I:\28684 Ind Law Rev 46-4\46masthead.wpd


RECENT DEVELOPMENTS IN INDIANA EVIDENCE LAW
OCTOBER 1, 2011 – SEPTEMBER 30, 2012

PAUL C. SWEENEY*
EMMANUEL V.R. BOULUKOS**

INTRODUCTION

The Indiana Rules of Evidence (“Rules”) went into effect in 1994.  Since that
time, court decisions and statutory changes have continued to refine these rules. 
This Article explains the developments in Indiana evidence law during the Survey
Period of October 1, 2011 through September 30, 2012.  The discussion topics
track the order of the Rules

I.  GENERAL PROVISIONS (RULES 101 – 106)

A.  General—Rule 101
Pursuant to Rule 101(a), the Rules apply to all court proceedings in Indiana

“except [when] 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.”1  Common law and statutory law continue to apply to
specific issues not covered by the Rules.2  

Judge Robert L. Miller, Jr., of the U.S. District Court, Northern District of
Indiana, succinctly summarized the preliminary issues/questions affecting
admissibility of evidence as the following:

• Is it covered by an Evidence Rule?  If not (but only if not), is the
issue covered by a statute or by pre-Rule case laws?

• Is it a preliminary issue of fact to be decided by the judge rather than
by the fact-finder, and so not governed by the Evidence Rules except
those concerning privilege?

• If in a sentencing hearing and so not generally governed by the
Evidence Rules, is the evidence against the accused reliable, and
therefore consistent with principles of due process?3

* Senior Counsel, Ice Miller LLP.  B.A., Economics and Political Science, Indiana
University, Bloomington; J.D., Indiana University Robert H. McKinney School of Law, 
Indianapolis, magna cum laude.

** Associate, Ice Miller LLP.  B.A., English, University of Massachusetts, Amherst; M.A.,
English and Creative Writing, University of Texas, Austin; J.D., Indiana University Maurer School
of Law, Bloomington.

1. IND. R. EVID. 101(a).
2. Id. 
3. ROBERT L. MILLER, JR., INDIANA PRACTICE SERIES: COURTROOM HANDBOOK ON INDIANA

EVIDENCE 5 (2013).



1100 INDIANA LAW REVIEW [Vol. 46:1099

B.  Situations Where Use of Evidentiary Rules Are Limited, but Not Without
Common Sense—Rule 101

“[J]udges may consider any relevant evidence bearing some substantial
indicia of reliability” “in probation and community corrections placement
revocation hearings.”4  Rule 101(c)(2) provides that the Rules do not apply in
“[p]roceedings relating to extradition, sentencing, probation, or parole.”5

In Robinson v. State,6 “Robinson appeal[ed] the revocation of his probation.”7 
Although the court of appeals did not reverse the probation revocation, it did hold
that a trial court is not automatically required to consider unreliable evidence
merely because Rule 101 allows hearsay to be considered during probation
proceedings.8  The court of appeals held that, in the context of Robinson’s
probation revocation proceeding, “the trial court abused its discretion in admitting
the probable cause affidavit because it contain[ed] multiple levels of hearsay.”9 
The court of appeals, noting that hearsay can be considered and that confrontation
rights are more limited during probationary proceedings, held that such loosening
of the Rules “‘does not mean that hearsay evidence may be admitted willy-nilly
in a probation revocation hearing.’”10  In Robinson, the trial court failed to
explain why the hearsay in this case was reliable or why any reliability was
sufficient to support “good cause for not producing [a] live witness[].”11  The
court of appeals found the trial court’s failure to articulate its finding of
admissibility was an abuse of discretion12  Nonetheless, the court of appeals did
not reverse the probation revocation because the State presented “additional
factors warranting revocation of probation.”13

II.  JUDICIAL NOTICE (RULE 201)

In Hogan v. State,14 during his post-conviction hearing, “Hogan requested
that the court take judicial notice of the trial record” during his habitual offender
proceedings.15  The trial court denied Hogan's judicial notice request.16  The

4. Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999) (emphasis added). See IND. R. EVID.
101(c)(2).

5. IND. R. EVID. 101(c)(2).  Likewise, as noted in Kalwitz v. Kalwitz, Rule 101(c)(2)
provides that the Rules “do not apply to small claims proceedings.”  934 N.E.2d 741, 751 (Ind. Ct.
App. 2010); see IND. SMALL CLAIMS R. 8(A).

6. 955 N.E.2d 228 (Ind. Ct. App. 2011).
7. Id. at 229.
8. Id. at 232-33.
9. Id. at 231.

10. Id. at 232 (quoting Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007)).
11. Id. (quoting Reyes, 868 N.E.2d at 440).
12. Id. (quoting Reyes, 868 N.E.2d at 440).
13. Id. at 233.
14. 966 N.E.2d 738 (Ind. Ct. App.), trans. denied, 971 N.E.2d 1214 (Ind. 2012).
15. Id. at 748.
16. Id. 



2013] EVIDENCE 1101

Indiana Court of Appeals found the post-conviction court incorrect on this
evidentiary matter, stating that, “Effective January 1, 2010, Indiana Evidence
Rule 201 was amended to permit courts to take judicial notice of ‘records of a
court of this state.’”17  The Hogan case began in June 2010.18  The court of
appeals did not find this error to be a reversible error or prejudicial to Hogan;
rather, it corrected the error by reviewing the relevant portion of the record on
appeal, as requested by Hogan.19  The court of appeals ultimately affirmed the
post-conviction court’s judgment.20

III.  RELEVANCY AND ITS LIMITS (RULES 401 – 413)

A.  Relevant Evidence—Rule 401
Pursuant to Rule 401, “[r]elevant evidence” is “evidence having any tendency

to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the
evidence.”21  In H.G. v. Indiana Department of Child Services,22 the court of
appeals discussed whether evidence related to “a child’s placement may be
relevant in [parental rights] termination cases, especially where . . . DCS relies
heavily on a child’s need for permanency.”23  DCS failed to present any evidence
of “potential permanent home[s] for the children” involved in this case.24  The
court of appeals “acknowledge[d] that adoption has been held to be a satisfactory
plan even in cases where a potential adoptive family has not been identified.”25 
However, the court of appeals ultimately reversed the trial court's decision to
terminate parental rights in this case, remanding the case for further proceedings,
stating,

[T]his case highlights how [an adoption plan for a child] is not
necessarily in a child’s best interests.  DCS must prove both that its plan
is satisfactory and that termination is in the child's best interests. 
Although it is true that DCS is not required to prove anything concerning
the adequacy of children’s placement, that is not the same as saying that
the children’s placement is never relevant to the facts that it must prove.
[Other] [c]ases . . . illustrate that a child’s placement may be relevant in
termination cases, especially where, as here, DCS relies heavily on a
child’s need for permanency.26

17. Id.; see also In re D.K., 968 N.E.2d 792, 796 (Ind. Ct. App. 2012).
18. Hogan, 966 N.E.2d at 748.
19. Id. at 748-49.
20. Id. at 750.
21. IND. R. EVID. 401.
22. 959 N.E.2d 272 (Ind. Ct. App. 2011), trans. denied, 970 N.E.2d 155 (Ind. 2012).
23. Id. at 294.
24. Id. at 275.
25. Id. at 294.
26. Id. (citations omitted).



1102 INDIANA LAW REVIEW [Vol. 46:1099

The Indiana Court of Appeals held as follows:

Because the parents appear willing to continue cooperating with DCS
and working toward reunification and because there is no indication that
allowing the parents more time to do so will harm the children, we
conclude that DCS failed to show that termination is in the children’s
best interest.27

In Wilson v. State,28 the defendant, charged with driving under the influence
of alcohol and marijuana, sought to introduce testimony regarding audits of
testing results from the State Department of Toxicology relating to the years
2007, 2008, and 2009.29  The trial court deemed this testimony inadmissible under
Rule 402 because it was irrelevant to the defendant’s testing results, which were
produced in 2011.30  The court of appeals agreed, noting that the Department of
Toxicology, which had discontinued such audits by the time it tested the
defendant’s blood samples, had different personnel and procedures in 2011 than
in prior years.31

On the other hand, in Conley v. State,32 the supreme court found no abuse of
discretion in the trial court’s admission of rebuttal testimony offered by the
State’s expert, Dr. Daum, which sought to explain and contradict evidence
offered by the defendant regarding whether he “‘fit the psychotic personality.’”33 
The seventeen-year-old defendant was charged with the murder of his ten-year-
old brother by putting him in a choke-hold and then asphyxiating him with a
plastic shopping bag.34  In so holding, the court rejected the defendant’s
contention that Dr. Daum had offered his opinion as the defendant’s
psychopathy.35  Instead, Dr. Daum’s testimony was relevant to the issue of
whether, as the defendant's expert claimed, the defendant “did not ‘fit the
psychotic personality’” insofar as it explained and contradicted the defendant’s
evidence.36

B.  Probative Value Versus Unfair Prejudice—Rule 403
In Ceaser v. State,37 the court of appeals affirmed its previous standard for

assessing the admissibility of Rule 404(b) evidence, stating that the “court must
(1) determine that the evidence of other crimes, wrongs, or acts is relevant to a

27. Id. at 275.
28. 973 N.E.2d 1211 (Ind. Ct. App. 2012).
29. Id. at 1213.
30. Id. at 1213-15.
31. Id. at 1215.
32. 972 N.E.2d 864 (Ind. 2012).
33. Id. at 871-73.
34. Id. at 869, 876.
35. Id. at 872.
36. Id. 
37. 964 N.E.2d 911 (Ind. Ct. App.), trans. denied, 969 N.E.2d 86 (Ind. 2012).



2013] EVIDENCE 1103

matter at issue other than the defendant’s propensity to commit the charged act
and (2) balance the probative value of the evidence against its prejudicial effect
pursuant to . . . Rule 403.”38  “[A]cknowledg[ing] . . . the potential for unfair
prejudice . . . because the prior misconduct involved violence toward a child[,]”39
the court of appeals found

that the trial court did not err in finding that the probative value was not
outweighed by the threat of unfair prejudice given its direct relation to
Ceaser’s claim of parental privilege, the similarity and proximity of
incidents, and in light of the limitations imposed on the use of the
evidence.40

In Freed v. State,41 the court of appeals evaluated the inherent interplay of
Rules 105, 403 and 404(b) when introducing evidence of uncharged
misconduct.42  During the appeal of his Class B felony robbery, Freed contended
that the trial court should not have permitted the admission of “evidence of his
uncharged misconduct—specifically, an unrelated burglary, forgery, and
solicitation for murder.”43  While incarcerated, Freed wrote a “jailhouse letter” in
an effort to hire a hit-man to ensure his “case w[ould] be clean at trial.”  In the
jailhouse letter, Freed wrote to “[c]heck for an unsolved V[illage] P[antry]
robbery in July of 08 at Concord and brady ln [sic].”44  The trial court allowed the
State to present the jailhouse letter—with this “equivalent of a confession to the
Village Pantry robbery”—“as probative evidence of intent, knowledge, and
identity . . . convey[ing] the defendant’s involvement in the robbery at issue.”45

The court of appeals ultimately held that the trial court did not abuse its
discretion in admitting the evidence under Rule 404(b) because the trial court
properly instructed and admonished the jury throughout the trial about the
restricted and limited scope to be afforded the evidence.  Furthermore, the court
of appeals found that the probative value of the evidence outweighed its potential
prejudicial effect:

Freed’s other wrongs consisted not only of a burglary and forgery but
also of a plot to murder potential witnesses in the burglary/forgery
prosecution.  Having said that, we believe that the probative value and
need for the evidence in this case was appreciable.  The State’s case
against Freed rested largely on his confessions, both within the letter and
made orally to [other] inmates . . . Moreover, the State’s remaining
evidence linking Freed to the robbery—while not insignificant—was

38. Id. at 915 (citing Embry v. State, 923 N.E.2d 1, 8 (Ind. Ct. App. 2010)).
39. Id. at 918.
40. Id. 
41. 954 N.E.2d 526 (Ind. Ct. App. 2011).
42. Id. at 527-28.
43. Id. 
44. Id. 
45. Id. at 528-29.



