I N T H E

Indiana Supreme Court

Supreme Court Case No. 64S00-1705-DI-325

In the Matter of

Trista A. Hudson

Respondent.

Decided: August 29, 2018

Attorney Discipline Action

Hearing Officer William N. Riley

Per Curiam Opinion

All Justices concur.
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Per Curiam.

We find that Respondent, Trista Hudson, committed attorney 

misconduct by failing to disclose exculpatory evidence and by prosecuting 

a charge she knew was not supported by probable cause. For this 

misconduct, we conclude that Respondent should be suspended for at 

least eighteen months without automatic reinstatement.

This matter is before the Court on the report of the hearing officer 

appointed by this Court on the Indiana Supreme Court Disciplinary 

Commission’s verified disciplinary complaint. Respondent’s 1998 

admission to this state’s bar subjects her to this Court’s disciplinary

jurisdiction. See IND. CONST. art. 7, § 4.

Procedural Background and Facts

At relevant times, Respondent served as a deputy prosecuting attorney 

in Porter County. In 2013, “Defendant” was charged with five counts of 

child molesting, the first four of which were tried together and are at issue 

here. Counts I and II alleged criminal deviate conduct involving 

Defendant’s stepchildren K.C. and E.C., respectively. Counts III and IV 

alleged fondling with respect to K.C. and E.C. The four counts were based 

upon statements made by the children to various police officials, and there 

was no physical or medical evidence of child molesting.

Five days before trial, Respondent interviewed E.C. in preparation for 

trial with a detective present. During this interview E.C. recanted the facts 

underlying Count II, stating he had lied at the request of his and K.C.’s 

biological father. Respondent believed E.C.’s recantation was truthful.

However, Respondent did not disclose E.C.’s recantation to defense 

counsel, nor did she withdraw Count II at any point prior to or during 

trial. During her direct examination of E.C. at trial, Respondent avoided 

asking any questions about the allegations underlying Count II. E.C.’s 

recantation, and the fact his father had coached him to lie, was revealed at 

trial during defense counsel’s questioning of E.C. and other witnesses. 

Respondent did not immediately disclose to the court that she had known 
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about E.C.’s recantation for nearly one week. After the prosecution 

concluded its case-in-chief, the trial court addressed Respondent’s failure 

to disclose the recantation and determined that the appropriate remedy 

was to enter judgment of acquittal for Defendant as to all four counts.1

The Commission charged Respondent with violating Indiana 

Professional Conduct Rules 3.8(a), 3.8(d), and 8.4(d) in connection with the 

conduct described above. Following a hearing, the hearing officer filed his 

report to this Court concluding that Respondent violated each of those 

three rules as charged.

The Commission also charged Respondent with violating Rules 8.1(a) 

and 8.4(c), based on the Commission’s allegation that Respondent’s 

response to the Commission’s request for investigation was knowingly 

false. The hearing officer concluded that the Commission had not met its 

burden of proving these charges by clear and convincing evidence. 

Discussion and Discipline

Respondent concedes a violation of Rule 3.8(a) but seeks our review of 

the hearing officer’s conclusions that she violated Rules 3.8(d) and 8.4(d) 

as well as certain underlying findings made by the hearing officer. The 

Commission does not seek our review of the hearing officer’s conclusions 

that the Commission failed to prove the Rule 8.1(a) and Rule 8.4(c) 

charges. Both parties also have filed briefs addressing the question of 

appropriate sanction. 

The Commission carries the burden of proving attorney misconduct by 

clear and convincing evidence. See Ind. Admission and Discipline Rule 

23(14)(g)(1). We review de novo all matters presented to the Court, 

including review not only of the hearing officer’s report but also of the 

entire record. See Matter of Neary, 84 N.E.3d 1194, 1196 (Ind. 2017). The 

hearing officer’s findings receive emphasis due to the unique opportunity 

 

1 The State did not appeal this decision, and Respondent’s employment with the prosecutor’s 

office was terminated following Defendant’s trial.
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for direct observation of witnesses, but this Court reserves the right to 

make the ultimate determination. Id.

Rule 3.8(a) forbids a prosecutor from prosecuting a charge that she 

knows is not supported by probable cause. Respondent concedes that she 

violated this rule but attempts to cast her violation as merely a “formal” 

one, in that (according to Respondent) Count II technically was left “in the 

case” as Defendant’s trial commenced but otherwise was abandoned by 

the prosecution. (Mem. in Support of Pet. for Review at 42-43). The 

hearing officer did not agree with this reductive view, nor do we.

