Dissenting
I am troubled that the trial court in this case permitted the State to file a witness list in violation of the local rule, which requires the filing of witness lists at least ten days before trial, but did not afford the defendant similar leniency when he violated the same rule. See Elkhart County Local Trial Rule 13. Therefore, the State’s witnesses were allowed to testify; the defendant’s witnesses were excluded. Because this case involves an inequitable application of the local rule, I do not agree with the majority’s holding that defense counsel’s failure to submit his own witness list was not ineffective assistance.
Defense counsel also did not object to the State’s untimely filing of its witness list. The majority states that this failure was not ineffective assistance because if counsel would have objected to the State’s witness list filed one day late, the trial court likely would have set aside the local rule and allowed the witnesses. This would have been the probable outcome because the two witnesses were both police officers upon whose testimonies the State’s case relied. Therefore, I agree with the majority that defense counsel’s failure to object did not amount to ineffective assistance.
*944Relying upon Meredith v. State (1997) Ind., 679 N.E.2d 1309, 1311, the majority emphasizes that local rules may be set aside where the substantive rights of a party are not prejudiced, justice is advanced, and the rule is not mandatory in nature. Here, a one-day violation of a rule which was not mandatory allowed the defense time to prepare, and not excluding the witnesses promoted justice, given that their exclusion would have destroyed the State’s case. The majority noted that the trial court might have instead granted a continuance as a remedy.
However, because the trial court allowed the State’s witnesses to testify, despite a violation of the local rule, it would have been equitable to allow the defense’s witnesses to testify when the defense neglected to file a witness list. Our Supreme Court announced in Meredith that “a court should not blindly adhere to all of its rules” in the interests of justice. Id. Further, witness exclusion is an extreme sanction. Williams v. State (1999) Ind.App., 714 N.E.2d 644, 651, cert. denied (2000) — U.S. -, 120 S.Ct. 1195, 145 L.Ed.2d 1099. “Trial courts have the discretion to exclude a belatedly disclosed witness when there is evidence of bad faith on the part of counsel or a showing of substantial prejudice to the State.” Id.
In the instant case, the trial court set aside the local rule when the State violated it, but adhered to the rule when the defendant was in violation. This resulted in a double standard for the State and the defendant. I understand that the violations may not be of the same gravity, when comparing a one-day late witness list with no witness list at all, but there is no evidence of bad faith on the part of the defense. Further, the State would not have been prejudiced by these witnesses.
As a practical matter, the State could have spoken with the two potential defense witnesses just prior to the hearing to become fully informed. A mere one-half of an hour delay in the trial would seem adequate for the State to become acquainted with these witnesses and their expected testimony. A short delay caused by the need to interview witnesses who planned to testify to a course of events similar to that of the defendant does not result in irreparable prejudice to the State. This sort of delay would instead be one of only minimal inconvenience, and would also be in accord with the majority’s conclusion that a continuance would be a more appropriate remedy than witness exclusion for the State’s violation of the same local rule.
The majority also concludes that the testimony of the two defense witnesses would have been merely cumulative. I disagree. The defendant testified that he was asleep on the couch while the crime was being committed, and that his mother awakened him to take a call from a friend during this time. The defendant’s mother was prepared to testify that he indeed was sleeping upon the sofa when she awakened him to take a friend’s call. Moreover, the defendant’s friend who called him was going to testify that he spoke with the defendant at the time the defendant said he received the call.
This evidence may not be so summarily dismissed as merely cumulative and therefore without probative value. This evidence would have been a corroboration of crucial facts. These two witnesses, while not exactly objective and detached, would have provided a version of events which may not have seemed as self-serving as the defendant’s own testimony. Evidence is not cumulative if it brings to life a new and independent truth of a different character, even if that evidence tends to prove the same proposition. See Tyson v. State (1993) Ind.App., 619 N.E.2d 276, 304, trans. denied (Sullivan, J., dissenting). These two witnesses would have added a different perspective to the defendant’s version of events and reinforced his account, and therefore, the exclusion of the witnesses unnecessarily prejudiced the defendant.
*945Although I conclude that the trial court should have allowed the defense witnesses to testify without the filing of a witness list ten days before trial, I believe that the defense counsel’s failure to submit a witness list was ineffective assistance because of the value the testimonies of the two witnesses would have added to the defense. The defendant was prejudiced by the failure of his counsel to submit a witness list. His counsel should have made an offer to prove or requested an exception to the local rule like the State received.
I would reverse and remand for a new adjudication hearing.