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Dixon & Moseley | Attorneys At Law
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    • Julie C. Dixon
    • Alexander Moseley
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The Attorneys at Dixon & Moseley, P.C.

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  5. Breaking News, Indiana Court Of Appeals Says Testify Or Go To Jail!

Breaking News, Indiana Court Of Appeals Says Testify Or Go To Jail!

On Behalf of Dixon & Moseley, P.C. | Jul 25, 2019 | Appellate Practice, Criminal Law, Indiana Court of Appeals

The Indiana Court of Appeals made it abundantly clear that if you want to interfere with a criminal proceeding by refusing to testify and do so with a grant of immunity, you will go to jail. A key new case on this rule is the topic of this blog post.

In Michael Leroy Tunis v. State of Indiana, 2019 Ind. App. LEXIS 322, Tunis was called upon to testify against Samuel Jude Clark in Clark’s trial for alleged theft and conspiracy. Tunis immediately asserted his Fifth Amendment privilege and right not to incriminate himself, leading the Trial Court to grant him immunity from prosecution if he testified so there was no criminal risk. Tunis continued to plead the fifth despite his new immune status. This refusal to testify against Mr. Clark prompted the Trial Court to seize Mr. Tunis and sentence him to six months in jail. What put the nail in Mr. Tunis’ coffin though was his additional gesturing to the defendant. The previous day Mr. Tunis had apparently nodded at Mr. Clark while also donning a faint smile. The Court read those gestures as an unspoken promise not to testify against the defendant.

When the Court believes that you have defied its inherent authority, it acts in a manner consistent with parents whose children defy their authority, they “ground” you. Contempt is essentially the Court “grounding” an individual who has defied its authority in order to deter that individual and others from acting the same way. The huge difference between the Court and your parents is that your parents didn’t have the entire police force ensuring their decisions were enforced.

The message should be received loud and clear that if you are called upon to testify in a criminal proceeding and are granted immunity, you must testify. How does this fortification of coercive power affect regular citizens of the State of Indiana? Well, some of us will undoubtedly be called upon to testify, and the Court has decided that the sound administration of justice will trump an individual’s right not to be compelled to speak. This invokes First Amendment issues; however, the United States Supreme Court has also adopted this same stance, namely that if someone should be compelled to testify in order to properly conduct a criminal proceeding, that compulsion is justified so long as there is immunity if there is a criminal risk. No one likes compelled behavior, and Indiana has taken a rather stern stance by upholding a six-month sentence for refusing to testify. Despite the Court declaring its decision is purely a punishment, understand also the purpose is to deter others from doing the same.

There is no legal reason for refusing to testify against a defendant once the Court grants you immunity, which again means you cannot be criminally charged from your testimony. One silver or protective lining found in this decision is that the Court left open the possibility that one who refuses to testify may not face such a severe sentence if they did not act “willfully.” If the refusal is based on the advice of counsel, this could potentially shield yourself from jail time, if not the contempt altogether. Yet, the Court has previously upheld a contempt finding when the individual was relying on his counsel’s advice, demonstrating that this is still muddy legal water. The gesturing by Tunis further cemented his “willful” behavior not to testify against the defendant, and the Appeals Court, although not explicitly stated, seems to lean on that fact to sustain its decision to uphold the six-month jail sentence as “reasonable” for someone who refuses to testify. Who knew that not speaking could get someone knee-deep into a jail sentence? Good attorneys do and now so do you.

Once again, you should testify if called upon and granted immunity as a general rule and must defer to your counsel. You do not have to testify if you have not been granted immunity or are the defendant in the case. The State must offer you immunity in exchange for your testimony, and the immunity must place the witness “in substantially the same position as if he had properly exercised his privilege to remain silent.” This blog post is written by attorneys at Dixon & Moseley, P.C. who handle criminal cases and appeals throughout the State. It is intended for educational purposes only and is not intended as legal advice or a solicitation for services. It is an advertisement.

How Many Days Do You Have to Appeal in Indiana? (2026)

On Behalf of Dixon & Moseley, P.C. | Jul 15, 2026 | Firm News

An Indiana appellate lawyer’s guide to Notice of Appeal deadlines, Motions to Correct Error, interlocutory appeals, and common timing mistakes. Quick Answer: How Many Days Do You Have to Appeal a Case in Indiana? In most Indiana appeals from a final judgment, the...

