Is That Police Officer Carrying a Harpoon?

November 20, 2017

By Keffer Hirschauer LLP

Is that Police Officer Carrying a Harpoon?

A harpoon is a barbed spear attached to a long rope and thrown by hand or fired from a gun, used for catching whales and other large sea creatures. While officers obviously do not carry harpoons in their daily duties on the streets that they are patrolling, Indiana courts have found that officers have used proverbial “evidentiary harpoons” inside Indiana courtrooms in an effort to obtain convictions against defendants.

An evidentiary harpoon is intentionally or unintentionally placing inadmissible evidence in front of the jury, which prejudices the jury against a defendant. Kirby v. State, 774 N.E.2d 523, 535 (Ind. Ct. App. 2002), trans. denied. An evidentiary harpoon can be thrown by an attorney or a witness, often police officers who testify regularly in courts. For example, a police officer that intentionally references a defendant’s prior criminal history knowing that his testimony is not admissible and not relevant to the trial has been found to have used an “evidentiary harpoon.” See Scruggs v. State, 511 N.E.2d 1058, 1059 (Ind. 1987); see also Houchen v. State, 632 N.E.2d 791, 794 (Ind. Ct. App. 1994) (reversing a conviction where “one police officer took it upon himself to guarantee a conviction by tossing out an evidentiary harpoon that the jury could not ignore”).

As far back as 1971, the Indiana Supreme Court has recognized, “[t]he volunteering by police officers of inadmissible testimony prejudicial to the defendant has been condemned time and again by both state and federal courts.” White v. State, 257 Ind. 64, 70–71, 272 N.E.2d 312, 315 (Ind. 1971) (quoting Gregory v. United States, 369 F.2d 185, 189–90 (D.C. Cir. 1966))). Nonetheless, the practice has continued throughout Indiana. More recently, the Indiana Court of Appeals noted that there is a distinct difference between an “accidental outburst by a lay witness” and the testimony of an “experienced law enforcement officer.” Myers v. State, 887 N.E.2d 170, 191 (Ind. Ct. App. 2008).

In order to prevail on a claim that the State improperly used an evidentiary harpoon, a defendant must show that he or she was placed in a position of grave peril to which he should not have been subjected. Jewell v. State, 672 N.E.2d 417, 424 (Ind. Ct. App. 1996), trans. denied. However, an objection by a defendant is generally required in order to preserve this issue.

Looking for a Marion County criminal defense lawyer that understands your criminal and constitutional rights? Contact the attorneys at Keffer Hirschauer LLP today if you have questions or believe your rights have been violated. We stand ready to provide our clients with trusted representation and accurate information regarding the law and its application to their individualized case. Act now and contact us today at (317) 857-0160