1104 INDIANA LAW REVIEW [Vol. 46:1099

alone somewhat tenuous.  The State thus had a genuine need for Freed’s
written confession and a corresponding need to contextualize it and
demonstrate its authenticity for the jury.46

Accordingly, there was “sufficient evidence to sustain Freed’s conviction.”47
In Collins v. State,48 Collins, in response to her charges of murdering her

husband, argued that the victim battered her for over twenty years, and that she
thus had acted in self-defense.49  The jury convicted Collins of voluntary
manslaughter.50  On appeal, Collins asserted that the introduction of a 1979 out-
of-state arrest and battery charge was highly prejudicial.51  The trial court
permitted the State to admit certified police records showing that Collins had
been booked in Nebraska on misdemeanor charges of battery for cutting her co-
worker, despite Collins’s objection that “there had been no sufficient notice of the
State’s intent to use the evidence and that the crimes were too old to qualify for
admission under Indiana Evidence Rule 609.”52  

The court of appeals agreed with Collins, reversing her voluntary
manslaughter conviction on the grounds that such evidence is highly prejudicial,
could lead to the forbidden inference, and has minimal probative value due to the
age and victim of the charge in question.53  Accordingly, the court of appeals
ordered a new trial for Collins.54

In Parker v. State,55 Parker appealed his conviction for robbery, asserting, in
part, that the trial court impermissibly restricted his right to present a defense by
denying his request, on the eve of trial, to testify that he was trying to buy
marijuana rather than an Xbox gaming system.56  The State objected under Rule
403, arguing that the proffered evidence “created the highly prejudicial
impression that [the victims] were drug dealers and [one of the victims] was
unavailable to respond to the allegation.”57  The court of appeals affirmed the trial
court’s ruling excluding the evidence on Rule 403 grounds.58  It found that the
trial court did not abuse its discretion in this case because “it was extremely
prejudicial to make this drug dealing accusation at a time [(on the eve of trial)]
and in a manner where [the alleged drug dealer] would have no chance to refute

46. Id. at 531-32 (emphasis added).
47. Id. at 532-33.
48. 966 N.E.2d 96 (Ind. Ct. App. 2012).
49. Id. at 100-02.
50. Id. at 102.
51. Id. at 104-05.
52. Id. at 102, 105.
53. Id. at 105.
54. Id. at 107.
55. 965 N.E.2d 50 (Ind. Ct. App.), trans. denied, 978 N.E.2d 416 (Ind. 2012).
56. Id. at 52-53.
57. Id. at 53.
58. Id. at 53-54.



2013] EVIDENCE 1105

it.”59
With respect to Indiana’s implied consent statutes, Indiana Code sections 9-

30-6 and 9-30-7, the Indiana Rules of Evidence—Rule 403 in particular—along
with the Code itself determine admissibility of blood evidence when the Code
does not mandate exclusion.60  In reaching this conclusion, the court of appeals
noted that “[t]he spirit of the Indiana Rules of Evidence is to allow any relevant
evidence[,]” which “is tempered by Rule 403.”61

In Jackson v. State,62 the defendant faced charges for murdering David
Devine and attempting to murder Rosalie Myers, both of whom he allegedly
stabbed.63  “Devine died from a stab wound to [his] heart,” although he also
received a number of other potentially fatal stab wounds.64  At trial, the State
introduced several autopsy photos, including State’s Exhibit 14(K), which
depicted a pathologist holding Devine’s heart and using “a metal probe” to
“indicat[e] the stab wound to the heart.”65  Exhibit 14(E) presented an external
view of the stab wound to Devine’s chest that penetrated his heart.66  The
defendant objected to Exhibit 14(K) under Rule 403, arguing that the photo was
unnecessary to demonstrate the victim’s cause of death because the State
introduced Exhibit 14(E) showing the same wound.67  The trial court and the
court of appeals found otherwise, pointing to the pathologist’s testimony that the
purpose of Exhibit 14(K) was to demonstrate that the stab wound to the heart (and
not one of the other stab wounds Devine suffered) was the cause of death,68 and
that Exhibit 14(E) was “difficult to differentiate . . . from other photographs
showing separate [external] stab wounds to Devine’s chest.”69  Thus, the court of
appeals concluded that “[t]he trial court was within its discretion in determining
that the probative value of [the photo] outweighed its prejudicial effect.”70

In Cherry v. State,71 a defendant who had been convicted of “aiding,
inducing, or causing” heroin dealing72 objected, on the basis of Rule 403, to
evidence of his videotaped admissions to police that he had accompanied another
man on trips to purchase heroin.73  The defendant argued that the admissions were

59. Id. 
60. State v. Bisard, 973 N.E.2d 1229, 1235-36 (Ind. Ct. App.), trans. denied, 980 N.E.2d 323

(Ind. 2012).
61. Id. at 1236 (emphasis added).
62. 973 N.E.2d 1123 (Ind. Ct. App.), trans. denied, 977 N.E.2d 353 (Ind. 2012).
63. Id. at 1125-26.
64. Id. at 1126 (alteration in original) (internal quotation marks omitted).
65. Id. at 1128.
66. Id. at 1129.
67. Id. at 1128-29.
68. Id. 
69. Id. at 1129.
70. Id. 
71. 971 N.E.2d 726 (Ind. Ct. App.), trans. denied, 974 N.E.2d 1020 (Ind. 2012).
72. Id. at 731 (citing IND. CODE §§ 35-41-2-4, -48-4-1(a)(2)(C) (2013)).
73. Id. at 730.



1106 INDIANA LAW REVIEW [Vol. 46:1099

highly prejudicial and “only served to inflame the jury”—and for these reasons,
the trial court had abused its discretion in allowing them.74  The court of appeals
rejected this argument, finding the trial court acted within its discretion to admit
the evidence because, among other things, the defendant’s statement that he had
worked with the other man previously was relevant to the defendant’s intent to
aid, induce, or cause heroin dealing.75

C.  Character Evidence—Rule 404(a)
In Johnson v. State,76 Johnson “appeal[ed] his conviction for neglect of a

dependent” asserting, in part, that “the trial court abused its discretion when it
admitted into evidence Johnson’s statements on a mental health assessment that
he was concerned he would harm [the victim].”77  The court of appeals affirmed
the trial court’s admission of the statement by Johnson because “the social
worker’s testimony was not offered as evidence of Johnson’s poor character. 
Rather, the testimony tended to prove that Johnson was the person that harmed
[the victim].”78  Agreeing with the State, the court of appeals reasoned that
“Johnson’s statement was not a character statement, but a factual admission [by]
Johnson warn[ing] that he would commit the underlying offense, then he
committed [it].”79

D.  Exceptions to Rule 404(b)
Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in
conformity therewith.  It may, however, be admissible for other purposes, such
as proof of motive, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.”80  Rule 404(b) tracks Federal Rule of Evidence 404(b)
almost verbatim.81  Rule 404(b)’s list of permissible “purposes is illustrative [but]
not exhaustive.”82

In assessing the admissibility of Rule 404(b) evidence, a trial court
must (1) determine that the evidence of other crimes, wrongs, or acts is
relevant to a matter at issue other than the defendant’s propensity to

74. Id. 
75. Id. 
76. 959 N.E.2d 334 (Ind. Ct. App. 2011), trans. denied, 969 N.E.2d 604 (Ind. 2012).
77. Id. at 336.
78. Id. at 342.
79. Id. (first and fourth alterations in original).
80. IND. R. EVID. 404(b).
81. See Hicks v. State, 690 N.E.2d 215, 218 n.1 (Ind. 1997) (noting that the federal rule also

includes “opportunity” in its short list of permissible purposes).  The rule “is designed to prevent
the jury from assessing a defendant’s present guilt on the basis of his past propensities, the so called
‘forbidden inference.’”  Id. at 218-19.

82. Id. at 219.



2013] EVIDENCE 1107

commit the charged act and (2) balance the probative value of the
evidence against its prejudicial effect pursuant to Indiana Evidence Rule
403.83

1.  Motive Exception to Rule 404(b).—In Collins v. State,84 the State was
allowed to introduce evidence of Collins’s 1979 arrest and charge (without a
conviction).85  This case involved a domestic altercation between Collins and her
husband, which led to Collins ultimately shooting and killing her husband.86 
Collins asserted that she was a battered spouse and had defended herself in
response to the murder charge.87  Finding that the trial court erred in admitting
evidence of the prior arrest, the court of appeals reversed and remanded for a new
trial, reasoning:

“Numerous cases have held that where a relationship between parties
is characterized by frequent conflict, evidence of the defendant’s prior
assaults and confrontations with the victim may be admitted to show the
relationship between the parties and motive for committing the crime.” 
Where a defendant claims self-defense, the State may use evidence of the
defendant’s prior misconduct to disprove that argument that the victim
was the initial aggressor.  Before the alleged prior misconduct can be
properly admitted for a permissible purpose under [Rule] 404(b),
however, there must be sufficient proof from which a jury could find that
the defendant committed the acts.  “The relevant point, here, is that,
where evidence of prior misconduct consists only of an arrest or charge,
the fact of the arrest or charge alone will not suffice to sustain admission
under Rules 404(b) and 104(b).”88

2.  Intent Exception to Rule 404(b).—In Southward v. State,89 Southward
“appeal[ed] his conviction . . . for possessing material capable of causing bodily
injury while incarcerated” in violation of Indiana Code section 35-44-3-9.5.90 
Southward asserted, in part, that the trial court committed fundamental error when
it allowed the State to introduce into evidence “photographic and testimonial
evidence regarding a broken broomstick fragment found in Southward’s cell on
October 27, 2010.”91  Southward’s conviction stemmed from a December 20,

83. Ceaser v. State, 964 N.E.2d 911, 915 (Ind. Ct. App.) (citing Embry v. State, 923 N.E.2d
1, 8 (Ind. Ct. App. 2010)), trans. denied, 969 N.E.2d 86 (Ind. 2012).

84. 966 N.E.2d 96 (Ind. Ct. App. 2012).  For a discussion of this case in the context of
prejudicial harm versus probative value, see discussion supra accompanying notes 48-54.

85. Collins, 966 N.E.2d at 102.
86. Id. at 101.
87. Id. 
88. Id. at 105 (quoting Perry v. State, 956 N.E.2d 41, 59 (Ind. Ct. App. 2011); Iqbal v. State,

805 N.E.2d 401, 408 (Ind. Ct. App. 2004)) (citations omitted).
89. 957 N.E.2d 975 (Ind. Ct. App. 2011).
90. Id. at 976.
91. Id. 



1108 INDIANA LAW REVIEW [Vol. 46:1099

2010, transport.92  After he was placed in a holding cell, he threatened to “stab an
inmate or an officer.”93  A search of Southward’s cell revealed “a plastic spoon
with its rounded handle altered with the edges ground down.”94  On appeal, the
court found that the evidence was sufficient to support the conviction beyond a
reasonable doubt.95  “[T]he trial court found evidence of Southward’s prior
possession of a sharpened broomstick while incarcerated was relevant to show
Southward’s intent to commit the charged crime of possessing a spoon with an
altered handle while incarcerated.”96  However, the court of appeals
acknowledged that an evidentiary safeguard requires that the accused must
affirmatively place intent at issue in a case “in his opening statements, cross-
examination of the State’s witnesses, or case-in-chief” prior to the introduction
of Rule 404(b) evidence.97

Southwood had not made intent an issue in his opening statement or through
his presence at trial.98  Moreover, the court of appeals, after evaluating the proper
intent needed for a conviction under Indiana Code section 35-44-3-9.5, held that
“evidence that Southward previously had a broken broomstick fragment secreted
in his cell would not have been admissible under . . . R[ule] 404(b) to show
Southward’s intent to possess the altered spoon because Southward did not
contest possession, only the quality of the altered spoon.”99  The court of appeals,
nonetheless, affirmed the conviction because it found the error to be
harmless—that is, not “ris[ing] to the level of fundamental error”—and the
evidence was overwhelming as to Southward’s guilt of the crime charged.100

In Duvall v. State,101 Duvall appealed his conviction for murder, insurance
fraud, and obstruction of justice asserting, in part, that the trial court erred when
it deemed a prior suspected poisoning admissible under the Rule 404(b) intent
exception.102  The court of appeals held that the trial court committed error when
it admitted the evidence of Rule 404(b) prior bad acts, reasoning that the
prosecution inappropriately brought up the prior bad acts before the defendant
ever asserted a contrary intent: “the defense did not concede that Duvall gave
Alan drugs but only for therapeutic reasons.  Nor did the defense “introduce
substantial evidence” of a contrary factual scenario . . . . Duvall did not, in
opening statements, open the door to a broad application of the intent
exception.103  The court affirmed the conviction, regardless, finding that the Rule

92. Id. 
93. Id. 
94. Id. 
95. Id. at 979.
96. Id. 
97. Id. (citations omitted).
98. Id. at 977-78.  
99. Id. at 978.

100. Id. at 978-79.
101. 978 N.E.2d 417 (Ind. Ct. App. 2012), trans. denied, 981 N.E.2d 58 (Ind. 2013).
102. Id. at 420.
103. Id. at 424-25 (emphasis added) (citation omitted).



