a citizen to protect his or her home against
unlawful intrusion, however, the general assembly does not intend to diminish in any way the
other robust self defense rights that citizens of this state have always enjoyed. Accordingly, the
general assembly also finds and declares that it is the policy of this state that people have a right
to defend themselves and third parties from physical harm and crime. The purpose of this section
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is to provide the citizens of this state with a lawful means of carrying out this policy.
(b) As used in this section, "public servant" means a person described in IC 35-41-1-17, IC 3531.5-2-129, or IC 35-31.5-2-185.
(c) A person is justified in using reasonable force against any other person to protect the
person or a third person from what the person reasonably believes to be the imminent use of
unlawful force.
However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
if the person reasonably believes that that force is necessary to prevent serious bodily injury to
the person or a third person or the commission of a forcible felony. No person in this state shall
be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by
reasonable means necessary.
(d) A person:
(1) is justified in using reasonable force, including deadly force, against any other person;
and
if the person reasonably believes that the force is necessary to prevent or terminate the other
person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor
vehicle.
(e) With respect to property other than a dwelling, curtilage, or an occupied motor vehicle, a
person is justified in using reasonable force against any other person if the person reasonably
believes that the force is necessary to immediately prevent or terminate the other person's
trespass on or criminal interference with property lawfully in the person's possession, lawfully in
possession of a member of the person's immediate family, or belonging to a person whose
property the person has authority to protect. However, a person:
(1) is justified in using deadly force; and
only if that force is justified under subsection (c).
(f) A person is justified in using reasonable force, including deadly force, against any other
person and does not have a duty to retreat if the person reasonably believes that the force is
necessary to prevent or stop the other person from hijacking, attempting to hijack, or otherwise
seizing or attempting to seize unlawful control of an aircraft in flight. For purposes of this
subsection, an aircraft is considered to be in flight while the aircraft is:
(1) on the ground in Indiana:
(A) after the doors of the aircraft are closed for takeoff; and
(B) until the aircraft takes off;
(2) in the airspace above Indiana; or
(3) on the ground in Indiana:
(A) after the aircraft lands; and
(B) before the doors of the aircraft are opened after landing.
(g) Notwithstanding subsections (c) through (e), a person is not justified in using force if:
(1) the person is committing or is escaping after the commission of a crime;
(2) the person provokes unlawful action by another person with intent to cause bodily injury
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to the other person; or
(3) the person has entered into combat with another person or is the initial aggressor unless
the person withdraws from the encounter and communicates to the other person the intent to do
so and the other person nevertheless continues or threatens to continue unlawful action.
(h) Notwithstanding subsection (f), a person is not justified in using force if the person:
(1) is committing, or is escaping after the commission of, a crime;
(2) provokes unlawful action by another person, with intent to cause bodily injury to the
other person; or
(3) continues to combat another person after the other person withdraws from the encounter
and communicates the other person's intent to stop hijacking, attempting to hijack, or otherwise
seizing or attempting to seize unlawful control of an aircraft in flight.
(i) A person is justified in using reasonable force against a public servant if the person
reasonably believes the force is necessary to:
(1) protect the person or a third person from what the person reasonably believes to be the
imminent use of unlawful force;
(2) prevent or terminate the public servant's unlawful entry of or attack on the person's
dwelling, curtilage, or occupied motor vehicle; or
(3) prevent or terminate the public servant's unlawful trespass on or criminal interference
with property lawfully in the person's possession, lawfully in possession of a member of the
person's immediate family, or belonging to a person whose property the person has authority to
protect.
(j) Notwithstanding subsection (i), a person is not justified in using force against a public
servant if:
(1) the person is committing or is escaping after the commission of a crime;
(2) the person provokes action by the public servant with intent to cause bodily injury to the
public servant;
(3) the person has entered into combat with the public servant or is the initial aggressor,
unless the person withdraws from the encounter and communicates to the public servant the
intent to do so and the public servant nevertheless continues
or threatens to continue unlawful action; or
(4) the person reasonably believes the public servant is:
(A) acting lawfully; or
(B) engaged in the lawful execution of the public servant's official duties.
(k) A person is not justified in using deadly force against a public servant whom the person
knows or reasonably should know is a public servant unless:
(1) the person reasonably believes that the public servant is:
(A) acting unlawfully; or
(B) not engaged in the execution of the public servant's official duties; and
(2) the force is reasonably necessary to prevent serious bodily injury to the person or a third
person.
( AMENDED IN 2012 BY P.L.189-2006, SECTION 1)
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IC 35-41-3-3
Use of force relating to arrest or escape
Sec. 3. (a) A person other than a law enforcement officer is justified in using reasonable force
against another person to effect an arrest or prevent the other person's escape if:
(1) a felony has been committed; and
(2) there is probable cause to believe the other person committed that felony.
However, such a person is not justified in using deadly force unless that force is justified under
section 2 of this chapter.
(b) A law enforcement officer is justified in using reasonable force if the officer reasonably
believes that the force is necessary to effect a lawful arrest. However, an officer is justified in
using deadly force only if the officer:
(1) has probable cause to believe that that deadly force is necessary:
(A) to prevent the commission of a forcible felony; or
(B) to effect an arrest of a person who the officer has probable cause to believe poses a
threat of serious bodily
injury to the officer or a third person; and
(2) has given a warning, if feasible, to the person against whom the deadly force is to be
used.
(c) A law enforcement officer making an arrest under an invalid warrant is justified in using
force as if the warrant was valid, unless the officer knows that the warrant is invalid.
(d) A law enforcement officer who has an arrested person in custody is justified in using the
same force to prevent the escape of the arrested person from custody that the officer would be
justified in using if the officer was arresting that person. However, an officer is justified in using
deadly force only if the officer:
(1) has probable cause to believe that deadly force is necessary to prevent the escape from
custody of a person who the officer has probable cause to believe poses a threat of serious bodily
injury to the officer or a third person; and
(2) has given a warning, if feasible, to the person against whom the deadly force is to be
used.
(e) A guard or other official in a penal facility or a law enforcement officer is justified in using
reasonable force, including deadly force, if the officer has probable cause to believe that the
force is necessary to prevent the escape of a person who is detained in the penal facility.
(f) Notwithstanding subsection (b), (d), or (e), a law enforcement officer who is a defendant in
a criminal prosecution has the same right as a person who is not a law enforcement officer to
assert self-defense under IC 35-41-3-2.
IC 35-41-3-5
Intoxication
Sec. 5. It is a defense that the person who engaged in the prohibited conduct did so while he
was intoxicated, only if the intoxication resulted from the introduction of a substance into his
body:
(1) without his consent; or
(2) when he did not know that the substance might cause intoxication.
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IC 35-41-3-6
Mental disease or defect (Definition)
Sec. 6. (a) A person is not responsible for having engaged in prohibited conduct if, as a result
of mental disease or defect, he was unable to appreciate the wrongfulness of the conduct at the
time of the offense.
(b) As used in this section, "mental disease or defect" means a severely abnormal mental
condition that grossly and demonstrably impairs a person's perception, but the term does not
include an abnormality manifested only by repeated unlawful or antisocial conduct.
IC 35-41-3-7
Mistake of fact
Sec. 7. It is a defense that the person who engaged in the prohibited conduct was reasonably
mistaken about a matter of fact, if the mistake negates the culpability required for commission of
the offense.
IC 35-41-3-8
Duress
Sec. 8. (a) It is a defense that the person who engaged in the prohibited conduct was
compelled to do so by threat of imminent serious bodily injury to himself or another person.
With respect to offenses other than felonies, it is a defense that the person who engaged in the
prohibited conduct was compelled to do so by force or threat of force. Compulsion under this
section exists only if the force, threat, or circumstances are such as would render a person of
reasonable firmness incapable of resisting the pressure.
(b) This section does not apply to a person who:
(1) recklessly, knowingly, or intentionally placed himself in a situation in which it was
foreseeable that he would be subjected to duress; or
(2) committed an offense against the person as defined in IC 35-42.
IC 35-41-3-9
Entrapment
Sec. 9. (a) It is a defense that:
(1) the prohibited conduct of the person was the product of a law enforcement officer, or his
agent, using persuasion or other means likely to cause the person to engage in the conduct; and
(2) the person was not predisposed to commit the offense.
(b) Conduct merely affording a person an opportunity to commit the offense does not
constitute entrapment.
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IC 35-41-3-10
Abandonment
Sec. 10. With respect to a charge under IC 35-41-2-4, IC 35-41-5-1, or IC 35-41-5-2, it is a
defense that the person who engaged in the prohibited conduct voluntarily abandoned his effort
to commit the underlying crime and voluntarily prevented its commission.
IC 35-41-3-11
Mental disease or defect; use of justifiable reasonable force
Sec. 11. (a) As used in this section, "defendant" refers to an individual charged with any
crime involving the use of force against a person.
(b) This section applies under the following circumstances when the defendant in a
prosecution raises the issue that the defendant was at the time of the alleged crime suffering from
the effects of battery as a result of the past course of conduct of the individual who is the victim
of the alleged crime:
(1) The defendant raises the issue that the defendant was not responsible as a result of
mental disease or defect under section 6 of this chapter, rendering the defendant unable to
appreciate the wrongfulness of the conduct at the time of the crime.
(2) The defendant claims to have used justifiable reasonable force under section 2 of this
chapter. The defendant has the burden of going forward to produce evidence from which a trier
of fact could find support for the reasonableness of the defendant's belief in the imminence of the
use of unlawful force or, when deadly force is employed, the imminence of serious bodily injury
to the defendant or a third person or the commission of a forcible felony.
(c) If a defendant proposes to claim the use of justifiable reasonable force under subsection (b)
(2), the defendant must file a written motion of that intent with the trial court not later than:
(1) twenty (20) days if the defendant is charged with a felony; or
(2) ten (10) days if the defendant is charged only with one (1) or more misdemeanors;
before the omnibus date. However, in the interest of justice and upon a showing of good cause,
the court may permit the filing to be made at any time before the commencement of the trial.
(d) The introduction of any expert testimony under this section shall be in accordance with the
Indiana Rules of Evidence.
INSANITY
IC 35-36-2
Chapter 2. Affirmative Defense of Insanity or Mental Illness; Pleadings, Orders, and
Findings
(See pg. 272 for definition)
IC 35-36-2-1
Time of filing
Sec. 1. When the defendant in a criminal case intends to interpose the defense of insanity, he
must file a notice of that intent with the trial court no later than:
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(1) twenty (20) days if the defendant is charged with a felony; or
(2) ten (10) days if the defendant is charged only with one (1) or more misdemeanors;
before the omnibus date. However, in the interest of justice and upon a showing of good cause,
the court may permit the filing to be made at any time before commencement of the trial.
IC 35-36-2-2
Admissibility of evidence; psychiatrists, psychologists, or physicians; defendant's failure to
communicate, participate, and cooperate with court appointed medical witnesses
Sec. 2. (a) At the trial of a criminal case in which the defendant intends to interpose the
defense of insanity, evidence may be introduced to prove the defendant's sanity or insanity at the
time at which the defendant is alleged to have committed the offense charged in the indictment
or information.
(b) When notice of an insanity defense is filed, the court shall appoint two (2) or three (3)
competent disinterested psychiatrists, psychologists endorsed by the state psychology board as
health service providers in psychology, or physicians, at least one (1) of whom must be a
psychiatrist, to examine the defendant and to testify at the trial. This testimony shall follow the
presentation of the evidence for the prosecution and for the defense, including testimony of any
medical experts employed by the state or by the defense.
(c) If a defendant does not adequately communicate, participate, and cooperate with the
medical witnesses appointed by the court, after being ordered to do so by the court, the defendant
may not present as evidence the testimony of any other medical witness:
(1) with whom the defendant adequately communicated, participated, and cooperated; and
(2) whose opinion is based upon examinations of the defendant;
unless the defendant shows by a preponderance of the evidence that the defendant's failure to
communicate, participate, or cooperate with the medical witnesses appointed by the court was
caused by the defendant's mental illness.
(d) The medical witnesses appointed by the court 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.
SEC.59; P.L.149-1987, SEC.119; P.L.77-2004, SEC.3.
IC 35-36-2-3
Finding of jury
Sec. 3. In all cases in which the defense of insanity is interposed, the jury (or the court if tried
by it) shall find whether the defendant is:
(1) guilty;
(2) not guilty;
(3) not responsible by reason of insanity at the time of the crime; or
(4) guilty but mentally ill at the time of the crime.
IC 35-36-2-4
Finding of nonresponsibility by reason of insanity; commitment procedures; requirements
of the superintendent and attending physician; transmittal of information to NICS
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Sec. 4. (a) Whenever a defendant is found not responsible by reason of insanity at the time of
the crime, the prosecuting attorney shall file a written petition with the court under IC 12-26-62(a)(3) or under IC 12-26-7. If a petition is filed under IC 12-26-6-2(a)(3), the court shall hold a
commitment hearing under IC 12-26-6. If a petition is filed under IC 12-26-7, the court shall
hold a commitment hearing under IC 12-26-7.
(b) The hearing shall be conducted at the earliest opportunity after the finding of not
responsible by reason of insanity at the time of the crime, and the defendant shall be detained in
custody until the completion of the hearing. The court may take judicial notice of evidence
introduced during the trial of the defendant and may call the physicians appointed by the court to
testify concerning whether the defendant is currently mentally ill and dangerous or currently
mentally ill and gravely disabled, as those terms are defined by IC 12-7-2-96 and IC 12-7-2130(1). The court may subpoena any other persons with knowledge concerning the issues
presented at the hearing.
(c) The defendant has all the rights provided by the provisions of IC 12-26 under which the
petition against the defendant was filed. The prosecuting attorney may cross-examine the
witnesses and present relevant evidence concerning the issues presented at the hearing.
(d) If a court orders an individual to be committed under IC 12-26-6 or IC 12-26-7 following a
verdict of not responsible by reason of insanity at the time of the crime, the superintendent of the
facility to which the individual is committed and the attending physician are subject to the
requirements of IC 12-26-15-1.
(e) If a defendant is found not responsible by reason of insanity, the court shall transmit any
information required by the division of state court administration to the division of state court
administration for transmission to the NICS (as defined in IC 35-47-2.5-2.5) in accordance with
IC 33-24-6-3.
IC 35-36-2-5
Finding or plea of guilty but mentally ill; evaluation; sentence; treatment; transmittal of
information to NICS
Sec. 5. (a) Except as provided by subsection (e), whenever a defendant is found guilty but
mentally ill at the time of the crime or enters a plea to that effect that is accepted by the court, the
court shall sentence the defendant in the same manner as a defendant found guilty of the offense.
(b) Before sentencing the defendant under subsection (a), the court shall require the defendant
to be evaluated by a physician licensed under IC 25-22.5 who practices psychiatric medicine, a
licensed psychologist, or a community mental health center (as defined in IC 12-7-2-38).
However, the court may waive this requirement if the defendant was evaluated by a physician
licensed under IC 25-22.5 who practices psychiatric medicine, a licensed psychologist, or a
community mental health center and the evaluation is contained in the record of the defendant's
trial or plea agreement hearing.
(c) If a defendant who is found guilty but mentally ill at the time of the crime is committed to
the department of correction, the defendant shall be further evaluated and then treated in such a
manner as is psychiatrically indicated for the defendant's mental illness. Treatment may be
provided by:
(1) the department of correction; or
(2) the division of mental health and addiction after transfer under IC 11-10-4.
(d) If a defendant who is found guilty but mentally ill at the time of the crime is placed on
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probation, the court may, in accordance with IC 35-38-2-2.3, require that the defendant undergo
treatment.
(e) As used in this subsection, "individual with mental retardation" has the meaning set forth
in IC 35-36-9-2. If a court determines under IC 35-36-9 that a defendant who is charged with a
murder for which the state seeks a death sentence is an individual with mental retardation, the
court shall sentence the defendant under IC 35-50-2-3(a).
(f) If a defendant is found guilty but mentally ill, the court shall transmit any information
required by the division of state court administration to the division of state court administration
for transmission to the NICS (as defined in IC 35-47-2.5-2.5) in accordance with IC 33-24-6-3.
IC 35-41-4
Chapter 4. Standard of Proof and Bars to Prosecution
IC 35-41-4-1
Standard of proof; insanity defense
Sec. 1. (a) A person may be convicted of an offense only if his guilt is proved beyond a
reasonable doubt.
(b) Notwithstanding subsection (a), the burden of proof is on the defendant to establish the
defense of insanity (IC 35-41-3-6) by a preponderance of the evidence.
P.L.145, SEC.9.
IC 35-41-4-3
When prosecution barred for same offense
Sec. 3. (a) A prosecution is barred if there was a former prosecution of the defendant based on
the same facts and for commission of the same offense and if:
(1) the former prosecution resulted in an acquittal or a conviction of the defendant (A
conviction of an included offense constitutes an acquittal of the greater offense, even if the
conviction is subsequently set aside.); or
(2) the former prosecution was terminated after the jury was impaneled and sworn or, in a
trial by the court without a jury, after the first witness was sworn, unless (i) the defendant
consented to the termination or waived, by motion to dismiss or otherwise, his right to object to
the termination, (ii) it was physically impossible to proceed with the trial in conformity with law,
(iii) there was a legal defect in the proceedings that would make any judgment entered upon a
verdict reversible as a matter of law, (iv) prejudicial conduct, in or outside the courtroom, made
it impossible to proceed with the trial without injustice to either the defendant or the state, (v) the
jury was unable to agree on a verdict, or (vi) false statements of a juror on voir dire prevented a
fair trial.
(b) If the prosecuting authority brought about any of the circumstances in subdivisions (a)(2)
(i) through (a)(2)(vi) of this section, with intent to cause termination of the trial, another
prosecution is barred.
IC 35-41-4-5
Former prosecution in another jurisdiction a bar
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Sec. 5. In a case in which the alleged conduct constitutes an offense within the concurrent
jurisdiction of Indiana and another jurisdiction, a former prosecution in any other jurisdiction is a
bar to a subsequent prosecution for the same conduct in Indiana, if the former prosecution
resulted in an acquittal or a conviction of the defendant or in an improper termination under
section 3 of this chapter.
JURY VERDICTS AND SENTENCES FOR MURDER

