G:\28243 Ind Law Rev 45-4\45masthead.wpd


SURVEY OF RECENT DEVELOPMENTS IN
INDIANA EVIDENCE LAW

KATE MERCER-LAWSON*

INTRODUCTION

On January 1, 1994, Indiana codified its body of evidence law by adopting
the Federal Rules of Evidence.1  Since then, the Indiana Rules of Evidence (the
“Rules”) have been part of a dynamic interplay.  Practitioners, judges, and
lawmakers rely on the Rules to guide their daily work; similarly, judicial and
statutory changes progressively shape the Rules.  This Article details pertinent
developments regarding the Rules during the survey period, which spans from
October 1, 2010 to September 30, 2011.  Topics of discussion are arranged in the
same order as the Rules.

I.  GENERAL PROVISIONS (RULES 101-106)

A.  Scope of the Rules and Preliminary Questions
The Indiana Rules of Evidence are high-minded in purpose and broad in

scope; they are intended to promote fairness, efficiency, and the ideal “that the
truth may be ascertained and proceedings justly determined.”2  Rule 101(a) states
that the Rules “apply in all proceedings in the courts of the State of Indiana
except as otherwise required by the Constitution of the United States or Indiana,
by the provisions of this rule, or by other rules promulgated by the Indiana
Supreme Court.”3  The Indiana Supreme Court has long espoused the view that
when statutes and Rules are at odds, the Rule prevails.4  However, if a particular
evidentiary issue arises for which the Rules do not control, common or statutory
law governs.5

As a general rule, trial courts have broad discretion when ruling on the
admissibility of evidence.  Reviewing courts will reverse an evidentiary ruling
only for an abuse of discretion by the trial court.6  This is consistent with Rule
103, which states that if error is to be predicated upon a decision to admit or
exclude evidence, two conditions must be present.  First, the decision to admit or

* Judicial Clerk, United States District Court for the Southern District of Indiana.  B.A.,
summa cum laude, 2004, Indiana University; J.D., summa cum laude, 2011, Indiana University
Robert H. McKinney School of Law; M.H.A. Candidate, 2012, Indiana University Department of
Public Health.

1. Romo v. State, 941 N.E.2d 504, 506 (Ind. 2011).
2. IND. R. EVID. 102.
3. IND. R. EVID. 101(a).
4. ROBERT L. MILLER, JR., INDIANA PRACTICE SERIES:  INDIANA EVIDENCE § 101.101 (3d

ed. 2007) (citing McEwen v. State, 695 N.E.2d 79, 89 (Ind. 1998)).
5. IND. R. EVID. 101(a).
6. Deloney v. State, 938 N.E.2d 724, 728 (Ind. Ct. App. 2010), trans. denied, 950 N.E.2d

1210 (Ind. 2011).



1148 INDIANA LAW REVIEW [Vol. 45:1147

exclude the evidence must affect a substantial right of the party in question.7 
Second, if the ruling is to admit evidence, a timely objection to the evidence must
appear in the record, accompanied by specific grounds for such objection.8  If the
ruling is to exclude evidence, an offer of proof must be on record to show the
court the substance of the evidence.9

Rule 104 is another important general rule because it concerns preliminary
questions of admissibility.10  Practitioners seeking a tutorial on this “gateway”
rule should consult the Courtroom Handbook on Indiana Evidence.11  Authored
by Judge Robert Miller of the United States District Court for the Northern
District of Indiana, this handbook provides a useful set of questions that readily
summarizes admissibility as follows:

• Is the issue of admissibility one for court (i.e., in which relevancy is not
dependent on the fulfillment of a condition of fact)?  If so:

• The judge must be persuaded of the facts necessary to admissibility.
• Rules of evidence other than privilege do not limit the evidence
the judge may consider.

• Is the issue of admissibility one in which the relevancy of evidence
depends upon the fulfillment of a condition of fact?  If so:

• The judge does not weigh the evidence, but only decides
whether the trier of fact could find that the conditional fact
exists.

• If the admissibility of a confession is being challenged, is the jury out
of the court room?12

B.  Limitations on Use of the Rules of Evidence
Despite their widely acknowledged breadth, use of the Rules is limited in

certain situations.  Rule 101(c)(2) sets forth the exceptions; it states that the Rules
cease to govern “[p]roceedings relating to extradition, sentencing, probation, or
parole; issuance of criminal summonses, or of warrants for arrest or search,
preliminary juvenile matters, direct contempt, bail hearings, small claims, and
grand jury proceedings.”13  These exceptions can best be understood in the
context of rights.  Where a proceeding is not imbued with full constitutional
rights, or where it involves “a favor granted by the State,” the Rules are

7. IND. R. EVID. 103(a).
8. Id.
9. Id.

10. IND. R. EVID. 104.
11. See Paul C. Sweeney & Emmanuel V.R. Boulukos, Recent Developments in Indiana

Evidence Law October 1, 2009—September 30, 2010, 44 IND. L. REV. 1207, 1207 & n.4 (2011).
12. ROBERT L. MILLER, JR., INDIANA PRACTICE SERIES:  COURTROOM HANDBOOK ON

INDIANA EVIDENCE § 104 cmt. 7 (2011).
13. IND. R. EVID. 101(c)(2).



2012] EVIDENCE 1149

inapplicable.14  The Indiana Court of Appeals recently stated this concept in
Butler v. State by noting that “[a] probationer faced with a petition to revoke his
probation is not entitled to the full panoply of rights he enjoyed before the
conviction.”15

Similarly, in Williams v. State,16 the court of appeals discussed limitations on
use of the Rules in the context of home detention hearings.  Williams involved a
defendant who, after pleading guilty to operating while intoxicated and admitting
that he was a habitual substance offender, was sentenced to four years of in-home
detention.  He tested positive for marijuana on a urinalysis drug screen nearly one
year after the imposition of his sentence.17  Accordingly, the correctional
consultants who supervised his detention filed a notice of violation of home
detention.

At the hearing on his notice of violation, Williams objected to the State’s use
of the urinalysis and a “daily summary report” indicating that he had tampered
with the home detention monitoring device he was required to use.18  The trial
court overruled his objection and sentenced him to serve the rest of his sentence
in jail.19  He argued on appeal that this evidence had been inappropriately
admitted because the State had not established a “foundation of trustworthiness”
for its monitoring technology.20  The court of appeals first established that
hearings on petitions to revoke home detention are to be handled in the same
manner as hearings on petitions to revoke probation.  As the court acknowledged,
the Due Process Clause applies to both situations.  But the court also noted that
there is no right to probation, commenting that “[i]t should not surprise . . . that
probationers do not receive the same constitutional rights that defendants receive
at trial.”21

In justifying the use of different evidentiary standards, the Williams court
stressed the importance of flexibility greater than what is typically present in
criminal prosecutions.  Such flexibility, according to the court, “allows courts to
enforce lawful orders, address an offender’s personal circumstances, and protect
public safety, sometimes within limited time periods.”22  The result may therefore
be that evidence unavailable in a criminal trial is admissible in a probation or
home detention revocation hearing.  This ruling “does not mean that hearsay
evidence may be admitted willy-nilly” in such situations; rather, the court
reiterated that the “substantial trustworthiness” standard is to be applied.23 
Despite the trial court’s failure to make an explicit finding that the evidence at

14. See Butler v. State, 951 N.E.2d 255, 259 (Ind. Ct. App. 2011).
15. Id.
16. 937 N.E.2d 930 (Ind. Ct. App. 2010).
17. Id. at 931.
18. Id. at 932.
19. Id.
20. Id.
21. Id. at 933 (quoting Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007)).
22. Id.
23. Id. (quoting Reyes, 868 N.E.2d at 440).



1150 INDIANA LAW REVIEW [Vol. 45:1147

issue was substantially trustworthy, the court of appeals held that this type of
error “is not fatal where the record supports such a determination.”24

C.  Rulings on Evidence
Rule 103(a) provides that a court’s decision may only be reversed because of

an evidentiary ruling if the ruling affected a “substantial right” of the party and
the party either objected or made a timely offer of proof, depending on the
situation.25  The language of “substantial rights” also appears in the Indiana Trial
Rules, which state that “[t]he court . . . must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties.”26  Thus,
unless substantial rights are affected, such an error is to be treated as harmless.

In Gaby v. State,27 the Indiana Court of Appeals assessed whether cumulative
errors that include an evidentiary ruling can warrant reversal.  The defendant in
this case was charged with Class A felony child molestation and convicted after
a two-day trial.  During the victim’s testimony, the trial court allowed the
prosecutor to refresh the victim’s recollection, thereby eliciting further details of
the molestation over Gaby’s objection.28  The court of appeals later determined
that this evidence had been improperly admitted because the prerequisites for
refreshing a witness’s recollection had not been met.  On its own, this might have
been harmless error.  However, the prosecutor in this case had also vouched for
the victim’s credibility during trial, stating that she was “confident” the jury
would reach the same conclusion she had drawn about the case and that she
would not have brought a charge she thought was false.29  The court of appeals
deemed it inappropriate for this attorney to have couched her argument in these
terms, as she should not have “asserted . . . personal knowledge of the facts at
issue.”30

Faced with cumulative errors made by the prosecution, the court of appeals
next assessed whether the defendant’s substantial rights had been affected.  The
court noted that error is only harmless “if its probable impact on the jury, in light
of all of the evidence in the case, is sufficiently minor.”31  As it considered the
impact of the prosecutor’s actions on the jury, the court was ultimately unable to
conclude that they would have a cumulatively harmless impact.  Here, because
the victim’s credibility was the central issue at trial, the trial court’s evidentiary
rulings had more than a de minimis effect on the jury, and they certainly affected
Gaby’s substantial rights.32  The court was “compelled” to reverse Gaby’s

24. Id. at 935.
25. IND. R. EVID. 103(a).
26. IND. TRIAL R. 61 (“Harmless error”).
27. 949 N.E.2d 870 (Ind. Ct. App. 2011).
28. Id. at 878.
29. Id. at 880.
30. Id. at 881.
31. Id.
32. Id. at 882.



2012] EVIDENCE 1151

conviction, although it also concluded that he could be retried.33

D.  Jury Instructions for Evidence with Limited Admissibility
Rule 105 addresses the way a court must handle evidence that is admissible

only as to certain parties or purposes—namely, “the court, upon request, shall
restrict the evidence to its proper scope and admonish the jury accordingly.”34 
State v. Velasquez,35 a child molestation case, dealt with this rule in the context
of preliminary jury instructions.  Before either side presented evidence, the trial
court addressed the jury as follows:

Evidence may be presented to you of incidents unrelated to the offenses
charged.  These incidents are only to be considered as they describe the
relationship between . . . [the victim and defendant].  You may not
consider it for any other reason.  Specifically, you may not consider it as
being evidence of . . . [the defendant’s] character, nor may it be
considered as evidence that . . . [he] acted in conformity with the acts
charged.36

Following a three-day trial, the jury found Velasquez not guilty on two
molestation charges.  The State appealed, arguing that the trial court had abused
its discretion by giving a “confusing and misle[ading]” preliminary instruction on
character evidence before this evidence was presented.37  In the State’s view, such
an instruction should only have been tendered at the time the State sought to
admit character evidence.