2013] EVIDENCE 1109

404(b) error was harmless due to “substantial independent evidence of Duvall’s
guilt.”104

3.  Plan or Routine Practice—Exceptions to Rule 404(b) & Rule 406.—In
Weinberger v. Boyer,105 the Weinberger Entities challenged the trial court’s
“admission of testimony concerning improper care rendered by Weinberger to
patients other than Boyer” as impermissible evidence of prior bad acts under Rule
404.106  Boyer asserted, and the trial court agreed, that the evidence was
admissible as both a routine practice by Weinberger pursuant to Rule 406 (Boyer
contended that Weinberger’s action of “pok[ing] holes in the healthy sinuses of
other patients in a manner similar to Boyer’s [wa]s indicative [of] routine
practice”) and because, pursuant to Rule 404(b), it demonstrated a “plan” by
Weinberger.107  

The court of appeals agreed with the Weinberger Entities that the trial court’s
ruling amounted to the impermissible admission of prior bad acts, did not
establish a plan or routine practice, and ultimately stood as irrelevant in light of
the fact that “Weinberger’s procedure of poking holes in Boyer’s sinuses was
explicitly admitted in the issue instruction and read to the jury prior to trial.”108 
However, the court of appeals found the error to be harmless because “the
Weinberger Entities fail[ed] to make an argument as to how the evidence affected
their substantial rights.”109

In contrast, in Nicholson v. State,110 evidence of the defendant’s prior
conviction for voyeurism was properly admitted where the previous crime and the
crime he was charged with were “so strikingly similar” and involved the same
victims.111  In reversing the court of appeals and finding that the trial court had
not abused its discretion in allowing evidence of the previous conviction, the
supreme court noted that under Rule 404(b), prior convictions, when offered for
a purpose other than to show a defendant’s propensity to commit the crime
charged—such as to establish a perpetrator’s identity—may be admissible.112 
Specifically, the court noted that “[the] identity exception was carved out
primarily for crimes ‘so nearly identical that the modus operandi is virtually a
‘signature.’’”113  Indeed, the defendant had served a two-year prison term for
voyeurism after targeting a family with a series of obscene phone calls—and after

104. Id. at 426.  The court of appeals also affirmed one of the convictions for insurance fraud
and obstruction of justice, but reversed and remanded with instructions for the remaining five
convictions for insurance fraud and the remaining two convictions for obstruction of justice because
Duvall's acts constituted a “single chargeable offense.”  Id. at 428.

105. 956 N.E.2d 1095 (Ind. Ct. App. 2011), trans. denied, 963 N.E.2d 1122 (Ind. 2012).
106. Id. at 1108.
107. Id. 
108. Id. at 1109.
109. Id. at 1110.
110. 963 N.E.2d 1096 (Ind. 2012).
111. Id. at 1100.
112. Id. at 1099.
113. Id. at 1100 (quoting Allen v. State, 720 N.E.2d 707, 711 (Ind. 1999)).



1110 INDIANA LAW REVIEW [Vol. 46:1099

being caught lurking outside of their home.114  Soon after he was released, the
family received another obscene phone call (similar to the ones the defendant had
made before being imprisoned) from a man they identified as the defendant,
which resulted in stalking and harassment charges in the case at bar.115  In
addition to serving as proof of identity, the prior conviction was also admissible
to prove an absence of mistake, given that he knew the phone number and home
he was targeting.116

4.  Intent and Absence of Mistake or Accident—Exceptions to Rule 404(b).—
In Ceaser v. State,117 Ceaser “appeal[ed] her conviction for Class D felony battery
on her daughter” asserting, in part, “that the trial court erred by allowing the State
to present evidence regarding her prior conviction for battering [the same
daughter].”118  Before analyzing the exceptions, the court “note[d] that the
‘admissibility of evidence of other crimes, wrongs, or acts to establish intent and
an absence of mistake or accident is well established, particularly in child abuse
cases.’”119  Ceaser asserted the defense of parental privilege; “the State was
required to prove either: (1) the force Ceaser used was unreasonable or (2)
Ceaser’s belief that such force was necessary to control [her daughter] and
prevent misconduct was unreasonable.”120  

The court of appeals found the prior conviction was “admissible under the
lack of accident or mistake exception to Rule 404(b)” because such “evidence
goes directly to the reasonableness of the force used and the reasonableness of
that parent’s belief regarding the force used.”121  The court also found the
evidence admissible under the intent exception to Rule 404(b) because “the intent
underlying parental discipline and battery are not the same.”122  The court held
that Ceaser put her intent at issue in the case by raising a parental privilege
defense, representing that “her intent was to correct [her daughter’s] behavior
through corporal punishment, rather than to simply batter her daughter.”123  It also
stands worthy of note that the court of appeals also held that the parent’s prior
actions are “often the only way to determine whether the punishment is a non-
criminal act of discipline that was unintentionally harsh or whether it constitutes
the felony of child abuse.”124  Here, Ceaser’s prior conviction was for battering

114. Id. at 1101-02.
115. Id. 
116. Id. at 1100.
117. 964 N.E.2d 911 (Ind. Ct. App.), trans. denied, 969 N.E.2d 86 (Ind. 2012).  For additional

discussion of this case, see discussion supra accompanying notes 37-40.
118. Id. at 912.
119. Id. at 915 (emphasis added) (quoting United States v. Harris, 661 F.2d 138, 142 (10th Cir.

1981)).
120. Id. at 917 (citing Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008)).
121. Id. 
122. Id. 
123. Id. 
124. Id. at 915 (quoting State v. Wright, 593 N.W.2d 792, 802 (S.D. 1999)).



2013] EVIDENCE 1111

the same child in a manner similar to the allegations in the case at hand.125  The
court of appeals found this sufficient to render the evidence admissible under
Rule 404(b), even after a Rule 403 analysis.126

E.  Compromise and Offers to Compromise—Rule 408
In Horner v. Carter,127 the court of appeals held that Rule 408 (as well as

Alternative Dispute Resolution Rule 2.11) allows a party to introduce evidence
of mediation discussions for the purpose of “establish[ing] traditional contract
defenses.”128  This holding was recently vacated by the supreme court.129

The case at bar involved a mediated settlement agreement reached during a
dissolution proceeding.130  The ex-husband contended that the agreement was
drafted erroneously to the extent that it could be construed as requiring him to
make housing payments to his ex-wife following her remarriage.131  He asserted
that the housing payments were actually maintenance payments, which
terminated when his ex-wife remarried.132

The ex-wife objected to her ex-husband’s attempts to testify about statements
made during the mediation, arguing they were inadmissible under Rule 408 as
evidence of conduct or statements made during a compromise negotiation.133  The
trial court sustained her objections.134  The court of appeals, however, held that
the trial court had erred in excluding the ex-husband’s evidence because it “was
not offered ‘to prove liability for or invalidity of the claim or its amount[,]’”135
but instead to show that “a mistake occurred in the drafting of the agreement.”136 
Thus, and because Alternative Dispute Resolution Rule 2.11 does not preclude
its admission, the trial court should not have excluded the evidence under Rule
408.137

However, after the Survey Period ended, the supreme court vacated this
portion of the court of appeals’s ruling, stating,

Indiana judicial policy strongly urges the amicable resolution of disputes
and thus embraces a robust policy of confidentiality of conduct and
statements made during negotiation and mediation. The benefits of

125. Id. at 917.
126. Id. 
127. (Horner I) 969 N.E.2d 111 (Ind. Ct. App. 2012), vacated by (Horner II) 981 N.E.2d 1210

(Ind. 2013).
128. Id. at 117.
129. Horner II, 981 N.E.2d at 1210.
130. Horner I, 969 N.E.2d at 113.
131. Id. at 114.
132. Id. at 114-15.
133. Id. at 115.
134. Id. 
135. Id. at 117 (quoting IND. R. EVID. 408).
136. Id. 
137. Id. 



1112 INDIANA LAW REVIEW [Vol. 46:1099

compromise settlement agreements outweigh the risks that such policy
may on occasion impede access to otherwise admissible evidence on an
issue.138

Notwithstanding this definitive statement on the issue, the supreme court noted
that the court of appeals decision was based, in part, on an approach taken from
the Uniform Mediation Act (“UMA”), which Indiana has not adopted.139  The
supreme court acknowledged that the Alternative Dispute Resolution Section of
the Indiana State Bar Association and the Alternative Dispute Resolution
Committee of the Judicial Conference of Indiana were reviewing the UMA and
that changes to the Indiana Alternative Dispute Resolution Rules may be
forthcoming.140

In Loparex, LLC v. MPI Release Technologies, LLC,141 on a certified question
from the United States District Court for the Southern District of Indiana, the
supreme court declined to expand the limited exceptions to Rule 408(a)(2) to
include statements made in the course of settlement negotiations that would serve
as proof of blacklisting in violation of Indiana Code section 22-5-3-2.142  The
central issue in the case was whether an unsuccessful lawsuit, filed purportedly
to protect trade secrets, could itself constitute blacklisting.143  As to the
evidentiary question, the court reasoned that making an exception to admit
statements made in the course of settlement negotiations, for the purpose of
proving blacklisting in a later lawsuit, would “chill the negotiating process.”144 
Specifically, employers bringing trade secret lawsuits that have the potential to
result in a later blacklisting lawsuit would be guarded in settlement negotiations,
chilling the process for employer and employee alike.145

F.  Liability Insurance—Rule 411
According to Rule 411,

[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. This rule does not require the exclusion of
evidence of insurance against liability when offered for another purpose,
such as proof of agency, ownership, or control, or bias or prejudice of a
witness.146

138. Horner II, 981 N.E.2d 1210, 1212 (Ind. 2013) (footnote omitted).
139. Id. at 1212 n.1.
140. Id. 
141. 964 N.E.2d 806 (Ind. 2012).
142. Id. at 809, 820-21.
143. Id. at 818-19.
144. Id. at 821.
145. Id. 
146. IND. R. EVID. 411.



2013] EVIDENCE 1113

In Tucker v. Harrison,147 a patient who became infertile after undergoing
surgery to remove ovarian cysts filed a claim for medical malpractice.148  The
plaintiff alleged, and intended to show, that all Indiana physicians, including the
members of the medical review panel who examined the case, were biased due
to their participation in the Indiana Patient’s Compensation Fund (“Fund”).149

The Fund, explained the court, provides physicians with supplemental
coverage for medical malpractice judgments or settlements that exceed the
amount covered by their malpractice insurance policies.150  Thus, the plaintiff
argued that all physicians have a vested interest in keeping payouts from the fund
to a minimum.151  The plaintiff further contended that the physicians on the
review panel were biased in their analysis of whether the physician charged with
medical malpractice had satisfied the applicable standard of care.152  The
defendant objected to the admission of such evidence on the basis of Rule 411’s
prohibition on “[e]vidence that a person was or was not insured against liability”
offered for the purpose of showing “whether the person acted negligently or
otherwise wrongfully.”153  Noting that Rule 411 does not bar insurance evidence
when it is offered for another purpose, such as demonstrating bias, the court
moved to the question of relevancy.154  Ultimately, the court determined that the
evidence did not survive Rule 403’s balancing test, given that the plaintiff’s
evidence concerned a system-wide bias among Indiana physicians and did not
relate to the specific experts who testified in the case at bar.155

G.  Interpreters—Rule 604
In Tesfamariam v. Woldenhaimanot,156 Tesfamariam appealed the trial court’s

decision, asserting that it committed a fundamental error when it failed, pursuant
to Rule 604, to administer an oath to Tesfamariam’s interpreter and failed to
establish that the interpreter was qualified.157  The court of appeals held that trial
court abused its discretion in the divorce/custody hearing in this case.158 
However, it also found that Tesfamariam “waived her objections by failing to
raise them at trial” because they were not fundamental errors.159  The court of
appeals based its decision that no fundamental error occurred on the fact that

147. 973 N.E.2d 46 (Ind. Ct. App. 2012), trans. denied, 980 N.E.2d 325 (Ind. 2013).
148. Id. at 47-48.
149. Id. at 48, 54.
150. Id. at 54 (citing IND. CODE § 34-18-14-3 (2013)).
151. Id. at 54-55.
152. Id. 
153. Id. at 54.
154. Id. at 54-55.
155. Id. at 55.
156. 956 N.E.2d 118 (Ind. Ct. App. 2011).
157. Id. at 120-21.
158. Id. at 122.
159. Id. at 123.