1. Death sentence or life w/o parole not requested by prosecuting attorney.
(a) Jury verdict of not guilty of murder or any lesser included offense.
OR
(b) Jury verdict of not guilty of murder or any lesser included offense by reason of insanity if
insanity plea, followed by civil commitment procedure.
OR
(c) Jury verdict of guilty murder: The judge decides the sentence with a 45-65 year possible
sentence of imprisonment. If guilty of any lesser included offense, the sentence is determined by
the judge.
OR
(d) Jury verdict of guilty of murder but mentally ill if insanity plea: The judge decides the
sentence with a possible sentence of between 45 and 65 years imprisonment. The defendant is
first treated for mental illness by the Department of Corrections or Department of Mental Health
and then serves the balance of the imprisonment sentence.
2. Death sentence or life w/o parole requested by prosecuting attorney.
(a) Jury verdict of not guilty of murder or any lesser included offense.
OR
(b) Jury verdict of not guilty of murder or any included offense by reason of insanity if insanity
plea, followed by civil commitment procedure.
OR
(c) Jury verdict of guilty of murder but no death or life without parole sentence and that the
sentence shall be determined by the judge with a possible sentence of between 45-65 years
imprisonment. If guilty of any lesser included offense, the sentence is determined by the judge.
OR
(d) Jury verdict of guilty of murder but mentally ill if insanity plea. Jury decides sentence
(death, life w/out parole or 45-60 years) which sentence must be ordered (or determined if 45-60
years) by the judge. Except for a death sentence, the defendant is first treated for mental illness
by the Department of Corrections or Department of mental Health and then serves the balance of
the imprisonment sentence.
OR
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(e) Jury verdict of guilty of murder and the jury recommends the death sentence which
sentence must be ordered by the judge.
OR
(f) Jury verdict of guilty of murder and the jury recommends a sentence of life imprisonment
without possibility of parole which sentence must be ordered by the judge.
NOTE 1: If jury cannot agree, then the judge determines the sentence. Pg 248
NOTE 2: The above sentences are for a defendant 18 or above.
If a defendant 16-17 years old is convicted by a jury of murder, then the death sentence is
not permitted. Life without parole and 45-65 are permitted. No juvenile court jurisdiction.
If a defendant 10-15 years old is convicted of by a jury of murder, then the death sentence
and life without parole are not permitted. 45-65 years are permitted. Defendant must have been
waived from juvenile court. If defendant is under 10, then only juvenile procedure. If no waiver
for murder, then if 13-15 years old under juvenile procedure and may be committed until 18 to
the Department of Corrections.
NOTE 3: If defendant is under 21 and determined to have mental retardation pursuant to IC 3536-9 (pgs 244 and 245), there can be no death sentence.
INDIANA CRIMINAL PROCEDURE

Criminal Information
Grand Jury Indictment
filed with Court
filed with Court (the Grand Jury
!
finds probable cause to believe)
Probable Cause Hearing
!
by Judge (Affidavit or oral)
!
!____ Judge authorizes arrest ______ !
Warrant
!
Law Officer arrest
Law Officer arrest
of Defendant without Warrant
of Defendant with Warrant
!
Officer must have probable cause to believe
!
that a person has committed, is committing
!
or attempting to commit a felony or
!
committing or attempting to commit a
!
misdemeanor in his presence. (Any
!
person can arrest if a felony is committed
!
in his presence or he has probable cause to
!
believe that a felony has been committed)
!
!
Defendant in Jail
Defendant in Jail
Defendant released on Bail?
Defendant released on Bail?
!
!
!
Criminal Information or Grand Jury
!
Indictment filed with Court
!
!
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INITIAL HEARING (Previously called Arraignment) IC 35-33-7 pg. 260
An Initial Hearing before a judge must be held promptly after arrest if arrest made without a
warrant (or within 20 days if bail), and 20 days after arrest if arrest made with a warrant.
At the initial hearing the judge must determine if there was probable cause for the arrest if the
arrest was made without a warrant (by Affidavit or oral testimony) and in all cases advise the
defendant of his right to be represented by counsel including pauper counsel, the charges and a
copy thereof, the right to a speedy trial*, the amount and conditions of bail, and the privilege
against self incrimination. A plea is entered and, if no plea, that a preliminary plea of not guilty
will be entered. The pleas allowed are guilty, not guilty and guilty but mentally ill. If a plea
of guilty but mentally ill is accepted by the judge, the judge sentences the defendant as if he
was not mentally ill but the first part of the sentence is served at a state mental institution
for treatment.
The Court also sets an Omnibus Date which is a date within 45 and 75 days thereafter. The date
determines various deadlines for certain action. Ex: Insanity plea, mental retardation defense,
and Alibi defense must be filed 20 days before such date. Pretrial hearing date may be set.
Interrogatories submitted, Depositions taken, and various Motions such as to produce
evidence, to suppress evidence illegally obtained, for witness and documents list, in limine filed.
!
!
PRETRIAL HEARING (Previously called Omnibus Hearing) IC 35-36-8
Motions heard and ruled upon, issues simplified, admission of facts and documents, defenses
(except for alibi, mental retardation, and insanity previously filed) set forth, date set for filing of
proposed Courts Instructions, and setting trial date.
* Right to a trial within 70 days if in jail and defendant discharged if not tried w/in 6 months.
DEFENSES: Insanity, self defense, intoxication, mistake of fact, duress, entrapment,
abandonment (pgs. 268-273), alibi (IC 35-36-4) (pgs. 49 and 279), and mental retardation
(IC 35-36-9). Except for insanity and mental retardation, the state has the burden of
proving beyond a reasonable doubt that the defendant has no such defense (pg. 276).
Defendant has the burden to prove insanity by a preponderance of the evidence and
mental retardation by clear and convincing evidence.
Indiana Rules of Criminal Procedure can be found at www.in.gov/judiciary/rules/
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DEFINITIONS: DEADLY WEAPON, BODILY INJURY, SERIOUS BODILY INJURY
IC 35-41
ARTICLE 41. SUBSTANTIVE CRIMINAL PROVISIONS
IC 35-41-1-8
"Deadly weapon" defined
Sec. 8. (a) Except as provided in subsection (b), "deadly weapon" means the following:
(1) A loaded or unloaded firearm.
(2) A destructive device, weapon, device, taser (as defined in IC 35-47-8-3) or electronic
stun weapon (as defined in IC 35-47-8-1), equipment, chemical substance, or other material that
in the manner it is used, or could ordinarily be used, or is intended to be used, is readily
capable of causing serious bodily injury.
(3) An animal (as defined in IC 35-46-3-3) that is:
(A) readily capable of causing serious bodily injury; and
(B) used in the commission or attempted commission of a crime.
(4) A biological disease, virus, or organism that is capable of causing serious bodily injury.
(b) The term does not include:
(1) a taser (as defined in IC 35-47-8-3);
(2) an electronic stun weapon (as defined in IC 35-47-8-1);
(3) a chemical designed to temporarily incapacitate a person; or
(4) another device designed to temporarily incapacitate a person;
if the device described in subdivisions (1) through (4) is used by a law enforcement officer who
has been trained in the use of the device and who uses the device in accordance with the law
enforcement officer's training and while lawfully engaged in the execution of official duties.
P.L.156-2001, SEC.8; P.L.123-2002, SEC.33; P.L.143-2006, SEC.1.
IC 35-41-1-4
"Bodily injury" defined
Sec. 4. "Bodily injury" means any impairment of physical condition, including physical pain.
IC 35-41-1-25
"Serious bodily injury" defined
Sec. 25. "Serious bodily injury" means bodily injury that creates a substantial risk of death or
that causes:
(1) serious permanent disfigurement;
(2) unconsciousness;
(3) extreme pain;
(4) permanent or protracted loss or impairment of the function of a bodily member or organ;
or (5) loss of a fetus.
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See IC 31-34 for Children in Need of Services
IC 31-37
ARTICLE 37. JUVENILE LAW: DELINQUENCY
IC 31-37-1
Chapter 1. Delinquent Children Who Commit Acts That Would Be Offenses if Committed by
Adults.
IC 31-37-1-1
Delinquent child defined
Sec. 1. A child is a delinquent child if, before becoming eighteen (18) years of age, the child
commits a delinquent act described in this chapter.
IC 31-37-1-2
Delinquent act
Sec. 2. A child commits a delinquent act if, before becoming eighteen (18) years of age, the
child commits an act that would be an offense if committed by an adult, except an act committed
by a person over which the juvenile court lacks jurisdiction under IC 31-30-1.
PETITION ALLEGING DELINQUENCY
IC 31-37-10
Chapter 10. Filing of Petition Alleging That Child Is Delinquent Child
IC 31-37-10-1
Standing
Sec. 1. The prosecuting attorney may file a petition alleging that a child is a delinquent child.
IC 31-37-10-2
Approval of filing of petition
Sec. 2. The juvenile court shall do the following:
(1) Consider the preliminary inquiry and the evidence of probable cause.
(2) Approve the filing of a petition if there is probable cause to believe that:
(A) the child is a delinquent child; and
(B) it is in the best interests of the child or the public that the petition be filed.
IC 31-37-10-3
Petition; verification and contents
Sec. 3. A petition must:
(1) be verified;
(2) be entitled "In the Matter of __________, a Child Alleged to be a Delinquent Child";
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and
(3) contain the following information:
(A) A citation to the provision of the juvenile law that gives the juvenile court
jurisdiction in the proceeding.
(B) A citation to the statute that the child is alleged to have violated.
(C) A concise statement of the facts upon which the allegations are based, including the
date and location at which the alleged act occurred.
(D) The child's name, birth date, and residence address if known.
(E) The name and residence address of the child's parent, guardian, or custodian if
known.
(F) The name and title of the person signing the petition.
IC 31-37-10-5
Written request that child be taken into custody; finding
Sec. 5. (a) If the filing of a petition is approved by the court under section 2 of this chapter,
the prosecuting attorney may request in writing that the child be taken into custody. The person
must support this request with sworn testimony or affidavit.
(b) The court may grant the request if the court makes written findings of fact upon the record
that a ground for detention exists under IC 31-37-6-6.
IC 31-37-10-6
Detention hearing
Sec. 6. If the juvenile court grants the request to have the child taken into custody, the court
shall proceed in accordance with IC 31-37-6.
JUVENILE COURT JURISDICTION

