Our firm.‎ > ‎

Recent developments

Adopting technology for a more effective practice.

posted Dec 19, 2011, 12:01 PM by Jamie Edgar

On December 16th, Jamie helped teach a class to attorney's on the ways in which technology advancements can be used to be more effective.  Approximately 40 people were in attendance.

Do convictions based on testimony about what may have been a dream deserve closer scrutiny on appeal?

posted Nov 21, 2011, 3:05 PM by Jamie Edgar   [ updated Dec 30, 2011, 1:05 PM ]

Any defendant claiming insufficiency of the evidence based on the credibility of the State’s lone eye-witness has an uphill battle.  Nevertheless, in some cases there exists the possibility that the accusations were based on having had a dream.  There is precedent in Indiana for paying closer attention to such a case. 

When reviewing challenges to the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses.  McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).  Moreover, we respect the jury's exclusive province to weigh conflicting evidence.  Id.  And the jury is free to believe or disbelieve witnesses as it sees fit.  McClendon v. State, 671 N.E.2d 486, 488 (Ind. Ct. App. 1996).  We will affirm if the probative evidence and reasonable inferences drawn therefrom could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.  McHenry, 820 N.E.2d at 126.  Finally, the uncorroborated testimony of one witness is sufficient to sustain a conviction.  Carter v. State, 754 N.E.2d 877, 880 (Ind. 2001);  Mishler v. State, 894 N.E.2d 1095, 1102-1103 (Ind. Ct. App. 2008).

Indiana recognizes an exception in determining the sufficiency of evidence on appeal known as the Incredible Dubiosity (or the Inherently Improbable) rule where the reviewing court does evaluate the credibility of witness testimony. Winn v. State, 748 N.E.2d 352, 361 (Ind. 2001).[1]  “In essence, when faced with a claim of inherently improbable or incredibly dubious testimony, the court on review will reverse only when no reasonable person could believe it.”  Shippen v. State, 477 N.E.2d 903, 904 (Ind. 1985).

In Mishler v. State, supra, the defendant maintained that his convictions must be set aside because the victim’s testimony was equivocal and contradictory and no forensic evidence was offered to prove that she was a victim of abuse.  She said the events may have been a dream.  Although the State acknowledged that B.P. testified at trial that she did not know whether she dreamed about the incidents, the Court of Appeals held that the evidence demonstrated that B.P. was initially certain of what had occurred when she gave her original statement.  And it was not until her mother asked her if it was a dream that there was a doubt in B.P.'s mind.  Mishler at 1103.

The Court noted that after her mother made this suggestion, B.P.'s grandmother observed that B.P. became withdrawn and noted that this reaction was typical when B.P. was scolded and humiliated.  As a result, B.P. reported the next day that she thought that she had dreamed the abuse.  However, the record also demonstrated that immediately after B.P. made that statement, she telephoned her mother, raised her voice, and angrily said, "I know what happened."  B.P.’s mother also acknowledged that she had suggested to B.P. that Mishler's alleged actions may only have been a dream, and she admitted that she did not believe B.P.'s accusations.  B.P. testified that her mother talked to her on multiple occasions prior to trial about the possibility that the abuse was a dream.  Mishler at 1103.

In light of these circumstances, the Court of Appeals found that a jury could properly infer that B.P.'s initial accounts of the incidents and her recollections at trial were accurate, and it was her mother who placed doubt in B.P.'s mind about what had actually occurred.  Mishler at 1103.

The question in future cases based on dream testimony is whether those indicia of reliability are presented at trial.  Who planted this idea in alleged victim’s mind?  Was the seed of doubt already there?  What were the circumstances that might lead the witness to fabricate?  Does the witness’s background indicate the ability and motivation to fabricate a story?  With the right facts, a defendant might have a legitimate challenge to their conviction on appeal.


                                                             -  Jamie Edgar

[1] See also Case v. State, 458 N.E.2d 223, 226 (Ind. 1984);  Loyd v. State, 398 N.E.2d 1260, 1264 (Ind. 1980), 272 Ind. 404, 407, cert. denied, 449 U.S. 881, 101 S. Ct. 231, 66 L. Ed. 2d 105;  Davis v. State, 658 N.E.2d 896, 897 (Ind. 1995) (“[A]n appellate tribunal may impinge upon the jury's responsibility to judge the credibility of the witnesses.  Prior decisions have employed various linguistic formulations to describe when this may occur.”); Tillman v. State, 642 N.E.2d 221, 223 (Ind. 1994) ("coerced, equivocal, wholly uncorroborated testimony of 'incredible dubiosity"'); Walters v. State, 495 N.E.2d 734, 737 (Ind. 1986) ("inherently unbelievable"); Gaddis v. State, 251 N.E.2d 658, 662 (Ind. 1969), 253 Ind. 73, 81 ("uncredible [sic] dubiosity"); Penn v. State, 146 N.E.2d 240, 242 (Ind. 1957), 237 Ind. 374, 379 ("inherently improbable" testimony).

Teaching how to move to dismiss criminal charges.

posted Nov 21, 2011, 2:26 PM by Jamie Edgar   [ updated Dec 19, 2011, 11:56 AM ]

Jamie Edgar recently spoke before the Indianapolis Bar Association regarding the topic of "Moving to Dismiss Criminal Charges and Challenging Probable Cause."  This was an advanced topic for criminal defense lawyers for continuing legal education credit.  Approximately 50 people were in attendance.

1-3 of 3