Because the appeal involved interpreting a rule of evidence, the appellate
court applied a de novo standard of review.  The court looked to Humphrey v.
State,38 a 1997 Indiana Supreme Court decision in which the court parsed the
verbiage of Rule 105.  Instructive to the court was the Humphrey court’s
determination that Rule 105 “enable[s] a party to request a limiting
admonishment at the time the evidence is offered, rather than waiting until the
jury instructions.”39  Further, the Humphrey court had focused on the Indiana
rule’s use of the term “admonish” rather than “instruct” to support its ultimate
holding that Rule 105 admonitions were distinguishable from post-argument
limiting instructions.40  The Velasquez court thus concluded that even if the
typical practice is to admonish a jury when character evidence is actually offered,
what the trial court did was no abuse of discretion.41  In light of the State’s notices

33. Id.
34. IND. R. EVID. 105.
35. 944 N.E.2d 34 (Ind. Ct. App. 2011), trans. denied, 962 N.E.2d 637 (Ind. 2012).
36. Id. at 37.
37. Id. at 38.
38. 680 N.E.2d 836 (Ind. 1997).
39. Velasquez, 944 N.E.2d at 39 (quoting Humphrey, 680 N.E.2d at 839 n.7).
40. Humphrey, 680 N.E.2d at 839 n.7.
41. Velasquez, 944 N.E.2d at 39.



1152 INDIANA LAW REVIEW [Vol. 45:1147

of intent to introduce character evidence, the trial court’s decision to admonish
the jury sua sponte had not been speculative.  Moreover, the preliminary Rule 105
admonishment was neither confusing nor misleading because “jurors are
presumed to follow the instructions of the trial court.”42

II.  JUDICIAL NOTICE (RULE 201)

Pursuant to Rule 201, courts may take judicial notice of facts or laws.  The
Indiana Court of Appeals’s holding in Christie v. State43 reminds practitioners
that judicial notice contemplates a broad understanding of the term “laws.”  In
this case, a Henry County trial court took judicial notice of materials in the
records of the Knightstown Town Court, and the defendant argued on appeal that
this constituted error.44  The appellate court chided both parties for not paying
close attention to Rule 201, which defines “law” to include records of any court
in Indiana45 and permits a court to take judicial notice of such law “at any stage
of the proceeding.”46  Because the trial court was within its rights to take judicial
notice of another court’s records, defense counsel was not ineffective for failing
to object to such notice at trial.

Graham v. State, an opinion on rehearing, addressed “comments . . . [the
court] made regarding the creation and preservation of evidentiary records in
post-conviction relief (‘PCR’) proceedings.”47  One specific issue in this case was
that the PCR court had told the defendant that it could obtain part of the record
from the superior court; however, this material was never properly entered into
evidence or transmitted to the court of appeals.  In its original opinion, the court
of appeals held that “it was improper for the PCR court to have done so under
. . . [then-existing] precedent.”48  The court had been alluding to the fact that
Rule 201 did not permit courts to take judicial notice of “records of a court of this
state” until January 1, 2010.49  Nevertheless, the court also stated in its first
opinion that “any material relied upon by the trial court . . . should be made part
of the record for appeal purposes.”50  On rehearing, the court emphasized that if
a PCR court does take judicial notice of another court’s records, it should make
these records part of the PCR record.51  Doing so will avoid “plac[ing] a
substantial burden upon . . . [the] court on appeal to either track down those

42. Id. (citing Buckner v. State, 867 N.E.2d 1011, 1016 (Ind. Ct. App. 2006)).
43. 939 N.E.2d 691 (Ind. Ct. App. 2011).
44. Id. at 693.
45. IND. R. EVID. 201(b).
46. IND. R. EVID. 201(f).
47. Graham v. State, 947 N.E.2d 962, 963 (Ind. Ct. App.), aff’g 941 N.E.2d 1091 (Ind. Ct.

App. 2011).
48. Id. at 964.
49. Id. (citation omitted).
50. Id. (citation omitted).
51. Id. at 964-65.



2012] EVIDENCE 1153

records . . . or to attempt to decide the case without benefit of those records.”52
In re Paternity of P.R.53 dealt with a party’s right to be heard regarding the

“propriety of taking judicial notice,” as provided in Rule 201(e).54  Here, the trial
court in a custody modification proceeding took judicial notice of a protective
order the mother had obtained against an ex-boyfriend.  The mother appealed the
custody order, contending that the trial court had committed error because “[n]o
party requested the court to take judicial notice . . . . [and she] was given no
opportunity to object to the extrajudicial inquiry.”55  Noting that Rule 201(c)
permits a court to take judicial notice even if it is not requested, the Indiana Court
of Appeals also reminded the mother that “a party does not have to be notified
before a court takes judicial notice.”56  The court acknowledged that parties do
have the opportunity to be heard regarding judicial notice, but only upon timely
request, which may occur after the court takes judicial notice.  In reviewing the
case below, the court held that it did not matter that judicial notice was taken after
the hearing was over; “[the m]other could have made a timely request . . . . She,
however, did not do this.”57  Therefore, her appeal did not constitute a timely
request as contemplated by Rule 201(e) because it was not actually made to the
trial court.

III.  RELEVANCY AND ITS LIMITS (RULES 400-413)

A.  Relevant and Irrelevant Evidence
Relevant evidence, the linchpin of any lawsuit, is evidence that has “any

tendency to make the existence of any fact . . . of consequence to the
determination of the action more probable or less probable than it would be
without the evidence.”58  Whereas irrelevant evidence is inadmissible, all relevant
evidence is admissible.59  In re Paternity of A.S.60 involved a father who had
recorded telephone conversations he had with the mother of the child in question. 
At the conclusion of these conversations, he recorded himself ranting about the
mother and calling her several profane names.61  When he appealed the order
giving him parenting time every other weekend, he asserted that the post-
conversation recordings were irrelevant.  The court of appeals disagreed, opining
that the father’s remarks were “indicative of . . . [his] attitude toward co-

52. Id. at 965.
53. 940 N.E.2d 346 (Ind. Ct. App. 2010).
54. IND. R. EVID. 201(e).
55. Paternity of P.R., 940 N.E.2d at 349 (citation omitted).
56. Id. at 349-50.
57. Id. at 350.
58. IND. R. EVID. 401.
59. IND. R. EVID. 402.
60. 948 N.E.2d 380 (Ind. Ct. App. 2011).
61. Id. at 381, 385-86.



1154 INDIANA LAW REVIEW [Vol. 45:1147

parenting.”62  Even if the mother had not heard his insults, the court found them
relevant to the issue of whether “his restraint ha[d] its limits” despite the mother’s
attempts to reach an agreeable solution for the child.63

In Flores v. Gutierrez, plaintiff Flores brought a personal injury lawsuit after
defendant Gutierrez’s vehicle struck his vehicle from behind at an intersection.64 
A jury determined that although Gutierrez was liable in the collision, he owed
Flores no damages.  Flores filed a motion to correct error that was denied; on
appeal, he challenged that denial as well as the trial court’s admission of certain
evidence.  Specifically, before trial, Flores had filed a motion to exclude
Gutierrez’s “Exhibit D,” which was a photograph of Flores’s vehicle after the
accident depicting very little property damage.65  He challenged the trial court’s
admission of this photograph on appeal, as well as its exclusion of other medical
records he had sought to have admitted.

With regard to the photograph of his vehicle, Flores asserted that it was
inadmissible because “it was irrelevant to any determination of his bodily
injury.”66  No Indiana precedent existed on whether trial courts could properly
admit photos representing property damage to establish bodily injury; thus, Flores
used Delaware authority to support his claim.  He cited Davis v. Maute,67 a case
in which the Delaware Supreme Court reversed such an admission when no
expert had testified about the photos.  The Indiana Court of Appeals rejected
Flores’s argument, noting that Davis had subsequently been limited to its facts
and that other jurisdictions had “reject[ed] the Davis reasoning that property
damage, without expert testimony to show a link, is not relevant to bodily
injury.”68  In the instant litigation, the court concluded that the trial court had
properly admitted a duly authenticated and relevant piece of evidence.  The court
observed that because there is a “commonsense relationship between property
damage and personal injury,” the trial court correctly concluded that the lack of
damage to Flores’s vehicle “had some tendency to prove . . . facts relating to his
personal injury claim.”69  In other words, according to the Indiana Court of
Appeals, “Exhibit D” was relevant evidence.

B.  Balancing Required Under Rule 403
Even if a particular piece of evidence is relevant, a court may exclude it

pursuant to Rule 403 if its probative value is outweighed by, inter alia, “the

62. Id. at 386.
63. Id.
64. Flores v. Gutierrez, 951 N.E.2d 632, 634 (Ind. Ct. App. 2011), trans. denied, 963 N.E.2d

1116 (Ind. 2012).
65. Id. at 635.
66. Id. at 637.
67. 770 A.2d 36 (Del. 2001).
68. Flores, 951 N.E.2d at 638.
69. Id. at 638-39.



2012] EVIDENCE 1155

danger of unfair prejudice.”70  Sigo v. Prudential Property & Casualty Insurance
Co.,71 a breach of insurance contract claim, addressed the nuances of this rule. 
This lawsuit arose out of a fire loss; Sigo sued his insurance company for refusing
to pay the claim when his home burned down.  There was a concurrent criminal
trial in which Sigo was charged with, tried for, and acquitted of arson.72  At the
civil trial, Prudential filed a motion in limine to exclude any reference to the
criminal trial and Sigo’s acquittal.  The trial court granted the motion and
certified the order for interlocutory appeal at Sigo’s request.73

It was Sigo’s position that any evidence regarding his criminal trial and
acquittal of arson was admissible in the civil trial under Rules 401 and 403.  He
argued that:  (1) the same witnesses would be featured in both trials; (2) evidence
of the criminal trial was relevant to show bias against him; and (3) any prejudice
resulting from such evidence would not be “unfair prejudice.”74  The court of
appeals held otherwise, first noting that trial courts have significant latitude when
performing Rule 403 balancing.  According to the court, unfair prejudice
“addresses the way in which the jury is expected to respond to the evidence; it
looks to the capacity of the evidence to persuade by illegitimate means, or the
tendency of the evidence to suggest decision on an improper basis.”75  The court
explained that at old common law, records in criminal cases were inadmissible
in civil actions because of a “want of mutuality”—that is, the differences in rules
and degrees of proof required in each setting.76  Although the Indiana Supreme
Court later adopted an exception to this rule, which allows a criminal felony
conviction as evidence in a civil action, “it is not necessarily conclusive proof in
the civil action of the facts upon which the conviction was based.”77

Without controlling Indiana case law on whether evidence of an acquittal
posed the danger of unfair prejudice in a civil trial, the court of appeals looked to
decisions in other state and federal courts.  The federal cases more directly dealt
with evidence of non-prosecution, but the court argued by analogy that they were
“instructive and persuasive insofar as Indiana’s pertinent Evidence Rule[]
mirror[ed] . . . [its] federal counterpart[].”78  Ultimately, the court of appeals
decided both that the trial court had properly excluded evidence of Sigo’s
acquittal under Rule 403 and that it was in no position to make new law on this
point.  Chief Judge Robb wrote that the court “presume[d] that had the drafters
of the statute or Rule intended acquittal evidence to be admissible, they would
have expressly said so.”79  However, she also included a footnote indicating that

70. IND. R. EVID. 403.
71. 946 N.E.2d 1248 (Ind. Ct. App.), trans. denied, 962 N.E.2d 649 (Ind. 2011).
72. Id. at 1249.
73. Id. at 1250.
74. Id.
75. Id. at 1251 (quoting Ingram v. State, 715 N.E.2d 405, 407 (Ind. 1999)).
76. Id.
77. Id. at 1252 (citing Kimberlin v. DeLong, 637 N.E.2d 121, 124 (Ind. 1994)).
78. Id. at 1253.  The state cases did directly discuss evidence of acquittal in civil trials.
79. Id. at 1254.