ARTICLE 30. JUVENILE LAW: JUVENILE COURT JURISDICTION
IC 31-30-1
Chapter 1. Jurisdiction Generally
IC 31-30-1-1
Exclusive original jurisdiction
Sec. 1. A juvenile court has exclusive original jurisdiction, except as provided in sections 9,
10, 12, and 13 of this chapter, in the following:
(1) Proceedings in which a child, including a child of divorced parents, is alleged to be a
delinquent child under IC 31-37.
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IC 31-30-1-2
Applicability of juvenile law to certain offenses
Sec. 2. Except as provided in IC 33-33-45-6 and section 8 of this chapter, the juvenile law
does not apply to the following:
(1) A child who is alleged to have committed a violation of a statute defining an infraction,
except as provided under IC 7.1-5-7.
(2) A child who is alleged to have committed a violation of an ordinance.
(3) A child who:
(A) is alleged to have committed an act that would be a felony if committed by an adult;
and
(B) has previously been waived under IC 31-30-3 (or IC 31-6-2-4 before its repeal) to a
court having felony jurisdiction.
IC 31-30-1-4
Juvenile court lacks jurisdiction over individuals at least 16 years of age committing
certain felonies; retention of jurisdiction by court having adult criminal jurisdiction
Sec. 4. (a) The juvenile court does not have jurisdiction over an individual for an alleged
violation of:
(1) IC 35-41-5-1(a) (attempted murder);
(2) IC 35-42-1-1 (murder);
(3) IC 35-42-3-2 (kidnapping);
(4) IC 35-42-4-1 (rape);
(5) IC 35-42-4-2 (criminal deviate conduct);
(6) IC 35-42-5-1 (robbery) if:
(A) the robbery was committed while armed with a deadly weapon; or
(B) the robbery results in bodily injury or serious bodily injury;
(7) IC 35-42-5-2 (carjacking);
(8) IC 35-45-9-3 (criminal gang activity);
(9) IC 35-45-9-4 (criminal gang intimidation);
(10) IC 35-47-2-1 (carrying a handgun without a license), if charged as a felony;
(11) IC 35-47-10 (children and firearms), if charged as a felony;
(12) IC 35-47-5-4.1 (dealing in a sawed-off shotgun); or
(13) any offense that may be joined under IC 35-34-1-9(a)(2) with any crime listed in
subdivisions (1) through (12);
if the individual was at least sixteen (16) years of age at the time of the alleged violation.
(b) The juvenile court does not have jurisdiction for an alleged violation of manufacturing or
dealing in cocaine or a narcotic drug (IC 35-48-4-1), dealing in methamphetamine (IC 35-48-41.1), dealing in a schedule I, II, or III controlled substance (IC 35-48-4-2), or dealing in a
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schedule IV controlled substance (IC 35-48-4-3), if:
(1) the individual has a prior unrelated conviction under IC 35-48-4-1, IC 35-48-4-1.1,
IC 35-48-4-2, or IC 35-48-4-3; or
(2) the individual has a prior unrelated juvenile adjudication that, if committed by an adult,
would be a crime under IC 35-48-4-1, IC 35-48-4-1.1, IC 35-48-4-2, or IC 35-48-4-3;
and the individual was at least sixteen (16) years of age at the time of the alleged violation.
(c) Once an individual described in subsection (a) or (b) has been charged with any crime
listed in subsection (a) or (b), the court having adult criminal jurisdiction shall retain jurisdiction
over the case even if the individual pleads guilty to or is convicted of a lesser included offense. A
plea of guilty to or a conviction of a lesser included offense does not vest jurisdiction in the
juvenile court.
P.L.216-2007, SEC.35; P.L.67-2008, SEC.2.
INITIAL HEARING
IC 31-37-12
Chapter 12. Initial Hearing and Issuance of Summons
IC 31-37-12-1
Application of chapter
Sec. 1. This chapter applies only to a child alleged to be a delinquent child.
IC 31-37-12-2
Initial hearing; service of copy of petition and summons; notice of initial hearing
Sec. 2. (a) The juvenile court shall hold an initial hearing on each petition.
(b) The juvenile court shall set a time for the initial hearing. A summons shall be issued for the
following:
(1) The child.
(2) The child's parent, guardian, custodian, or guardian ad litem.
(3) Any other person necessary for the proceedings.
(c) A copy of the petition must accompany each summons. The clerk shall issue the summons
under Rule 4 of the Indiana Rules of Trial Procedure.
(d) The prosecuting attorney or the probation department of the juvenile court shall provide
notice of the time, place, and purpose of the initial hearing scheduled or held under this section
to each foster parent or other caretaker with whom the child has been placed for temporary care
under IC 31-37-5 or IC 31-37-7. The court shall:
(1) provide a:
(A) person for whom a summons is required to be issued under subsection (b); and
(B) person required to be notified under this subsection;
an opportunity to be heard; and
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(2) allow a person described in subdivision (1) to make recommendations to the court;
at the initial hearing.
IC 31-37-12-3
Representation by counsel; waiver; appointment
Sec. 3. (a) Before complying with the other requirements of this section, the juvenile court
shall first determine whether counsel has been:
(1) waived under IC 31-32-5; or
(2) previously obtained.
(b) If counsel has not been waived or previously obtained, the juvenile court shall appoint
counsel under IC 31-32-4.
IC 31-37-12-4
Waiver of jurisdiction
Sec. 4. The court shall next determine whether the prosecuting attorney intends to seek a
waiver of jurisdiction under IC 31-30-3. If a waiver is sought, the court:
(1) may not accept an admission or a denial of the allegations from the child under section 9
of this chapter; and
(2) shall do the following:
(A) Schedule a waiver hearing.
(B) Advise the child according to section 5 of this chapter.
IC 31-37-12-5
Duty to inform child and parent, guardian, or custodian regarding nature of allegations,
child's legal rights, jurisdiction, and dispositional alternatives
Sec. 5. The juvenile court shall inform the child and the child's parent, guardian, or custodian,
if the person is present, of the following:
(1) The nature of the allegations against the child.
(2) The child's right to the following:
(A) Be represented by counsel.
(B) Have a speedy trial.
(C) Confront witnesses against the child.
(D) Cross-examine witnesses against the child.
(E) Obtain witnesses or tangible evidence by compulsory process.
(F) Introduce evidence on the child's own behalf.
(G) Refrain from testifying against himself or herself.
(H) Have the state prove beyond a reasonable doubt that the child committed the
delinquent act charged.
(3) The possibility of waiver to a court having criminal jurisdiction.
(4) The dispositional alternatives available to the juvenile court if the child is adjudicated a
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delinquent child.
IC 31-37-12-6
Duty to inform parent or guardian of estate of effect of adjudication
Sec. 6. The juvenile court shall inform the parent or guardian of the estate of the following if
a child is adjudicated a delinquent child:
(1) The parent, guardian, or custodian of the child may be required to participate in a
program of care, treatment, or rehabilitation for the child.
(2) The parent or guardian may be held financially responsible for services provided for the
child or the parent or guardian.
(3) The parent, guardian, or custodian of the child may controvert:
(A) an allegation made at the dispositional or other hearing concerning the participation
of the parent, guardian, or
custodian; or
(B) an allegation concerning the financial responsibility of the parent, guardian, or
custodian for services that would be provided.
IC 31-37-12-7
Child's admission or denial of allegations
Sec. 7. (a) If:
(1) the prosecuting attorney has not requested that the juvenile court waive the court's
jurisdiction; or
(2) a waiver has been requested and denied;
the juvenile court shall determine whether a child admits or denies the allegations of a petition.
(b) A failure to respond constitutes a denial.
IC 31-37-12-8
Procedure following admission of allegations by child
Sec. 8. If a child admits the allegations of a petition, the juvenile court shall do the following:
(1) Enter judgment accordingly.
(2) Schedule a dispositional hearing.
IC 31-37-12-9
Dispositional hearing; factfinding hearing; consent
Sec. 9. (a) If a child has admitted the allegations of a petition, the juvenile court may hold the
dispositional hearing immediately after the initial hearing.
(b) If a child denies the allegations, the juvenile court may hold the factfinding hearing
immediately after the initial hearing.
(c) Except as provided in section 10 of this chapter:
(1) the child;
(2) the child's:
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(A) counsel;
(B) guardian ad litem;
(C) parent;
(D) guardian; or
(E) custodian; and
(3) the person representing the interests of the state;
must consent to the timing of the hearing.
FACTFINDING HEARING
IC 31-37-13
Chapter 13. Factfinding Hearing
IC 31-37-13-1
Hearsay requirements; notice; opportunity to be heard
Sec. 1. (a) Unless the allegations of a petition have been admitted, the juvenile court shall
hold a factfinding hearing.
(b) If the factfinding hearing is not held immediately after the initial hearing as provided under
IC 31-37-12-9, the prosecuting attorney or probation department of the juvenile court shall
provide notice of any factfinding hearing to each foster parent or other caretaker with whom the
child has been placed for temporary care. The court shall provide a person required to be notified
under this subsection an opportunity to be heard at the factfinding hearing.
IC 31-37-13-2
Judgment; order for predispositional report; scheduling of dispositional hearing
Sec. 2. If the court finds that a child is a delinquent child, the court shall do the following:
(1) Enter judgment accordingly.
(2) Order a predispositional report.
(3) Schedule a dispositional hearing.
IC 31-37-13-3
Discharge of child
Sec. 3. If the court finds that a child is not a delinquent child, the court shall discharge the
child.
IC 31-37-13-5
Findings required where delinquent act would be felony if committed by adult
Sec. 5. If a finding of delinquency is based on a delinquent act that would be a felony if
committed by an adult, the juvenile court shall state in the findings the following:
(1) The specific statute that was violated.
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(2) The class of the felony had the violation been committed by an adult.
DISPOSITIONAL DECREES
IC 31-37-19
Chapter 19. Dispositional Decrees
IC 31-37-19-1
Entry of dispositional decrees; placement in foster family home or another facility; findings
and conclusions
Sec. 1. (a) Subject to section 6.5 of this chapter, if a child is a delinquent child under IC 3137-2, the juvenile court may enter one (1) or more of the following dispositional decrees:
(1) Order supervision of the child by the probation department.
(2) Order the child to receive outpatient treatment:
(A) at a social service agency or a psychological, a psychiatric, a medical, or an
educational facility; or
(B) from an individual practitioner.
(3) Remove the child from the child's home and place the child in another home or shelter
care facility. Placement under this subdivision includes authorization to control and discipline
the child.
(4) Award wardship to a:
(A) person, other than the department; or
(B) shelter care facility.
(5) Partially or completely emancipate the child under section 27 of this chapter.
(6) Order:
(A) the child; or
(B) the child's parent, guardian, or custodian;
to receive family services.
(7) Order a person who is a party to refrain from direct or indirect contact with the child.
(b) If the child is removed from the child's home and placed in a foster family home or another
facility, the juvenile court shall:
(A) approve a permanency plan for the child;
(B) find whether or not reasonable efforts were made to prevent or eliminate the need for
the removal;
(C) designate responsibility for the placement and care of the child with the probation
department; and
(D) find whether it:
(i) serves the best interests of the child to be removed; and
(ii) would be contrary to the health and welfare of the child for the child to remain in the
home.
(c) If a dispositional decree under this section:
(1) orders or approves removal of a child from the child's home or awards wardship of the
child to a:
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(A) person other than the department; or
(B) shelter care facility; and
(2) is the first court order in the delinquent child proceeding that authorizes or approves
removal of the child from the child's parent, guardian, or custodian;
the court shall include in the decree the appropriate findings and conclusions described in IC 3137-6-6(f) and IC 31-37-6-6(g).
IC 31-37-19-9
Confinement of delinquent child at least 13 but less than 16 years of age committing act
that would be murder, kidnapping, rape, criminal deviate conduct, or robbery if
committed by adult
Sec. 9. (a) This section applies if a child is a delinquent child under IC 31-37-1.
(b) After a juvenile court makes a determination under IC 11-8-8-5, the juvenile court may, in
addition to an order under section 6 of this chapter, and if the child:
(1) is at least thirteen (13) years of age and less than sixteen (16) years of age; and
(2) committed an act that, if committed by an adult, would be:
(A) murder (IC 35-42-1-1);
(B) kidnapping (IC 35-42-3-2);
(C) rape (IC 35-42-4-1);
(D) criminal deviate conduct (IC 35-42-4-2); or
(E) robbery (IC 35-42-5-1) if the robbery was committed while armed with a deadly
weapon or if the robbery resulted in bodily injury or serious bodily injury;
order wardship of the child to the department of correction for a fixed period that is not longer
than the date the child becomes eighteen (18) years of age, subject to IC 11-10-2-10.
(c) Notwithstanding IC 11-10-2-5, the department of correction may not reduce the period
ordered under this section (or IC 31-6-4-15.9(b)(8) before its repeal).
As added by P.L.1-1997, SEC.20. Amended by P.L.238-2001, SEC.17; P.L.140-2006, SEC.20
and P.L.173-2006, SEC.20.
IC 31-37-19-10
Confinement of delinquent child at least 14 years of age committing act that would be
felony against person, Class A or Class B controlled substances felony, or burglary and two
prior unrelated adjudications that would be felonies if committed by an adult
Sec. 10. (a) This section applies to a child who:
(1) is adjudicated a delinquent child for an act that if committed by an adult would be:
(A) a felony against a person;
(B) a Class A or Class B felony that is a controlled substances offense under IC 35-48-41 through IC 35-48-4-5; or
(C) burglary as a Class A or Class B felony under IC 35-43-2-1;
(2) is at least fourteen (14) years of age at the time the child committed the act for which the
child is being placed; and
(3) has two (2) unrelated prior adjudications of delinquency for acts that would be felonies
if committed by an adult.
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(b) A court may place the child in a facility authorized under this chapter for not more than
two (2) years.
(c) Notwithstanding IC 11-10-2-5, the department of correction may not reduce the period
ordered under this section (or IC 31-6-4-15.9(n) before its repeal).
WAIVER OF JURISDICTION
IC 31-30-3-1
Waiver of jurisdiction defined
Sec. 1. Waiver of jurisdiction refers to an order of the juvenile court that waives the case to a
court that would have jurisdiction had the act been committed by an adult. Waiver is for the
offense charged and all included offenses.
IC 31-30-3-2
Heinous or aggravated act, or act as part of repetitive pattern of delinquent acts
Sec. 2. Upon motion of the prosecuting attorney and after full investigation and hearing, the
juvenile court may waive jurisdiction if it finds that:
(1) the child is charged with an act that is a felony:
(A) that is heinous or aggravated, with greater weight given to acts against the person
than to acts against property; or
(B) that is a part of a repetitive pattern of delinquent acts, even though less serious;
(2) the child was at least fourteen (14) years of age when the act charged was allegedly
committed;
(3) there is probable cause to believe that the child committed the act;
(4) the child is beyond rehabilitation under the juvenile justice system; and
(5) it is in the best interests of the safety and welfare of the community that the child stand
trial as an adult.
IC 31-30-3-3
Act that would be felony relating to controlled substances
Sec. 3. Upon motion of the prosecuting attorney and after a full investigation and a hearing,
the court may waive jurisdiction if it finds that:
(1) the child is charged with an act that, if committed by an adult, would be a felony under
IC 35-48-4;
(2) there is probable cause to believe that the child has committed the act;
(3) the child was at least sixteen (16) years of age when the act was allegedly committed;
and
(4) it is in the best interests of the safety and the welfare of the community for the child to
stand trial as an adult.
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IC 31-30-3-4
Act that would be murder
Sec. 4. Upon motion of the prosecuting attorney and after full
investigation and hearing, the juvenile court shall waive jurisdiction if it finds that:
(1) the child is charged with an act that would be murder if committed by an adult;
(2) there is probable cause to believe that the child has committed the act; and
(3) the child was at least ten (10) years of age when the act charged was allegedly
committed;
unless it would be in the best interests of the child and of the safety and welfare of the
community for the child to remain within the juvenile justice system.
IC 31-30-3-5
Acts that would be Class A or Class B felonies, involuntary manslaughter, or reckless
homicide
Sec. 5. Except for those cases in which the juvenile court has no jurisdiction in accordance
with IC 31-30-1-4, the court shall, upon motion of the prosecuting attorney and after full
investigation and hearing, waive jurisdiction if it finds that:
(1) the child is charged with an act that, if committed by an adult, would be:
(A) a Class A or Class B felony, except a felony defined by IC 35-48-4;
(B) involuntary manslaughter as a Class C felony under IC 35-42-1-4; or
(C) reckless homicide as a Class C felony under IC 35-42-1-5;
(2) there is probable cause to believe that the child has committed the act; and
(3) the child was at least sixteen (16) years of age when the act charged was allegedly
committed;
unless it would be in the best interests of the child and of the safety and welfare of the
community for the child to remain within the juvenile justice system.
IC 31-30-3-6
Act that would be felony and prior felony or nontraffic misdemeanor conviction
Sec. 6. Upon motion by the prosecuting attorney, the juvenile court shall waive jurisdiction if
it finds that:
(1) the child is charged with an act which would be a felony if committed by an adult; and
(2) the child has previously been convicted of a felony or a nontraffic misdemeanor.
IC 31-30-3-8
Order to hold child for proceedings; recognizance bond
Sec. 8. If jurisdiction is waived, the juvenile court:
(1) shall order the child held for proceedings in the court to which the child is waived; and
(2) may fix a recognizance bond for the child to answer the charge in the court to which the
child is waived.
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IC 31-30-3-9
Probable cause finding
Sec. 9. The finding of probable cause required to waive jurisdiction is sufficient to establish
probable cause in the court to which the child is waived.
IC 31-30-3-10
Waiver order; findings
Sec. 10. A waiver order must include specific findings of fact to support the order.
IC 31-30-3-11
Waiver order; filing
Sec. 11. The prosecuting attorney shall file a copy of the waiver order with the court to which
the child has been waived when the prosecuting attorney files the indictment or information.
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INDIANA JUVENILE PROCEDURE

All hearings are before a juvenile judge and a jury is not allowed. If a child is held in
custody, no bail is allowed.
A law officer may take custody of a child (definition pg. 281) without a court order if the
officer had probable cause to believe that the child has committed a delinquent act (pg.281). The
child is held in an appropriate juvenile facility until a Detention Hearing is held before a judge
within 48 hours excluding Saturday, Sunday and holidays. At a Detention Hearing the child is
advised of the charges, his right to an attorney and the privilege against self incrimination. The
hearing is continued if an attorney is requested. The judge will decide if there is probable cause
to believe that the child has committed an act of delinquency and if no probable cause, the child
is released. If probable cause, the judge will either release the child from custody (A Petition
Alleging Delinquency may be filed later by the prosecuting attorney) or order the child to be
continued to be detained in custody. A Petition Alleging Delinquency must be filed within 7
days excluding Saturday, Sunday and holidays, or the child is released.
Procedure to file Petition Alleging Delinquency:
A police officer or other person who has information concerning a delinquent act may provide
such information to the prosecuting attorney who, if there is reason to believe that the child has
committed a delinquent act, shall refer the information to an Intake Officer who shall make a
Preliminary Inquiry and report to the prosecuting attorney. The prosecuting attorney may take
no action, arrange an Informal Adjustment with the approval of the judge, or decide to file a
Petition Alleging Delinquency with the juvenile judge. See IC 31-37-10-1 pg. 281. When such
a petition is filed with the judge, if the judge finds probable cause to believe that the child has
committed an act of delinquency, the judge will approve of the filing of the Petition for
Delinquency. The prosecuting attorney may request by affidavit that the child be taken into
custody and the judge may issue a custody order (similar to an arrest warrant) and the child is
taken into custody and held at an appropriate juvenile facility. A Detention Hearing must be
held within 48 hours of custody being taken excluding Saturday, Sunday and holidays.
The next step in the procedure is an Initial Hearing before the juvenile judge. If the child is
in custody, this hearing must be within 20 days of custody being taken excluding Saturday,
Sunday and holidays. This hearing is similar to the Initial Hearing (Arraignment) in adult
criminal procedure wherein the childs rights are explained and an admission or denial of
delinquency is obtained. See IC 31-37-12 pg. 284. A Factfinding Hearing date is set which
must be within 20 days, excluding Saturday, Sunday and holidays, is child in custody.
If a Waiver Petition is filed pursuant to IC 31-30-3 pg. 290, a hearing is held on the petition.
This hearing must be within 20 days, excluding Saturday, Sunday and holidays, if child in
custody. If child is waived, a Criminal Information is filed by the prosecuting attorney in adult
criminal court and proceedings thereafter are as an adult. If child is not waived, then factfinding
juvenile proceedings are held by the judge.
After the initial hearing, if the child is not waived, the judge holds a Factfinding Hearing
pursuant to IC 31-37-13 pg. 287. This is similar to an adult criminal trial.
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If the judge decides at the factfinding hearing that the child has committed an act of
delinquency and the child has admitted that he committed an act of delinquency, the judge enters
an order determining that the child is a delinquent child and orders the probation department to
prepare and file a Predispositional Report with the judge. The judge sets a date for the
Dispositional Hearing. If the child has denied that he committed an act of delinquency and the
judge after the factfinding hearing determines beyond a reasonable doubt that the child has
committed an act of delinquency, the judge enters an order determining that the child is a
delinquent child and orders the probation department to prepare and file a Predispositional
Report with the judge. The judge sets a date for the Dispositional Hearing. If the judge finds
that the child has not committed an act of delinquency, an order to that effect is entered and the
child is discharged.
If an order of delinquency has been entered at the Factfinding Hearing, a Dispositional
Hearing pursuant to IC 31-37-18 is held and the judge determines what an appropriate
disposition should be and enters an order accordingly. See Dispositional Decrees pg. 288.
Checklist for Juvenile Court Jurisdiction and Waiver

A. Children in Need of Services IC 31-34
B. Acts of Delinquency
A Delinquent Child is a person up to 18 years of age who commits a delinquent act. pg. 281
A delinquent act is an act that would be an offense if committed by an adult unless the
juvenile court lacks jurisdiction. pg. 281
1. What age was the defendant at time of committing offense? If 18 or above, adult.
2. If 18 or under, what would the crime be if defendant were an adult?
3. Does the juvenile court have jurisdiction? Yes if under 18 except:
No if infraction (except false ID to purchase alcoholic beverages) or violation of ordinance.
No if 16-17 for certain serious felonies (murder, kidnapping, rape etc.) pg. 283.
4. If juvenile court has jurisdiction, juvenile procedure will follow unless juvenile court waiver
(pg. 290) to adult criminal court. A waiver can only be granted by the juvenile court judge upon
motion of the prosecuting attorney and pursuant to statute. If no waiver, the matter stays in
juvenile court under juvenile justice system.
a. Age 10-15 for an act that would be murder, the juvenile court judge shall waive unless--pg. 291
b. Age 14-17 for certain listed felonies that are heinous or aggravated may waive. pg. 290
c. Age 16-17 for certain serious felonies (A, B, Involuntary Manslaughter, Reckless
Homicide) shall waive unless---pg. 291
d. For certain multiple offenses, must waive. Pg. 291
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There can be no waiver unless requested by the prosecuting attorney and, except for d
above, the juvenile judge must find that waiver to adult court is appropriate before waiver
is granted.
FEDERAL ADMINISTRATIVE AGENCIES
The executive power is vested in the President (Article II). One of the ways this power is
exercised is by administering the laws that Congress enacts. Sec. 3 states : he shall take care
that the laws be faithfully executed. This is the basis for the creation of the Department of
Justice (Attorney General), for the creation of various bureaus, and for exercising powers granted
by Congress concerning administrative agencies.
Congress passes laws (enabling acts) that create Administrative Agencies and delegates authority
to administer these programs to the head of a cabinet department, bureau, or independent agency.
The head of a cabinet department and certain bureaus are appointed by the President, and the
enabling acts usually designate that the head of a bureau or agency be appointed by the
President.
Some administrative agencies are referred to as independent agencies. Examples: Federal
Reserve Board, Federal Communications Commission and Securities and Exchange
Commission. The members of an independent agency are appointed by the President with the
advice and consent of the Senate. The members serve fixed terms and can be removed only for
good cause.
Agencies typically possess great power. They write Rules and Regulations (with the same force
and effect as if passed by Congress), investigate compliance and bring charges for violations,
impose sanctions for violations (fines or mandated actions), and adjudicate controversies much
like a court (Administrative Law Judges). They employ millions of government officials and
ordinary workers (two million civilian employees in 2009). Federal statutes, for example,
require or permit government officials to obtain, provide, or regulate taxes, welfare, Social
Security, medicine, pharmaceutical drugs, education, highways, railroads, electricity, natural gas,
stocks and bonds, banking, medical care, public health, safety, the environment, fair employment
and housing practices, consumer protection, and much else besides.
Agency decisions are subject to judicial review. Such a review could encompass: did the agency
properly find facts; follow proper procedure; follow its own rules and regulations; whether an
agencies determinations are reasonable, not arbitrary, capricious or an abuse of discretion and
conform to basic principles of fairness; and are not unconstitutional.
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The first administrative agency, the Interstate Commerce Commission, was created by Congress
in 1887. The agency was abolished in 1995 and most of its functions transferred to the Surface
Transportation Board. Other early agencies are the Food and Drug Administration (1906) and
the Federal Trade Commission (1914).
The New Deal under President Roosevelt brought the Federal Power Commission (1930) which
as of 1977 became the Federal Energy Regulatory Commission, the Securities and Exchange
Commission (1934), the Federal Communications Commission (1934), the National Labor
Relations Board (1935), and the Civil Aeronautics Board (1938) which was abolished in 1985
and its functions transferred to the Department of Transportation and Federal Aviation
Administration.
1970 brought forth agencies created to protect the public health and safety such as the
Environmental Protection Agency, Occupational Safety and Health Administration, and National
Highway Traffic Safety Administration which is under the Department of Transportation.
See www.usa.gov/Agencies/Federal/All_Agencies/index.shtml for a mind-boggling list of
government departments and agencies.
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LABOR LAW
A. PRIVATE EMPLOYERS AND EMPLOYEES
Pre-1932:
Labor law was very pro management. Courts and prosecutors were pro management and various
methods were used by management to interfere with or prohibit the formation of labor unions
such as:
Injunction by federal court forbidding organizational activity by unions.
State criminal prosecution of union organizers as a criminal conspiracy.
Civil suit for large damages against union organizers as tortuous conduct.
Federal and state criminal prosecution for a violation of anti-trust laws.
Making employees agree not to join a union as a condition of employment (Yellow Dog
Contracts).
1932: Norris-LaGuardia Act: Federal Law
Prohibits the issuance of a court injunction against union organizational activity.
Declares that union activity cannot be prosecuted as a conspiracy.
Forbids Yellow Dog Contracts.
Declared that it was the policy of the United States that labor was to have full freedom to form
labor unions without interference by an employer.
1933: Indiana Little Norris-LaGuardia Act:
IC 22-6-1: mirrors the federal act.
1935: National Labor Relations Act (The Wagner Act): Federal Law
Declared a right of employees to form and join a union and collective bargain.
Act sets forth various employer unfair labor practices such as:
Discriminating against employees in hiring, firing, changing jobs or job descriptions,
threatening to fire, dominating the union, refusing to bargain in good faith.
National Labor Relations Board (NLRB) established to monitor and administer the act including
elections.
1947: Labor-Management Relations Act (Taft-Hartley Act): Federal Law
Act sets forth various union unfair labor practices such as:
Coercing an employee to join a union, making an employer fire non union employees,
refusing to bargain in good faith, featherbedding (forcing employer to pay for work not done),
secondary boycott or strike, closed shop (employer can only hire union members).
The act permits union shops (employer can hire a non union employee but employee must join
the union within 30-60 days)* except where state law has passed a right to work law. A right
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to work law forbids mandatory union membership or dues being required as a condition of
employment. Indiana passed such a law in 2012.
* The law does not require union membership even in a union shop, as long as the employee
pays reasonable union dues representing local union activity only.
B. INDIANA PUBLIC EMPLOYERS AND EMPLOYEES
Federal law does not apply to state public employers and employees (state, cities, towns,
counties, townships, school corporations, and any subdivisions thereof).
There is no state law prohibiting the formation of a union by public employees. However, except
as noted below, there is no legal obligation for a public employer to recognize, bargain with or
enter a contract with any such union. They may, however, voluntarily agree to do so. Strikes are
illegal.
In 1990 Governor Bayh granted the right to collective bargain to state employee unions by
Executive Order, and in 2005, Governor Daniels rescinded this order.
IC 22-6-2 (1947) sets forth a labor law for employers engaged in the business of rendering
electric, gas, water, telephone, or transportation services to the public. The law encourages
collective bargaining and forbids a strike by employees (Class B misdemeanor).
IC 20-29 (2012) sets forth labor law including collective bargaining for public school teachers.
Strikes are unlawful. An employee cannot be required to join a union or to pay any union dues.
The law provides for arbitration and fact finding. Sixty days after May 1 every two years the
School Board unilaterally, after collective bargaining for 60 days and not agreeing to a contract,
can declare an impasse and appoint an Arbitrator (not a mediator) from the Boards staff to be
paid for equally by the union and board. After various hearings, if the Arbitrator is unable to get
the parties to agree to a contract, the Arbitrator who was appointed by the School Board from
their staff determines what the contract will be and all parties are bound by the contract.
IC 36-8-22 (2008) sets forth a labor law for full-time police officers and firefighters. The law
sets forth various rights to organize and join a union. The law requires all government units to
meet with and confer in good faith with representatives of their full-time police officers and
firefighters. Strikes are forbidden and may be cause for discharge. An employee may not be
required to join the union or pay union dues.
The law does not apply to employers who: (a) have a population less than 7,000; or (b) have
adopted by ordinance, resolution, amendment or executive order provisions or procedures that
permit its employees to form, join or assist employee organizations for collective bargaining
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purposes. The law does not supersede or effect collective bargaining agreements entered into
prior to January 1, 2008.
ANTITRUST LAW
In the latter half of the nineteenth century, in response to large combinations of economic
power in the form of trusts and combinations of businesses which became too powerful and
widespread, and which resulted in various anticompetitive practices, the first antitrust act was
passed in 1890-the Sherman Act. The act prohibits in section 1 contracts, combinations, and
conspiracies that restrain trade, such as price fixing, market allocations and tying arrangements,
and in section 2 outlaws monopolies and attempts to monopolize. The act provides for criminal
penalties of imprisonment for not to exceed ten years and large fines. It is now administered by
the Department of Justice and civilly by the Federal Trade Commission. Anyone injured by a
violation may recover treble damages in a civil action.
Later federal laws which established other prohibited anticompetitive activity, and
strengthened enforcement procedures were:
1914: Federal Trade Commission Act which created the Federal Trade Commission (FTC).
The FTC has broad powers to investigate violations of all antitrust laws and can issue cease and
desist orders (injunctions).
1914: Clayton Act which prohibited tying contracts, exclusive dealing and certain mergers.
Civil actions authorized by the FTC and Justice Department to prevent violations of the act.
Anyone injured by a violation may recover treble damages in a civil action.
1936: Robinson-Patman Act which prohibited price discrimination.
sanctions and enforcement as the Clayton Act.
Contained the same
The Federal Trade Commission has published a comprehensive review of antitrust law which
can be found at:
http://www.ftc.gov/tips-advice/competition-guidance/guide-antitrust-laws
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INDIANA STATUTES CONCERNING DNA