1114 INDIANA LAW REVIEW [Vol. 46:1099

Tesfamariam did “not allege the ‘substantial harm’ necessary to implicate a
fundamental error.”160  “This fundamental error exception is ‘extremely narrow,
and applies only when the error constitutes a blatant violation of basic principles,
the harm or potential for harm is substantial, and the resulting error denies the
defendant fundamental due process.’”161  Here, Tesfamariam “told the trial court
that she was willing to proceed without an interpreter.”162  The trial court
ultimately provided her with an interpreter because it was “easy to do.”163  Thus,
no fundamental error occurred.164

H.  Inquiry as to Validity of Verdict—Rule 606
Under Rule 606(b), a juror may testify to the validity of a verdict to

determine “whether any outside influence was improperly brought to bear upon
any juror.”165  In Pattison v. State,166 Pattison filed a motion for mistrial after he
learned that “the jurors [had] returned to the courtroom during their deliberations”
to conduct experiments of their own on pieces of evidence.167  In his motion,
Pattison “asked the Court to hold a hearing and require jurors to appear for
questioning about their experiments . . . . The trial court denied Pattison’s
request.”168

As a general rule, a jury's verdict may not be impeached by evidence
from the jurors who returned it.  Parties may question jurors as to the
validity of a verdict in limited circumstances, as follows:

Upon an inquiry into the validity of a verdict or indictment, a juror
may not testify as to any matter or statement occurring during the course
of the jury's deliberations or to the effect of anything upon that or any
other juror's mind or emotions as influencing the juror to assent to or
dissent from the verdict or indictment or concerning the juror's mental
processes in connection therewith, except that a juror may 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. . . .169

Pattison argued that the jurors should be questioned because their actions may

160. Id. 
161. Id. at 122 (quoting Delarosa v. State, 938 N.E.2d 690, 694 (Ind. 2010)).
162. Id. at 123.
163. Id. 
164. Id. 
165. IND. R. EVID. 606(b).
166. 958 N.E.2d 11 (Ind. Ct. App. 2011), trans. denied, 963 N.E.2d 1118 (Ind. 2012).
167. Id. at 21.
168. Id. 
169. Id. (alteration in original) (citation omitted).



2013] EVIDENCE 1115

have “constituted extraneous prejudicial information.”170  The court of appeals
found the jurors’ actions to be “permissible consideration of the evidence
presented at trial” and “not extraneous, additional evidence.”171  The jurors
merely operated the piece of evidence just as the witnesses had done during their
testimony.172  Finding that the jury’s action was not improper, the court of appeals
explained that “the jurors in this case acted in keeping with the testimony
presented at trial.”173  

In Palilonis v. State,174 the defendant argued that the trial court had
committed an abuse of discretion when it denied his motion to correct errors,
which was premised on the contention that jurors had received extraneous
prejudicial information.175  The alleged extraneous information consisted of the
jury foreman’s claim to the other “jurors that the judge knew [facts] that they did
not” have in front of it, and that the defendant’s alleged victim, B.S., had
committed suicide.176  After the defendant’s conviction, his attorney received an
anonymous letter from one of the jurors claiming juror misconduct.177  Palilonis
filed a motion to overturn the verdict, the trial judge recused himself, and a
special judge was appointed to review the evidence.178  After two evidentiary
hearings, which featured contradictory testimony from the foreman and the juror
who had written the anonymous letter, the special judge determined that no
prejudicial extraneous information had come into the jury room.179  On appeal,
the court found no abuse of discretion and characterized the defendant’s argument
as nothing more than a request for the court of appeals to reweigh the evidence.180

I.  Who May Impeach—Rule 607
In Lawrence v. State,181 Lawrence appealed his conviction for murder.  The

sole issue on appeal was “whether the State presented sufficient evidence to
support the conviction.”182  In this case, the court of appeals revisited the interplay
of Rules 607 and 803(2) as it relates to impeachment evidence and substantive
evidence.183  Lawrence “argue[ed] that the evidence placing him at the scene of
the murder consisted almost entirely of impeachment evidence rather than

170. Id. at 22.
171. Id. 
172. Id. at 20-21.
173. Id. at 21.
174. 970 N.E.2d 713 (Ind. Ct. App.), trans. denied, 980 N.E.2d 324 (Ind. 2012).
175. Id. at 723.
176. Id. 
177. Id. at 721.
178. Id. at 721-22.
179. Id. at 722-23.
180. Id. at 724-25.
181. 959 N.E.2d 385 (Ind. Ct. App.), trans. denied, 963 N.E.2d 1123 (Ind. 2012).
182. Id. at 386.
183. Id. at 389.



1116 INDIANA LAW REVIEW [Vol. 46:1099

substantive evidence.”184  The only evidence that the State offered as to
Lawrence’s presence at the scene of the murder came from “the State’s
impeachment of its own witnesses.”185  “Lawrence assert[ed] that there was
insufficient substantive evidence to sustain the jury’s verdict.”186  The court of
appeals disagreed.187

“Pursuant to . . . Rule 607, a party may impeach the credibility of its own
witnesses.  However, evidence admitted only for impeachment may not be used
as substantive evidence.”188  “Here, the State offered [three witnesses’] prior
statements to police as both impeachment and substantive evidence.”189  Noting,
that prior

statements made by a witness are admissible as substantive evidence
pursuant to . . . Rule 803(2) when the statements (a) pertain to a startling
event or condition; (b) are made while the declarant was under the stress
or excitement caused by the event or condition; and (c) are related to the
event or condition.190

The court of appeals found the statements admissible under both Rule 607 and
Rule 803(b) because the elements above had been established by the State for the
Rule 803(2) exception to apply.191  The court of appeals also held that Lawrence
waived the issue because he did not first raise the objections at trial.192  In fact,
Lawrence actually agreed to the submission of at least two of the three statements
as substantive evidence during the trial.193  Lawrence ultimately lost his appeal
because “[t]here was substantial evidence of probative value to support the jury’s
conclusion that Lawrence murdered [the victim].”194

J.  Evidence of Character and Conduct of Witness—Rule 608
Rule 608 narrows the scope of the latitude that Rule 607 affords parties in the

right to attack the credibility of any witness—even a party's own witness.195 
Under Rule 608(a), a party may use only evidence in the form of opinion or
reputation to attack a witness’s credibility—except for the limited range of
evidence concerning convictions for crimes allowed by Rule 609,196 or “evidence

184. Id. 
185. Id. 
186. Id. 
187. Id. 
188. Id. (citing Gaby v. State, 949 N.E.2d 870, 880 (Ind. Ct. App. 2011)).
189. Id. 
190. Id. (citing Impson v. State, 721 N.E.2d 1275, 1282 (Ind. Ct. App. 2000)).
191. Id. 
192. Id. at 389-90.
193. Id. at 389.
194. Id. at 390.
195. See IND. R. EVID. 607-08.
196. As noted in Snyder v. King, 958 N.E.2d 764, 779 n.9 (Ind. 2011), Rule 609(a) allows for



2013] EVIDENCE 1117

concerning the character for truthfulness or untruthfulness of another witness as
to which the witness has testified” per Rule 608(b).197

In Manuel v. State, the court of appeals determined that the trial court did not
abuse its discretion when it barred the defendant from cross-examining his former
live-in girlfriend about her recantation of prior domestic battery charges.198  Here,
the defendant faced domestic battery charges for allegedly hitting his ex-
girlfriend over the head with a laptop and choking her.199  The court of appeals
held that Rule 609 bars the recantation evidence that the defendant sought to
admit related to “specific instances” of untruthfulness.200

K.  Mode and Order of Interrogation—Rule 611
In Tharpe v. State,201 Tharpe appealed his conviction for attempted murder,

asserting, in part, that the trial court erred during its rulings on several of the
State’s objections.202  The court of appeals quickly disposed of the issue.

During Tharpe’s testimony, the State made multiple objections that
were sustained.  Tharpe argue[d] the trial court sustained objections that
defense counsel was asking leading questions and asking questions
already answered, while allowing the State to ask complex questions on
cross examination.  Tharpe did not object to the State’s questions at trial,
nor d[id] he indicate how the rulings were incorrect, except to argue,
“Neither the State nor the court offered an explanation of how these are
leading questions under . . . Rule 611(c).”  As we presume the trial court
knows and follows the applicable law, and Tharpe has not overcome that
presumption, we cannot say the trial court acted inappropriately in its
rulings.203

Tharpe’s Rule 611(c) argument, in effect, objects to the trial court’s using the
age-old argument of “It's not fair.”204  It goes without surprise that the court of
appeals did not find a basis for reversal upon such an argument alone.205  This
case presents a very practical concept for practitioners: clearly articulate your
objections and their bases at trial, or run the risk of waiving the same for appeal.

impeachment of a witness based on his or her prior conviction for one of the nine “infamous”
crimes that normally would render a witness incompetent to testify or for a crime involving
dishonesty or a false statement.

197. See Manuel v. State, 971 N.E.2d 1262, 1266 (Ind. Ct. App. 2012).
198. Id. at 1266.
199. Id. at 1265.
200. Id. at 1266.
201. 955 N.E.2d 836 (Ind. Ct. App.), trans. denied, 962 N.E.2d 655 (Ind. 2011).
202. Id. at 842.
203. Id. 
204. See id. at 840, 845.
205. Id. at 845.



1118 INDIANA LAW REVIEW [Vol. 46:1099

In Weinberger v. Boyer,206 “the Weinberger Entities contend[ed] that the trial
court abused its discretion when it allowed Boyer to call the Weinberger Entities’
expert . . . during Boyer’s case-in-chief.”207  Citing Rule 611(a), the court of
appeals held that the trial court did not abuse its discretion in allowing this to
occur in light of the fact that Boyer identified the Weinberger Entities’ witnesses
as potential witnesses on all of the witness lists and the final pretrial order filed
in the case, and the “Weinberger Entities specifically moved to bar Boyer from
presenting the testimony of [their] expert witnesses in Boyer’s case-in-chief.”208

L.  Writing or Object Used to Refresh Memory—Rule 612
Rule 612(a) permits the use of “a writing or similar device” to refresh a

witness’s memory when “the witness indicates [that] she has no memory of the
information sought.”209  In Cole v. State,210 Cole stood accused of raping J.S.
while J.S. was asleep and intoxicated.211  Cole attempted to use the notes of the
nurse who examined J.S. after the alleged rape to refresh J.S.’s memory as to
statements she made to the nurse about the amount of alcohol J.S. had consumed
on the night in question.212  The State objected on the basis that J.S. had “no
personal knowledge of th[e] notes.”213  The trial court sustained the State’s
objection.214  The court of appeals found no reversible error, as the evidence the
defendant sought to introduce through J.S. “was cumulative of the nurse’s
testimony earlier.”215  However, the court of appeals noted the general principle
that, “there is no requirement that the item used to refresh the witness’s memory
must have been written by the witness.”216

The case of Hutcherson v. State217 “addresse[d] the unusual circumstance
where [a party] attempt[ed] to use a witness’s prior statement to refresh his
recollection, but the witness [could not] read.”218  Witness Victor Lee told the
police that he “saw Hutcherson shortly after the shootings and that Hutcherson
told him that he had shot and robbed two men.”219  At trial, Lee recalled giving

206. 956 N.E.2d 1095 (Ind. Ct. App. 2011), trans. denied, 963 N.E.2d 1122 (Ind. 2012).  For
additional discussion of this case, see supra discussion accompanying notes 105-09.

207. Id. at 1110.
208. Id. 
209. Cole v. State, 970 N.E.2d 779, 781 (Ind. Ct. App. 2012) (citing Thompson v. State, 728

N.E.2d 155, 160 (Ind. 2000)); see also IND. R. EVID. 612(a).
210. Cole, 970 N.E.2d at 779.
211. Id. at 781.
212. Id. at 781-82.
213. Id. at 782.
214. Id. 
215. Id. 
216. Id. at 782 n.2 (citing Thompson v. State, 728 N.E.2d 155, 160 (Ind. 2000)).
217. 966 N.E.2d 766 (Ind. Ct. App.), trans. denied, 970 N.E.2d 665 (Ind. 2012).
218. Id. at 768.
219. Id. at 769.