1156 INDIANA LAW REVIEW [Vol. 45:1147

a proper limiting instruction might lessen the danger of unfair prejudice in cases
like Sigo.80

In Granger v. State,81 the defendant appealed her convictions on several
counts of felony child molestation and one count of felony child solicitation.  She
asked the court of appeals to consider whether the trial court had abused its
discretion by admitting certain evidence of a sexual nature:  photographs of her
body, playing cards depicting naked figures, various sex toys, and condoms.82  In
particular, she believed that these items were introduced to inflame the jury,
thereby unfairly prejudicing her case.  The court of appeals affirmed the trial
court and reminded the defendant that “[e]ven grisly autopsy photographs, which
could prejudice a jury against a defendant, are admissible when they are relevant
to an issue the State must prove.”83  The defendant’s argument that she could have
stipulated to the contents of the photographs was to no avail, as she did not so
stipulate.  Accordingly, the trial court was within its discretion to find that Rule
403’s balancing test permitted introduction of the photographs.84  With respect to
the other items, the court determined that the victims’ testimony belied the
defendant’s argument that the danger of unfair prejudice outweighed the items’
probative value.  The court stated that excluding these items would have “left the
State with more than just ‘a credibility contest’” and did not disturb the trial
court’s admission of any disputed pieces of evidence.85

C.  Other Crimes, Wrongs, or Acts
Indiana law generally forbids the admission of “propensity evidence” in

court.86  As a practical matter, this means that evidence of a person’s other crimes,
wrongs, or acts may not be used to prove that he has acted similarly in the instant
matter.87  However, propensity evidence is admissible for certain limited purposes
“such as proof of motive, intent, preparation, plan, knowledge, identity, or
absence or mistake or accident.”88  The Indiana Supreme Court decided Turner
v. State89 during this year’s survey period, a case that involved a horrific group
shooting and presented several evidentiary issues.  With respect to Rule 404(b),
the court readily decided that testimony relating the defendant’s expressed hope
to commit robbery at or near the crime scene was admissible to show motive. 
Proclaiming that evidence of motive is always relevant, the court concluded that

80. Id. at 1254 n.3.
81. 946 N.E.2d 1209 (Ind. Ct. App. 2011).
82. See id. at 1212.
83. Id. at 1218.
84. Id.
85. Id. at 1220 (quoting Rafferty v. State, 610 N.E.2d 880, 884 (Ind. Ct. App. 1993)).
86. Payne v. State, 854 N.E.2d 7, 18 (Ind. Ct. App. 2006).
87. IND. R. EVID. 404(b).
88. Id.
89. 953 N.E.2d 1039 (Ind. 2011).



2012] EVIDENCE 1157

this testimony evinced motive to obtain property from the decedents.90  This case
also reviewed what courts do in assessing “404(b) evidence”; first, they determine
that the evidence relates to a matter other than the defendant’s propensity to
commit the charged offense, and second, they engage in the balancing required
by Rule 403.91  Finding no errors at either step, the court held that the challenged
testimony regarding Turner was admissible.

The application of Rule 404(b) extends beyond defendants.  In Davis v.
State,92 the defendant hoped to benefit from this rule when appealing his
conviction for possession of cocaine.  Law enforcement officers searching for
Davis on an outstanding warrant apprehended him in a sport utility vehicle. 
Having observed his attempt to hand Daniels, the passenger, a bag they suspected
to be cocaine, the officers ordered them to stop the car.93  They determined that
the bag was cocaine and found amounts of money on Davis that suggested drug
dealing.  Davis denied that the bag was his; before trial, he tried to admit evidence
of Daniels’s prior drug convictions to show that Daniels was inclined to possess
cocaine.  The trial court granted the State’s motion to exclude these convictions.94

On appeal, Davis asserted that evidence of Daniels’s criminal history was
admissible to establish the identity of the person who possessed cocaine on the
day in question.  He further alleged that her criminal history “[made] it more
likely that she was the owner of the drugs.”95  The court of appeals agreed,
remarking that “Rule 404(b) applies to persons other than defendants.”96  In this
instance, “it was the State’s intent to show that Davis was a cocaine dealer” and
that “a drug transaction occurred between Davis and Daniels.  Accordingly, from
the State’s theory, it follow[ed] that Daniels’s record as a user and possessor was
indeed relevant.”97  Somewhat unfortunately for Davis, though, the court also
concluded that excluding this evidence caused Davis no prejudice, and it affirmed
the trial court.

It is rare for an error predicated on Rule 404(b) to serve as grounds for a
mistrial.  In Owens v. State,98 a defendant convicted of child molestation moved
for a mistrial when, in violation of an order to exclude “any mention of his prior
domestic battery conviction and any evidence of prior uncharged misconduct,”
a witness testified that Owens “abused us.”99  The court of appeals characterized
the defendant’s request as “an extreme remedy that is warranted only when less

90. Id. at 1057.
91. Id. (citing Wilson v. State, 765 N.E.2d 1265, 1270 (Ind. 2002)).
92. 948 N.E.2d 843 (Ind. Ct. App.), trans. denied, 962 N.E.2d 639 (Ind. 2011).
93. Id. at 845-46.
94. Id. at 846.
95. Id. at 848 (emphasis added).
96. Id. (citing Garland v. State, 788 N.E.2d 425, 430 (Ind. 2003)).
97. Id.
98. 937 N.E.2d 880 (Ind. Ct. App. 2010), trans. denied, 950 N.E.2d 1205 (Ind. 2011), opinion

vacated by 964 N.E.2d 845 (Ind. 2012).
99. Id. at 884, 894.



1158 INDIANA LAW REVIEW [Vol. 45:1147

severe remedies will not satisfactorily correct the error.”100  By contrast, the court
deemed the challenged testimony too vague to have put the defendant in peril. 
The court did not believe this brief statement had been offered as propensity
evidence and concluded that the judge’s instruction to disregard the witness’s
statement cured any error.101

D.  Subsequent Remedial Measures
Rule 407 provides that “[w]hen after an event, measures are taken which, if

taken previously, would have made the event less likely to occur, evidence of the
subsequent measures is not admissible to prove negligence or culpable conduct
in connection with the event.”102  The Indiana Court of Appeals considered this
rule in the insurance context in State Automobile Mutual Insurance Co. v.
Flexdar, Inc.,103 which was also transferred to the Indiana Supreme Court during
the survey period.  In this case, State Auto sought a declaration that it owed no
coverage when its insured, Flexdar, was found to have leaked the industrial
solvent trichloroethylene (TCE) from its premises.  The original State Auto
insurance policy excluded from coverage damage caused by “pollutants,” defined
rather vaguely as irritants or contaminants.104  Flexdar contended that the policy
exclusion was ambiguous as written.  While the case was pending on a summary
judgment ruling, Flexdar sought to admit as evidence a new policy endorsement
form that State Auto drafted after Flexdar became its insured.  This form, which
the trial court excluded, specifically identified TCE as a pollutant subject to State
Auto’s policy exclusion.  Although the trial court granted summary judgment for
Flexdar, one issue on appeal was whether the later endorsement form should have
been admitted into evidence.105

The Indiana Court of Appeals set forth the two foci of Rule 407 as follows: 
“The first is that permitting proof of subsequent remedial measures will deter a
party from taking action that will prevent future injuries.   The second is doubt
over the probative value of subsequent measures in proving omission or
misconduct.”106  Next, the court relied on the Seventh Circuit Court of Appeals’s
holding in Pastor v. State Farm Mutual Automobile Insurance Co.107 to support
its view that Rule 407 called for excluding the endorsement form.  In Pastor, the
court opined that the insured “wanted to use the evidence that State Farm, to avert
future liability to persons in the position of the plaintiff, changed the policy to
establish State Farm’s ‘culpable conduct.’”  The Seventh Circuit believed that

100. Id. at 895 (quoting Francis v. State, 758 N.E.2d 528, 532 (Ind. 2001)).
101. Id.
102. IND. R. EVID. 407.
103. 937 N.E.2d 1203 (Ind. Ct. App. 2010), trans. granted, 950 N.E.2d 1205 (Ind. 2011), rev’d

on other grounds by 964 N.E.2d 845 (Ind. 2012).
104. Id. at 1205.
105. Id.
106. Id. at 1207.
107. 487 F.3d 1042, 1045 (7th Cir. 2007).



2012] EVIDENCE 1159

allowing this revision as evidence would “discourag[e] efforts to clarify
contractual obligations,” thereby violating Rule 407.108  Thus, in the instant
litigation, the Indiana Court of Appeals affirmed the trial court’s exclusion of
State Auto’s new endorsement form.109 

E.  Evidence of Liability Insurance
Just as evidence of subsequent remedial measures is generally inadmissible

to show negligence or culpability, “[e]vidence that a person was or was not
insured against liability is not admissible upon the issue whether the person acted
negligently or otherwise wrongfully.”110  Wisner v. Laney,111 a negligence action
alleging failure to diagnose a patient’s transient stroke, concerned the Rules’
stance on addressing evidence of liability insurance in voir dire.  Here, the
plaintiff’s counsel asked prospective jurors whether they worked for or owned
stock in ProAssurance Insurance Company.  Counsel also sought prospective
jurors’ opinions on injured parties seeking damages.112  Despite a motion in
limine against discussing insurance at trial, the defendants did not argue that the
jury pool had been corrupted.

The Indiana Court of Appeals admonished the defendants for having waived
their objection to insurance questions but considered the objection nonetheless.113 
Even though the defendants recognized precedent allowing insurance questions
during voir dire, they argued that such questions must be posed in good faith and
disputed the plaintiff’s good faith.114  As it considered Rule 411’s import, the
court stated:

The rationale for not allowing evidence of insurance is that if the jury
becomes aware that the defendant carries liability insurance and will not
carry the brunt of any judgment, the jury may be prejudiced in favor of
an excessive verdict.  On the other hand, if the jury becomes aware that
the defendant does not have insurance and will bear the burden of any
judgment, the jury may be prejudiced in favor of a minimal verdict. . . .
Rule 411 does not limit the allowable evidence regarding insurance only
to financial interest, but also allows evidence going to bias or
prejudice.115

Bearing in mind the underlying rationale of Rule 411, and noting that it is not

108. Id. at 1045.
109. State Auto. Mut. Ins. Co., 937 N.E.2d at 1208.  The Indiana Supreme Court’s 2012

reversal of this decision focused on contested policy language rather than the admissibility of the
endorsement form.

110. IND. R. EVID. 411.
111. 953 N.E.2d 100 (Ind. Ct. App. 2011), trans. granted, 963 N.E.2d 1115 (Ind. 2012).
112. Id. at 109.
113. Id.
114. Id. at 109-10 (citing Stone v. Stakes, 749 N.E.2d 1277, 1281 (Ind. Ct. App. 2001)).
115. Id. at 110 (citations omitted).



1160 INDIANA LAW REVIEW [Vol. 45:1147

strictly applicable to voir dire, the court found the challenged questions
“legitimate attempts to ascertain any potential for bias or prejudice.”116  The court
also found no evidence that these questions had been asked in bad faith.  As a
result, the court concluded that the voir dire questions regarding insurance did not
support the defendant’s motion to correct errors.