(DNA first reported profiling in England 1984 and available as evidence 1987)
IC 35-37-4-13
"Forensic DNA analysis" defined; admissibility
Sec. 13. (a) As used in this section, "forensic DNA analysis" means an identification process
in which the unique genetic code of an individual that is carried by the individual's
deoxyribonucleic acid (DNA) is compared to genetic codes carried in DNA found in bodily
substance samples obtained by a law enforcement agency in the exercise of the law enforcement
agency's investigative function.
(b) In a criminal trial or hearing, the results of forensic DNA analysis are admissible in
evidence without antecedent expert testimony that forensic DNA analysis provides a trustworthy
and reliable method of identifying characteristics in an individual's genetic material.
IC 35-38-7
Chapter 7. Postconviction DNA Testing and Analysis
IC 35-38-7-1
Applicability of chapter
Sec. 1. This chapter applies only to an offense that is any of the following:
(1) Murder.
(2) A Class A felony.
(3) A Class B felony.
(4) A Class C felony.
IC 35-38-7-2
"DNA" defined
Sec. 2. As used in this chapter, "DNA" refers to deoxyribonucleic acid.
IC 35-38-7-3
"Offense" defined
Sec. 3. As used in this chapter, "offense" means a felony to which a petition under this chapter
relates.
IC 35-38-7-4
"Victim" defined
Sec. 4. As used in this chapter, "victim" means an individual who would be entitled under
IC 35-40-5-8 to receive information about a release of the petitioner.
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IC 35-38-7-5
Petition to require testing
Sec. 5. A person who was convicted of and sentenced for an offense may file a written
petition with the court that sentenced the petitioner for the offense to require the forensic DNA
testing and analysis of any evidence that:
(1) is:
(A) in the possession or control of a court or the state; or
(B) otherwise contained in the Indiana DNA data base established under IC 10-13-6;
(2) is related to the investigation or prosecution that resulted in the person's conviction; and
(3) may contain biological evidence.
IC 35-38-7-6
Notice of petition to prosecuting attorney
Sec. 6. A petitioner must give notice of the petition to the
prosecuting attorney for the county where the offense was allegedly committed.
IC 35-38-7-7
Opportunity to respond to petition
Sec. 7. The court shall give the prosecuting attorney an opportunity to respond to the petition.
The court may, in its discretion, order a hearing on the petition.
IC 35-38-7-8
Prima facie proof required
Sec. 8. After complying with section 7 of this chapter, the court shall determine whether the
petitioner has presented prima facie proof of the following:
(1) That the evidence sought to be tested is material to identifying the petitioner as:
(A) the perpetrator of; or
(B) an accomplice to;
the offense that resulted in the petitioner's conviction.
(2) That a sample of the evidence that the petitioner seeks to subject to DNA testing and
analysis is in the possession or control of either:
(A) the state or a court; or
(B) another person, and, if this clause applies, that a sufficient chain of custody for the
evidence exists to suggest that the evidence has not been substituted, tampered with, replaced,
contaminated, or degraded in any material aspect.
(3) The evidence sought to be tested:
(A) was not previously tested; or
(B) was tested, but the requested DNA testing and analysis will:
(i) provide results that are reasonably more discriminating and probative of the identity
of the perpetrator or accomplice; or
(ii) have a reasonable probability of contradicting prior test results.
(4) A reasonable probability exists that the petitioner would not have:
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(A) been:
(i) prosecuted for; or
(ii) convicted of;
the offense; or
(B) received as severe a sentence for the offense;
if exculpatory results had been obtained through the requested DNA testing and analysis.
IC 35-38-7-9
Order for testing
Sec. 9. If the court makes the findings described in section 8(1), 8(2), 8(3), and 8(4) of this
chapter, the court shall order DNA testing and analysis of the evidence.
IC 35-38-7-10
Method and payment for testing
Sec. 10. If the court orders DNA testing and analysis under section 9 of this chapter, the court
shall order the method and responsibility for the payment of any costs associated with the DNA
testing and analysis.
IC 35-38-7-11
Appointment of defense counsel
Sec. 11. The court may appoint defense counsel for the person who was convicted of the
offense at any time during any proceedings under this chapter if the person is indigent.
IC 35-38-7-12
Selection of laboratory
Sec. 12. If the court orders DNA testing and analysis under this chapter, the court shall select
a laboratory that meets the quality assurance and proficiency testing standards applicable to
laboratories conducting forensic DNA analysis under IC 10-13-6.
IC 35-38-7-13
Access to laboratory reports
Sec. 13. (a) If a prosecuting attorney or defense counsel has previously subjected relevant
evidence to DNA testing and analysis, the court may order the prosecuting attorney or defense
counsel to provide all the parties and the court with access to the laboratory reports that were
prepared in connection with the testing and analysis, including underlying data and laboratory
notes.
(b) If the court orders DNA testing and analysis under this chapter, the court:
(1) shall order the production of any laboratory reports that are prepared in connection with
the testing and analysis; and
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(2) may order the production of any underlying data and laboratory notes.
IC 35-38-7-14
Preservation and inventory of testing results
Sec. 14. If a petition for DNA testing and analysis is filed under this chapter:
(1) the court shall order the state to preserve during the
pendency of the proceeding all evidence in the state's possession or control that could be
subjected to DNA testing and analysis;
(2) the state shall:
(A) prepare an inventory of the evidence in the possession or control of the state that
could be subjected to DNA testing and analysis; and
(B) submit a copy of the inventory to defense counsel and the court; and
(3) if evidence is intentionally destroyed after the court orders its preservation, the court
may impose appropriate sanctions.
IC 35-38-7-15
Discretionary orders by court; elimination samples
Sec. 15. (a) The court may make any other orders under this chapter that the court considers
appropriate, including designating any of the following:
(1) The type of DNA testing and analysis to be used.
(2) That the DNA testing and analysis satisfies the pertinent evidentiary rules concerning
the admission of scientific evidence or testimony in the Indiana Rules of Evidence.
(3) The procedures to be followed during the DNA testing and analysis.
(4) The preservation of some of the sample for replicating the DNA testing and analysis.
(5) Elimination samples from third parties.
(b) Elimination samples from a third party shall be required only if:
(1) the petitioner has been excluded as the perpetrator or accomplice by DNA testing and
analysis; or
(2) extraordinary circumstances are shown to require the DNA test and analysis.
If the court orders elimination samples from a third party, the court shall offer the third party the
choice to provide a sample that can be obtained through the least intrusive method possible.
IC 35-38-7-16
Notice to victims and third parties
Sec. 16. (a) The prosecuting attorney may provide notification under the procedures of IC 3540-12 when:
(1) the petitioner first files a petition for DNA testing and analysis under this chapter; and
(2) the prosecuting attorney knows the name and address of the victim.
If the court grants a petition for DNA testing and analysis, the prosecuting attorney shall provide
notification if the name and address of the victim are known. A victim shall be notified of the
results of the DNA testing and analysis.
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(b) The name and address of a victim are confidential for purposes of this chapter.
(c) Notification of third parties regarding a court order to provide elimination samples shall be
through the prosecuting attorney.
(d) If a petitioner is exonerated by DNA testing and analysis, the victim shall be notified
before the petitioner's release.
IC 35-38-7-17
Notification of convicted person
Sec. 17. Regardless of whether a petition has been filed under this chapter, if:
(1) a prosecuting attorney decides to order forensic DNA testing or analysis that was not
previously performed on biological evidence that is related to the investigation or prosecution
that resulted in a person's conviction; and
(2) the testing will consume the remaining biological evidence;
the prosecuting attorney must notify the person of the proposed DNA testing and analysis.
IC 35-38-7-18
Unfavorable results of postconviction testing
Sec. 18. If the results of the postconviction DNA testing and analysis are not favorable to the
person who was convicted of the offense, the court:
(1) shall dismiss the person's petition; and
(2) may make any further orders that the court determines to be appropriate, including any
of the following:
(A) An order providing for notification of the parole board or a probation department.
(B) An order requesting that the petitioner's sample be added to the Indiana data base
established under IC 10-13-6.
IC 35-38-7-19
Favorable results of postconviction testing
Sec. 19. Notwithstanding any law that would bar a trial as untimely, if the results of
postconviction DNA testing and analysis are favorable to the person who was convicted of the
offense, the court shall order any of the following:
(1) Upon motion of the prosecuting attorney and good cause shown, order retesting of the
identified biological material and stay the petitioner's motion for a new trial pending the results
of the DNA retesting.
(2) Upon joint petition of the prosecuting attorney and the petitioner, order the release of the
person.
(3) Order a new trial or any other relief as may be appropriate under Indiana law or court
rule.
SEE IC 10-13-6 for Indiana DNA Data Base statute.
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THE RIGHT TO BEAR ARMS
John R. Berger, JD
AMENDMENT II (1791)
A well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed.
Prior to 2008 the United States Supreme Court had not ruled on whether the Second
Amendment protected from infringement any individual right of the people to keep and bear
arms. The lower federal courts had consistently decided that the Second Amendment protected
from federal infringement only the collective right of the people to keep and bear arms as a
member of the militia and that no individual right to keep and bear arms was protected.
Therefore, a state could reasonably regulate the individual possession and use of arms under the
states police power (the right of a state to pass reasonable laws to protect the citizens health,
safety, morals and general welfare), subject to any limitations in the state constitution and subject
to the states judicial determination as to what is a reasonable regulation. Also, Congress could
reasonably regulate the individual possession and use of arms under the powers given Congress
in the commerce and necessary and proper clauses in the Constitution. No such federal or
state legislation would violate the Second Amendment.
All of this established interpretation of the Second Amendment was changed drastically by
the United States Supreme Court in the cases of District of Columbia v. Heller (2008) and
McDonald v, Chicago (2010). In addition to the collective right to bear arms as a member of the
militia, the court established for the first time that there was also a pre-existing fundamental
individual right to bear arms which existed in 1791, and which right was protected from
infringement by the Second (federal action) and Fourteenth (state action) Amendments.
The Second Amendment does not create or grant the people any individual right to bear arms.
Rather than granting a right, it protects the people from having the pre-existing fundamental right
to bear arms taken away by the federal or state government. The United States Supreme Court in
Heller stated The very text of the Second Amendment implicitly recognizes the pre-existence of
the right and declares only that it shall not be infringed.
In contrast, many state constitutions establish such a right rather than protecting a pre-existing
right. As an example, the Indiana Constitution in Article 1, Section 32, states The people shall
have the right to bear arms, for the defense of themselves and the state.
The difficult decision is determining what this 1791 pre-existing individual right of the
people to keep and bear Arms as set forth in the Second Amendment and to bear arms, for the
defense of themselves as set forth in the Indiana and similar Constitutions mean, and what
restrictions on such a right may be imposed. The Heller decision states that such a pre-existing
right was not to keep and carry any weapon whatsoever in any manner whatsoever and for
whatever purpose.
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What do keep, bear, and arms mean? The Heller and McDonald decisions attempted to
answer this question and delineate some of the parameters of this individual right. Both involved
the constitutionality of laws prohibiting the possession of handguns in the home. The United
States Supreme Court decided (5-4) as a general principal that there were fundamental preexisting individual rights to possess and carry weapons in case of confrontation, and to use a
firearm for traditionally lawful purposes, such as self defense in the home. The court ruled that
prohibition by the federal or state government on the possession of handguns in the home for self
defense violates (infringes upon) the right to possess and carry arms protected by the Second
Amendment as to federal action and incorporated in the Fourteenth Amendment as to state
action. These decisions were limited to an examination only of the laws prohibiting possession
of handguns in the home. The constitutionality of some permissible limitations on the
possession of weapons was set forth in the Heller opinion in dicta. The Court stated: We do
not read the Second Amendment to protect the right of citizens to carry arms for any sort of
confrontation. Like most rights, the right secured by the Second Amendment is not unlimited.
From Blackstone through the 19th-century cases, commentators and courts routinely explained
that the right was not a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to
consider the question held that prohibitions on carrying concealed weapons were lawful under
the Second Amendment. Although we do not undertake an exhaustive historical analysis today
of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as schools and government buildings,
or laws imposing conditions and qualifications on the commercial sale of arms. The Court
further stated as to the personal use and possession of firearms We also recognize another
important limitation on the right to keep and carry arms. The sorts of weapons protected were
those in common use at the time and carrying of dangerous and unusual weapons can be
prohibited. Further, the Second Amendment does not protect those weapons not typically
possessed by law-abiding citizens for lawful purpose.
The District of Columbia law banned all handguns in the district and the Chicago law
effectively banned all handguns in Chicago by registration provisions which had the practical
effect of banning most handguns in the city. The Heller and McDonald decisions struck down
the District of Columbia and Chicago laws because such laws would prohibit handguns in the
home for the purpose of self-defense. The court did not decide if the laws banning handguns
outside of the home in the District of Columbia and Chicago were constitutional.
The minority of four in Heller would have upheld the banning of handguns in the home in an
urban society and thought that the major underlying value and purpose of the right to bear arms
set forth in the Second Amendment was to protect the militias. There was fear that the right of
Congress to regulate militias as set forth in Article I would allow Congress to weaken or disband
militias, and therefore the Founders wanted to protect militias. The minority recognized that the
individual right to bear arms for self defense was important in primarily rural America but, in
light of changing circumstances to an urban society, this right can be limited because of the
greater risk of taking lives. Protecting innocent lives by banning urban handguns does not
disproportionally burden the interest the Second Amendment seeks to protect, self defense.
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Therefore, according to the minority, the right to possess a handgun is not now a fundamental
right and is not incorporated in the Second Amendment or substantive due process clause as to
either federal or state action.
Those opposed to any regulation of the personal use and possession of weapons often cite The
Federalist Papers, written by James Madison, Alexander Hamilton and John Jay, Numbers 29
and 46, as authority for the unregulated personal right to bear arms. To support this claim, words
and phrases, such as the advantage of being armed, which the Americans possess over the
people of almost every other nation, are taken out of context, and a careful reading of the
complete papers easily discloses the error. All references to the right to bear arms in The
Federalist Papers are to the collective right to bear arms as a member of the organized militia.
There is no discussion of a personal right to bear arms. The U. S. Supreme Court in the Heller
and McDonald decisions properly and correctly did not refer to The Federalist Papers as
authority for recognizing a personal right to bear arms.
At the time that the Constitution was being considered by the state conventions, the antifederalists were afraid that the Constitution gave excessive power to the federal government and
wanted a Bill of Rights added to the Constitution by amendment. In order to have the
Constitution approved, it was agreed to add such amendments although the exact rights to be
included had not yet been determined. The only reference in The Federalist Papers to any
proposed Bill of Rights was in No. 84 which argued that no such Bill of Rights was needed.
The anti-federalists were afraid that the following powers of Congress provisions in the
proposed Constitution, Article 1, Section 8 cls 15-16:
(15) To provide for calling forth the militia to execute the laws of the union, suppress
insurrections and repel invasions;
(16) To provide for organizing, arming, and disciplining, the militia, and for governing such part
of them as may be employed in the service of the United States, reserving to the states
respectively, the appointment of the officers, and the authority of training the militia according to
the discipline prescribed by Congress;
would give Congress the power to disarm the militias and impose rule through a standing army
or select militia. In order to allay such fears and to counteract any such action the Second
Amendment was proposed and later adopted. The first portion of the amendment would protect
the militias and the collective right to bear arms, and allow the militia to traditionally defend
against insurrection and invasion, and also to defend against their own governments unlikely
tyranny.
The Federalist Papers in No. 29 argues that the anti-federalists have no need to be concerned
about the above Section 8 clauses in the proposed Constitution, and explains favorably the
interrelationship of the militias and the proposed federal government pursuant to the above
Section 8 clauses. In No 29 there is no discussion of the personal right to bear arms.
The anti-federalists were also afraid that the proposed federal government would have power
to weaken the authority of the states. The Federalist Papers No. 46 argues that the states should
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have no fear of the new federal government as the states have the capacity to resist in many ways
any ambitious encroachments of the federal government. Among such means of resisting would
be the state militias with arms in their hands. This is the only mention in The Federalist Papers
of any right to bear arms and it was restricted to arms used by the militia and not for personal
use.
In conclusion, except for the possession of handguns in the home for self defense and the use
of firearms for other traditionally lawful purposes (such as hunting, competitions, collecting and
target practice), as set forth in Heller and McDonald, the U.S. Supreme Court has decided that
laws can be constitutionally passed which place reasonable restrictions on the personal use and
possession of weapons, and which reasonably restrict personal ownership to the sorts of weapons
in common use at that time. What are the sorts of weapons in common use at that time and
what are reasonable restrictions are of course the difficult decisions that the legislatures will be
asked to determine, the constitutionality of which will be decided ultimately by the state and
federal courts. Since the Heller and McDonald decisions, the U.S. Circuit Courts of Appeals
have decided both ways on the issue of whether weapons for self defense can be possessed
outside of the home.
Note: Two possible references were not cited or discussed by the U.S. Supreme Court:
1. The 1870s prohibition of all weapons possession in Dodge City (which included Miss Kittys
Long Branch Saloon) by U.S. Marshall Matt Dillon.
2. The 1857 majority opinion of Chief Justice Roger B. Taney in the Dred Scott case wherein he
stated that if persons of the negro race were recognized as citizens it would give them the right
to keep and carry arms wherever they went.
.
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STATE OF INDIANA ss:
COUNTY OF DEKALB
"PETITION TO HAVE TUBAL LIGATION PERFORMED ON MINOR
"Ora Spitler McFarlin, being duly sworn upon her oath states that she is the natural mother of
and has custody of her daughter, Linda Spitler, age fifteen (15) being born January 24, 1956 and
said daughter resides with her at 108 Iwo Street, Auburn, DeKalb County, Indiana.
"Affiant states that her daughter's mentality is such that she is considered to be somewhat
retarded although she is attending or has attended the public schools in DeKalb Central School
System and has been passed along with other children in her age level even though she does not
have what is considered normal mental capabilities and intelligence. Further, that said affiant has
had problems in the home of said child as a result of said daughter leaving the home on several
occasions to associate with older youth or young men and as a matter of fact having stayed
overnight with said youth or men and about which incidents said affiant did not become aware of
until after such incidents occurred. As a result of this behavior and the mental capabilities of said
daughter, affiant believes that it is to the best interest of said child that a Tubal Ligation be
performed on said minor daughter to prevent unfortunate circumstances to occur and since it is
impossible for the affiant as mother of said minor child to maintain and control a continuous
observation of the activities of said daughter each and every day.
QUESTIONS
1. Q. Can a non police officer arrest another person if the non police officer has probable cause
to believe that the other person has committed a felony. (Citizens arrest)
2. Q. If Indiana passed a law that it was a crime to attend church on Sunday afternoon unless a
permit was granted, would this violate the U.S. Constitution First Amendment?
3. Q. A store owner who has been repeatedly robbed by burglars entering through a skylight
rigs up a spring gun at the skylight aimed at any intruder. One night an intruder enters through
the skylight and is shot and killed by the spring gun. Can the owner take a life to protect
property that is not his home? Has the owner committed any crime?
4. Q. Can an Indiana prosecuting attorney file murder charges against a person or do such
charges have to originate by Grand Jury Indictment? See U.S. Constitution Fifth Amendment.
5. Q. In a general election 60% of the votes for President of the United States are cast for
William Jones? Is William Jones entitled to be declared the president?
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6. Q. In a felony criminal trial, if the jury finds the defendant guilty, who determines the
sentence-the jury or the judge?
7. (a) What do you think the penalty should be for theft of $10.00? $1,000.00? $99,000.00?
(b) What do you think the penalty for the sale of 1 gram of cocaine should be? 3 grams?
1000 pounds?
8. Under IC 35-33-1-1, a law enforcement officer can make an arrest pursuant to an arrest
warrant, for felonies and misdemeanors in the officers presence, failure to report certain
automobile accidents, and alcohol related driving violations.
Q.
In Indiana can an officer make an arrest without an arrest warrant for:

(a) speeding 120 miles per hour?
(b) failure to observe a stop sign or light?
(c) driving with expired plates, registration, or no drivers license?
(d) passing a stopped school bus with warning arm extended?
(e) speeding in a work zone?
(f) aggressive driving? See IC 9-21-8-55 for definition.
(g) reckless driving? See IC 35-42-2-2
(h) Not turning when turn signal on?
9. The following questions concern the authority of a police officer pursuant to a valid arrest and
without a search warrant to make a search for and seizure of evidence without violating the rights
set forth in the United States Constitution IV Amendment. If there is no search warrant the
search and seizure must be reasonable. Are the following searches and possible seizures
constitutional?
(a) The arrested person is searched for weapons.
(b) The area within reach of the arrested person is searched for weapons or destructible
evidence.
(c) A person is arrested in his home in the entrance hall on a charge of selling drugs. Can the
first floor of his home be searched for drugs?
(d) A person is stopped by police in his car for driving with no license plates. Can the police
search his car?
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(e) A person is stopped by police in his car for no tail light. When checking the drivers
license of the driver, the police smell a strong odor of alcohol and bleary eyes and slurred speech
of the driver.
(1) The driver is arrested for drunk driving, handcuffed and placed in a locked police car.
Can the police search the passenger compartment of his car and any containers for evidence that
he had been drinking?
(2) The driver is arrested, not handcuffed, and made to stand outside of the car. Can the
police search the passenger compartment of his car and any containers for evidence that he had
been drinking?
PROBLEMS
CASE 1: Three boys, Joe, Bill and Tom, all 18, drove by the Clark Station in Angola, Indiana,
one evening. They see the attendant by the gas pumps helping a customer. There are no other
customers or attendants. The boys decide that Joe will sneak into the building and see if he can
get any cash from the register. Bill and Tom know Joe has a knife. Bill and Tom remain in the
car parked nearby. Joe, unnoticed by the attendant, goes into the building, finds the cash register
open, takes $304.00 from the register and heads for the front door. As Joe is heading for the
door the attendant sees Joe and rushes toward the building, yells help to the customer at the
pump, and attempts to keep the door closed and Joe trapped inside. Joe pulls a large hunting
knife from his jacket and yells Let me out or I will cut you up. The attendant steps aside just
when Joe crashes against the door. The door glass breaks and a small piece of glass cuts the
hand of the attendant. The cut is minor. Joe runs to the car, jumps in and the car drives off. The
attendant tells the police that he was scared that Joe would knife him and that the cut he received
hurt. About ten minutes later, about two blocks away, the police see the three boys sitting at the
kitchen table and dividing up the money. The boys are all arrested and later charged with
robbery as a Class B felony.
A.
(1) You are appointed as pauper attorney for Joe.
What is the possible penalty for a Class B felony?
Assuming the above facts are correct, is Joe guilty of Robbery? Any other offense?
(2) You are appointed as pauper attorney for Bill.
Assuming the above facts are correct, is Bill guilty of Robbery? Any other offense?
(3) You are appointed as pauper attorney for Tom.
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Assuming the above facts are correct but Tom is seventeen, can Tom correctly be charged with
Robbery? Any other charges?
B.
Assume the same facts as above except Joe is 17 and he stabs the attendant with the knife. The
attendant dies as a result of the wound one hour later.
(1) Can Joe properly be charged with an Act of delinquency, to wit; murder if he had been an
adult?
(2) Is Joe guilty of murder?
(3) Are Bill and Tom guilty of murder if they are 17?
(4) If Tom was nine years old, is he guilty of murder?
CASE 2: A homeless man enters a barn to sleep. The farmer discovers him and orders him to
leave. He does leave. Has he committed any criminal offense?
CASE 3: James is awakened in his home by a strange noise outside his home. James grabs his
hand gun and goes downstairs. He sees a man with a ski mask open a closed window in the den
and start to climb inside the house. James fires his gun and kills the intruder.
(1) Did James have a duty to retreat if a reasonable means of retreat was available and not shoot
the intruder?
(2) Does James have the defense of self defense to a charge of murder?
(3) If James had yelled stop or I will shoot and the intruder immediately climbed back out of the
window and started to run away, can James follow and lawfully shoot and kill the intruder in the
front yard who is still running away? Is James guilty of murder, manslaughter, reckless
homicide?
CASE 4: An eighteen year old boy from Edon, Ohio, was arrested on the Indiana Toll Road
by an Indiana State Police Officer for the misdemeanor charge of hitchhiking on a toll road. He
was taken to the nearest toll booth building at the Angola Exit, questioned as to his name and
residence, and strip searched by the officer who was looking for drugs. The police had been
previously informed by Edon police that there was a gang of teenagers who worked out of the
Edon area who were involved with the distribution of controlled substances and that they often
transported the drugs by way of the Indiana Toll Road. The police had not been informed of the
names of any of the teenagers. Ten pills containing controlled substances were found tucked into
the hitchhikers socks. He was arrested and later the prosecuting attorney filed state felony
criminal charges of possession of a controlled substance.
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Defense counsel filed a Motion to Suppress Evidence claiming that the evidence concerning the
possession of drugs could not be admitted into evidence as the obtaining of such evidence by
police violated his IV Amendment rights under the U.S. Constitution.
(1) How should the judge rule?
(2) Assume the hitchhiker had been found not guilty after a trial, and the Federal District
Attorney then filed federal charges based upon the same facts in federal court alleging a violation
of the federal controlled substances criminal law? Is this double jeopardy prohibited by the V
Amendment to the U.S. Constitution?
CASE 5: A bank is robbed by a man wearing a baseball cap and dark sun glasses. William is
arrested, charged with robbery, and an attorney is appointed to represent him. One week later,
without notice to or presence of Williams attorney, William is directed to participate in a lineup
with six other men of similar race, coloring and stature. All wore the same type of baseball cap
and sunglasses. All were directed to repeat the words Put the money in the bag as the robber
had spoken at the bank. The lineup was observed by two bank employees who positively
identified William as the bank robber.
Before trial the attorney for William filed a Motion to Suppress all testimony as to the lineup
identification by the two bank employees because (1) such identification may have been
influenced by Williams oral statement Put the money in the bag that he was directed to make
at the lineup and that directing him to make the statement violated his privilege against self
incrimination (V Amendment) and (2) his attorney was not present which violated his right to an
attorney (VI Amendment). Williams attorney also filed a Motion in Limine to exclude any
identification testimony at trial by the two bank employees as their testimony would be
influenced by and tainted by (the fruit of) the unconstitutional lineup.
Should the judge grant either of the motions?
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TEST BANK
In all questions, if applicable, assume that the questions ask about current Indiana law and
that the crimes, procedures and activities occurred in Indiana.
TRUE AND FALSE
1. The Indiana Supreme Court has five justices.
2. The U.S. Constitution sets the number of U.S. Supreme Court Justices at nine.
3. The U.S. District Courts have jurisdiction to hear Diversity of Citizenship cases if the
amount of damages claimed by the plaintiff are $50,000.00 or more.
4. An appeal from the U.S. District Court for the Northern District of Indiana would be made to
the U.S. 7th Circuit Court of Appeals.
5. All Federal District, Circuit Court of Appeals, and Supreme Court judges are appointed for
life (during good behavior) by the President with the advice and consent of the Senate.
6. If after a Circuit Court trial the defendant is found guilty of murder and the court imposes a
life sentence without parole, the defendant may appeal the decision and sentence to the Indiana
Appellate Court.
7. A person cannot be guilty of murder unless he knowingly or intentionally kills another human
being.
8. Even though the U.S. Fifth Amendment states that no person shall be held to answer for a
capital crime unless on an Indictment of a Grand Jury, Indiana does not have to follow this
amendment and in Indiana a person can be charged with capital murder merely by the
prosecuting attorney filing a Criminal Information with the court.
9. At a Sentencing Hearing after a murder conviction where a sentence of life without parole is
sought, mitigating evidence may be submitted by the defense to show that the defendant was 17
years of age at the time the murder was committed.
10. In all state felony trials the U.S. Constitution requires that a jury consist of 12 members and
before a guilty verdict can be reached by the jury, all 12 jurors must be convinced beyond a
reasonable doubt that the defendant is guilty of the charged crime.
11. A Grand Jury can only issue an Indictment if they believe that there is clear and
convincing evidence that the defendant committed the charged crime.
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12. In a criminal trial a defendant who testifies can be questioned by the prosecutor on cross
examination about any previous non related convictions of Theft in order to impeach the
defendants creditability for truth and veracity.
13. An arrest warrant can be ordered and issued by the Clerk of Court if the Clerk is presented
with an Affidavit of Probable Cause sworn to by a reputable police officer and the Clerk finds
probable cause to believe that the defendant named in the warrant committed the charged crime.
14. In a civil suit, the plaintiff must prove his/her cause of action by a preponderance of the
evidence in order to prevail.
15. After a Complaint is filed in a civil case a warrant must be issued and served upon the
defendant in order to give notice that a suit has been filed against the defendant.
16. A Petition for Writ of Certiorari is basically a request to the U.S. Supreme Court to accept an
appeal from a U.S. Circuit Court of Appeals or highest state court.
17. The citation 103 F. Supp. 31 is to an opinion of a U. S. District Court found at volume 103 at
page 31 of the official published law opinion.
18. A judge can order an adult person, male or female, to be sterilized if, after an appropriate
hearing before the judge with notice to all interested persons and an opportunity to present
evidence by all interested persons, the judge determines beyond a reasonable doubt that the
person is retarded.
19. A jury can constitutionally consist of only 6 members if the charged crime is a minor felony
(Class D) or a misdemeanor.
20. On appeal, a state appellate court can review a trial judges or jurys verdict of guilty and
reverse (send the case back to the lower court for appropriate action) if the appellate court finds
that there was some evidence favorable to the state which was sufficient to sustain the verdict of
guilty, but upon review of the evidence the court unanimously disagrees with the judges or
jurys decision.
21. If the judge appoints a highly qualified attorney to represent an indigent (poor) defendant
charged with murder and the death sentence is requested by the prosecutor, the judge need not
(but may) appoint co-counsel for the defendant.
22. A defendant charged with murder is entitled to be released on reasonable bail if, at a hearing
requesting bail, the prosecutor cannot show that the evidence of guilt was evident or the
presumption of guilt was strong.
23. At Roberts bail hearing, a witness testified that he was pretty sure that Roberts had
borrowed the five gallon gas can which was found at the scene of the crime from the Renkite
Shell Station.
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24. A defendant in a murder case is entitled to a change of venue to another county upon filing a
Motion For a Change of Venue from the county.
25. A Motion in Limine requests the judge to limit the number of witnesses the prosecutor can
call to rebut the defense of Alibi.
26. In the Roberts case, if the jury finds Roberts guilty of felony murder, and if they also find
that Roberts had an unrelated prior robbery conviction, the jury would hear aggravating and
mitigating evidence and then decide if Roberts should be sentenced to life imprisonment without
parole or death.
27. At the voir dire examination of the prospective jurors in a felony case, both the prosecutor
and the defense have unlimited challenges for cause.
28. Peremptory challenges to prospective jurors may be used to eliminate older women from
being a juror.
29. A jury in a criminal felony case cannot find a defendant guilty unless each juror is convinced
beyond a shadow of a doubt that the defendant is guilty.
30. The Miranda case requires that the a person charged with a crime be advised, prior to
questioning, of the charges against him/her, the possible penalties, the right to a jury trial, his/her
right to remain silent, that anything that he/she says can be used against him/her, and that an
attorney will be appointed to represent him/her at public expense if he/she cannot afford an
attorney.
31. Negligence is an example of a civil cause of action.
32. Examples of punitive damages in a civil case are damages for lost wages, medical, doctor
and hospital bills, and personal injuries.
33. Upon failure of a defendant in a civil suit who has been properly served with Summons, to
appear and file an appropriate Answer with the court within the time limits prescribed by civil
procedure law, the judge may enter a default judgment in favor of the Plaintiff and against the
Defendant for the entire amount of damages requested in the Complaint.
34. The crime of Battery is defined in IC 35-42-2-1.
35. A person who commits murder has committed a Class A felony.
36. Premeditation is an essential element of the crime of murder and must be proven by the state
beyond a reasonable doubt.
37. An offense designated as an Infraction may be punishable by a fine, costs, and imprisonment
not to exceed 30 days.
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38. A person who knowingly and intentionally breaks and enters the dwelling of another with no
intent to commit a felony or misdemeanor, commits a Class D felony.
39. If a person knowingly and intentionally exerts unauthorized control of a candy bar worth
$1.25 that belongs to another person with intent to keep and eat it, the person has committed the
crime of Theft and could be sentenced to three years in prison even though it is his first offense.
40. Motive is an essential element of Class A and Class B felonies and must be proven by the
prosecutor beyond a reasonable doubt.
41. Insanity is an affirmative defense to a criminal charge and to be a successful defense the
defendant has the burden of proof to prove the defendants insanity by a preponderance of the
evidence.
42. At the Initial Hearing (Arraignment), the judge, among other matters, must advise the
defendant as to his/her constitutional rights, accepts the plea of the defendant, and sets an
Omnibus Date, which date must be within 90 days thereafter.
43. At the Initial Hearing or a continuance thereof, the only pleas by defendant that are allowed
are guilty, guilty but mentally ill, not guilty, and not guilty by reason of insanity.
44. If there is a plea by defendant of guilty but mentally ill or a finding thereof by a judge or
jury at trial, the judge shall sentence the defendant in the same manner as if the defendant had
plead guilty or was found guilty of the charged crime and (except for a death sentence) the
defendant before regular imprisonment is first treated for such illness by the Department of
Corrections or Division of Mental, Health.
45. If a person who has voluntarily become intoxicated is not able to understand that he is
committing a crime (no intent), such person cannot be held criminally responsible as intent to
commit a crime is an essential element of all crimes.
46. The defense of Entrapment is allowed to a defendant in a criminal action to protect citizens
who are not otherwise predisposed to commit the charged crime from being induced by the
police to commit the crime.
47. If a criminal defendant files a timely Notice of Alibi with the court, at the trial the defendant
has the burden of proving this alibi by a preponderance of the evidence that he was somewhere
else when the crime was committed and therefore could not have committed the crime.
48. In a criminal case, Preliminary Instructions are read to the jury by the prosecuting attorney
to instruct the jury as to the charges against the defendant and the witnesses that the prosecutor
will call to testify to prove that the defendant is guilty beyond a reasonable doubt.
49 The burden of proof requirements to prove the insanity defense in Indiana are the same as the
federal defense of insanity.
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50. All sentences for felonies and misdemeanors are determined by the judge and not the jury
except for a jury murder trial with a jury recommendation of either death or life without parole.
MULTIPLE CHOICE
51. In the Roberts case, I declared the Indiana death sentence statute unconstitutional because:
a. The North Carolina Supreme Court in Woodsonv.NorthCarolina declared a North Carolina
death sentence statute, which was similar to the Indiana statute, unconstitutional.
b. The Indiana statute was a violation of the 14th Amendment to the U.S. Constitution.
c. A mandatory death sentence solely by virtue of Roberts prior robbery was unconstitutional.
d. (b) and (c). (The North Carolina Supreme Court held that the statute did not violate the
Constitution)
e. (a), (b) and (c).
52. Under present law, a court (judge) can declare that a law passed by the legislature is
unconstitutional and void:
a. Based upon Marburyv.Madison.
b. If the court decides that the law is arbitrary and unjust and therefore violates substantive due
process (DredScott).
c. If the court decides that, even though rational legislators could regard the law as reasonable,
the court completely disagrees with the social or economic reasons for the law.
d. (a) and (b).
e. (a), (b) and (c).
53. The due process clause of the 5th and 14th Amendments to the U.S. Constitution has two
concepts: procedural due process and substantive due process.
a. Procedural due process means that a law must not be arbitrary and unjust, or deprive a person
of fundamental rights.
b. Substantive due process means that a person charged in a civil or criminal action has the right
to be advised of the claim or charges against him and to be given the opportunity to defend the
claim or charges before an impartial tribunal.
c. The concept of substantive due process was first set forth in DredScottv.Sandford.
d. (a) and (b)
e. (a), (b) and (c)
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54. The United States Supreme Court has decided that protected fundamental rights under the
due process clause in the 14th Amendment:
a. Includes most of the first eight amendment rights.
b. Includes the right to give contraceptive information by a health clinic.
c. Includes the right to be arrested for an alleged violation of state criminal law only pursuant to
an arrest warrant issued by a judge after probable cause is determined by a judge or probable
cause is determined by a Grand Jury.
d. (a), (b) and (c)
e. (a) and (b) (A person can also be arrested without an arrest warrant under certain
circumstances)
55. Which of the following (is)(are) correct?
a. When the 5th Amendment was ratified, due process was considered to mean what we now call
procedural due process.
b. The first eight amendments when ratified were only intended to protect against certain federal
actions and laws, and were not intended to prohibit a state from depriving a person of such
rights. Example: At the time of the ratification it would not have violated the 4 th Amendment if a
state policeman searched a persons house without a valid search warrant.
c. Even though the 8th Amendment does not state specifically that all punishments shall be
proportional to the offense committed, the United States Supreme Court has interpreted this
amendment to include this right.
d. (a), (b) and (c).
56. Gideon v. Wainwright and subsequent United States Supreme Court decisions have
determined that an indigent (pauper) defendant:
a. Is entitled to an attorney at public expense if charged with a felony (serious crime) and a
prison sentence is possible.
b. Is entitled to an attorney at public expense if charged with a misdemeanor (minor crime) and
a prison sentence is possible.
c. Is entitled to an attorney at public expense if charged with an Indiana infraction and the fine
can be $5,000.00 or more.
d. (a), (b) and (c).
e. (a) and (b). (There can be no imprisonment for an infraction and therefore not entitled to
pauper counsel)
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57. The Police Power is:
a. The inherent power or authority of the U.S. Congress, without express or implied
constitutional authority, to pass laws in the public interest to protect the public health, safety and
morals.
b. The inherent power or authority of a state legislature, without express or implied state
morals.
c. The powers of the police to make arrests (as limited by the Indiana and Federal
Constitutions).
d. (a) and (b).
58 Most delegates to the Constitutional Convention of 1787:
a.
b.
c.
d.
e.
Realized that the Articles of Confederation were inadequate.