2013] EVIDENCE 1119

a statement to the police; however, he “claimed that he could not recall any of the
information regarding a conversation with Hutcherson.”220  “[B]ecause he could
not read, he could only verify that the signatures on each page of the statement
were his own.  To refresh Lee’s recollection, the prosecutor read Lee’s statement
aloud in front of the jury, and the jury subsequently found Hutcherson guilty as
charged.”221  Hutcherson appealed his conviction “claiming that he was denied his
constitutional right to confront and cross-examine Lee.  The State [countered,]
claim[ing] waiver due to [an] insufficient objection [at trial.] Hutcherson
[responded,] claim[ing] fundamental error.”222  The court of appeals found no
error, let alone fundamental error, in the trial court’s admission of the evidence
because Hutcherson waived the issue for appeal by failing to object.223  The court
of appeals found that no fundamental error occurred because Hutcherson’s right
of confrontation argument lacked merit, holding, “Even if the declarant is unable
to recall the events in question, the Confrontation Clause is satisfied as long as
the declarant ‘appears for cross-examination at trial.’”224

“The feigned or real absence of memory is itself a factor for the trier of fact
to establish, but does not render the witness unavailable.”  In short, “[t]he
Confrontation Clause . . . generates only an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.”225

M.  Impeachment via Extrinsic Evidence—Rule 613(b)
In Dixon v. State,226 Dixon appealed his conviction for one count of murder

and two counts of attempted murder.227  At the jury trial in this case, Catrenna
Walker (“Walker”), a witness to the murder/attempted murders that occurred
at/near her duplex, testified about her knowledge of the facts surrounding the
murder/attempted murders.228  During the course of her testimony she “stated that
she could not recall whether [the defendant] got out of his car upon arriving at the
duplex.”229  Detective Azcona (“Azcona”), “who had taken Walker’s statement,”
testified for the State in order “to provide extrinsic impeachment of Walker’s
testimony[,]”230 which testimony established that Walker had previously advised
him that Dixon had gotten out of the car.231  

220. Id. 
221. Id. 
222. Id. 
223. Id. at 770.
224. Id. at 771 (quoting Giles v. California, 554 U.S. 353, 464-66 (2008)).
225. Id. (alterations in original) (quoting Giles, 554 U.S. at 466, 469).
226. 967 N.E.2d 1090 (Ind. Ct. App. 2012).
227. Id. at 1091.
228. Id. at 1091-92.
229. Id. at 1092.
230. Id. 
231. Id. 



1120 INDIANA LAW REVIEW [Vol. 46:1099

Pursuant to Rule 613(a), “[w]here a party seeks to examine a witness
concerning a prior statement, the party need not show the statement to the party
or disclose the statement's contents to the witness, though it must be disclosed to
opposing counsel upon request.”232  Rule 613(b) establishes that “‘[e]xtrinsic
evidence of a prior inconsistent statement by a witness is not admissible unless
the witness is afforded an opportunity to explain or deny the same and the
opposite party is afforded an opportunity to interrogate the witness thereon.’”233 
The facts in this case stand juxtaposed to the situation where the witness admits
or denies to making the prior statement.  In that situation, the extrinsic evidence
would not be admissible under Rule 613(b).234

Here, no such acknowledgement of the prior statement exists.  Gabrielle
simply could not recall whether Dixon got out of the car.  In fact she could not
recall the requested information even after reading the written transcript of her
statement.235  Under these facts, the court of appeals found that the trial court’s
admission of Azcona’s testimony and the written version of Walker’s statement
was not erroneous under Rule 613(b) because Walker “neither admitted nor
denied making the prior statement” about Dixon getting out of the car.236

In Orr v. State,237 the court of appeals addressed a question of first impression
concerning a witness’s right to be afforded an opportunity to explain or deny a
prior inconsistent statement when extrinsic evidence of such a statement is
admitted, per Rule 613(b).238  The witness at issue was not confronted with the
prior inconsistent statements at or before the trial, at which time a second witness
testified to them.239  

The court of appeals noted that the rule itself “does not specify the timing of
that opportunity.”240  In adopting the approach of Federal Rule of Evidence
613(b), the court of appeals concluded that the opportunity “may be satisfied at
any point in the proceedings.”241  The court did note that “the traditional method
of confronting a witness with the statement before extrinsic evidence is
introduced into evidence remains the preferred method [but] the trial court has
wide discretion in this matter.”242

The court also addressed language in Rule 613(b) that makes extrinsic
evidence of prior statements admissible where “the interests of justice otherwise
require”—even if the “opportunity to explain or deny” has not been afforded or

232. Id. (citing IND. R. EVID. 613(a)).
233. Id. (quoting IND. R. EVID. 613(b)).
234. Id. at 1092-93.
235. Id. at 1093.
236. Id. at 1093-94.
237. 968 N.E.2d 858 (Ind. Ct. App. 2012).
238. Id. at 860, 862.
239. Id. at 862.
240. Id. 
241. Id. at 863 (emphasis added).
242. Id. 



2013] EVIDENCE 1121

where “the adverse party had no opportunity to question the statement.”243 
Conversely, it noted, courts may require that the witness, to be impeached with
a prior statement, be allowed an opportunity to explain or to deny before the
extrinsic evidence of the prior statement is admitted.244  In deciding whether to
“require a specific sequence” of evidence, a court should consider certain factors:
whether the court will be inclined to recall the impeachee to explain the prior
statement; whether the impeachee will be available; the possibility of prejudice
through repetition of evidence admitted for the limited purpose of impeachment
and how important the impeachee’s credibility is “to the resolution of the case.”245

IV.  OPINIONS AND EXPERT TESTIMONY (RULES 701 – 705)

A.  “Skilled Witness” Testimony—Rule 701
Pursuant to Rule 701, a skilled witness may provide “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.”246  “A skilled witness is a person 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.’”247  In Ostrowski v. Everest Healthcare
Indiana, Inc.,248 Ostrowski argued that it was an abuse of discretion for the trial
court to permit “a lay witness [Joe Ringelsten] to testify as to his opinions on
specific facts of the case without personal knowledge, where he had not been
qualified as an expert.”249  The Merrillville Dialysis Center asserted “that the trial
court properly permitted Ringelsten to testify as a skilled lay witness” pursuant
to Rule 701.250  The court of appeals noted,

One important difference between these rules is that . . . Rule 701
requires that the opinion testimony be based on the perception of the
witness, while Rule 702 does not.  Therefore, a lay witness may not base
an opinion on information received from others or on a hypothetical
question.251

The court of appeals, finding that Ringelsten’s testimony was based on his own
perceptions, held the evidence was proper under Rule 701 and ultimately affirmed

243. Id. at 864 (citing 13 INDIANA PRACTICE SERIES, INDIANA EVIDENCE § 613.202 (3d ed.
2011)).

244. Id. at 864-65 (citing IND. R. EVID. 611(a) -(b)).
245. Id. at 865.
246. IND. R. EVID. 701.
247. Kubsch v. State, 784 N.E.2d 905, 922 (Ind. 2003) (quoting 13 ROBERT LOWELL MILLER,

JR., INDIANA EVIDENCE § 705.105, at 318 (2d ed. 1995)).
248. 956 N.E.2d 1144 (Ind. Ct. App. 2011).
249. Id. at 1149 (alteration in original).
250. Id. 
251. Id. at 1150.



1122 INDIANA LAW REVIEW [Vol. 46:1099

the verdict against Ostrowski.252

B.  Expert Testimony—Rule 702
In Alsheik v. Guerrero,253 Dr. Alsheik “appeal[ed] the jury’s award of

damages . . . to . . . Guerrero, [i]ndividually and as Administratrix of the Estate
of I.A.,” asserting, in part, that “the trial court abused its discretion when it
allowed Guerrero’s pathologist [(Dr. Bryant)] to testify as an expert witness”
regarding the cause of I.A.’s death.254  “Dr. Bryant performed a second autopsy
on I.A.’s body nearly three years after the coroner’s autopsy,” noting I.A.’s cause
of death as “vascular collapse due to sepsis resulting from the infarction of the
left spermadic cord, tip of I.A.’s penis, left testicle and scrotum,” which 
Guerrero’s counsel attributed to malpractice on the part of Dr. Alsheik.255

Dr. Alsheik disputed the admissibility of Dr. Bryant’s expert testimony under
both prongs of Rule 702:256 “(1) the subject matter must be distinctly related to
some scientific field, business or profession beyond the knowledge of the average
person and (2) the witness must have sufficient skill, knowledge, or experience
in that area so that the opinion will aid the trier of fact.”257

The court of appeals found “Dr. Bryant’s testimony concerning I.A.’s autopsy
and resulting cause of death was uncontrovertibly beyond the knowledge of the
average juror.”258  Furthermore, it found “Dr. Bryant’s extensive experience
performing autopsies qualified him to offer an opinion about I.A.’s sudden
death.”259  The court of appeals found that the doctor’s lack of “knowledge about
the precise surgical procedure of an orchiopexy and the basic anatomical structure
of blood supply to the penis, testicles, and scrotum . . . more properly goes to the
weight of Dr. Bryant’s testimony rather than to his qualification as an expert
pathologist.”260

As to the trial court’s Rule 702(b) obligations, “the court must make a
preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and reliable.”261  In the opinion of the court of
appeals, the question presented, and to be resolved by expert testimony “[was] not
the cause of I.A.’s suffering but rather what caused his death, [that is,] a

252. Id. at 1150-51.
253. 956 N.E.2d 1115 (Ind. Ct. App. 2011), aff’d in part, vacated in part, 979 N.E.2d 151

(Ind. 2012).
254. Id. at 1120.
255. Id. at 1121.
256. Id. at 1125.
257. Id. at 1126 (citing Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999)).
258. Id. 
259. Id. 
260. Id. at 1126.
261. Id. (citing Norfolk S. Ry. Co. v. Estate of Wagers, 833 N.E.2d 93, 103 (Ind. Ct. App.

2005)).



2013] EVIDENCE 1123

‘differential etiology.’”262  “In a differential etiology, the doctor rules in all the
potential causes of a patient’s ailment and then, by systematically ruling out
causes that would not apply to the patient, the physician arrives at what is the
likely cause of the ailment or death.”263  This was the exact purpose of Dr.
Bryant’s expert testimony.  Finding “nothing controversial about that
methodology,” the court of appeals “conclude[d] that Dr. Bryant’s scientific
methodology in reaching his result rested on reliable scientific principles.”264  The
court of appeals held that Dr. Alsheik’s complaints about Dr. Bryant’s autopsy
and expert testimony “relate[d] to the credibility and weight of Dr. Bryant’s
testimony and is more appropriately reserved as fodder during the proverbial
battle of the experts to be fought through their direct and cross-examination.”265

In Otte v. State,266 Otte challenged the testimony of the State’s expert
(Creekbaum) under Rule 702, asserting that it “was not based upon demonstrably
reliable scientific principles.”267  The court of appeals found Otte’s argument
misplaced because Creekbaum’s “status as an expert witness was due to her
specialized knowledge about victims of domestic violence[,]” not scientific
principles per se.268  As established by the supreme court in Malinski v. State,269
“‘specialized knowledge’ as referenced by Rule 702(a) is not a matter of
scientific principles.”270  The court of appeals, noting that Otte did not challenge
the adequacy of Creekbaum’s experience, affirmed the trial court’s admittance of
Creekbaum’s expert testimony because her “qualification as an expert witness
was instead based upon her twenty-three-year history of experience, training, and
education in the area of domestic violence.”271  The court of appeals likewise held
that Creekbaum’s testimony did not “constitute[] impermissible vouching
testimony” pursuant to Rule 704(b) because it was offered to “explain[ ] the
behavior of victims of domestic violence” at the hands of Otte and her recanting
of allegations against Otte.272

In Jones v. State,273 Jones appealed his conviction for dealing in
methamphetamine asserting, in part, that the trial court erred in allowing a law
enforcement officer “to testify . . . regarding the one-pot reaction method of
manufacturing methamphetamine.”274  In response, the State argued on appeal
that it offered the officer’s “testimony as a skilled witness [pursuant to Rule 701],

262. Id. at 1127 (quoting Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010)).
263. Id. (citing Myers, 629 F.3d at 644).
264. Id. (quoting Myers, 629 F.3d at 644).
265. Id. at 1128.
266. 967 N.E.2d 540 (Ind. Ct. App.), trans. denied, 971 N.E.2d 668 (Ind. 2012).
267. Id. at 547.
268. Id. 
269. 794 N.E.2d 1071 (Ind. 2003).
270. Otte, 967 N.E.2d at 547 (quoting Malinski, 794 N.E.2d at 1085).
271. Id. 
272. Id. at 546, 548.
273. 957 N.E.2d 1033 (Ind. Ct. App. 2011).
274. Id. at 1040.