F.  Evidence of Past Sexual Conduct
The “rape shield rule,” Rule 412, reflects the policy and underlying principles

of the Indiana Rape Shield Act.117  This rule provides that, with limited
exceptions, evidence of the past sexual conduct of a victim or witness is
inadmissible; it also provides specific procedures for parties seeking to introduce
such evidence.118  “Rule 412 is intended to prevent the victim from being put on
trial, to protect the victim against surprise, harassment, and unnecessary invasion
of privacy, and, importantly, to remove obstacles to reporting sex crimes.”119

In Conrad v. State,120 the victim attended a party, fell asleep on the host’s
sofa, and woke up to find Conrad violating her sexually.  Conrad was charged
with two counts of criminal deviate conduct.  During the jury trial, he made three
unsuccessful offers of proof to introduce testimony that the victim had been
“making out” with another party guest “just before” he encountered her.121 
Conrad was convicted and sentenced to twelve years in prison.  When he
appealed, he claimed that his proffered evidence of the victim’s conduct with
other party guests was not barred by Rule 412.122

Examining the ambit of Rule 412, Judge Bailey wrote that “[e]vidence ‘of the
classic sort precluded by the Rape Shield Rule’ seeks to draw the fact-finder’s
attention to prior sexual conduct ‘simply to show that the victim has consented
in the past in the hope the inference will be drawn that she consented here.’”123 
It is noteworthy that Conrad disputed neither the policy of the rape shield rule nor
the sexual nature of his victim’s alleged conduct with the other individual.  What
he did argue was that her alleged activity with this person was “contemporaneous
with any activity involving Conrad[,] and thus Rule 412’s proscription against
‘past sexual conduct’ did not apply.”124  Nevertheless, Judge Bailey and the rest
of the court did not find his argument persuasive.  The court dismissed the notion
that Rule 412 was as time-sensitive as Conrad suggested.  “These events occurred
in ‘a very close period of time,’” wrote the court, “[b]ut they were not

116. Id.
117. See State v. Walton, 715 N.E.2d 824, 826 (Ind. 1999).  The Indiana Rape Shield Act is

codified at IND. CODE § 35-37-4-4 (2012).
118. IND. R. EVID. 412.
119. Williams v. State, 681 N.E.2d 195, 200 (Ind. 1997).
120. 938 N.E.2d 852 (Ind. Ct. App. 2010).
121. Id. at 854.
122. Id. at 855.
123. Id. (quoting Williams, 681 N.E.2d at 200).
124. Id. at 855-56 (internal citation omitted).



2012] EVIDENCE 1161

contemporaneous, as Conrad does not claim that he and . . . [the other partygoer]
were simultaneously engaged in activity of a sexual nature with S.L.”125  The
court declined to examine any possible intricacies of the word “past” and held
that Conrad’s proffered testimony could only constitute evidence of the victim’s
past sexual conduct, which Rule 412 bars.126

Additionally, the Conrad court determined that the evidence at issue could
not have been introduced under any of the exceptions to Rule 412.  Earlier in the
opinion, the court explicitly stated the exceptions as follows:  “unless that
evidence would establish evidence of prior sexual conduct with the defendant,
would bring into question the identity of the defendant as the assailant, or would
be admissible . . . under Rule 609.”127  None of these applied to Conrad’s
situation, and the court did not create a new exception “based on a perceived need
to impeach testimony.”128  As such, the court affirmed the trial court’s exclusion
of the evidence.

IV.  PRIVILEGES (RULES 501-502)

On September 20, 2011, the Indiana Supreme Court published an order
amending the Indiana Rules of Evidence.129  Most notably affecting the rules
regarding privilege, this order amended Rule 501, the general rule regarding
privilege, and added Rule 502, which governs the attorney-client privilege and
work product protection.  The new versions of these rules took effect beginning
January 1, 2012.

Rule 501 changed only marginally due to the supreme court’s order.  The
current text of the rule is as follows:

Rule 501.  Privileges
(a)  General Rule.  Except as provided by constitution or statute as
enacted or interpreted by the courts of this State or by these or other rules
promulgated by the Indiana Supreme Court or by principles of common
law in light of reason and experience, no person has a privilege to: 

(1)  refuse to be a witness;
(2)  refuse to disclose any matter;
(3)  refuse to produce any object or writing; or
(4)  prevent another from being a witness or disclosing any matter or
producing any object or writing.

(b)  Waiver of Privilege by Voluntary Disclosure.  Subject to the
provisions of Rule 502, a person with a privilege against disclosure
waives the privilege if the person or person’s predecessor while holder

125. Id. at 856 (citation omitted).
126. Id.
127. Id. at 855.  “A common-law exception exists . . . where the victim has admitted the falsity

of a prior accusation of rape or where a prior accusation is demonstrably false.”  Id.
128. Id. at 856.
129. IND. SUPREME CT., ORDER AMENDING INDIANA RULES OF EVIDENCE (Sept. 20, 2011),

available at http://www.floydcounty.in.gov/SupremeCourtFilings/94S00-1101-MS-17e.pdf.



1162 INDIANA LAW REVIEW [Vol. 45:1147

of the privilege voluntarily and intentionally130 discloses or consents to
disclosure of any significant part of the privileged matter.  This rule does
not apply if the disclosure itself is privileged. 
(c)  Privileged Matter Disclosed Under Compulsion or Without
Opportunity to Claim Privilege.  A claim of privilege is not defeated by
a disclosure which was (1) compelled erroneously or (2) made without
opportunity to claim the privilege.
(d)  Comment Upon or Inference from Claim of Privilege; Instruction. 
Except with respect to a claim of the privilege against self-incrimination
in a civil case: 

(1)  Comment or inference not permitted.  The claim of a privilege,
whether in the present proceeding, or upon a prior occasion, is not a
proper subject of comment by judge or counsel.  No inference may
be drawn therefrom. 
(2)  Claiming privilege without knowledge of jury.  In jury cases,
proceedings shall be conducted, to the extent practicable, so as to
facilitate the making of claims of privilege without the knowledge of
the jury. 
(3)  Jury instruction.  Upon request, any party against whom the jury
might draw an adverse inference from a claim of privilege is entitled
to an instruction that no inference may be drawn therefrom.131

Rule 502 tracks its federal counterpart to some degree.  Federal Rule of
Evidence 502 was designed to address the “widespread complaint that litigation
costs necessary to protect against waiver of attorney-client privilege or work
product have become prohibitive,” especially in cases involving significant
electronic discovery.132  Although it strives to set manageable standards, it “does
not purport to supplant applicable waiver doctrine.”133  The text of Indiana’s rule,
which does not contain the federal version’s definitions or references to state
proceedings, is as follows:

Rule 502. Attorney-Client Privilege and Work Product; Limitations on
Waiver 
The following provisions apply, in the circumstances set out, to
disclosure of a communication or information covered by the attorney-
client privilege or work-product protection.

(a)  Intentional disclosure; scope of a waiver.  When a disclosure is
made in a court proceeding and waives the attorney-client privilege
or work-product protection, the waiver extends to an undisclosed
communication or information only if: 

(1)  the waiver is intentional; 

130. The words “and intentionally” represent the only change to Rule 501 besides the
reference to new Rule 502.

131. IND. R. EVID. 501.
132. FED. R. EVID. 502 (Advisory Committee Note No. 2).
133. Id.



2012] EVIDENCE 1163

(2) the disclosed and undisclosed communications or
information concern the same subject matter; and, 
(3)  they ought in fairness to be considered together.

(b)  Inadvertent disclosure.  When made in a court proceeding, a
disclosure does not operate as a waiver if: 

(1)  the disclosure is inadvertent; 
(2)  the holder of the privilege or protection took reasonable
steps to prevent disclosure; and, 
(3)  the holder promptly took reasonable steps to rectify the
error, including (if applicable) following Indiana Rule of Trial
Procedure 26(B)(5)(b).

(c)  Controlling effect of a party agreement.  An agreement on the
effect of disclosure in a proceeding is binding only on the parties to
the agreement, unless it is incorporated into a court order. 
(d) Controlling effect of a court order.  If a court incorporates into a
court order an agreement between or among parties on the effect of
disclosure in a proceeding, a disclosure that, pursuant to the order,
does not constitute a waiver in connection with the proceeding in
which the order is entered is also not a waiver in any other court
proceeding.134

V.  WITNESSES (RULES 601-617)

A.  Competency of Witnesses
Under Rule 601, every person is competent to be a witness at trial unless the

Rules or Indiana General Assembly state otherwise.135  Even children are treated
as competent witnesses, although special proceedings must occur to establish
their competency to testify at trial.  A child’s competency is established by a
showing that she (1) can distinguish between telling the truth and telling a lie; (2)
knows she is required to tell the truth; and (3) understands what a true statement
is.136  In D.G. v. State,137 the Indiana Court of Appeals concluded that a trial
court’s failure to conduct this line of inquiry for a six-year-old witness was not
harmless error.  Because a year had passed since the child testified, the court
determined that a competency assessment at this late date would not cure the
error, and it reversed and remanded the action.138

The Rules also address when juror competency may be attacked.  “It has long
been established in Indiana that a jury’s verdict may not be impeached by the
testimony or the affidavit of the jurors who return it.”139  This longstanding rule

134. IND. R. EVID. 502.
135. IND. R. EVID. 601.
136. See Kien v. State, 866 N.E.2d 377, 385 (Ind. Ct. App. 2007).
137. 947 N.E.2d 445 (Ind. Ct. App. 2011).
138. Id. at 450.
139. Sienkowski v. Verschuure, 954 N.E.2d 992, 995 (Ind. Ct. App. 2011), trans. denied, 963



1164 INDIANA LAW REVIEW [Vol. 45:1147

is designed to avoid juror harassment and prevent lawsuits from becoming
“contest[s] of affidavits and counter-affidavits and arguments and re-arguments
as to why . . . a certain verdict was reached.”140  Nevertheless, Rule 606(b)
permits a juror to “testify (1) to drug or alcohol use by any juror, (2) on the
question of whether extraneous prejudicial information was improperly brought
to the jury’s attention or (3) whether any outside influence was improperly
brought to bear upon any juror.”141

Sienkowski v. Verschuure, a negligence case arising out of a motor vehicle
accident, involved a plaintiff’s attempt to skirt the contours of Rule 606(b).142 
After trial, the jury deliberated and initially returned a verdict for Sienkowski in
the amount of $336,300.  The trial court found a mathematical error in the jury’s
calculation, and after further deliberation, the jury replaced the first amount on
the verdict form with $128,712.143   Sienkowski filed a motion to vacate the
judgment.  Accompanying his motion were an affidavit and letter from two
jurors, both stating that the number appearing on the final verdict form was not
the number to which the jurors had agreed during their deliberations.  Verschuure
moved to strike these pieces of evidence, and the trial court struck them from the
record.144

When his case reached the Indiana Court of Appeals, Sienkowski asserted
that the affidavit and letter were admissible to show that “the verdict entered by
the trial court . . . [was] not the actual verdict ‘which all of the jurors unanimously
agreed be entered.’”145  He debated the semantics of the term “verdict,” arguing
as follows:

The verdict is not the mere paper upon which such agreement is written. 
If the writing on the paper is wrong because of inadvertence, oversight
or mistake, the verdict form does not contain the jury’s actual verdict. 
When bringing such an error to the trial court’s attention, the inquiry is
not into the “validity” of the verdict[;] the inquiry is whether the
information written on the verdict form is in fact the verdict.146

The court of appeals firmly disagreed with Sienkowski’s approach to Rule 606
and the exceptions contained in subpart (b).  In affirming the trial court’s refusal
to admit the affidavit and letter, the court ruled that disputing a number on the
verdict form was no different from directly attacking the validity of the verdict.147 
Despite Sienkowski’s attempt to distinguish the number from the jurors’ ultimate

N.E.2d 1115 (Ind. 2012); see generally Ward v. St. Mary Med. Ctr., 658 N.E.2d 893 (Ind. 1995);
Karlos v. State, 476 N.E.2d 819 (Ind. 1985).