Consisted of 55 men from 13 states (the 13 previous colonies).
Decided to abolish slavery as of 1808 (See Article I Section 9 of U.S. Constitution).
Had three women as delegates.
(a) and (b).
59. The 1788 U.S. Constitution provided:

a. That members of Congress ( the House of Representatives and Senate) shall be elected
directly by the people.
b. That the President shall be elected directly by the people.
c. That members of the federal judiciary shall be appointed by the President for a term of 12
years with the advice and consent of the Senate.
d. (a) and (b).
e. None of the above.
60. The Article I Sec. 8 power of Congress:
a. The power of Congress to regulate commerce was given a broad interpretation in Gibbonsv.
Ogden (1824).
b. To create a national bank was denied because there was no express authority in the U.S.
Constitution to do so. McCullochv.Maryland (1819).
c. Was limited by the U.S. Supreme Court to those expressly stated in Sec. 8.
d. (b) and (c).
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61. Article I of the 1788 U.S. Constitution provided:
a. Express powers of Congress which were later expanded by the U.S. Supreme Court to grant
implied powers by the necessary and proper clause.
b. That Congress can establish a U.S. Supreme Court and lower federal courts.
c. That the importation of slaves shall not be prohibited by Congress for 30 years.
d. That the Senate shall be elected by the people for a term of six years.
e. All of the above.
62. The U.S. Constitution as interpreted by the U.S. Supreme Court, and/or Indiana law
provides:
a. That a person cannot be arrested by a policeman for a felony without an arrest warrant duly
approved by a judge.
b. That if a person is arrested by a policeman pursuant to an arrest warrant in his home on a
charge of selling drugs at a nearby Mall, the first floor of his home can be searched for drugs by
the police without a search warrant as a search incident to an arrest.
c. That a person can be arrested by a policeman without an arrest warrant for driving without a
valid drivers license.
d. None of the above.
63. Common Law:
a. Is judge made law rather than a law enacted by a state legislature.
b. Is illustrated by the tort of negligence.
c. Was at first very rigid in its rules and therefore gave rise to the creation of Courts of Equity to
allow equitable remedies ( Example: Specific Performance) when the rigid rules first established
by the English courts of common law did not allow a remedy.
d. (a) and (b).
e. (a), (b) and (c).
64. A wife in an Indiana absolute divorce proceedings:
a. Can have a jury decide all issues if a timely request is made.
b. Can request an alimony order against her husband even though she is not disabled.
c. Can obtain a divorce based upon impotence of her husband which began after the marriage.
d. Is entitled to one-half of all of the net assets owned by the parties accumulated during
marriage.
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65. If an Indiana resident husband dies testate (with a will), is survived by a wife, and owns an
interest in real estate in Indiana which it titled as Tenants by the Entireties:
a. The terms of the probated will of the decedent husband determines who will inherit and own
the real estate.
b. The decedent husbands heirs as determined by Indiana statute will inherit and own the real
estate.
c. The decedent husbands wife becomes the owner of and has the entire title to the real estate at
decedents death.
d. The decedents husbands wife owns one-half of the real estate at decedents death and the
other one-half is owned pursuant to the terms of the probated will.
66. A 16 year old buyer and adult seller enter into a contract to buy and sell a used car for
$3000.00. The car is to be used by buyer for pleasure only.
a. The buyer can use the car for a year, then while still a minor, disaffirm the contract, return the
car to the seller, and recover from the seller any purchase price paid to seller.
b. The car purchase contract is unenforceable by either the seller or buyer if the contract is not in
a sufficient writing.
c. The car purchase contract is unenforceable by either the seller or buyer if the contract is made
on a Sunday.
d. (a) and (b).
67. Under Indiana tort and statutory law:
a. Assumption of Risk as a defense is not available to an employer defendant to avoid liability in
a claim made by an injured employee under the Workers Compensation laws.
b. A retailer like Menards is liable to a buyer for injuries to the buyer caused by a product such
as a lawn mower which was in a defective and unreasonably dangerous condition even though
the retailer did not know that the product was defective and unreasonably dangerous.
c. A manufacturer like Toro is liable to a buyer for injuries to the buyer caused by a product
such as a lawn mower which was in a defective and unreasonably dangerous condition even
though the manufacturer did not know that the product was defective and unreasonably
dangerous.
d. (a), (b) and (c).
68. Present Indiana criminal law provides that if the prosecuting attorney has requested the
death sentence and there is no insanity or mental retardation plea, and if the jury decides that an
adult defendant is guilty of murder:
a. The jury must sentence the defendant to death if the defendant has previously been convicted
of murder.
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b. The jury must sentence the defendant to death if the defendant, while serving a life
imprisonment sentence, is found guilty of murdering a prison guard.
c. The jury, after considering evidence of aggravating and mitigating circumstances, may
recommend a sentence of death, life imprisonment, life imprisonment without parole, or a prison
term of between 45 and 65 years to be determined by the judge.
d. (b) and (c).
69. Present Indiana criminal law provides that if the prosecuting attorney has not requested the
death sentence or life without parole and there is no insanity plea, and if the jury decides that an
a. The jury, after hearing evidence of aggravating and mitigating circumstances, may recommend
a sentence of 65 years imprisonment.
b. The jury, after hearing evidence of aggravating and mitigating circumstances, may
recommend a sentence of 45 years imprisonment.
c. The jury does not hear evidence of aggravating and mitigating circumstances and must
recommend a sentence of between 45 and 65 years imprisonment, the exact amount of years to
be determined by the judge.
70. If a person is 17 years of age, a Petition Alleging Delinquency may properly be filed with
the Juvenile Court by the prosecuting attorney which alleges that such person:
a.
b.
c.
d.
e.
Violated IC 35-45-9-3 Criminal Gang Activity.

Violated IC 35-42-5-1 Robbery if such person was not armed and no bodily injury resulted.
Violated IC 35-43-2-1 Burglary.
(b) and (c).
(a), (b) and (c).
71. If a defendant is charged as an adult (after waiver if necessary) and is convicted of murder
by a judge or jury:
a. A defendant who was 14 years old at the time of the murder may be sentenced to life
imprisonment without parole if the prosecuting attorney has requested such a sentence.
b. A defendant who was 17 years old at the time of the murder may be sentenced to death if the
prosecuting attorney has requested such a sentence.
c. A defendant who was 18 years old at the time of the murder may be sentenced to life
imprisonment with possibility of parole (because of his young age) if the prosecuting attorney
has requested such a sentence.
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e. (a) and (c).
72. If a juvenile court initially has jurisdiction over a child, and the prosecuting attorney files a
Waiver Petition, the charges and the child shall (subject to the juvenile judges statutory required
findings) be waived to an adult criminal court in the following circumstances:
a. The child was 12 years old at the time of the offense and is charged with an act that would be
Murder if committed by an adult.
b. The child was 16 years old at the time of the offense and is charged with an act that would be
Burglary of a Dwelling if committed by an adult.
c. The child was 17 years old at the time of the offense, is 18 years old when the Petition
Alleging Delinquency is filed, is charged with an act that would be Theft of $100,000.00 if
committed by an adult, and the child has not been previously convicted of a felony or
misdemeanor.
d. (a) and (b).
e. (a), (b) and (c).
73. Under Indiana Juvenile Procedure:
a. A child is entitled to a jury at the Factfinding Hearing to decide if the child has committed the
Act of Delinquency.
b. A child taken into custody pursuant to a Petition Alleging Delinquency is entitled to be
released on reasonable bail if a Detention Hearing is not held within 24 hours (excluding
Saturdays, Sundays and Holidays) after being taken into custody.
c. Only the prosecuting attorney can file a request for a waiver to adult criminal court.
d. At a Factfinding Hearing, if the delinquency is denied, the state (through the prosecuting
attorney) has the burden of proving by clear and convincing evidence that the child committed
the delinquent act.
74. Administrative agencies are:
a. Created by an act of Congress and/or state legislatures.
b. Created by an enabling act (law) which act to be constitutional must provide the purpose,
powers and duties of the agency, and provide reasonable standards in implementing the act.
c. Subject to judicial review as to their decisions.
d. (a), (b) and (c).
75. The facts in Korematsuv.U.S. (1944) state that the President issued a federal Executive
Order in 1942 which ordered that Americans of Japanese descent (including Korematsu) be
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taken immediately from their homes in California and removed to concentration camps away
from the west coast. Which of the following are correct legal principles in favor of Korematsu
which should have been approved by the Supreme Court?
a. That since he was not allowed to have a hearing before a judge before removal, he was
deprived by the federal government of procedural due process under the 5th Amendment.
b. That since he was not allowed to have a hearing before a judge before removal, he was
deprived by the federal government of procedural due process under the 14h Amendment.
c. That the order was a violation of his of equal protection rights under the 14th Amendment.
d. (a) and (b).
QUESTIONS
(With Answers in Bold)
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1. Q. Can a non police officer arrest another person if the non police officer has probable cause
to believe that the other person has committed a felony. (Citizens arrest)
A. Yes if the felony has actually been committed. IC 35-33-1-4
2. Q. If Indiana passed a law that it was a crime to attend church on Sunday afternoon unless a
permit was granted, would this violate the U.S. Constitution First Amendment?
A. No. The First Amendment applies only to federal action, not state. However, the
rights set forth in this amendment are protected from state action by the 14 th Amendment,
due process clause (substantive due process).
3. Q. A store owner who has been repeatedly robbed by burglars entering through a skylight
rigs up a spring gun at the skylight aimed at any intruder. One night an intruder enters through
the skylight and is shot and killed by the spring gun. Can the owner take a life to protect
property that is not his home? Has the owner committed any crime?
A. Yes. No crime has been committed. IC 35-41-3-2(e) and (c) if this is a forcible
felony
4. Q. Can an Indiana prosecuting attorney file murder charges against a person or do such
charges have to originate by Grand Jury Indictment? See U.S. Constitution Fifth Amendment.
A. Prosecuting attorney in Indiana may file murder charges. The Fifth Amendment
applies only to federal criminal actions.
5. Q. In a general election 60% of the votes for President of the United States are cast for
William Jones? Is William Jones entitled to be declared the president?
A. No. The electoral college (538 members) elects a president. Article II Section 1
6. Q. In a felony criminal trial, if the jury finds the defendant guilty, who determines the
sentence-the jury or the judge?
A. The judge determines the penalty IC 35-50-1-1 except for the death sentence or life
without parole IC 35-50-2-9(d)
7. (a) What do you think the penalty should be for theft of $10.00? $1,000.00? $99,000.00?
IC 35-43-4-2 All are Class D felony: 6 mo. to three years for 1 cent to $99,999.00.
Note: New penalties as of July 1, 2014.
(b) What do you think the penalty for the sale of 1 gram of cocaine should be? 3 grams?
1000 pounds?
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Up to three grams is a Class B Felony IC 35-48-4-1. 6 to 20 years. Three grams or more
is a class A felony 20 to 50 years ( Same as voluntary manslaughter with a deadly weapon,
kidnapping, rape with a deadly weapon and child molesting. Note: New penalties as of July
1, 2014. Texas: 2 to 20 years. Wisconsin: 0 to 12.5 years. Ohio: Probation to 1 year.
8. Under IC 35-33-1-1, a law enforcement officer can make an arrest pursuant to an arrest
warrant, for felonies and misdemeanors in the officers presence, failure to report certain
automobile accidents, and alcohol related driving violations.
Q.
In Indiana can an officer make an arrest without an arrest warrant for:

(a) speeding 120 miles per hour?
(b) failure to observe a stop sign or light?
(c) driving with expired plates, registration, or no drivers license?
(d) passing a stopped school bus with warning arm extended?
(e) speeding in a work zone?
(f) aggressive driving? See IC 9-21-8-55 for definition.
(g) reckless driving? See IC 35-42-2-2
(h) Not turning when turn signal on?
A. (a) through (c), unless the speeding is considered reckless driving, are infractions
and therefore can not arrest.
(d) through (g) are Criminal Recklessness IC 35-42-2-2, are misdemeanors, and
therefore can arrest.
(h) is not a violation of law and therefore can not arrest and can not make a traffic
stop.
Note: Police can make a traffic stop of a vehicle without an arrest warrant and ask
for ID and registration, only if there is (1) reasonable suspicion of criminal activity or (2)
an observed traffic violation. State v. Rhodes 950 NE2d 1261 Killebrew II v. Indiana
(2012)
9. The following questions concern the authority of a police officer pursuant to a valid arrest and
without a search warrant to make a search for and seizure of evidence without violating the rights
set forth in the United States Constitution IV Amendment. If there is no search warrant the
search and seizure must be reasonable. Are the following searches and possible seizures
constitutional?
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(a) The arrested person is searched for weapons.
(b) The area within reach of the arrested person is searched for weapons or destructible
evidence.
(c) A person is arrested in his home in the entrance hall on a charge of selling drugs. Can the
first floor of his home be searched for drugs?
(d) A person is stopped by police in his car for driving with no license plates. Can the police
search his car?
(e) A person is stopped by police in his car for no tail light. When checking the drivers
license of the driver, the police smell a strong odor of alcohol and bleary eyes and slurred speech
of the driver.
(1) The driver is arrested for drunk driving, handcuffed and placed in a locked police car.
Can the police search the passenger compartment of his car and any containers for evidence that
he had been drinking?
(2) The driver is arrested, not handcuffed, and made to stand outside of the car. Can the
police search the passenger compartment of his car and any containers for evidence that he had
been drinking?
A. (a) Yes. It is a valid search incident to an arrest.
(b) Yes. It is a valid search incident to an arrest.
(c) No.
(d) No. He cannot be arrested in Indiana because this is only an infraction. A search
would not be incident to an arrest and even if arrested would not provide evidence that he
had committed the offense for which he was arrested-no license plate.
(e) 1 Yes. If a person is arrested and secured (and therefore can not reach a weapon or
destructible evidence) the vehicle passenger compartment can not be searched unless it is
reasonable to believe that evidence relevant to the crime of arrest might be found in the
vehicle.
(e) 2 Yes. He is unsecured and therefore, if he is within reaching distance of the
passenger compartment, the police can search the compartment for weapons. Also the
search is permissible in order to look for evidence that he had been drinking.
Arizona v. Gant , 129 Sup. Ct. 1710 (2009), states that the police may only search a
passenger compartment and containers therein following arrest of a recent occupant: (1)
when the arrestee is unsecured and within reaching distance of the passenger compartment
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at the time of the search or (2) when it is reasonable to believe (not suspect) that evidence
relevant to the crime of arrest might be found in the vehicle.
Therefore, for example, if arrested for a driving while impaired charge, drug offense, theft,
or a weapons possession charge, a person can have his passenger compartment searched
for evidence of the crime even though he is secured and in the police car. Since the search
is legal, evidence found in the search of any other crime is admissible evidence. Ex:
Arrested for a drug offense and an unregistered weapon is found. If arrested and
unsecured, and within reach of the passenger compartment, a search of the passenger
compartment may be made for weapons or destructible evidence.
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PROBLEMS
CASE 1: Three boys, Joe, Bill and Tom, all 18, drove by the Clark Station in Angola, Indiana,
one evening. They see the attendant by the gas pumps helping a customer. There are no other
customers or attendants. The boys decide that Joe will sneak into the building and see if he can
get any cash from the register. Bill and Tom know Joe has a knife. Bill and Tom remain in the
car parked nearby. Joe, unnoticed by the attendant, goes into the building, finds the cash register
open, takes $304.00 from the register and heads for the front door. As Joe is heading for the
door the attendant sees Joe and rushes toward the building, yells help to the customer at the
pump, and attempts to keep the door closed and Joe trapped inside. Joe pulls a large hunting
knife from his jacket and yells Let me out or I will cut you up. The attendant steps aside just
when Joe crashes against the door. The door glass breaks and a small piece of glass cuts the
hand of the attendant. The cut is minor. Joe runs to the car, jumps in and the car drives off. The
attendant tells the police that he was scared that Joe would knife him and that the cut he received
hurt. About ten minutes later, about two blocks away, the police see the three boys sitting at the
kitchen table and dividing up the money. The boys are all arrested and later charged with
robbery as a Class B felony.
A.
(1) You are appointed as pauper attorney for Joe.
What is the possible penalty for a Class B felony?
6-20 years plus a fine of not to exceed $10,000.00.
Assuming the above facts are correct, is Joe guilty of Robbery? Any other offense?
No. The cash was not taken from another person or in the presence of another person.
Robbery 35-42-5-1
Yes. Theft IC 35-43-4-2 Class D felony
$10,000.00 to Misdemeanor A
6 mo.-3 years plus a fine of not to exceed
Perhaps Burglary. Was there a breaking? Was the door open? Class A felony if
resulted in bodily injury.
(2) You are appointed as pauper attorney for Bill.
Assuming the above facts are correct, is Bill guilty of Robbery? Any other offense?
No. Perhaps accessory to Theft or Burglary. Aiding IC 35-41-2-4 pg. 267
(3) You are appointed as pauper attorney for Tom.
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Assuming the above facts are correct but Tom is seventeen, can Tom correctly be charged with
Robbery? Any other charges?
If it had been robbery while armed with a deadly weapon (knife) and since Tom is 17, the
juvenile court has no jurisdiction, IC 31-30-1-4(a)(6)(A), and adult robbery charges could
be filed. If burglary, then a Petition Alleging Delinquency could be filed IC 31-37-1, but
can be waived to adult court and charged with burglary since Tom is over 16 and it is Class
B (maybe Class A) felony IC 31-30-3-5. If theft, since this is a Class D felony, Petition
Alleging Delinquency but no waiver is allowed. Note: If any felony delinquency committed
and there is a previous conviction of an adult felony or adult misdemeanor other than
traffic, then mandatory waiver IC 31-30-3-6.
B.
Assume the same facts as above except Joe is 17 and he stabs the attendant with the knife. The
attendant dies as a result of the wound one hour later.
(1) Can Joe properly be charged with an Act of delinquency, to wit; murder if he had been an
adult?
No. Juvenile court lacks jurisdiction. IC 31-30-1-4.
(2) Is Joe guilty of murder?
Yes. IC 35-42-1-1. (1)Regular murder: A person is deemed to intend the natural
consequences of his act, and (2) Felony Murder: He has probably committed burglary (was
the station door open?)
(3) Are Bill and Tom guilty of murder if they are 17?
Yes. Aiding IC 35-41-2-4.
(4) If Tom was nine years old, is he guilty of murder?
No. The juvenile court cannot waive unless 10 years old. IC 31-30-3-4.
CASE 2: A homeless man enters a barn to sleep. The farmer discovers him and orders him to
leave. He does leave. Has he committed any criminal offense?
See Criminal Trespass IC 35-43-2-2(a)(1). No trespass unless denied entry by posting no
trespass notice (b).
CASE 3: James is awakened in his home by a strange noise outside his home. James grabs his
hand gun and goes downstairs. He sees a man with a ski mask open a closed window in the den
and start to climb inside the house. James fires his gun and kills the intruder.
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(1) Did James have a duty to retreat if a reasonable means of retreat was available and not shoot
the intruder? No. IC 35-41-3-2(d)(2)
(2) Does James have the defense of self defense to a charge of murder? Yes IC 35-41-3-2(d).
(3) If James had yelled stop or I will shoot and the intruder immediately climbed back out of the
window and started to run away, can James follow and lawfully shoot and kill the intruder in the
front yard who is still running away? Is James guilty of murder, manslaughter, reckless
homicide?
No. IC 35-41-3-3(a) Is James guilty of Murder (Yes), or Voluntary or Involuntary
Manslaughter (No), or Reckless Homicide (Yes)? A grand jury usually will not indict the
home owner.
CASE 4: An eighteen year old boy from Edon, Ohio, was arrested on the Indiana Toll Road
by an Indiana State Police Officer for the misdemeanor charge of hitchhiking on a toll road. He
was taken to the nearest toll booth building at the Angola Exit, questioned as to his name and
residence, and strip searched by the officer who was looking for drugs. The police had been
previously informed by Edon police that there was a gang of teenagers who worked out of the
Edon area who were involved with the distribution of controlled substances and that they often
transported the drugs by way of the Indiana Toll Road. The police had not been informed of the
names of any of the teenagers. Ten pills containing controlled substances were found tucked into
the hitchhikers socks. He was arrested and later the prosecuting attorney filed state felony
criminal charges of possession of a controlled substance.
Defense counsel filed a Motion to Suppress Evidence claiming that the evidence concerning the
possession of drugs could not be admitted into evidence as the obtaining of such evidence by
police violated his IV Amendment rights under the U.S. Constitution.
(1) How should the judge rule?
The motion should be granted. The search was an unreasonable search and seizure. There
was no probable cause to believe that this hitchhiker was violating any drug laws and a
search would not have provided evidence that he was hitchhiking, the offense for which he
was arrested. Compare with an automobile driver being stopped for a tail light out, the
officer questions the driver as to his registration and license (the officer cannot search the
driver or his car at this point), the officer then observes what appears to be a sawed off
shotgun in plain view, and the officer seizes the weapon. This is a reasonable search and
seizure of the weapon
Do the U.S. IV Amendment rights apply to action by a state police officer? Yes. It is
incorporated as part of substantive due process under the XIV Amendment which applies
to states.
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(2) Assume the hitchhiker had been found not guilty after a trial, and the Federal District
Attorney then filed federal charges based upon the same facts in federal court alleging a violation
of the federal controlled substances criminal law? Is this double jeopardy prohibited by the V
Amendment to the U.S. Constitution?
No. The state charged offense and the federal charged offense are considered as different
offenses.
CASE 5: A bank is robbed by a man wearing a baseball cap and dark sun glasses. William is
arrested, charged with robbery, and an attorney is appointed to represent him. One week later,
without notice to or presence of Williams attorney, William is directed to participate in a lineup
with six other men of similar race, coloring and stature. All wore the same type of baseball cap
and sunglasses. All were directed to repeat the words Put the money in the bag as the robber
had spoken at the bank. The lineup was observed by two bank employees who positively
identified William as the bank robber.
Before trial the attorney for William filed a Motion to Suppress all testimony as to the lineup
identification by the two bank employees because (1) such identification may have been
influenced by Williams oral statement Put the money in the bag that he was directed to make
at the lineup and that directing him to make the statement violated his privilege against self
incrimination (V Amendment) and (2) his attorney was not present which violated his right to an
attorney (VI Amendment). Williams attorney also filed a Motion in Limine to exclude any
identification testimony at trial by the two bank employees as their testimony would be
influenced by and tainted by (the fruit of) the unconstitutional lineup.
Should the judge grant either of the motions?
Objection 1: No. The privilege against incrimination is only for oral testimony where the
facts spoken are proposed to be used as evidence of guilt at trial against an accused.
However, testimony at trial by the bank employees as to what the defendant said at the
lineup will not be allowed at trial.
Handwriting samples, blood tests, hair samples, DNA samples, fingerprints and
breathalyzers are permissible.
Objection 2: An attorney should be notified and permitted to be present at a lineup at a
critical stage of the prosecution (Ex: After charges are filed). Unless the proposed in court
identification testimony has an independent origin or the admission would be harmless, the
proposed identification testimony should be excluded. U.S. v Wade 388 U.S. 218 (1967).
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TEST BANK
In all questions, if applicable, assume that the questions ask about current Indiana law and
that the crimes, procedures and activities occurred in Indiana.
TRUE AND FALSE
1. The Indiana Supreme Court has five justices. T (pg. 198)
2. The U.S. Constitution sets the number of U.S. Supreme Court Justices at nine. F (The
Constitution states nothing about the number pgs. 197-8)
3. The U.S. District Courts have jurisdiction to hear Diversity of Citizenship cases if the
amount of damages claimed by the plaintiff are $50,000.00 or more. F ($75,000.00 or more pg.
197-8)
4. An appeal from the U.S. District Court for the Northern District of Indiana would be made to
the U.S. 7th Circuit Court of Appeals. T (pg. 199)
5. All Federal District, Circuit Court of Appeals, and Supreme Court judges are appointed for
life (during good behavior) by the President with the advice and consent of the Senate. T (pgs.
197-8)
6. If after a Circuit Court trial the defendant is found guilty of murder and the court imposes a
life sentence without parole, the defendant may appeal the decision and sentence to the Indiana
Appellate Court. F (Case goes directly to the Indiana Supreme Court pg. 198-9)
7. A person cannot be guilty of murder unless he knowingly or intentionally kills another human
being. F (He can also be guilty of felony murder where there is no intent to kill and fetus
murder IC 35-42-1-1 (2, 3 and 4) pg. 216)
8. Even though the U.S. Fifth Amendment states that no person shall be held to answer for a
capital crime unless on an Indictment of a Grand Jury, Indiana does not have to follow this
amendment and in Indiana a person can be charged with capital murder merely by the
prosecuting attorney filing a Criminal Information with the court. T (pgs. 37-38)
9. At a Sentencing Hearing after a murder conviction where a sentence of life without parole is
sought, mitigating evidence may be submitted by the defense to show that the defendant was 17
years of age at the time the murder was committed. T (See list of mitigating factors in the
Indiana statute pg. 246-7)
10. In all state felony trials the U.S. Constitution requires that a jury consist of 12 members and
before a guilty verdict can be reached by the jury, all 12 jurors must be convinced beyond a
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reasonable doubt that the defendant is guilty of the charged crime.
permitted for lesser felonies pg. 52)
F (Six member jury
11. A Grand Jury can only issue an Indictment if they believe that there is clear and
convincing evidence that the defendant committed the charged crime. F (The grand jury is
only required to find that probably the defendant committed the crime pg. 37)
12. In a criminal trial a defendant who testifies can be questioned by the prosecutor on cross
examination about any previous non related convictions of Theft in order to impeach the
defendants creditability for truth and veracity. T (But only theft or robbery, not other crimes
pg. 113)
13. An arrest warrant can be ordered and issued by the Clerk of Court if the Clerk is presented
with an Affidavit of Probable Cause sworn to by a reputable police officer and the Clerk finds
probable cause to believe that the defendant named in the warrant committed the charged crime.
F (Only a judge can authorize an arrest warrant pgs. 278 and 254)
14. In a civil suit, the plaintiff must prove his/her cause of action by a preponderance of the
evidence in order to prevail. T (pg. 197)
15. After a Complaint is filed in a civil case a warrant must be issued and served upon the
defendant in order to give notice that a suit has been filed against the defendant. F (A warrant
is a criminal concept, not civil. In a civil suit, a summons is issued to give notice of suit pg.
197)
16. A Petition for Writ of Certiorari is basically a request to the U.S. Supreme Court to accept an
appeal from a U.S. Circuit Court of Appeals or highest state court. T (pg. 197)
17. The citation 103 F. Supp. 31 is to an opinion of a U. S. District Court found at volume 103 at
page 31 of the official published law opinion. T (pg. 167)
18. A judge can order an adult person, male or female, to be sterilized if, after an appropriate
hearing before the judge with notice to all interested persons and an opportunity to present
evidence by all interested persons, the judge determines beyond a reasonable doubt that the
person is retarded. F (Even though this would satisfy procedural requirements of due
process, it would not be authorized now under substantive due process as arbitrary and
unreasonable. Even the law that was upheld was for institutionalized persons only. pg.
185)
19. A jury can constitutionally consist of only 6 members if the charged crime is a minor felony
(Class D) or a misdemeanor. T (pg. 52)
20. On appeal, a state appellate court can review a trial judges or jurys verdict of guilty and
reverse (send the case back to the lower court for appropriate action) if the appellate court finds
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that there was some evidence favorable to the state which was sufficient to sustain the verdict of
guilty, but upon review of the evidence the court unanimously disagrees with the judges or
jurys decision. F (Only if there is no possible evidence to sustain a verdict of guilty or there
are prejudicial errors made by the judge in his rulings can an appellate court reverse. pg.
33)
21. If the judge appoints a highly qualified attorney to represent an indigent (poor) defendant
charged with murder and the death sentence is requested by the prosecutor, the judge need not
(but may) appoint co-counsel for the defendant. F Pg. 41
22. A defendant charged with murder is entitled to be released on reasonable bail if, at a hearing
requesting bail, the prosecutor cannot show that the evidence of guilt was evident or the
presumption of guilt was strong. T (pg. 42)
23. At Roberts bail hearing, a witness testified that he was pretty sure that Roberts had
borrowed the five gallon gas can which was found at the scene of the crime from the Renkite
Shell Station. F (Both witnesses stated that Roberts had not borrowed the gas can)
24. A defendant in a murder case is entitled to a change of venue to another county upon filing a
Motion For a Change of Venue from the county. F (Must prove at a hearing before a judge
that the defendant probably could not get a fair trial in the county pg. 44)
25. A Motion in Limine requests the judge to limit the number of witnesses the prosecutor can
call to rebut the defense of Alibi. F (Motion asks that certain evidence not be presented at
trial pg. 48)
26. In the Roberts case, if the jury finds Roberts guilty of felony murder, and if they also find
that Roberts had an unrelated prior robbery conviction, the jury would hear aggravating and
mitigating evidence and then decide if Roberts should be sentenced to life imprisonment without
parole or death. F (That is the law in Indiana now but not under the statute when Roberts
was tried)
27. At the voir dire examination of the prospective jurors in a felony case, both the prosecutor
and the defense have unlimited challenges for cause. T (pg. 54)
28. Peremptory challenges to prospective jurors may be used to eliminate older women from
being a juror. T (pg. 54)
29. A jury in a criminal felony case cannot find a defendant guilty unless each juror is convinced
beyond a shadow of a doubt that the defendant is guilty. F (The burden is beyond a
reasonable doubt pgs. 197 and 276)
30. The Miranda case requires that the a person charged with a crime be advised, prior to
questioning, of the charges against him/her, the possible penalties, the right to a jury trial, his/her
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right to remain silent, that anything that he/she says can be used against him/her, and that an
attorney will be appointed to represent him/her at public expense if he/she cannot afford an
attorney. F (Miranda only requires that a person be notified of his right to remain silent
and to have an attorney appointed to represent him at no expense pgs. 99 and 187)
31. Negligence is an example of a civil cause of action. T (pgs. 189, 203 and 197)
32. Examples of punitive damages in a civil case are damages for lost wages, medical, doctor
and hospital bills, and personal injuries. F (These are compensatory damages pg. 202-3)
33. Upon failure of a defendant in a civil suit who has been properly served with Summons, to
appear and file an appropriate Answer with the court within the time limits prescribed by civil
procedure law, the judge may enter a default judgment in favor of the Plaintiff and against the
Defendant for the entire amount of damages requested in the Complaint. T (pg. 197)
34. The crime of Battery is defined in IC 35-42-2-1. T (pg. 218)
35. A person who commits murder has committed a Class A felony. F (Murder is a separate
offense from a Class A Felony pg. 216)
36. Premeditation is an essential element of the crime of murder and must be proven by the state
beyond a reasonable doubt. F (Premeditation is no longer required pg. 216)
37. An offense designated as an Infraction may be punishable by a fine, costs, and imprisonment
not to exceed 30 days. F (Infractions can only be punished by a fine and costs pg. 215)
38. A person who knowingly and intentionally breaks and enters the dwelling of another with no
intent to commit a felony or misdemeanor, commits a Class D felony. T (The crime of
Residential Entry pg. 232)
39. If a person knowingly and intentionally exerts unauthorized control of a candy bar worth
$1.25 that belongs to another person with intent to keep and eat it, the person has committed the
crime of Theft and could be sentenced to three years in prison even though it is his first offense.
T (pgs. 235 and 245)
40. Motive is an essential element of Class A and Class B felonies and must be proven by the
prosecutor beyond a reasonable doubt. F (Evidence of motive may be introduced at trial
but motive is not an essential element of any crime pgs. 95-6)
41. Insanity is an affirmative defense to a criminal charge and to be a successful defense the
defendant has the burden of proof to prove the defendants insanity by a preponderance of the
evidence. T (pgs. 276 and 279)
42. At the Initial Hearing (Arraignment), the judge, among other matters, must advise the
defendant as to his/her constitutional rights, accepts the plea of the defendant, and sets an
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Omnibus Date, which date must be within 90 days thereafter. F (Must be within 45-75 days pg.
279)
43. At the Initial Hearing or a continuance thereof, the only pleas by defendant that are allowed
are guilty, guilty but mentally ill, not guilty, and not guilty by reason of insanity. F (Not guilty
by reason of insanity is not a proper plea. Insanity is a defense which is properly raised by
Notice pgs. 273 and 279)
44. If there is a plea by defendant of guilty but mentally ill or a finding thereof by a judge or
jury at trial, the judge shall sentence the defendant in the same manner as if the defendant had
plead guilty or was found guilty of the charged crime and (except for a death sentence) the
defendant before regular imprisonment is first treated for such illness by the Department of
Corrections or Division of Mental, Health. T (pg. 275)
45. If a person who has voluntarily become intoxicated is not able to understand that he is
committing a crime (no intent), such person cannot be held criminally responsible as intent to
commit a crime is an essential element of all crimes. F (pg. 271)
46. The defense of Entrapment is allowed to a defendant in a criminal action to protect citizens
who are not otherwise predisposed to commit the charged crime from being induced by the
police to commit the crime. T (pg. 272)
47. If a criminal defendant files a timely Notice of Alibi with the court, at the trial the defendant
has the burden of proving this alibi by a preponderance of the evidence that he was somewhere
else when the crime was committed and therefore could not have committed the crime. F (The
defendant has no burden. An Alibi Notice is to give the prosecution an opportunity to
investigate the alleged alibi. The state must prove all essential elements of a charged crime
beyond a reasonable doubt including the fact that the defendants alibi is not true pgs. 49
and 279)
48. In a criminal case, Preliminary Instructions are read to the jury by the prosecuting attorney
to instruct the jury as to the charges against the defendant and the witnesses that the prosecutor
will call to testify to prove that the defendant is guilty beyond a reasonable doubt. F
(Preliminary Instructions are given to the jury by the judge, Chapter 13)
49 The burden of proof requirements to prove the insanity defense in Indiana are the same as the
federal defense of insanity. F (pg. 201)
50. All sentences for felonies and misdemeanors are determined by the judge and not the jury
except for a jury murder trial with a jury recommendation of either death or life without parole.
T (A murder trial jury, not the judge, determines and recommends death or life without
parole which a judge must impose. pgs. 242, 247 and 277. If the jury cannot agree, the
judge determines the sentence. Pg. 248)
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MULTIPLE CHOICE
51. In the Roberts case, I declared the Indiana death sentence statute unconstitutional because:
a. The North Carolina Supreme Court in Woodsonv.NorthCarolina declared a North Carolina
death sentence statute, which was similar to the Indiana statute, unconstitutional.
b. The Indiana statute was a violation of the 14th Amendment to the U.S. Constitution.
c. A mandatory death sentence solely by virtue of Roberts prior robbery was unconstitutional.
d. (b) and (c). (The North Carolina Supreme Court held that the statute did not violate the
Constitution)
e. (a), (b) and (c).
52. Under present law, a court (judge) can declare that a law passed by the legislature is
unconstitutional and void:
a. Based upon Marburyv.Madison.
b. If the court decides that the law is arbitrary and unjust and therefore violates substantive due
process (DredScott).
c. If the court decides that, even though rational legislators could regard the law as reasonable,
the court completely disagrees with the social or economic reasons for the law.
d. (a) and (b).
e. (a), (b) and (c).
53. The due process clause of the 5th and 14th Amendments to the U.S. Constitution has two
concepts: procedural due process and substantive due process.
a. Procedural due process means that a law must not be arbitrary and unjust, or deprive a person
of fundamental rights.
b. Substantive due process means that a person charged in a civil or criminal action has the right
to be advised of the claim or charges against him and to be given the opportunity to defend the
claim or charges before an impartial tribunal.
c. The concept of substantive due process was first set forth in DredScottv.Sandford .
d. (a) and (b)
e. (a), (b) and (c)
54. The United States Supreme Court has decided that protected fundamental rights under the
due process clause in the 14th Amendment:
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a. Includes most of the first eight amendment rights.
b. Includes the right to give contraceptive information by a health clinic.
c. Includes the right to be arrested for an alleged violation of state criminal law only pursuant to
an arrest warrant issued by a judge after probable cause is determined by a judge or probable
cause is determined by a Grand Jury.
d. (a), (b) and (c)
e. (a) and (b) (A person can also be arrested without an arrest warrant under certain
circumstances)
55. Which of the following (is)(are) correct?
a. When the 5th Amendment was ratified, due process was considered to mean what we now call
procedural due process.
b. The first eight amendments when ratified were only intended to protect against certain federal
actions and laws, and were not intended to prohibit a state from depriving a person of such
rights. Example: At the time of the ratification it would not have violated the 4 th Amendment if a
state policeman searched a persons house without a valid search warrant.
c. Even though the 8th Amendment does not state specifically that all punishments shall be
proportional to the offense committed, the United States Supreme Court has interpreted this
amendment to include this right.
d. (a), (b) and (c).
56. Gideon v. Wainwright and subsequent United States Supreme Court decisions have
determined that an indigent (pauper) defendant:
a. Is entitled to an attorney at public expense if charged with a felony (serious crime) and a
prison sentence is possible.
b. Is entitled to an attorney at public expense if charged with a misdemeanor (minor crime) and
a prison sentence is possible.
c. Is entitled to an attorney at public expense if charged with an Indiana infraction and the fine
can be $5,000.00 or more.
d. (a), (b) and (c).
e. (a) and (b). (There can be no imprisonment for an infraction and therefore not entitled
to pauper counsel)
57. The Police Power is:
a. The inherent power or authority of the U.S. Congress, without express or implied
morals.
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b. The inherent power or authority of a state legislature, without express or implied state
constitutional authority, to pass laws in the public interest to protect the public health,
safety and morals.
c. The powers of the police to make arrests (as limited by the Indiana and Federal
Constitutions).
d. (a) and (b).
(a) is incorrect as the federal government has no police power. It only has such powers as
are enumerated in the Constitution or are implied from the express powers under the
authority to pass laws which are necessary and proper.
58 Most delegates to the Constitutional Convention of 1787:
a.
b.
c.
d.
e.
Realized that the Articles of Confederation were inadequate.