1124 INDIANA LAW REVIEW [Vol. 46:1099

rather than an expert [pursuant to 702].”275  The officer “offered an opinion about
the one-pot reaction method of manufacturing methamphetamine based upon his
own observations at the . . . residence” at issue in this case.276  He based his
opinions on

visual recognition of materials commonly used in the manufacture of
methamphetamine, which he was able to identify due to his training and
experience.  Training and experience had also familiarized [the officer]
with the appearance of these materials when combined in a single vessel,
which he knew to be the one-pot method.277

The court of appeals, finding this information to be beyond that of what an
ordinary juror would possess, concluded that the officer testified as a skilled
witness pursuant to Rule 701 and not as an expert pursuant to Rule 702.278  The
court of appeals “therefore conclude[d] that the trial court did not abuse its
discretion by allowing [the officer] to testify regarding the one-pot reaction
method.”279

In Person v. Shipley,280 the supreme court upheld the court of appeals’ ruling
that an expert with a bachelor’s degree in Mechanical Engineering and a Ph.D.
in Biomedical Engineering was qualified to offer his opinions as to the cause of
lower back injuries allegedly sustained by the plaintiff in an automobile
accident.281  The expert, Dr. Turner, who was not a medical doctor, was “a
professor of Orthopedic Surgery and Biomedical Engineering” at Purdue
University.282  The plaintiff claimed that he sustained back and neck injuries in
an accident and subsequently sued the other driver.283  Dr. Turner testified that the
collision minimally impacted the plaintiff’s vehicle and was unlikely to have
caused the plaintiff’s injury.284  Noting the general principle that testimony on
medical causation must come from a medical doctor or surgeon, the supreme
court nevertheless found Dr. Turner qualified to give his opinion, as his opinion
focused on issues of engineering and physics rather than medical issues.285  The
court also made it clear that there is no bright-line rule that “an otherwise
qualified expert” could not offer an opinion on “medical causation simply
because he or she” was not a medical doctor.286

However, the supreme court disagreed with the court of appeals’ conclusion

275. Id. 
276. Id. at 1041.
277. Id. 
278. Id. 
279. Id. at 1042.
280. 962 N.E.2d 1192 (Ind. 2012).
281. Id. at 1195.
282. Id. 
283. Id. at 1193.
284. Id. 
285. Id. at 1195.
286. Id. at 1196.



2013] EVIDENCE 1125

that the testimony provided by Dr. Turner was not based on reliable scientific
principles.287  Dr. Turner made certain factual assumptions regarding the speed
and weight of the defendant’s vehicle in order to calculate the “momentum
transfer” from the defendant’s car to the plaintiff’s vehicle.288  In reversing the
court of appeals, the supreme court noted that Rule 702 “does not require such
specific factual support [as the court of appeals demanded] for expert testimony. 
Rather, it only requires the trial court’s satisfaction that the expert’s opinion is
based on reliable scientific principles that can be properly applied to the facts in
issue.”289

In Bennett v. Richmond,290 the supreme court held that “psychologists are not
per se unqualified to opine on issues of medical causation, but rather, under . . .
Rule 702, they may be qualified to give such an opinion based on certain
knowledge, skill, experience, training, or education.”291  This case involved a
brain injury that plaintiff allegedly suffered when the defendant’s truck rear-
ended his van.292  The expert, Dr. McCabe, a psychologist, had taken workshops
relating to the evaluation of traumatic brain injuries, and neurologists and general
practitioners had referred patients to him for evaluation concerning the potential
link between their medical issues (including brain injuries) and their
psychological state.293

Although the court of appeals did not apply a blanket rule as to psychologists
testifying on medical causation, in this case

it held that a psychologist who is not a medical doctor but is otherwise
qualified under Rule 702 to offer expert testimony as to the existence and
evaluation of a brain injury is not qualified to offer his or her opinion as
its cause without demonstrating some medical expertise in determining
the etiology of brain injuries.294

The supreme court rejected this requirement, characterizing it as “more stringent”
than what Rule 702 demands.295  The court noted that Dr. McCabe needed only
demonstrate that he had sufficient “knowledge, skill, experience, training, or
education in order to be qualified as an expert”—not that he satisfied each of
those criteria.296  Dr. McCabe’s knowledge of the results of brain injuries and his
experience working with medical doctors on psychological issues rendered him

287. Id. at 1197.
288. Id. at 1197-98.
289. Id. at 1197 (citing Shafer & Freeman Lakes Envtl. Conservation Corp. v. Stichnoth, 877

N.E.2d 475 484 (Ind. Ct. App. 2007)).
290. 960 N.E.2d 782 (Ind. 2012).
291. Id. at 785 (citing Bennett v. Richmond, 932 N.E.2d 704, 710 n.3 (Ind. Ct. App. 2010)).
292. Id. at 784.
293. Id. at 787. 
294. Id. at 788 (citing Bennett, 932 N.E.2d at 709-10).
295. Id. at 789.
296. Id. (emphasis added) (citing Kubsch v. State, 784 N.E.2d 905, 921 (Ind. 2003)).



1126 INDIANA LAW REVIEW [Vol. 46:1099

qualified to testify as an expert.297  
The supreme court also disagreed with the court of appeals that the expert

testimony of Dr. McCabe was not reliable and should not have been admitted
under Rule 702(b), rejecting the defendant’s contention that the trial court erred
in admitting Dr. McCabe’s testimony without conducting a Daubert hearing; the
defendant had failed to request such a hearing or raise an objection at that basis.298 
Regardless, the trial court's hearing on defendant’s motion to exclude Dr.
McCabe’s testimony generally served the purposes that a Daubert hearing is
intended to address.299  

Tucker v. Harrison300 concerned the admissibility of expert epidemiological
evidence of the probability that surgery performed by the defendant damaged the
plaintiff’s ovaries and caused her resulting infertility.301  As a threshold matter,
the court quickly concluded that the plaintiff’s expert—Dr. Freeman, an
epidemiologist—was qualified under Rule 702(a) to testify as to epidemiological
evidence.302  The remaining question regarded the relevancy of Dr. Freeman’s
testimony.303  

The court determined that the testimony was not relevant under Rule 401 and
was excludable under Rule 403 due to its lack of probative value.304  Specifically,
the court noted that Dr. Freeman’s testimony was not focused on the plaintiff’s
individual condition or the medical care she received from the defendant.305 
Instead, the testimony claimed that a broad statistical analysis indicates that
surgery, as opposed to coincidence, is the more likely cause of similar injuries
suffered by women in the plaintiff’s age group who underwent the same
procedure.306  The court noted that “Dr. Freeman is not a medical doctor,” and
while “he [was] qualified to offer a mathematical opinion, . . . he was not shown
to be qualified to offer a medical opinion as to causation”307 and, thus, did not
establish a causal connection between the plaintiff’s injury and the surgery.308

In TDM Farms, Inc. v. Wilhoite Family Farm, LLC,309 the court of appeals
noted that testimony by veterinary experts that a “virus on [plaintiff hog farmer]'s
farm was more than 99% genetically identical to [defendant]’s virus” on
defendant's neighboring farm, was based on reliable scientific principles and was

297. Id. 
298. Id. at 791-92 & n.15.
299. Id. at 791-792.
300. 973 N.E.2d 46 (Ind. Ct. App. 2012), trans. denied, 980 N.E.2d 325 (Ind. 2013).  For

additional analysis of this case, see discussion supra accompanying notes 147-55.
301. Id. at 47, 50-52.
302. Id. at 50.
303. Id. 
304. Id. at 52.
305. Id. 
306. Id. at 51-52.
307. Id. at 52.
308. Id. 
309. 969 N.E.2d 97 (Ind. Ct. App. 2012).



2013] EVIDENCE 1127

sufficient for the plaintiff to survive summary judgment on the issue of causation,
notwithstanding the fact that the defendant had waived any Rule 702 argument
by failing to object at trial.310

In Curts v. Miller’s Health Systems, Inc.,311 the court of appeals held that
although its precedent had generally prohibited nurses from offering expert
testimony as to medical causation, there could be circumstances under which a
nurse would be qualified to testify as to “whether a healthcare provider breached
a standard of care or whether an alleged breach caused an injury.”312  In the case
at bar, the standard of care at issue related to the care the plaintiff’s mother, now
deceased, received while in a nursing home.313  The plaintiff alleged that his
elderly mother had died from a fall she suffered while a resident of the defendant
nursing home, and that her fall resulted from the defendant’s negligence.314 
Given the non-technical nature of the plaintiff’s allegations, the court of appeals
acknowledged that “it is possible for a nurse to . . . qualify as an expert witness”
under such circumstances, but that the plaintiff failed to provide enough evidence
to support his proposed nurse expert’s qualification.315

The court in Doolin v. State316 discussed whether the lack of a proper
foundation for an open-court field test conducted by a police deputy, on a
substance alleged to be marijuana, should have prevented the admission of the
test under Rule 702(b).  The court noted that although the deputy conducting the
test had given

a general overview of the several steps he intended to follow . . . and
stated that his department routinely utilizes the field test, he did not
provide any specific name or otherwise identify the test, indicate its
reliability or rate of accuracy or error, note the scientific principles on
which it [wa]s based, or recognize any standards regarding its use and
operation.317

However, the trial court’s error in admitting the test proved harmless, as there was
sufficient evidence aside from the field test to establish that the substance at issue
was, in fact, marijuana.318

C.  Bases of Opinion Testimony by Experts—Rule 703
In Miller v. Bernard,319 the plaintiff appealed the trial court’s granting of

310. Id. at 107 n.5.
311. 972 N.E.2d 966 (Ind. Ct. App. 2012).
312. Id. at 971.
313. Id. at 968, 971.
314. Id. at 971.
315. Id. at 972.
316. 970 N.E.2d 785 (Ind. Ct. App.), trans. denied, 976 N.E.2d 40 (Ind. 2012).
317. Id. at 789.
318. Id. at 789-90.
319. 957 N.E.2d 685 (Ind. Ct. App. 2011).



1128 INDIANA LAW REVIEW [Vol. 46:1099

defendants’ motion for summary judgment asserting, in part, that “[t]he trial court
abused its discretion in excluding Dr. Loeb’s affidavit on the grounds that he
participated in the Medical Review Panel and Defendants were not parties to
those proceedings.”320  The defendants also objected to Dr. Loeb’s affidavit
because, in their opinion, “the information relied on by the panel is the same
flawed data [Plaintiffs] ha[ve] relied on throughout this litigation.”321  The court
of appeals held that the trial court abused its discretion when it exclude Dr.
Loeb’s affidavit.  It found defendants’ arguments unpersuasive because they
“challenge the weight and not admissibility of the evidence.”322  The court of
appeals, noting that Dr. Loeb’s opinion alone may be enough to demonstrate a
genuine issue of material fact, ultimately “reverse[d] the trial court’s decision to
exclude Dr. Loeb’s opinion and remand[ed] for the trial court to determine
whether Dr. Loeb satisfies the requirements of . . . Rule 702.”323

D.  Opinions as to Legal Conclusions—Rule 704
In Bradford v. State,324 and Gutierrez v. State,325 both defendants appealed

their respective convictions for child molesting, asserting, in part, that their trial
courts committed reversible error by allowing certain witnesses to testify as to
their opinions concerning the defendants’ intent, guilt, or innocence in these
criminal cases in contravention of Rule 704(b).  Although these cases did not
arise from the same facts or incidents, they do present a similar thread of
application under Rule 704(b).  In Bradford, Bradford asserted that the trial
“abused its discretion by admitting into evidence testimony from a Department
of Child Services (“DCS”) worker regarding the conclusion of her investigation
into the allegation of sexual abuse.”326  In Gutierrez, Gutierrez asserted that the
trial court committed reversible error when it “improperly admitted vouching
testimony from two of the State’s witnesses as to whether the victim was telling
the truth.”327  Rule 704(b) provides that “[w]itnesses may not testify to opinions
concerning intent, guilt, or innocence in a criminal case; the truth or falsity of
allegations; whether a witness has testified truthfully; or legal conclusions.”328 
“‘Such testimony is an invasion of the province of the jurors in determining what
weight they should place upon a witness's testimony.’”329 

“In the context of child molesting cases, however, the Indiana Supreme Court

320. Id. at 694.
321. Id. (alterations in original).
322. Id. (citing Dorsett v. R.L. Carter, Inc., 702 N.E.2d 1126, 1128 (Ind. Ct. App. 1998)).
323. Id. at 695.
324. 960 N.E.2d 871 (Ind. Ct. App. 2012).
325. 961 N.E.2d 1030 (Ind. Ct. App. 2012).
326. Bradford, 960 N.E.2d at 872.
327. Gutierrez, 961 N.E.2d at 1031.
328. IND. R. EVID. 704(b).
329. Bradford, 960 N.E.2d at 874 (quoting Rose v. State, 846 N.E.2d 363, 367 (Ind. Ct. App.