140. Stinson v. State, 313 N.E.2d 699, 704 (Ind. 1974).
141. IND. R. EVID. 606(b).
142. Sienkowski, 954 N.E.2d at 993.
143. Id. at 993-94.
144. Id. at 994-95.
145. Id. at 995 (citation omitted).
146. Id. at 995-96.
147. Id. at 996.



2012] EVIDENCE 1165

agreement, the court deemed these pieces of evidence inadmissible to impeach
the verdict.148

B.  Impeachment
Pursuant to the Rules, a witness’s credibility may be attacked by any

party—even the party who called the witness.149  The typical prohibition on
evidence of other crimes is also suspended for the purpose of impeaching a
witness.  Rule 609 specifies that “evidence that the witness has been convicted
of a crime or an attempt of a crime shall be admitted[,] but only if the crime
committed or attempted is (1) murder, treason, rape, robbery, kidnapping,
burglary, arson, criminal confinement or perjury; or (2) a crime involving
dishonesty or false statement.”150  Britt v. State151 allowed the court of appeals to
address impeachment with respect to Rules 607 and 609.  In this case, the
defendant appealed several convictions and argued that the trial court improperly
prevented him from introducing evidence of one of his witness’s prior criminal
convictions.  He argued that because Rule 609’s “mandatory language regarding
impeachment by former convictions” should not have limited the questions he
opted to ask his own witness, the trial court lacked discretion to exclude this
evidence.152

With respect to Britt’s reading of Rule 609(a), the court of appeals partially
agreed.  Because Indiana’s version of this rule is not subject to the balancing test
of Rule 403,153 the court held that Britt was correct about its language being
mandatory.  The court cautioned him, however, that “Rule 609(a) is expressly
limited to those circumstances where the evidence of the prior conviction is being
offered ‘for the purpose of attacking the credibility of a witness.’”154  The
circumstances of this case did not persuade the court that Britt had intended to
introduce the witness’s convictions to impeach his credibility.  Rather, the court
believed that he had offered the convictions as propensity evidence—that is, to
suggest that the witness was more likely than Britt to have committed the robbery
at issue.155  Britt ultimately conceded that he had not attempted to attack this
witness’s credibility, which rendered Rule 609(a) inapplicable.  The court added
in a footnote that “[e]ven though . . . Rule 607 authorizes a party to impeach the
credibility of his own witness, a party is forbidden from placing a witness on the
stand if his sole purpose in doing so is to present otherwise inadmissible evidence
cloaked as impeachment.”156  Put otherwise, although Britt was otherwise

148. Id.
149. IND. R. EVID. 607.
150. IND. R. EVID. 609(a).
151. 937 N.E.2d 914 (Ind. Ct. App. 2010).
152. Id. at 915.
153. See Jenkins v. State, 677 N.E.2d 624, 627 (Ind. Ct. App. 1997).
154. Britt, 937 N.E.2d at 916 (quoting IND. R. EVID. 609(a)).
155. Id. at 916-17.
156. Id. at 917 n.3.



1166 INDIANA LAW REVIEW [Vol. 45:1147

permitted to impeach his own witness under Rule 607, he had not done so within
the confines of Rule 609.

C.  Refreshing a Witness’s Recollection
Although Rule 612 permits a witness to use a writing or object to refresh his

or her memory, it does not specify a method for refreshing recollection.157  Judge
Miller has written that only a “simple colloquy” is required and instructs
practitioners along these lines:

The witness first must state that he does not recall the information the
questioner seeks.  The witness should be directed to examine the writing,
and be asked whether that examination has refreshed his memory.  If the
witness answers negatively, the examiner must find another route to
extracting the testimony or cease the line of questioning.

If the witness replies that the writing has refreshed his memory, he
may be examined on the subject but may not testify from the writing
itself.158

In Gaby v. State,159 as discussed above, the Indiana Court of Appeals
examined a trial transcript to determine whether the prosecution had properly
refreshed a witness’s recollection.  The colloquy at issue was between a child
victim and the prosecuting attorney, who was questioning her about the details
of her alleged molestation.  Without hesitation, the victim declared that the
defendant had not made any noises, asked her to “touch his private parts,” or
touched parts of her body besides her genitals during the alleged molestation.160 
The prosecutor, ostensibly flustered, continued direct examination as follows:

Q.  Okay.  Let me jump ahead for a second.  Do you remember
when—this time last year, April of ’09 when you finally told what he had
done many, many years ago and you were interviewed at a special house
called Hartford House, do you remember that?
A.  Yes.
Q.  Okay.  And do you remember seeing a copy of your statement, of
your interview?
A.  Yes.
Q.  Okay.  Did I in fact give you a copy?
A.  Yes, ma’am.
Q.  If I showed you a copy of that do you think that would refresh your
memory as to some of these questions I just asked?
A.  Yes.161

157. IND. R. EVID. 612; see Thompson v. State, 728 N.E.2d 155, 160 (Ind. 2000).
158. MILLER, supra note 4, § 612.101.
159. 949 N.E.2d 870 (Ind. Ct. App. 2011).
160. Id. at 877-78.
161. Id. at 878.



2012] EVIDENCE 1167

Defense counsel objected to this attempt to refresh the child’s recollection,
averring that she had not demonstrated any lack of recollection of events. 
However, the trial court permitted the child to review her statement; she
subsequently provided slightly different answers.162

In reviewing the record, the Indiana Court of Appeals “agree[d] with Gaby
that the transcript clearly show[ed] that . . . [the victim] did not testify as to any
lack of recollection regarding the events before the prosecutor showed her the
transcript . . . . [but] simply gave answers the prosecutor neither expected nor
desired.”163  The court recognized that before Indiana adopted the Rules,
precedent permitted counsel to refresh a witness’s recollection if the witness had
“inadvertently omitted certain crucial facts” due to time or circumstantial
pressure.164  Nevertheless, the court insisted that it was bound by Thompson v.
State,165 which indirectly nullified pre-Rules decisions by requiring a witness to
affirmatively state a lack of recollection before counsel could refresh her
recollection.166  As in Thompson, the court chided the trial court for admitting
testimony that changed “on the pretext of refreshing the witness’[s]
recollection.”167  The court ultimately believed the witness had testified clearly
enough to foreclose the need to refresh her recollection, and it reversed the trial
court.

VI.  OPINIONS AND EXPERT TESTIMONY (RULES 701-705)

A.  Lay and “Skilled” Witnesses
When a witness does not testify as an expert, his testimony “is limited to

those opinions or inferences which are (a) rationally based on the perception of
the witness and (b) helpful to a clear understanding of the witness’s testimony or
the determination of a fact in issue.”168  Rule 701 therefore governs the testimony
of lay witnesses.  This rule informed the Indiana Court of Appeals in Lesh v.
Chandler, a private nuisance case in which the trial court enjoined Lesh from
targeting a flood light at the Chandlers’ home and playing loud, disturbing
music.169  The trial court had relied on neighbors’ testimony in making its
findings of fact; Lesh contended that the neighbors lacked knowledge sufficient
to provide a volume standard.  In denying Lesh’s request to reweigh the evidence,
the appellate court noted that Rule 701 affords trial courts broad discretion in
determining whether lay witness testimony has a rational basis and lends clarity

162. Id.
163. Id. at 879.
164. Id. at 879 n.7 (citing Poore v. State, 501 N.E.2d 1058, 1061 (Ind. 1986); King v. State,

296 N.E.2d 113, 115 (Ind. 1973)).
165. 728 N.E.2d 155 (Ind. 2000).
166. See Gaby, 949 N.E.2d at 879 n.7 (citing Thompson, 728 N.E.2d at 160).
167. See id. at 879-80.
168. IND. R. EVID. 701.
169. Lesh v. Chandler, 944 N.E.2d 942, 946 (Ind. Ct. App. 2011).



1168 INDIANA LAW REVIEW [Vol. 45:1147

to the proceedings.170
Rule 701 also pertains to “skilled witnesses,” who are persons “with ‘a degree

of knowledge short of that sufficient to be declared an expert under . . . [Rule]
702, but somewhat beyond that possessed by the ordinary jurors.’”171  Davis v.
State,172 discussed above in the context of relevancy, was also reviewed on appeal
through the lens of Rule 701.  Here, the other disputed issue was whether a
detective should have been allowed to testify that the denominations of money
found on the defendant suggested drug dealing.173  The appellate court compared
his situation to a 2003 case where such testimony was considered “helpful in
determining the issue of intent to deliver.”174  Because the instant litigation
involved felony possession of—and not dealing in—cocaine, the court deemed
the 2003 case comparison inapposite.175  Finding the detective’s conclusion “too
speculative,” the court did not find his testimony “helpful to a determination of
a fact in issue.”176

B.  Expert Testimony
Pursuant to Rule 702(a), a witness “qualified as an expert by knowledge,

skill, experience, training, or education” may testify if his specialized knowledge
will help the court understand the evidence or a disputed fact.177  In re Estate of
Lee178 dealt with attorneys who provided expert witness testimony in an appeal
of a legal malpractice action.  The case arose when decedent Lee’s personal
representative filed a complaint against Colussi, Lee’s attorney, and alleged that
Colussi had committed malpractice in his treatment of estate assets.  Colussi
rejoined that it was not his duty to monitor the estate’s checking account.  In
response to Colussi’s answer and counterclaim, the estate relied on depositions
of two other attorneys—Bigley and Finnerty—who had testified that Colussi’s
failure to control and monitor the estate’s checking account breached the
applicable standard of care.179  The trial court granted summary judgment for
Colussi.

The Indiana Court of Appeals focused on selected excerpts of the record in
determining whether summary judgment was proper, including the following:

170. Id. at 949 n.5.
171. Linton v. Davis, 887 N.E.2d 960, 975 (Ind. Ct. App. 2008) (quoting Mariscal v. State,

687 N.E.2d 378, 380 (Ind. Ct. App. 1997)).
172. 948 N.E.2d 843 (Ind. Ct. App.), trans. denied, 962 N.E.2d 639 (Ind. 2011).
173. Id. at 847.
174. Id. (quoting Davis v. State, 791 N.E.2d 266, 269 (Ind. Ct. App. 2003)).
175. See id.
176. Id. at 847-48.  As noted above, the court nevertheless declined to reverse Davis’s

conviction.
177. IND. R. EVID. 702(a).
178. 954 N.E.2d 1042 (Ind. Ct. App. 2011), reh’g denied, trans. denied, 967 N.E.2d 1034 (Ind.

2012).
179. Id. at 1045, 1048 n.3.