Consisted of 55 men from 13 states (the 13 previous colonies).
Decided to abolish slavery as of 1808 (See Article I Section 9 of U.S. Constitution).
Had three women as delegates.
(a) and (b).
59. The 1788 U.S. Constitution provided:

a. That members of Congress ( the House of Representatives and Senate) shall be elected
directly by the people.
b. That the President shall be elected directly by the people.
c. That members of the federal judiciary shall be appointed by the President for a term of 12
years with the advice and consent of the Senate.
d. (a) and (b).
60. The Article I Sec. 8 power of Congress:
a. The power of Congress to regulate commerce was given a broad interpretation in
Gibbonsv.Ogden (1824).
b. To create a national bank was denied because there was no express authority in the U.S.
Constitution to do so. McCullochv.Maryland (1819).
c. Was limited by the U.S. Supreme Court to those expressly stated in Sec. 8.
d. (b) and (c).
61. Article I of the 1788 U.S. Constitution provided:
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a. Express powers of Congress which were later expanded by the U.S. Supreme Court to
grant implied powers by the necessary and proper clause.
b. That Congress can establish a U.S. Supreme Court and lower federal courts.
c. That the importation of slaves shall not be prohibited by Congress for 30 years.
d. That the Senate shall be elected by the people for a term of six years.
e. All of the above.
62. The U.S. Constitution as interpreted by the U.S. Supreme Court, and/or Indiana law
provides:
a. That a person cannot be arrested by a policeman for a felony without an arrest warrant duly
approved by a judge.
b. That if a person is arrested by a policeman pursuant to an arrest warrant in his home on a
charge of selling drugs at a nearby Mall, the first floor of his home can be searched for drugs by
the police without a search warrant as a search incident to an arrest.
c. That a person can be arrested by a policeman without an arrest warrant for driving without a
valid drivers license.
(c) is incorrect as this is an infraction and a person cannot be arrested for an infraction.
63. Common Law:
a. Is judge made law rather than a law enacted by a state legislature.
b. Is illustrated by the tort of negligence.
c. Was at first very rigid in its rules and therefore gave rise to the creation of Courts of Equity to
allow equitable remedies ( Example: Specific Performance) when the rigid rules first established
by the English courts of common law did not allow a remedy.
d. (a) and (b).
e. (a), (b) and (c).
64. A wife in an Indiana absolute divorce proceedings:
a. Can have a jury decide all issues if a timely request is made.
b. Can request an alimony order against her husband even though she is not disabled.
c. Can obtain a divorce based upon impotence of her husband which began after the marriage.
d. Is entitled to one-half of all of the net assets owned by the parties accumulated during
marriage.
There is a rebuttable presumption of equal division and no entitlement.
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65. If an Indiana resident husband dies testate (with a will), is survived by a wife, and owns an
interest in real estate in Indiana which it titled as Tenants by the Entireties:
a. The terms of the probated will of the decedent husband determines who will inherit and own
the real estate.
b. The decedent husbands heirs as determined by Indiana statute will inherit and own the real
estate.
c. The decedent husbands wife becomes the owner of and has the entire title to the real
estate at decedents death.
d. The decedents husbands wife owns one-half of the real estate at decedents death and the
other one-half is owned pursuant to the terms of the probated will.
66. A 16 year old buyer and adult seller enter into a contract to buy and sell a used car for
$3000.00. The car is to be used by buyer for pleasure only.
a. The buyer can use the car for a year, then while still a minor, disaffirm the contract,
return the car to the seller, and recover from the seller any purchase price paid to seller.
b. The car purchase contract is unenforceable by either the seller or buyer if the contract is not in
a sufficient writing.
c. The car purchase contract is unenforceable by either the seller or buyer if the contract is made
on a Sunday.
d. (a) and (b).
67. Under Indiana tort and statutory law:
a. Assumption of Risk as a defense is not available to an employer defendant to avoid liability in
a claim made by an injured employee under the Workers Compensation laws.
b. A retailer like Menards is liable to a buyer for injuries to the buyer caused by a product such
as a lawn mower which was in a defective and unreasonably dangerous condition even though
the retailer did not know that the product was defective and unreasonably dangerous.
c. A manufacturer like Toro is liable to a buyer for injuries to the buyer caused by a product
such as a lawn mower which was in a defective and unreasonably dangerous condition even
though the manufacturer did not know that the product was defective and unreasonably
dangerous.
d. (a), (b) and (c).
68. Present Indiana criminal law provides that if the prosecuting attorney has requested the
death sentence and there is no insanity or mental retardation plea, and if the jury decides that an
a. The jury must sentence the defendant to death if the defendant has previously been convicted
of murder.
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b. The jury must sentence the defendant to death if the defendant, while serving a life
imprisonment sentence, is found guilty of murdering a prison guard.
c. The jury, after considering evidence of aggravating and mitigating circumstances, may
recommend a sentence of death, life imprisonment, life imprisonment without parole, or a prison
term of between 45 and 65 years to be determined by the judge.
d. (b) and (c).
69. Present Indiana criminal law provides that if the prosecuting attorney has not requested the
death sentence or life without parole and there is no insanity plea, and if the jury decides that an
a. The jury, after hearing evidence of aggravating and mitigating circumstances, may recommend
a sentence of 65 years imprisonment.
b. The jury, after hearing evidence of aggravating and mitigating circumstances, may
recommend a sentence of 45 years imprisonment.
c. The jury does not hear evidence of aggravating and mitigating circumstances and must
recommend a sentence of between 45 and 65 years imprisonment, the exact amount of
years to be determined by the judge.
70. If a person is 17 years of age, a Petition Alleging Delinquency may properly be filed with
the Juvenile Court by the prosecuting attorney which alleges that such person:
a.
b.
c.
d.
e.
Violated IC 35-45-9-3 Criminal Gang Activity.

Violated IC 35-42-5-1 Robbery if such person was not armed and no bodily injury resulted.
Violated IC 35-43-2-1 Burglary.
(b) and (c).
(a), (b) and (c).
71. If a defendant is charged as an adult (after waiver if necessary) and is convicted of murder
by a judge or jury:
a. A defendant who was 14 years old at the time of the murder may be sentenced to life
imprisonment without parole if the prosecuting attorney has requested such a sentence.
b. A defendant who was 17 years old at the time of the murder may be sentenced to death if the
prosecuting attorney has requested such a sentence.
c. A defendant who was 18 years old at the time of the murder may be sentenced to life
imprisonment with possibility of parole (because of his young age) if the prosecuting attorney
has requested such a sentence.
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e. (a) and (c).
72. If a juvenile court initially has jurisdiction over a child, and the prosecuting attorney files a
Waiver Petition, the charges and the child shall (subject to the juvenile judges statutory required
findings) be waived to an adult criminal court in the following circumstances:
a. The child was 12 years old at the time of the offense and is charged with an act that would be
Murder if committed by an adult.
b. The child was 16 years old at the time of the offense and is charged with an act that would be
Burglary of a Dwelling if committed by an adult.
c. The child was 17 years old at the time of the offense, is 18 years old when the Petition
Alleging Delinquency is filed, is charged with an act that would be Theft of $100,000.00 if
committed by an adult, and the child has not been previously convicted of a felony or
misdemeanor.
d. (a) and (b).
e. (a), (b) and (c).
73. Under Indiana Juvenile Procedure:
a. A child is entitled to a jury at the Factfinding Hearing to decide if the child has committed the
Act of Delinquency.
b. A child taken into custody pursuant to a Petition Alleging Delinquency is entitled to be
released on reasonable bail if a Detention Hearing is not held within 24 hours (excluding
Saturdays, Sundays and Holidays) after being taken into custody.
c. Only the prosecuting attorney can file a request for a waiver to adult criminal court.
d. At a Factfinding Hearing, if the delinquency is denied, the state (through the prosecuting
attorney) has the burden of proving by clear and convincing evidence that the child committed
the delinquent act.
74. Administrative agencies are:
a. Created by an act of Congress and/or state legislatures.
b. Created by an enabling act (law) which act to be constitutional must provide the purpose,
powers and duties of the agency, and provide reasonable standards in implementing the act.
c. Subject to judicial review as to their decisions.
d. (a), (b) and (c).
75. The facts in Korematsuv.U.S. (1944) state that the President issued a federal Executive
Order in 1942 which ordered that Americans of Japanese descent (including Korematsu) be
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taken immediately from their homes in California and removed to concentration camps away
from the west coast. Which of the following are correct legal principles in favor of Korematsu
which should have been approved by the Supreme Court?
a. That since he was not allowed to have a hearing before a judge before removal, he was
deprived by the federal government of procedural due process under the 5th Amendment.
b. That since he was not allowed to have a hearing before a judge before removal, he was
deprived by the federal government of procedural due process under the 14h Amendment.
c. That the order was a violation of his of equal protection rights under the 14th Amendment.
d. (a) and (b).
345

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CHANGE OF VENUE

2014 STUDENT EDITION INCLUDING

STEUBEN COUNTY COURTHOUSE AND CIVIL WAR MONUMENT

RANDALL T. SHEPARD, CHIEF JUSTICE

304 STATE HOUSE

Hon. John R. Berger

PART ONE: STEUBEN COUNTY AND THE CIRCUIT COURT

PART TWO: THE TRIAL

Motion to Correct Errors 143

Whoever intentionally takes the life of

DAVID JAMES ROBERTS

Each of the 92 counties in Indiana is served by a Circuit Court.

Photograph of William Harold body in den

PHOTOGRAPH OF WILLIAM HAROLD IN DEN

PHOTOGRAPH OF ELIZABETH HAROLD IN DEN

PHOTOGRAPH OF GUN RACK

PHOTOGRAPH OF JENNYS CRIB

GAS CAN NOZZLE FOUND NEAR FRONT DOOR

RED GAS CAN FOUND IN DEN

Morgue view of Elizabeth Harold body (back side)

AUTOPSY PHOTOGRAPH OF ELIZABETH HAROLD

AUTOPSY PHOTOGRAPH OF WILLIAM HAROLD

AUTOPSY PHOTOGRAPH OF JENNY HAROLD

REFERENCE: ISP Case # 44F7882

Attempt is being made to locate source of 5 gallon gasoline

DAVID JAMES ROBERTS PHOTOGRAPH AT PENDLETON PRISON

Marbury v. Madison, 5 U.S. 137, 1 Cranch 137 (1803)

1961 SHERIFF CANDIDATE

My research indicates the following later events.

SHAYS REBELLION (1786-1787)

STATE AND FEDERAL COURTS

Cases heard by one judge

DIVISIONS OF THE INDIANA CIRCUIT COURT

Robertsv.StateofIndiana, 375 N. E. 2d 215

United States Constitution (1788)

FELONY SENTENCES 243

20-50 years, advisory 30 years, $10,000.00 fine

(3) The crime:

OFFENSES AGAINST PROPERTY

Sentences for Misdemeanors

Chapter 2. Arrest Warrants

INVOLUNTARY DETENTIONS OF MENTALLY ILL

JURY VERDICTS AND SENTENCES FOR MURDER

INDIANA CRIMINAL PROCEDURE

ARTICLE 37. JUVENILE LAW: DELINQUENCY

JUVENILE COURT JURISDICTION

INDIANA JUVENILE PROCEDURE

Checklist for Juvenile Court Jurisdiction and Waiver

FEDERAL ADMINISTRATIVE AGENCIES

Contained the same

INDIANA STATUTES CONCERNING DNA

In Indiana can an officer make an arrest without an arrest warrant for:

Realized that the Articles of Confederation were inadequate.

59. The 1788 U.S. Constitution provided:

Violated IC 35-45-9-3 Criminal Gang Activity.

In Indiana can an officer make an arrest without an arrest warrant for:

6 mo.-3 years plus a fine of not to exceed

F (Six member jury

Realized that the Articles of Confederation were inadequate.

59. The 1788 U.S. Constitution provided:

Violated IC 35-45-9-3 Criminal Gang Activity.

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