Respondent gave no indication that Count II was being abandoned when 

the court reviewed with counsel the proposed preliminary instructions 

(which included an instruction on the Count II charge), nor did she do so 

when those instructions were given to the jury orally and in writing. And 

immediately after the preliminary instructions were given to the jury, 

Respondent told the jury in her opening statement that “[a]t the end of the 

evidence . . . I will ask you to find this Defendant guilty in what he is 

charged with, the four counts of child molesting.” (Ex. 5 at 26).

Respondent also admits that she failed to disclose E.C.’s recantation to 

the defense, but she argues that Rule 3.8(d) did not require her to do so. 

We disagree. Respondent’s argument is premised on the tenuous notion 

that E.C.’s recantation was merely impeachment evidence, which 

Respondent contends Rule 3.8(d) does not encompass. But Rule 3.8(d) in 

relevant part expressly requires timely disclosure of “all evidence or 

information known to the prosecutor that tends to negate the guilt of the 

accused” (emphasis added). Rule 3.8(d) contains one limited exception not 

applicable here involving information subject to a protective order. But 
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there is no exception for impeachment evidence.2 Further, under the 

circumstances of this case we cannot agree that E.C.’s recantation was 

merely impeaching. Respondent concedes E.C.’s recantation was evidence 

tending to negate Defendant’s guilt on Count II, and as discussed above

we reject Respondent’s contention that the inclusion of Count II in the trial 

was a trivial formality. And in a case in which all remaining counts 

likewise were founded entirely upon reports made by Defendant’s two 

stepchildren, we find it very difficult to characterize direct evidence that 

the stepchildren’s father successfully coached at least one of them to lie

about what Defendant had done as mere impeachment. 

Finally, Respondent argues in her briefing to this Court that her 

conduct was not “prejudicial to the administration of justice” within the 

meaning of Rule 8.4(d). Again, we cannot agree. The first component of 

Respondent’s argument echoes one addressed above; namely, 

Respondent’s contention that Defendant was never actually at risk of 

conviction of Count II, notwithstanding its inclusion in the trial, because 

Respondent elicited no evidence to support that count. This argument 

conflates prejudice to the defendant with prejudice to the administration 

of justice; they are not the same, and the focus of Rule 8.4(d) is the latter. 

See Neary, 84 N.E.3d at 1197. The second component of Respondent’s 

argument is that the trial court “overreacted” in entering judgment of 

acquittal on all four counts and instead should have taken less drastic 

remedial action, such as declaring a mistrial and then retrying Defendant 

on Counts I, III, and IV. (Mem. in Support of Pet. for Review at 66-68).

 

2 Respondent devotes much of her memorandum in support of her petition for review to 

analyzing the disclosure requirements under the criminal-law Brady doctrine. See Brady v. 

Maryland, 373 U.S. 83 (1963). But in this attorney discipline case, our focus is on the 

requirements of Rule 3.8(d). Accord Matter of Smith, 60 N.E.3d 1034, 1036 (Ind. 2016). We note 

that in applying similar versions of Rule 3.8(d), some jurisdictions have treated the duties 

imposed by the rule coextensively with the duties imposed under Brady. See, e.g., In re 

Seastrunk, 236 So.3d 509, 518-19 (La. 2017). Other jurisdictions have held that a prosecutor’s 

ethical obligations under the rule are broader than those imposed by Brady. See, e.g., In re 

Disciplinary Action Against Feland, 820 N.W.2d 672, 678 (N.D. 2012). We need not choose today 

between these two approaches because we find Respondent’s conduct runs afoul of Rule 

3.8(d) under either approach. 
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Even assuming that the trial court had other options within its discretion 

to exercise, we are not inclined to shift culpability for the prejudicial 

effects of an attorney’s misconduct onto the court forced to take remedial 

action to address that misconduct.3 Accord Neary, 84 N.E.3d at 1197. We 

also note that Respondent testified as follows at the final hearing in this 

matter:

Whether or not I thought Judge Alexa should’ve done 

something a little different still doesn’t negate the fact that 

but for my lack of making a better decision he never 

would’ve been put in that place and ultimately, as I 

mentioned, victims not getting justice, the State of Indiana 

being harmed, the potential of, God forbid, [Defendant] 

doing something to someone else, none of that would be a 

consideration if I had done something different.

(Tr. at 204-05). Respondent’s testimony accurately captures the thrust of 

Rule 8.4(d).