2012] EVIDENCE 1169

While expert testimony is appropriate in a legal malpractice case to
determine if the defendant’s actions fall below the standard of care
application to a recognized duty, experts may not testify to conclusions
of law. . . . The testimony of Bigley and Finnerty as to their practice as
attorneys in monitoring an estate bank account are simply their personal
opinions based on their own experiences which renders their opinions as
to Colussi’s actions lacking foundation and inadmissible conclusions of
law.180

The court responded to the foregoing statements by characterizing the trial court
as “confuse[d],” noting specifically that “[t]he trial court’s statement that Bigley’s
testimony lacked foundation because it was based on his personal opinions and
experiences is puzzling. . . . [P]ersonal experience is very often the source of a
witness’s expertise.”181  Bigley’s legal credentials were undisputed; accordingly,
the court believed there was proper foundation for his opinion testimony.182 
Furthermore, the court clarified that “although experts may not testify as to
conclusions of law, such as the existence of a duty, expert witnesses are permitted
to testify to the standard of practice within a given field.”183  In the court’s view,
Bigley’s testimony did not concern the existence of Colussi’s duty; indeed, the
court imputed such a duty by virtue of Colussi’s employment by the estate.184 
Bigley’s testimony was instead meant to establish the standard of care that
Colussi should have observed.  As such, the court deemed the testimony
admissible for that purpose and reversed the grant of summary judgment.185

Indiana’s version of Rule 702 is not identical to its federal counterpart, which
was amended in 2000 to codify elements embodied in Daubert v. Merrell Dow
Pharmaceuticals, Inc.186  Unlike Federal Rule 702, Indiana’s rule provides that
“[e]xpert scientific testimony is admissible only if the court is satisfied that the
scientific principles upon which the expert testimony rests are reliable.”187  The
Indiana Supreme Court has stated that its intent in adopting this version of Rule
702 is to “liberalize . . . the admission of reliable scientific evidence,” not to add
unnecessary roadblocks for trial courts.188  To be sure, Indiana courts may—and
indeed, often do—consider factors from Daubert in determining reliability.  But
“there is no specific ‘test’ or set of ‘prongs’ which must be considered in order
to satisfy Indiana Evidence Rule 702(b).”189

In Turner v. State, the Indiana Supreme Court reiterated that “Daubert is

180. Id. at 1046 (internal citation omitted).
181. Id. at 1047.
182. Id.
183. Id.
184. Id. at 1047-48.
185. Id. at 1047-48, 1050.
186. 509 U.S. 579 (1993).
187. IND. R. EVID. 702(b) (emphasis added).
188. Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 460 (Ind. 2001).
189. Carter v. State, 766 N.E.2d 377, 380 (Ind. 2002) (citation omitted).



1170 INDIANA LAW REVIEW [Vol. 45:1147

merely instructive in Indiana, and we do not apply its factors as a litmus test for
admitting evidence under . . . Rule 702(b).”190  At issue when the court accepted
the case was the testimony of Michael Putzek, a firearms and tool mark examiner. 
Putzek provided testimony regarding the source of tool marks on cartridge
casings; he opined that the marks came from “the ‘same tool’ of ‘unknown
origin.’”191  Because Turner objected to the introduction of Putzek’s testimony,
the trial court held a preliminary hearing at which Putzek presented his
qualifications to testify as an expert.  The trial court denied Turner’s motion to
exclude the expert testimony, applying the Daubert factors as it came to its
decision.192

Turner alleged on appeal that Putzek’s opinion did not satisfy Rule 702(b)’s
requirements for scientific reliability.  He took particular issue with the subjective
nature of firearms tool mark identification and characterized the process as rife
with flaws and inconsistencies.193  However, the supreme court dashed his hopes
when it ruled that “it is not dispositive . . . whether Putzek’s . . . technique can be
and has been tested, whether the theory has been subjected to peer review and
publication, whether there is a known or potential error rate, and whether the
theory has been generally accepted within the relevant field of study.”194  To be
sure, the court recognized the shortcomings of Putzek’s methods and testimony
and clearly noted his uncertainty and inability to cite other research to support his
findings.195  But the court ultimately ruled that these drawbacks “all inform[ed]
the fact finder’s judgment on weighing this evidence . . . [and did] not render the
evidence inadmissible.”196  The court was informed by other jurisdictions that
have analyzed evidence like Putzek’s “as something other than ‘scientific,’” and
it observed the similarity of his techniques to “other observational . . .
characteristics which this [c]ourt has found to be ‘on the margins of testimony
governed by Rule . . . 702(b) as expert scientific testimony.’”197  With respect to
Turner’s other challenge, the court concluded that Turner’s cross-examination of
Putzek provided an ample foundation for the trial court to evaluate Putzek’s
credibility and assign proper weight to the testimony.198  The court affirmed the
trial court’s ruling on this piece of evidence, underscoring the concept that Rule
702(b) gives trial courts broad discretion.199

Experts have additional leeway due to Rule 703; they may base their
testimony on inadmissible evidence if “it is of the type reasonably relied upon by

190. Turner v. State, 953 N.E.2d 1039, 1051 (Ind. 2011).
191. Id. at 1045-46 (citation omitted).
192. Id. at 1048.
193. Id. at 1049.
194. Id. at 1051.
195. See id.
196. Id. 
197. Id. at 1052-53 (quoting West v. State, 755 N.E.2d 173, 181 (Ind. 2001)).
198. See id. at 1053.
199. Id. at 1053-54.



2012] EVIDENCE 1171

experts in the field.”200  In Jackson v. Trancik,201 the Indiana Court of Appeals
explored the contours of this rule.  Dr. Trancik, who initiated this action to collect
an outstanding balance on Ms. Jackson’s medical bill, employed the theory of
account stated and moved for summary judgment.  In her response, Jackson
designated as evidence the affidavit of Lewis, who owned a firm specializing in
the review of medical bills.  This affidavit stated, inter alia, that Dr. Trancik had
billed three of four procedures incorrectly, thereby overcharging Jackson by
$3700.202  The trial court issued an order to strike the affidavit and granted Dr.
Trancik’s motion for summary judgment.

As a preliminary matter, the Indiana Court of Appeals ruled that Lewis,
although not a medical doctor, was nevertheless an “expert” as contemplated by
the Rules.203  The court classified medical billing as “a proper subject for expert
opinion” given its extension “beyond the knowledge of ordinary lay persons.”204 
Next, the court addressed Dr. Trancik’s contention that the affidavit improperly
relied on hearsay sources of information.  The critical issue was therefore whether
any otherwise inadmissible evidence in the affidavit was generally relied upon by
other medical billing experts.  For purposes of Rule 703, the court was satisfied
by Lewis’s use of an official coding system employed by the American Medical
Association—“the nation’s official . . . (HIPAA) compliant code set.”205  The
court cautioned that this showing pertained only to admissibility, not the weight
to be given Lewis’s affidavit, but it concluded that the trial court erred by striking
the affidavit.

C.  Opinion on Ultimate Issue
Witness testimony in criminal trials is limited by Rule 704(b); a witness “may

not testify to opinions concerning intent, guilt, or innocence . . . [or] the truth or
falsity of allegations; whether a witness has testified truthfully; or legal
conclusions.”206  Steinberg v. State207 addressed this rule when the defendant
appealed his murder conviction and sixty-five year prison sentence.  Steinberg
had placed three collect calls to his parents as he awaited trial in the Floyd County
Jail, and the trial court admitted the recordings of these calls over his objection. 
He ostensibly wanted these calls excluded in part because of “his mother’s
statements explicitly expressing doubt about his mental health, credibility, and
innocence.”208  Indeed, he alleged that “his mother’s tone of voice and repetitive
questioning expressed disbelief,” thus violating Rule 704(b) by “directly . . .

200. IND. R. EVID. 703.
201. 953 N.E.2d 1087 (Ind. Ct. App. 2011).
202. Id. at 1090.
203. Id. at 1092-93.
204. Id. at 1093.
205. Id. at 1092-93.
206. IND. R. EVID. 704(b).
207. 941 N.E.2d 515 (Ind. Ct. App.), trans. denied, 950 N.E.2d 1202 (Ind. 2011).
208. Id. at 522-24.



1172 INDIANA LAW REVIEW [Vol. 45:1147

[attacking his] truthfulness, sanity and innocence.”209  The court of appeals was
unconvinced, opining in a footnote that “[t]he practical difficulties of scrutinizing
a witness’s tone of voice for purposes of Evidence Rule 704(b) are too numerous
to mention.”210  In the court’s view, nothing about the mother’s comments
suggested a direct opinion as to Steinberg’s guilt.  The evidence was perfectly
permissible even if it could lead to an inference because it did not otherwise go
against Rule 704(b).211

VII.  HEARSAY (RULES 801-806)

A.  Hearsay Generally
Rule 801(c) defines hearsay as “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.”212  Except as provided by law, or as accommodated
by the many exceptions in the Rules, hearsay is not admissible.213  In Sandefur v.
State,214 the defendant addressed the hearsay rule while appealing his convictions
of invasion of privacy and misdemeanor battery.  At trial, a police officer testified
that the non-testifying victim had mouthed the words “he hit me” to the officer
while pointing at the defendant.215  The trial court overruled the defendant’s
hearsay objection but instructed the jury members to evaluate the officer’s
interpretation of the victim’s facial movements as they would any piece of
testimony.

In determining whether the trial court had incorrectly decided that the
officer’s testimony was not hearsay, the Indiana Court of Appeals consulted the
Rules to determine whether a “statement” had been made.  Rule 801(a) provides
that a “statement” is “(1) an oral or written assertion or (2) nonverbal conduct of
a person, if it is intended by the person as an assertion.”216  The court first held
that pointing to a perpetrator is a prime example of nonverbal conduct serving as
an assertion.217  Next, the court dismissed the defendant’s argument that the
officer’s testimony was not hearsay because he was not “completely certain” of
what the victim intended to say.218  “The import of Officer Thompson’s
testimony,” Judge Crone wrote, “was that . . . [the victim] was trying to
communicate to him, without allowing Sandefur to hear, that Sandefur hit her.”219 

209. Id. at 525 (citation omitted).
210. Id. at 525 n.12.
211. Id. at 525-26.
212. IND. R. EVID. 801(c).
213. IND. R. EVID. 802.
214. 945 N.E.2d 785 (Ind. Ct. App. 2011).
215. Id. at 787.
216. Id. at 788 (quoting IND. R. EVID. 801(a)).
217. Id. (citing Hall v. State, 284 N.E.2d 758, 762 (Ind. 1972)).
218. Id.
219. Id.



2012] EVIDENCE 1173

As a result, the court of appeals concluded that the officer’s testimony about
mouthed words was hearsay.

B.  Excited Utterance
Despite the court’s holding in Sandefur that Officer Thompson’s testimony

was hearsay, the court found it appropriately admitted under Rule 803(2), the
excited utterance exception to the hearsay rule.220  The court explained the
exception as follows:

In order for a hearsay statement to be admitted as an excited utterance,
three elements must be present:  (1) a startling event has occurred; (2) a
statement was made by a declarant while under the stress of excitement
caused by the event; and (3) the statement relates to the event.  This is
not a mechanical test, and the admissibility of an allegedly excited
utterance turns on whether the statement was inherently reliable because
the witness was under the stress of the event and unlikely to make
deliberate falsifications.221

In this situation, Officer Thompson had arrived on the scene to find the victim in
tears while the defendant yelled at her.  The victim was cowering in a corner,
bleeding, and struggling to make eye contact when she mouthed “he hit me” to
Officer Thompson.  Viewing her unwillingness to accuse her attacker aloud in the
context of these observations, the court believed that “[h]er demeanor showed
that she was still under stress, and her statement related to the startling event.”222 
Thus, her otherwise excludable hearsay statement was admissible under Rule
803(2).

