Rush, C.J.
Children as young as twelve can be tried as adults, exposing them to harsher sentences, such as lengthy incarceration. Today we examine whether such a child has the categorical right to have a parent present during criminal proceedings, even when the parent is a witness subject to a witness-separation order.
Here, fifteen-year-old Byron Harris, Jr., was waived into adult criminal court and ultimately convicted of attempted murder. Harris now asks us to reverse his conviction because his mother—as a witness—was not allowed to stay in the courtroom during his trial. He reasons both Evidence Rule 615—the rule governing witness-separation orders—and due process principles require this result.
We hold that a child in adult criminal court may use Evidence Rule 615(c) to establish that a parent is “essential” to the presentation of the defense and is thus excluded from a witness-separation order. But Harris did not make the requisite showing under the rule, nor did he show he had a due process right. And because we reject his remaining sentencing arguments, we affirm the trial court.
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As a child waived into adult court, Harris acknowledges he lost some rights that generally protect children in the juvenile system, but he argues that having a parent present is a protection that should persist for two reasons. He asserts that (1) a parent always falls under the “essential” exception to the rule governing separation-of-witness orders, Evidence Rule 615; and (2) as a child, he has a due process right to have his parent present for all stages of a criminal proceeding in which liberty interests are at stake. See U.S. Const. amend. XIV.
The State claims Harris waived these arguments by not adequately preserving them at trial. In addressing the substance of Harris’s claims, however, the State concedes Rule 615(c) could be used, in some situations, to allow parents to remain in the courtroom but holds firm that a child in adult court has no due process right to have a parent present. As explained below, we agree that Evidence Rule 615’s “essential” exception provides a procedural mechanism to allow a parent-witness to remain in the courtroom despite a witness-separation order. The exception, however, is not categorical. To invoke it, a child defendant must make a proper showing; and, here, the record reveals Harris did not do so. Likewise, Harris did not properly raise a due process argument, so we need not consider whether there is an absolute constitutional right to have a parent-witness present throughout a child’s criminal trial. Finally, we reject Harris’s remaining arguments challenging his sentence.
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Rule 615 provides that a court must exclude witnesses at a party’s request or may do so on its own so that witnesses “cannot hear other witnesses’ testimony.” Id. But to ensure parties can effectively prove or defend their cases, judges also have the discretion to find that an exception to Rule 615 applies. Osborne, 754 N.E.2d at 924. There are three: (1) for a party who is a natural person; (2) for a party’s officer or employee if the party is not a natural person; and (3) for “a person whose presence a party shows to be essential to presenting the party’s claim or defense.” Evid. R. 615 (a)–(c).
Of the three exceptions, only the last was potentially available to Harris’s mother. Though we are mindful that exceptions must be “narrowly construed and cautiously granted” to preserve the benefits of separation, Long v. State, 743 N.E.2d 253, 256 (Ind. 2001), we find the exception may be available for the parent of a child tried in the adult criminal justice system. Specifically, it applies if the juvenile defendant can show the parent has a “unique ability” to assist in the presentation of the defense based on the parent’s intimate knowledge of the child or capacity to support the child during the proceedings…
As a threshold matter, the phrase “essential to presenting the party’s claim or defense” is not limited to any certain type of person. See Evid. R. 615(c). While the exception has generally been applied to expert witnesses or law enforcement officers, it can cover anyone shown to meet its criteria.
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We conclude that parents of children tried in adult criminal court—children like Harris— can also satisfy the “essential” witness exception. Parents may possess “intimate knowledge” of critical aspects of the child’s case or may be the only ones able to help the defendant deal with any anxiety and fully participate in the trial. In those cases, the juvenile defendant could show a parent possesses the “unique ability” to assist the defense—thus, rendering them “essential” under Rule 615(c).
Though we hold that Rule 615(c) is the proper vehicle to permit a parent-witness to remain in the courtroom despite a separation-of witnesses order, the exception is not automatic. See R.R. Donnelley, 752 N.E.2d at 134 (holding there are no “automatic exemption[s]” under 615(c)). Child defendants must still affirmatively show their parent’s presence is “essential.”
To show a parent is “essential,” a child must first invoke Rule 615(c) and then convince the trial court that they need the parent to assist with their defense. See Long, 743 N.E.2d at 256.
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Specifically, there could be any number of reasons why a parent might be “essential” to a juvenile’s case. Perhaps the child has special needs. Or maybe the child is otherwise struggling to communicate with counsel or to understand what is happening in the proceeding. Or the child may need parental guidance to make life-altering decisions, like whether to pursue a line of questioning, take the stand, or accept a plea agreement. Cf. J.D.B., 564 U.S. at 273; Roper v. Simmons, 543 U.S. 551, 569 (2005). In essence, there are myriad reasons why a parent may have the “unique ability” to aid in the presentation of their child’s defense—and thereby help ensure their child has a fair trial.
Once a juvenile defendant has shown a parent has the “unique ability” to assist in the presentation of their defense, the trial court must weigh the defendant’s need against the State’s interest in separating the parent as a witness. In other words, the court must determine if the parent’s presence will undermine the truth-seeking function of the trial.
Here, however, Harris made no showing that his mother was “essential” under Rule 615(c). When the trial court asked why his mother should be excluded from the separation order, Harris stated that she wanted to be present “as much as possible.” He then referenced that he was only sixteen and facing serious charges for a Level 1 Felony. But he never argued his mother would be able to contribute to his defense. In fact, there was no mention that Harris himself wanted his mother present. Rather, it wasn’t until his response brief on transfer that Harris contended his mother was “essential” under Rule 615(c). By not raising the issue before the trial court, he has waived this argument on appeal. See Small v. State, 736 N.E.2d 742, 747 (Ind. 2000).
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Harris did not make the requisite showing under Evidence Rule 615(c) to establish that his mother was “essential” to the presentation of his defense, nor did he show he had a due process right to have her present. And since we also reject his sentencing arguments, we affirm the trial court.
David, Massa, Slaughter, and Goff, JJ., concur