2006)).



2013] EVIDENCE 1129

has recognized ‘that there is a special problem in assessing the credibility of
children who are called upon as witnesses to describe sexual conduct.’”330  In
Lawrence v. State, the supreme court held that, regardless of impeachment efforts
of the opponent of the witness, a child’s ability to accurately tell the truth and
describe an encounter with an adult involving “touching, sexual stimulation,
displays of affection and the like” will automatically be an issue justifying the
testimony of someone with adequate experience with the child to verifying the
child’s propensity for truthfulness, as opposed to a tendency to aggrandize. 331 
However, such opinions “should not take the direct form of ‘I believe the child’s
story’, or ‘In my opinion the child is telling the truth.”’332

The court of appeals agreed with the defendants in both of these cases,
holding that the respective trial courts violated Rule 704 and that such errors were
not harmless, thereby reversing the convictions and remanding them for further
proceedings.  In the Bradford case, the trial court improperly allowed DCS
witness to testify as to “the truth or falsity of the allegations.”333  In Gutierrez, the
court of appeals held that although Gutierrez’s counsel failed to object at the trial
level, the admission of the evidence rose to the level of fundamental error.334

In Morse v. Davis,335 Morse “appeal[ed] the judgment against him . . .
alleging medical malpractice for failure to diagnose Davis’ colon cancer,”
asserting, in part, that “the trial court abused its discretion when it excluded from
the evidence at trial certain expert testimony.”336  The trial court held that,
pursuant to Rule 704(b), expert witnesses cannot testify that based on their review
of the medical records in a case, they believed a patient had not advised his doctor
of a family history of colon cancer when the patient's testimony stands to the
contrary.337  The only purpose of the proffered evidence was to impeach the
patient’s credibility, which issue stands “within the sole province of the jury” on
a critical issue of fact.338  Thus, since Rule 704(b) prohibits testimony concerning
whether a witness testified truthfully, the court of appeals held that the trial court
correctly excluded the proffered evidence.339

In Green River Motel Management of Dale, LLC v. State,340 GRMM appealed
the trial court’s denial of its motion for summary judgment in this inverse
condemnation action.341  GRMM asserted, in part, that the trial court abused its

330. Id. at 874 (quoting Lawrence v. State, 464 N.E.2d 923, 925 (Ind.1984), abrogated on
other grounds by Lannan v. State, 600 N.E.2d 1334 (Ind. 1992)).

331. Id. (quoting Lawrence, 464 N.E.2d at 925).
332. Id. 
333. Id. at 876.
334. 961 N.E.2d at 1034-35.
335. 965 N.E.2d 148 (Ind. Ct. App.), trans. denied, 978 N.E.2d 416 (Ind. 2012).
336. Id. at 150.
337. Id. at 156-57.
338. Id. at 161.
339. Id. 
340. 957 N.E.2d 640 (Ind. Ct. App. 2011), trans. denied, 968 N.E.2d 232 (Ind. 2012).
341. Id. at 642.



1130 INDIANA LAW REVIEW [Vol. 46:1099

discretion when it allowed a State’s witness (“Bartlett”) “to state a legal
conclusion, i.e., that the change in access was not a compensable damage to
GRMM.  GRMM contend[ed] that this testimony amounted to testimony by an
expert regarding a legal conclusion, which is generally not permitted [by Rule
704(b).]”342  The court of appeals held that the trial court erred when it admitted
Bartlett’s legal conclusion, but the error was harmless because “GRMM’s inverse
condemnation action fail[ed] as a matter of law.”343

In Heinzman v. State,344 the court of appeals found no error in the admission
of a Department of Child Services (“DCS”) investigator’s testimony that she had
“substantiated” allegations of child molesting against Heinzman after her initial
investigation.345  In this context, the court explained, “substantiated” meant that
the investigator “had a ‘reason to believe’” that there was at least some factual
support for the allegations, but it was not equivalent to a finding that the
allegations were true.346  Instead, it meant merely that there was enough evidence
for the investigation to proceed further.347  In other words, admission of
investigator’s testimony on the substantiation issue was not barred by Rule 704(b)
because the investigator was not “vouching” for the alleged victim’s
truthfulness.348

In Kindred v. State,349 another decision concerning “vouching” testimony in
a child-molestation case, the court of appeals held that testimony that a child
witness has or has not been “coached” is the “functional equivalent” of testimony
as to the child’s truthfulness.350  Thus, a child protective services caseworker’s
testimony that he had been trained to determine whether a child had been
coached, and that the alleged victim had not been coached, was inadmissible.351 
The supreme court previously held that testimony regarding a child’s propensity
“to exaggerate or fantasize about sexual matters is an indirect but nonetheless
functional equivalent of saying the child is telling the truth,” but it had not
addressed testimony concerning coaching specifically.352

In Manuel v. State, 353 the court of appeals determined that the trial court had
not abused its discretion by allowing the State to question the alleged victim of

342. Id. at 646.
343. Id. at 646-47.  GRMM asserted further evidentiary errors by the trial court pursuant to

Rule 703.  The court of appeals also found any errors on this testimony to be harmless as well.  Id. 
344. 970 N.E.2d 214 (Ind. Ct. App.), aff’d in part, 979 N.E.2d 143 (Ind.), trans. granted,

opinion vacated, 980 N.E.2d 323 (Ind. 2012).
345. Id. at 223.
346. Id. at 222.
347. Id. 
348. Id. at 222-23.
349. 973 N.E.2d 1245 (Ind. Ct. App. 2012), trans. denied, 982 N.E.2d 298 (Ind. 2013).
350. Id. at 1257.
351. Id. at 1251, 1258.
352. Id. at 1257 (quoting Hoglund v. State, 962 N.E.2d 1230, 1234 (Ind. 2012)).
353. 971 N.E.2d 1262 (Ind. Ct. App. 2012).



2013] EVIDENCE 1131

domestic battery, D.S., as to whether she was testifying truthfully.354  As the State
argued, and the court of appeals agreed, the witness’s credibility had been
attacked, opening “the door” for D.S. to be questioned about the truthfulness of
her testimony.355  Additionally, the evidence supporting her credibility met the
standard of “logically refut[ing] the specific focus of the attack [on the witness’s
credibility.]”356  

Palilonis v. State, in addition to the more extensive hearsay issues discussed
below, addressed vouching—but for an adult witness, not a child.357  A nurse who
treated the victim, B.S., after her alleged sexual assault by defendant Palilonis,
testified “that B.S.’s case was noteworthy to her because her statement that she
was raped was believable.”358  The court of appeals, with little analysis, concluded
that this was impermissible vouching.359

V.  HEARSAY (RULES 801 – 806)

A.  No Out-of-Court Declarant Available Exception to the Hearsay Rule
As defined in Rule 801(c) “‘[h]earsay’ is 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.”360  It may not be admitted unless it falls within
one of the exceptions enumerated in the Rules.  However, as noted by the court
of appeals in Cole v. State,361 a party waives its claim of error regarding the
admission of hearsay statements if it fails to object at trial, unless the error
qualifies as a “fundamental error,” which is a “‘clearly blatant violation[] of basic
and elementary principles, and the harm or potential for harm could not be
denied.’”362

In K.F. v. State,363 “K.F. appeal[ed] her adjudication as a delinquent child for
having committed acts that, if committed by an adult, would constitute burglary;
. . . theft; . . .  and carrying a handgun without a license.”364  Although the court
of appeals found the evidentiary error to be harmless, it nonetheless reversed, in
part, the adjudication.365  The evidentiary error is worth noting because it
highlights a common practice error when it comes to the Indiana Rules of
Evidence.  The trial court allowed a police officer to testify about statements a

354. Id. at 1266, 1269.
355. Id. 1267.
356. Id. (citing Embry v. State, 923 N.E.2d 1, 7 (Ind. Ct. App. 2010)).
357. 970 N.E.2d 713 (Ind. Ct. App.), trans. denied, 980 N.E.2d 324 (Ind. 2012).
358. Id. at 729.
359. Id. 
360. IND. R. EVID. 801(c).
361. 970 N.E.2d 779 (Ind. Ct. App. 2012).
362. Id. at 782 (quoting Warriner v. State, 435 N.E.2d 562, 563 (Ind. 1982)).
363. 961 N.E.2d 501 (Ind. Ct. App.), trans. denied, 967 N.E.2d 1033 (Ind. 2012).
364. Id. at 504-05.
365. Id. at 516.



1132 INDIANA LAW REVIEW [Vol. 46:1099

witness made to him on the sole basis that the witness was in the courtroom and
available for cross examination.366

Under Rule 801(d)(1), a prior statement by a witness is “not hearsay” if

[t]he declarant testifies at the trial or hearing and is subject to cross-
examination concerning the statement, and the statement is (A)
inconsistent with the declarant’s testimony and was given under oath
subject to the penalty of perjury at a trial, hearing or other proceeding, or
in a deposition; or (B) consistent with the declarant’s testimony, offered
to rebut an express or implied charge against the declarant of recent
fabrication or improper influence or motive, and made before the motive
to fabricate arose; or (C) one of identification of a person made shortly
after perceiving the person[.]367

The State conceded that the witnesses’ statements did not qualify as non-
hearsay under Rule 801(d)(1).368  It likewise conceded that the statements did not
qualify “for any of the normally recognized exceptions to the hearsay rule” found
in Rule 803.369  The State ultimately conceded its error, stating that it was
harmless.370  The court of appeals agreed that the evidence had been admitted in
error and that the error was harmless because the evidence was cumulative as the
witness did, in fact, testify.371  The important point, and practice tip, to remember
from this case is that since the supreme court’s Warren v. State decision in 2000,
the fact that an out-of-court declarant is available to be called to testify and be
cross examined at trial is not an exception to the hearsay rule.372

In Kirk v. State,373 the court of appeals held that minor “D.K.’s” statement to
a police officer that D.K. was “with [his] dad” while carrying guns and selling
drugs was inadmissible hearsay, even though it was not barred by Indiana Code
section 31-32-3-1, which protects juveniles from waiving their constitutional
rights in police investigations.374  Indiana Code section 31-32-3-1 did not bar the
statements because they were offered against the defendant’s father, who had no
standing to raise D.K.’s privilege as to himself.375  However, the statements
satisfied neither the requirements of Rule 801(d) (“a statement offered against a
party by that party's co-conspirator”), nor 804(b)(3) (“a statement against

366. Id. at 513-14.
367. IND. R. EVID. 801(d)(1).
368. K.F., 961 N.E.2d at 514.
369. Id. 
370. Id. at 514-15.
371. Id. 
372. Id. at 514.  “[R]egardless of whether the declarant is available at trial for cross-

examination, a hearsay statement is not ordinarily admissible as substantive evidence.”  Id. at 514-
15 (alteration in original) (quoting Warren v. State, 725 N.E.2d 828, 835 n.1 (Ind. 2000)).

373. 974 N.E.2d 1059 (Ind. Ct. App.), trans. denied, 980 N.E.2d 323 (Ind. 2012).
374. Id. at 1067-68.
375. Id. 