C.  Then Existing State of Mind
The defendant in Stewart v. State223 argued against employing one of the

hearsay exceptions when he appealed his conviction on sixteen counts of various
crimes.  After the murders at issue, one of Stewart’s friends received a call from
Turner, a man similar in appearance to Stewart.  Turner, who obviously knew of
Stewart, said that he needed to “deal with Stewart before the police did because
Turner was afraid that Stewart was going to” blame the murders on him.224  At
trial, the court admitted testimony concerning Turner’s statements over Stewart’s
hearsay objection based on the hearsay exception contained in Rule 803(3).  This
rule permits as evidence statements “of the declarant’s then existing state of mind
. . . . [and] applies to statements of any person to show his or her intent to act in
a particular way.”225  The court of appeals agreed with the State with very little

220. See id.
221. Id. (quoting Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010)).
222. Id. at 789.
223. 945 N.E.2d 1277 (Ind. Ct. App.), trans. denied, 962 N.E.2d 646 (Ind. 2011).
224. Id. at 1284.
225. Id. at 1286 (quoting IND. R. EVID. 803(3)).



1174 INDIANA LAW REVIEW [Vol. 45:1147

analysis.  Judge Kirsch wrote, “Turner[] . . . wanted to find Stewart to deal with
him before the police found Stewart.  In this statement, Turner was expressing his
own intent to act in a particular way.”226  After a quick discussion of the
testimony’s relevance, the court found that the trial court properly admitted the
evidence.

D.  Medical Diagnosis Exception
In the same order in which it amended Rules 501 and 502, the Indiana

Supreme Court also amended Rule 803(4).227  The amended rule reads,
“Statements made by persons who are seeking medical diagnosis or treatment and
describing medical history, or past or present symptoms, pain, or sensations, or
the inception or general character of the cause or external source thereof insofar
as reasonably pertinent to diagnosis or treatment.”228

Prior to the amendment of this rule, the Indiana Court of Appeals decided
A.J. v. Logansport State Hospital.229  This case involved a man who was charged
with child molestation, found incompetent to stand trial, and committed to
Logansport State Hospital for competency restoration services in 2009.  Later that
year, the hospital filed a petition for his involuntary commitment; the trial court
held a hearing on the petition in September 2010.  At the hearing, the hospital
submitted “Exhibit 1,” a psychological testing report that included a sexual risk
assessment and expressed that A.J. was likely to sexually reoffend.230  The trial
court considered this piece of evidence in its decision committing A.J. for further
sexual rehabilitative services.

One of the issues A.J. raised on appeal was an objection to “Exhibit 1” as
inadmissible hearsay.  The Indiana Court of Appeals summarily disregarded his
argument, observing that A.J.’s doctors had established a foundation that “Exhibit
1” was part of his treatment record.231  Because the psychological testing report
was intended to assess the risk of A.J.’s sexual recidivism, it was admissible as
“both a statement made for the purposes of medical treatment pursuant to
Evidence Rule 803(4) and a record of regularly conducted business activity
pursuant to Evidence Rule 803(6).”232  The court thus quickly held that the
hearsay rule did not bar the inclusion of “Exhibit 1” at the commitment hearing.

Perry v. State233 addressed the purpose and application of Rule 803(4) in
somewhat more detail.  Here, Perry appealed convictions on several counts, and
part of the action involved an accusation that he had assaulted N.D., his ex-

226. Id.
227. IND. SUPREME CT., supra note 129.
228. IND. R. EVID. 803(4).  Previously, the words “for purposes of” appeared in place of the

words “by persons who are seeking.”  IND. SUPREME CT., supra note 129.
229. 956 N.E.2d 96 (Ind. Ct. App. 2011).
230. Id. at 103.
231. Id. at 110.
232. Id.
233. 956 N.E.2d 41 (Ind. Ct. App. 2011).



2012] EVIDENCE 1175

girlfriend.  After N.D. told an emergency room nurse that Perry had sexually
assaulted and strangled her, the nurse prepared a medical report documenting
N.D.’s treatment and naming Perry as the assailant.234  The nurse’s report was
admitted as evidence at trial over Perry’s hearsay objection.

As a preliminary matter, the court of appeals determined that multiple levels
of hearsay235 were involved:  (1) N.D.’s out-of-court statements to the nurse, and
(2) the nurse’s out-of-court document reporting what N.D. said to her.236  The
court first addressed whether N.D.’s statements to the nurse were admissible
under Rule 803(4), stating the rationale for this rule as follows:  “a declarant’s
self-interest in seeking treatment reduces the likelihood that she will fabricate
information that she provides to those who treat her.”237  Rule 803(4) requires a
court to determine the declarant’s motive—namely, whether it was to provide
information furthering diagnosis and treatment—and whether an expert would
reasonably rely on the declarant’s statement in providing care.238  The court
observed that although statements attributing fault are not generally covered by
Rule 803(4), courts may exercise discretion to admit such statements in sexual
abuse and domestic violence cases.  Quoting its own precedent, the court wrote
that “[t]he physician generally must know who the abuser was in order to render
proper treatment because the physician’s treatment will necessarily differ”239
when the abuser and victim are in a close relationship.

In affirming the trial court’s ruling, the court of appeals determined that
N.D.’s case warranted admitting statements describing her attack and identifying
Perry as the perpetrator.  The court held that her statements to the nurse directly
pertained to diagnosing and treating N.D.’s physical injuries and possible
sexually transmitted diseases, as well as referring her to domestic abuse
counseling and determining how she would be discharged from the hospital.240 
Although the court acknowledged that some of N.D.’s statements exceeded the
scope of the medical diagnosis exception and should have been redacted, it did
not view the error as one mandating reversal.241  The court also determined—with
little analysis—that the second level of hearsay comported with Rule 803(6), as
the nurse’s report was properly considered a business record.242

234. Id. at 46.
235. Hearsay within hearsay is admissible only if each level of hearsay comports with an

exception to the hearsay rules.  IND. R. EVID. 805.
236. Perry, 956 N.E.2d at 49.
237. Id. (citing McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996)).
238. Id. (citing In re Paternity of H.R.M., 864 N.E.2d 442, 446 (Ind. Ct. App. 2007)).
239. Id. (quoting Nash v. State, 754 N.E.2d 1021, 1024-25 (Ind. Ct. App. 2001)).
240. Id. at 50.
241. See id.
242. Id. at 50-51.



1176 INDIANA LAW REVIEW [Vol. 45:1147

E.  Statements Against Interest
In Lanham v. State,243 the defendant appealed convictions for possession of

marijuana and other paraphernalia, contending that the search warrant police
officers had used was based on uncorroborated hearsay.  The court reminded the
parties that for affidavits, “[t]he trustworthiness of hearsay . . . can be established
in a number of ways . . . . One such . . . consideration is whether the informant
has made a declaration against penal interest.”244  Here, the hearsay declarant was
a minor who admitted to a police officer that she had smoked marijuana with the
defendant and noticed drug paraphernalia at the defendant’s home.  The
defendant argued that the minor had made this statement not against penal
interest, but to win favor with police officers.  The court, however, found no
evidence of an attempt to “curry favor” with law enforcement; the minor had
neither been caught in an illegal act nor been charged with any sort of violation.245 
Because she had admitted drug activity in front of her mother and a police officer,
the court viewed her statement as “one that tends to subject the declarant to civil
or criminal liability such that a reasonable declarant would not have made the
statement unless believing it to be true,”246 thus placing her affidavit within the
ambit of Rule 804(b)(3).

State v. Chavez247 dealt with Rule 804(b)(3) in somewhat greater detail.  In
this murder case, the State filed an interlocutory appeal of the trial court’s order
excluding statements that implicated Chavez in the crime.  One of the statements
came from Redmon, a friend and co-worker of Chavez’s brother Mark.  Redmon
declared that Mark had confided in him, revealing that Chavez had shot one of
the victims and fled from police with two dead bodies in his truck.248  The trial
court did not indicate whether it had excluded Redmon’s statement based on the
Rules or Chavez’s right to confront witnesses against him.

It was the State’s position that Redmon’s statement containing Mark’s
account of the crime was admissible as a statement against interest.  In
considering this argument, the Indiana Court of Appeals walked through the
mechanics of Rule 804 hearsay exceptions.  First, the court deemed Mark
“unavailable” for purposes of the rule because of his Fifth Amendment right not
to testify.249  The court then examined the text of Rule 804(b)(3) and paid
particular to its second sentence:  “A statement or confession offered against the
accused in a criminal case, made by a codefendant or other person implicating
both the declarant and the accused, is not within this exception.”250  The State
argued that the purpose of this sentence was to protect a defendant’s right to

243. 937 N.E.2d 419 (Ind. Ct. App. 2010).
244. Id. at 424 (citations omitted).
245. Id.
246. Id.
247. 956 N.E.2d 709 (Ind. Ct. App. 2011).
248. Id. at 711.
249. Id. at 712.
250. IND. R. EVID. 804(b)(3).



2012] EVIDENCE 1177

confrontation and urged the court to consider it with an eye toward Crawford v.
Washington.251  Noting Crawford’s holding that the Sixth Amendment bars
“testimonial” hearsay, the State argued that Mark’s “non-testimonial” statements
should not be excluded.

The Indiana Court of Appeals rejected the State’s call to admit the contested
statements.  “[A]lthough many of our evidence rules mirror the Federal Rules,”
Judge Crone wrote, “Federal Evidence Rule 804(b)(3) does not include a
provision excluding statements from codefendants.  Thus, our supreme court’s
addition of this provision . . . appears to be a deliberate choice.”252  The court
cautioned that despite the similar issues involved in the Sixth Amendment and
hearsay rules, the two authorities are not interchangeable.  Without considering
whether Mark’s admissions about the crime were “testimonial” as contemplated
by Crawford, the court explained that “reliability remains a fundamental concern
of our hearsay rules.”253  It appeared to the court that the contested statements
were not sufficiently reliable for purposes of Indiana’s Rule 804(b)(3).  Hence,
the court concluded that the State had failed to show any abuse of discretion by
the trial court in excluding these statements.

F.  Past Recollection Recorded
A recorded statement or memorandum that is otherwise hearsay may

nevertheless be admitted under Rule 803(5), the “past recollection recorded”
hearsay exception, if:

(a) the memorandum or record relates to a matter about which a witness
once had knowledge, (b) the witness has insufficient recollection at trial
to enable the witness to testify fully and accurately, (c) the witness is
shown to have made or adopted the memorandum or record, (d) the
memorandum or record was adopted when the matter was fresh in the
witness’s memory, and (e) the memorandum or record is shown to reflect
the witness's knowledge correctly.254

In Horton v. State,255 the Indiana Court of Appeals considered the defendant’s
argument that the trial court had improperly allowed the jury to view a videotaped
interview.  The video consisted of testimony of a child molestation victim
describing her abuse in detail.  When the child took the stand at trial, she
struggled to remember details and hence was permitted to watch her interview. 
The trial court let the video go before the jury based on Rule 803(5) when the
child still foundered in her testimony, and Horton raised this as an error on

251. 541 U.S. 36 (2004).
252. Id. at 713 (internal footnote omitted).
253. Id. at 714 (citing Jackson v. State, 925 N.E.2d 369, 374-75 (Ind. 2010)).
254. Impson v. State, 721 N.E.2d 1275, 1282-83 (Ind. Ct. App. 2000).
255. 936 N.E.2d 1277 (Ind. Ct. App. 2010), vacated on other grounds by 949 N.E.2d 346 (Ind.