In sum, we find sufficient support for the hearing officer’s findings and 

conclusions. Accordingly, we find that Respondent violated Rules 3.8(a), 

3.8(d), and 8.4(d), and we find in favor of Respondent on the remaining 

charges. We turn now to the matter of sanction.

Quite thankfully, we have not previously had occasion to consider the 

question of an appropriate sanction for a Rule 3.8(a) or Rule 3.8(d) 

violation. There can be little doubt that prosecuting a charge known to 

lack probable cause, and failing to disclose known information or 

evidence tending to negate a defendant’s guilt, are among the most 

serious ethical violations a prosecutor could commit. “The State is never 

more awesomely powerful, nor is the individual more vulnerable, than in 

a criminal prosecution[.]” State v. Taylor, 49 N.E.3d 1019, 1023 (Ind. 2016).

 

3 Regardless, different remedial action still would have resulted in prejudice to the 

administration of justice. For example, a mistrial would have resulted in a delay in the 

prosecution, the expenditure of additional judicial resources, the selection and impanelment 

of a second jury, and the need for witnesses (including E.C. and K.C.) to testify a second time. 
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These rules of professional conduct are central to the prosecutorial 

function and essential to ensuring the integrity and fairness of our 

criminal justice system. 

Respondent urges us to impose a public reprimand, arguing that she 

committed only a “formal” Rule 3.8(a) violation and likening her case to 

Matter of Henderson, 78 N.E.3d 1092 (Ind. 2017). As discussed above, 

Respondent’s rule violations were not so limited. Moreover, the nature of 

Respondent’s misconduct in this case significantly differs from the illadvised book deal negotiated by the prosecutor in Henderson and affected 

the underlying criminal case far more directly.

The Commission urges us to impose a four-year suspension without 

automatic reinstatement, likening this case to Neary, in which the 

prosecutor eavesdropped on confidential attorney-client discussions in 

two separate criminal cases. The types of misconduct at issue in this case 

and in Neary are extremely serious and erode public confidence in the 

criminal justice system. Without attempting to parse which prosecutorial 

transgression is qualitatively worse, we find Respondent’s conduct in this 

one single case distinguishable from the prosecutor’s repeated violations

in Neary. Additionally, during her testimony in this case Respondent 

expressed some measures of contrition, regret, and insight into her 

misconduct that distinguish her from the prosecutor in Neary.

4

After careful consideration of this matter, we conclude that Respondent 

should be suspended for a period of at least eighteen months and required 

to go through the reinstatement process before resuming practice.

 

4 See, e.g., Tr. at 170 (“[T]his is completely on me, it was my case”), at 192 (describing her 

failure to disclose E.C.’s recantation to defense counsel as “ridiculous, quite frankly” and 

explaining “[i]t’s almost like I shut everything else out, every other reasonable thought that 

you would think a person in my position, meaning my experience, would’ve done”), at 193 (“I 

can’t explain to you the amount of guilt I feel [that K.C. and E.C. did not get a verdict on 

Counts I, III, and IV]. I struggle with that because I was supposed to protect them and also I 

was supposed to protect, if the jury found him guilty, any other children in the future from 

him, and because I failed to recognize an issue that will forever be on my shoulders”), and at 

204-05 (quoted above).
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Conclusion

The Court concludes that Respondent violated Professional Conduct 

Rules 3.8(a), 3.8(d), and 8.4(d). The Court finds in favor of Respondent on 

the remaining charges.

For Respondent’s professional misconduct, the Court suspends 

Respondent from the practice of law in this state for a period of at least 

eighteen months, without automatic reinstatement, effective October 10, 

2018. Respondent shall fulfill all the duties of a suspended attorney under 

Admission and Discipline Rule 23(26). At the conclusion of the minimum 

period of suspension, Respondent may petition this Court for 

reinstatement to the practice of law in this state, provided Respondent 

pays the costs of this proceeding, fulfills the duties of a suspended 

attorney, and satisfies the requirements for reinstatement of Admission 

and Discipline Rule 23(18).

The costs of this proceeding are assessed against Respondent. The 

hearing officer appointed in this case is discharged. 

All Justices concur.

A T T O R N E Y F O R R E S P O N D E N T

Donald R. Lundberg

Indianapolis, Indiana

A T T O R N E Y S F O R I N D I A N A S U P R E M E C O U R T

D I S C I P L I N A R Y C O M M I S S I O N

G. Michael Witte, Executive Director

Seth Pruden, Staff Attorney

Larry Newman, Staff Attorney

Indianapolis, Indiana