How to Appeal a Case in Indiana: Step-by-Step Guide, Deadlines, Costs, and Common Mistakes (2026)

On Behalf of Dixon & Moseley, P.C. | Jul 9, 2026 | Uncategorized

A practical Indiana appellate lawyer’s guide to Notice of Appeal deadlines, appealable orders, the appellate record, briefing, oral argument, rehearing, and transfer to the Indiana Supreme Court. If you lost a civil case in Indiana, you may wonder whether the trial...

Common Grounds for Appeal in Indiana Civil Cases (Complete Guide)

On Behalf of Dixon & Moseley, P.C. | Jul 1, 2026 | Uncategorized

When a civil case does not go your way in an Indiana trial court, an appeal may provide a path to reversal, but only if certain legal errors occurred. Indiana appellate courts do not retry cases or reweigh evidence. Instead, they review whether the trial court...

When Is Parental Consent NOT Required for Adoption in Indiana? (2026 Guide)

On Behalf of Dixon & Moseley, P.C. | Jun 25, 2026 | Uncategorized

Adoption in Indiana typically requires the consent of a child’s biological parents. However, Indiana law provides several important exceptions where a court may allow an adoption to proceed without a parent’s consent. Understanding these exceptions is critical;...

Failure to Object: When Is an Issue Waived?

On Behalf of Dixon & Moseley, P.C. | Jun 9, 2026 | Uncategorized

An Indiana Litigation Guide for Preserving Error on Appeal In Indiana litigation, one of the most common mistakes a trial lawyer can make is failing to object at the right time and in the right manner. The rule is simple but unforgiving: if you do not properly object, you may waive the issue for appeal. An objection must be timely…

Waiver on Appeal: The #1 Reason Appeals Lose in Indiana

On Behalf of Dixon & Moseley, P.C. | Jun 2, 2026 | Uncategorized

In Indiana appellate practice, many appeals do not fail because the underlying issue lacked merit. They fail because the issue was waived. In plain terms, waiver means the appellate court will not decide an argument because it was not properly preserved in the trial court, properly supported on appeal, or properly presented under the Indiana Rules of Appellate Procedure. Common…

How to Preserve Error for Appeal in Indiana

On Behalf of Dixon & Moseley, P.C. | May 28, 2026 | Uncategorized

Executive Summary There are several things that an attorney can do to ensure that an error is preserved for appeal. Making timely and specific objections and obtaining an explicit ruling from the judge on such objections can ensure that a matter is preserved. If evidence is excluded, the attorney should make offers of proof through questioning the witness outside of…

Can a mother legally deny parenting time to an unmarried father?

On Behalf of Dixon & Moseley, P.C. | May 10, 2026 | Uncategorized

The answer depends on several important legal factors, including paternity, custody orders, and the best interests of the child. An unmarried mother has sole legal custody in Indiana unless a court orders otherwise. An unmarried father does not have enforceable rights until paternity is established by either signing a paternity affidavit or filing a paternity action in court. If paternity…

What Happens to the House in an Indiana Divorce?

On Behalf of Dixon & Moseley, P.C. | Apr 23, 2026 | Uncategorized

Executive Summary A house is considered marital property if it is owned by one or both spouses, even if it was acquired before the marriage. Indiana law presumes that a 50/50 division of marital property is fair, but this presumption can be rebutted by a number of factors. As for the house specifically, the court may award the house to…

How Indiana Courts Divide Retirement Accounts in Divorce

On Behalf of Dixon & Moseley, P.C. | Apr 21, 2026 | Uncategorized

Retirement accounts are generally considered marital property to the extent that were earned during marriage. Although retirement funds that accumulated before the marriage are not automatically excluded from the marital property, they can affect how the marital property is divided. 401(k)s and employer-sponsored retirement plans are divided using a Qualified Domestic Relations Order (QDRO), which is a court order directing…

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Recent Posts

  • How Many Days Do You Have to Appeal in Indiana? (2026)
  • How to Appeal a Case in Indiana: Step-by-Step Guide, Deadlines, Costs, and Common Mistakes (2026)
  • Common Grounds for Appeal in Indiana Civil Cases (Complete Guide)
  • When Is Parental Consent NOT Required for Adoption in Indiana? (2026 Guide)
  • Failure to Object: When Is an Issue Waived?

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