2011).



1178 INDIANA LAW REVIEW [Vol. 45:1147

appeal.256
In his argument, Horton contended that the video was improperly admitted

on several bases.  The court of appeals disagreed and walked through various
aspects of Rule 803(5).  First, the court found that “[t]he video clearly [depicted
a matter about which the victim had knowledge] . . . because the video . . . [was]
of a DCS employee interviewing R.M. about the molestation, and the trial judge
and attorneys discussed what the video might reveal prior to the video's
admission.”257  Next, the court dismissed Horton’s assertion that his victim had
a complete, accurate memory of the events, observing that she had frequently
answered questions by saying she did not remember.258  The court then refuted
Horton’s argument that the video did not correctly reflect the victim’s knowledge,
stating that

where R.M.’s statements in the video covered the same issues as her
testimony prior to admission of the video, they were largely consistent
with her live testimony.  The video filled in many of her live testimony’s
gaps as to details R.M. did not remember, adding specific details one
might expect a child to more vividly remember days after the incidents
but perhaps not remember as vividly months later at a trial.259

Finding the core components of Rule 803(5) satisfied, the court deemed it
particularly persuasive that the child victim had failed to recall details of her
molestation after watching her taped interview during a break in the trial.  She
had, however, timely adopted the video statement that was otherwise consistent
with her testimony, and the court saw no error in the trial court’s decision to
admit the video under the “past recollection recorded” hearsay exception.

G.  Public Records and Reports
Another issue debated in Perry v. State was the admissibility of the actual

medical records containing hearsay statements.260  Before concluding that Rule
803(6) permitted the trial court to consider them, the appellate court consulted
Rule 803(8).  This rule governs the admissibility of public records and reports;
it clearly excludes from its scope “investigative reports by police and other law
enforcement personnel, except when offered by an accused in a criminal case.”261 
The court of appeals rationalized this exclusion as follows:  “[O]bservations by
police officers at the scene of the crime or the apprehension of the defendant are
not as reliable as observations by public officials in other cases because of the
adversarial nature of the confrontation between the police and the defendant in

256. Id. at 1281.
257. Id. at 1282.
258. Id.
259. Id. at 1283.
260. Perry v. State, 956 N.E.2d 41, 50 (Ind. Ct. App. 2011).
261. IND. R. EVID. 803(8)(a).



2012] EVIDENCE 1179

criminal cases.”262  Even so, the court declined to find that Rule 803(8) covers
treating medical personnel who cooperate with law enforcement officers.263 
Finding the rule inapplicable to the case at bar, the court of appeals found no error
in its admission as a business—not public—record.264

VIII.  AUTHENTICATION AND IDENTIFICATION (RULES 901-903)

An important prerequisite for admitting any piece of evidence is proper
authentication or identification.  The Rules declare that this condition precedent
is satisfied “by evidence sufficient to support a finding that the matter in question
is what its proponent claims.”265  In Taylor v. State,266 the Indiana Court of
Appeals was asked to rule on whether a defendant’s letter to a judge had been
properly authenticated before the trial court admitted it.  The court first stated that
Rule 901 requires a showing of (1) “[e]vidence demonstrating a reasonable
probability” that the matter is what it proponent claims it to be, and (2) a
condition “substantially unchanged as to any material feature.”267  Examining the
defendant’s letter, the court then concluded that Rule 901 had been satisfied.  The
envelope housing the letter bore the defendant’s return address, a state facility,
and its date corresponded to when the defendant was in custody.  Additionally,
the letter was written in the first person and provided details about the crime at
issue that “only someone who had been involved would be likely to know.”268 
Based on this information, the court of appeals held that the State had set a proper
foundation for admitting this letter under Rule 901; similarly, the trial court had
not erred by admitting the letter.

IX.  CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Rule 1002—known as the “best evidence rule”—instructs that “[t]o prove the
content of a writing, recording, or photograph, the original writing, recording, or
photograph is required.”269  The terms “writings” and “recordings” are defined as
“letters, words, sounds, or numbers, or their equivalent,” set down by various
methods.270  In Romo v. State,271 the Indiana Supreme Court dealt with the
application of the best evidence rule when a trial court admitted English
translations of Spanish recordings as substantive evidence.  The defendant had
conducted three drug transactions with a confidential informant who was secretly

262. Perry, 956 N.E.2d at 51 (quoting Fowler v. State, 929 N.E.2d 875, 879 (Ind. Ct. App.),
trans. denied, 940 N.E.2d 825 (Ind. 2010)).

263. Id.
264. Id.
265. IND. R. EVID. 901(a).
266. 943 N.E.2d 414 (Ind. Ct. App.), trans. denied, 950 N.E.2d 1207 (Ind. 2011).
267. Id. at 418 (citing Herrera v. State, 710 N.E.2d 931, 938 (Ind. Ct. App. 1999)).
268. Id. at 419.
269. IND. R. EVID. 1002.
270. IND. R. EVID. 1001.
271. 941 N.E.2d 504 (Ind. 2011).



1180 INDIANA LAW REVIEW [Vol. 45:1147

recording the conversations.  Because the defendant and informant communicated
in Spanish, a bilingual specialist with the police department transcribed the
conversations into a written English translation.272  A jury found the defendant
guilty on all charges, and the supreme court granted transfer after the court of
appeals affirmed the convictions.

Writing for the court, Justice Dickson acknowledged that the Rules do not
specifically discuss the admissibility of written translations.  He also noted that
Rule 1004,273 which offers exceptions to the best evidence rule, does not authorize
the use of transcripts in lieu of original recordings.274  Next, he reviewed three
recent cases275 in which the Indiana Supreme Court considered the role transcripts
of recordings might play at trial and summarized their holdings:

Although Small, Tobar, and Roby view the function of transcripts of
recordings purely as an aid to assist the jury’s understanding of the actual
recording, and Evidence Rule 1002 requires the original of a recording,
if available . . . both Small and Roby leave open the possibility of a more
robust role for transcripts where the recording is inaudible or indistinct. 
For juries without appropriate foreign language comprehension, audio
recordings of foreign language speakers may . . . require special
consideration.276

The court also compared this case to United States v. Estrada,277 a 2001
Seventh Circuit case in which it was deemed appropriate for a trial court to admit
English translations of Spanish recordings without also playing the recordings for
the jury.278  However, the court observed that Estrada made such an allowance
as an aid for the jury, not as substantive evidence.279  Thus, the court also
discussed the Fifth Circuit’s handling of similar situations and noted that “[t]he
Fifth Circuit has expressly allowed a transcript of a taped conversation to be
admitted as substantive evidence.”280  The court similarly relied on the Eighth
Circuit’s directive in United States v. Placensia that “where the discussions were
in Spanish, transcripts of the discussions as translated into English are
evidence.”281  Bearing in mind the aforementioned persuasive federal authority,

272. Id. at 506.
273. An original is not required if it:  (1) was lost or destroyed; (2) is not obtainable by judicial

process; (3) is in the hands of the party against whom it is offered; or (4) relates only to collateral
matters.  IND. R. EVID. 1004.

274. Romo, 941 N.E.2d at 506.
275. Roby v. State, 742 N.E.2d 505 (Ind. 2001); Tobar v. State, 740 N.E.2d 106 (Ind. 2000);

Small v. State, 736 N.E.2d 742 (Ind. 2000).
276. Romo, 941 N.E.2d at 507.
277. 256 F.3d 466 (7th Cir. 2001).
278. Romo, 941 N.E.2d at 507.
279. Id.
280. Id. (citing United States v. Onori, 535 F.2d 938 (5th Cir. 1976)).
281. Id. at 508 (emphasis added) (quoting United States v. Placensia, 352 F.3d 1157, 1165 (8th

Cir. 2003)).



2012] EVIDENCE 1181

the court ultimately concluded that English translation transcripts of recorded
statements in foreign languages are indeed substantive evidence.282  The court
made this determination independently of Rule 1002, rationalizing that “the
original recording, being solely in Spanish, would not likely convey to the jury
the content of the recorded conversations.  Applying the rule to limit the evidence
of content to the original Spanish recordings would not serve the purpose of the
rule because it could not prove any content.”283  As an aside, the court noted that
although such transcripts may be used as substantive evidence, “it is generally the
better practice to play such foreign language recordings to the jury upon a
reasonable request by a party.”284

Arlton v. Schraut,285 a medical malpractice action, concerned the best
evidence rule with respect to photographs.  To remedy his choroidal
neovascularization, Arlton became a patient of Dr. Schraut and underwent laser
photocoagulation surgery.  Dr. Schraut took a series of angiogram photos of
Arlton’s retina in the course of treatment.286  At trial, the court admitted—with no
objection—three discs containing high-resolution enlarged duplicate images of
the angiograms.  When Arlton offered six printouts consisting of enlargements
of the discs’ photos, defense counsel did object, and the trial court sustained the
objection.287 

On appeal, Arlton argued that his enlargements of the angiograms were
admissible because they were enlargements, and the other side had presented no
evidence that they had been otherwise altered.  His opponent claimed that Arlton
lacked the requisite skill to have interpreted the angiograms and created these
images as proper exhibits.288  The court of appeals defined Arlton’s images as
“duplicates”289 and noted that Rule 1003 permits duplicates in evidence “to the
same extent as . . . [originals] unless (1) a genuine question is raised as to the
authenticity of the original or (2) in the circumstances it would be unfair to admit
the duplicate in lieu of the original.”290  Here, the court found neither a true
question of authenticity nor any indication of unfairness.  Arlton’s expert witness
had adequately established a proper foundation for the enlarged angiograms by
testifying that they accurately reflected the images in the discs—to which the
defendant had not objected.291  Seeing no evidence as to alteration of the
angiograms, the court of appeals decided that the trial court had abused its
discretion by excluding Arlton’s proffered evidence.292  The court ultimately

282. Id.
283. Id.
284. Id.
285. 936 N.E.2d 831 (Ind. Ct. App. 2010), trans. denied, 950 N.E.2d 1200 (Ind. 2011).
286. Id. at 834.
287. Id. at 835-36.
288. Id. at 836-37.
289. The term “duplicate” contemplates enlargements.  See IND. R. EVID. 1001.
290. Id. at 837 (quoting IND. R. EVID. 1003).
291. Id. at 838.
292. Id.



1182 INDIANA LAW REVIEW [Vol. 45:1147

reversed the decision of the lower court and remanded Arlton’s case for a new
trial.

CONCLUSION

Now well into their third decade of usage, the Indiana Rules of Evidence
continue to develop and interact with the Federal Rules of Evidence as well as
with common and statutory law.  The ubiquitous nature of the Internet is likely
to spur on future evolution of the Rules, and our state courts will necessarily
respond by reinterpreting or otherwise clarifying previous holdings concerning
various Rules.  Because glancing at the text of the Rules is unlikely to help
attorneys considering practical application of the Rules, regular consultation of
emerging decisions will be a vital part of any litigator’s practice.