2013] EVIDENCE 1133

interest”).376  Moreover, although the statement could have been admitted as a
prior inconsistent statement to impeach D.K., the State failed to follow the
requisite procedures to admit it as such.377  Ultimately, the court of appeals
determined that while the error was harmless as to three of the charges the
defendant faced, it was not harmless as to a fourth, and reversed the defendant's
conviction on that count.378

B.  Hearsay—Rule 802
In Weinberger v. Boyer,379 the Weinberger Entities challenged the trial court’s

admission of Boyer’s testimony that his cardiologist had told him that the EKG
performed by Weinberger prior to his surgery was abnormal.380  The court of
appeals agreed with the Weinberger Entities that the trial court’s ruling amounted
to the impermissible admission of hearsay evidence contrary to Rule 802.381 
However, the court of appeals found the error to be harmless because it merely
stood as cumulative in nature.382

C.  Then-Existing Mental, Emotional, or Physical Condition—Rule 803(3)
In addition to its ruling on a Rule 704(b) “vouching” issue, the court of

appeals, in Heinzman v. State,383 concluded that the letter an alleged victim of
child molestation, Z.B., wrote to the defendant, but never delivered, was
admissible under the Rule 803(3) exception.384  The letter, the court opined,
“consist[ed] of a statement of his then-existing state of mind and emotions,”
rejecting the defendant’s argument that the State offered the letter to prove the
fact that Z.B. remembered the alleged molestation.385  In any event, even if the
letter had been improperly admitted, the error was harmless.386

D.  Statement Made for Purpose of Medical Diagnosis or
Treatment—Rule 803(4)

In Mastin v. State,387 Mastin appealed his convictions on three counts of child
molesting asserting, in part, that the trial court erred when it improperly admitted

376. Id. at 1068.
377. Id. 
378. Id. at 1068-69, 1071-72.
379. 956 N.E.2d 1095 (Ind. Ct. App. 2011), trans. denied, 963 N.E.2d 1122 (Ind. 2012).
380. Id. at 1106, 1100-01.
381. Id. at 1106.
382. Id. at 1106-07.
383. 970 N.E.2d 214 (Ind. Ct. App.), aff’d in part, vacated in part, 979 N.E.2d 143 (Ind.),

trans. granted, opinion vacated, 980 N.E.2d 323 (Ind. 2012).
384. Id. at 223-24.
385. Id. at 224.
386. Id. 
387. 966 N.E.2d 197 (Ind. Ct. App.), trans. denied, 970 N.E.2d 155 (Ind. 2012).



1134 INDIANA LAW REVIEW [Vol. 46:1099

a child victim’s hearsay statement under the “statement . . . made for purposes of
obtaining a medical diagnosis or treatment” exception to the hearsay rule.388  The
child did not testify at trial.389  Rather, the State introduced the child’s statement
through her maternal grandmother’s (Diana Winans (“Winans”)) testimony.390 
The trial court allowed Winans to testify about the statements made by the child
during the ride home from a visit with a nurse practitioner, finding it admissible
under Rule 803(4).391  Rule 803(4) recognizes the following as an exception to the
general rule that hearsay is inadmissible evidence:

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.392

The court of appeals held that even though the statement from sexual abuse
victim about secret games was improperly admitted under Rule 803(4) because
it was made after a medical examination had concluded and there was no health
professional present, Mastin’s substantial rights were not affected because of the
“substantial independent evidence of guilt.”393  Mastin admitted to engaging in
sexual contact with the victim, which resulted in the transmission of genital
herpes.394

In Palilonis v. State,395 the court of appeals held that statements that B.S., the
defendant Palilonis’s alleged victim, made to a nurse who performed a “sexual-
assault examination” on her were admissible as statements made for the purposes
of medical diagnosis or treatment.396  The statements concerned the events of
B.S.’s rape, but did not include B.S. identifying the defendant by name.397  The
defendant argued that B.S.’s statements to the nurse “were not for the purposes
of medical diagnosis or treatment” because “she [had] reported no physical injury
or pain,” and because she was motivated primarily by complying with police
directives that she go to the hospital and by attempting to assist the nurse in
collecting evidence.398  The court rejected this argument, citing its recent decision
in Perry v. State, in which similar statements a rape victim made to a nurse were
found admissible under Rule 803(4).399  Specifically, the court noted, “B.S.’s

388. Id. at 200.
389. Id. 
390. Id. 
391. Id. at 200-01.
392. Id. at 201.
393. Id. 
394. Id. at 201-03.
395. 970 N.E.2d 713 (Ind. Ct. App.), trans. denied, 980 N.E.2d 324 (Ind. 2012).
396. Id. at 718.
397. Id. at 719, 726-27.
398. Id. at 726-27.
399. Id. at 727 (citing Perry v. State, 956 N.E.2d 41 (Ind. Ct. App. 2011)).



2013] EVIDENCE 1135

statements describing the events of her rape were highly important for making
treatment decisions for sexually transmitted diseases, HIV, and psychological
counseling.”400

E.  Business Records—Rule 803(6)
In Houston v. State,401 Gruzinsky appealed her convictions for failure to

ensure school attendance, asserting that “the trial court abused its discretion when
it admitted the referral and attendance records of [her] child into evidence . . . 
under the business records exception to the hearsay rule.”402  The trial court
allowed the introduction of the records via the testimony of “Michael McFadden
(“McFadden”), the attendance officer for Irvington Community School.”403 
McFadden testified that he was the “keeper and custodian of the attendance
record, which was admitted.”404  Gruzinsky contended that the State failed to “lay
a proper foundation” to admit the records in question under the business records
exception because the State provided “insufficient evidence that McFadden had
personal knowledge of A.L.’s attendance[,]” and that the referral records admitted
did not even constitute business records because “they were prepared in
anticipation of litigation and, therefore, could not have been prepared in the
regular course of business.”405

In accordance with Rule 802, “Hearsay is not admissible except as provided
by law or by these rules [exceptions].”406  The business records exception to the
hearsay rule states, in pertinent part,

A memorandum, report, record, or data compilation, in any form, of acts,
events, conditions, opinions, or diagnoses, made at or near the time by,
or from information transmitted by, a person with knowledge, if kept in
the course of a regularly conducted business activity, and if it was the
regular practice of that business activity to make the memorandum,
report, record, or data compilation, all as shown by the testimony or
affidavit of the custodian or other qualified witness, unless the source of
information or the method or circumstances of preparation indicate a lack
of trustworthiness.407

“‘To admit business records pursuant to this exception, the proponent of the
exhibit may authenticate it by calling a witness who has a functional
understanding of the record keeping process of the business with respect to the

400. Id. 
401. 957 N.E.2d 654 (Ind. Ct. App. 2011), trans. denied, 967 N.E.2d 1032 (Ind. 2012).
402. Id. at 656 (The court of appeals consolidated the appeals of Alesha Houston and Donna

Gruzinksy even though they had separate trials.).
403. Id. 
404. Id. 
405. Id. at 657.
406. IND. R. EVID. 802.
407. IND. R. EVID. 803(6).



1136 INDIANA LAW REVIEW [Vol. 46:1099

specific entry, transaction, or declaration contained in the document.’”408  “The
witness need not have personally made or filed the record or have firsthand
knowledge of the transaction represented by it in order to sponsor the exhibit.”409

Here, the court of appeals found that the trial court did not abuse its discretion
when at admitted the referral and attendance records under the business records
exception.410  It held that the State established a proper foundation for the
admission of the records under the business records exception because McFadden
had personal knowledge of the record, had a duty to keep the record, was the
record keeper of the record, and testified that the record “was made in the
ordinary course of business . . . at or near the time of the occurrence recorded.”411 
Citing to Indiana Code section 20-33-2-26, the court of appeals rejected
Gruzinsky’s argument that McFadden created the referral and attendance records
in anticipation of litigation rather than in the regular course of business “because
McFadden was legally required to prepare them and to file them as part of the
proceedings.”412

In Barrix v. Jackson,413 the court of appeals held that although otherwise
inadmissible records—in this case medical records and bills that were not
properly authenticated under Rule 901 for admission as business records under
Rule 803(6)—may be relied upon in an expert’s opinion testimony.414  The expert
cannot serve as a mere “conduit” for introducing the medical diagnoses of other
care providers (that would otherwise be barred as hearsay), thereby depriving the
opposing party of an opportunity for cross-examination.415  The court of appeals
pointed to the supreme court’s 1991 decision in Miller v. State, in which it
“concluded that a physician’s opinion was inadmissible where that opinion was
merely a repetition of another physician's statement without an independent
evaluation of its veracity.”416  In the case at bar, the court of appeals ultimately
found that the trial court had erred in excluding the records issue on the basis that
the records were unauthenticated, but that the error was harmless because the
plaintiff had “t[aken] the position that the admissibility of nearly the entirety of
[their expert] Dr. Fulton’s deposition testimony rose or fell with the admissibility
of the medical records.”417  Consequently, the plaintiffs deprived the trial court
of the opportunity to determine whether certain portions of Dr. Fulton’s testimony

408. Houston, 957 N.E.2d at 658 (quoting Rolland v. State, 851 N.E.2d 1042, 1045 (Ind. Ct.
App. 2006)).

409. Id. (citing Rolland, 851 N.E.2d at 1045).
410. Id. 
411. Id. 
412. Id. at 658-59 (citing In re Adoption of M.A.S., 815 N.E.2d 216, 223 (Ind. Ct. App.

2004)).
413. 973 N.E.2d 22 (Ind. Ct. App.), trans. denied, 980 N.E.2d 324 (Ind. 2012).
414. Id. at 26.
415. Id. 
416. Id. (citing Miller v. State, 575 N.E.2d 272, 274 (Ind. 1991)).
417. Id. at 27-28.



2013] EVIDENCE 1137

were admissible.418
The court of appeals in Barrix also examined the intersection of the business

records exception and Rule 413’s provision that “medical bills are admissible as
prima facie evidence of the reasonableness of charges associated with medical
diagnosis or treatment as ‘occasioned by an injury.’”419  The court rejected the
plaintiff’s argument that the medical bills at issue were admissible without being
authenticated under Rule 901, and without qualifying for an exemption from the
hearsay rule via Rule 803(6).420  Nor was the court convinced that the bills were
admissible under Rule 803(5) under the theory that they had been “received” by
the plaintiff.421

F.  Declarant Unavailable—Rule 804
As the court of appeals explained in Berkman v. State,422 a court may find a

declarant unavailable and allow her prior testimony to be introduced if, among
other things, the declarant “is unable to be present or to testify at the hearing
because of . . . then existing physical or mental illness of infirmity”423 or when
“the declarant . . . is absent from the hearing and the proponent of a statement has
been unable to procure the declarant’s attendance by process or other reasonable
means.”424

In Berkman, the declarant at issue, Arlene Timmerman, was called to testify
that the defendant, her former boyfriend, had brought the body of the man he
stood accused of murdering to her home, and that he had made admissions
regarding his role in the murder.425  The jury “acquitted Berkman of murder but
failed to reach a verdict on the felony murder count.”426  In the defendant’s
second trial, the State again called Timmerman, but her testimony was interrupted
when she became nauseous and thought she was developing a migraine
headache.427  Subsequently, the trial court declared Timmerman unavailable and
allowed her testimony from the first trial to be introduced.428  The court of appeals
found that the trial court had not abused its discretion, noting both the symptoms
that Timmerman complained of in court, and the fact that she had been
hospitalized around the time of the trial for an unknown illness—possibly MS,
a seizure, or a stroke.429  Likewise, the Berkman court found the deposition

418. Id. at 28.
419. Id. at 27.
420. Id. at 27-28.
421. Id. at 29.
422. 976 N.E.2d 68 (Ind. Ct. App. 2012), trans. denied, 984 N.E.2d 221 (Ind. 2013).
423. Id. at 74 (quoting IND. R. EVID. 804(a)(1)) (internal quotation marks omitted).
424. Id. at 76 (alteration in original) (quoting IND. R. EVID. 804(a)).
425. Id. at 71.
426. Id. 
427. Id. 
428. Id. at 72.
429. Id. at 74-75.



1138 INDIANA LAW REVIEW [Vol. 46:1099

testimony of another declarant, Paul Barraza, admissible after the State tried and
failed to serve Barazza with a subpoena prior to the first or second trials.430

CONCLUSION

As evidenced by the Indiana appellate courts’ decisions during the Survey
Period, the Rules have been, and will continue to be, an adapting collection.

430. Id. at 72, 76-79.