Indiana Law Review 1974] SURVEY—EVIDENCE—CIVIL 171 6. Resentencing after Revocation of Probation During the past year, the Indiana Supreme Court was con- fronted with two challenges to the statute which permits a court, after a probation violation, to set aside the defendant's original sen- tence and impose any sentence which was available at the time of the original conviction. 203 In Nicholas v. State,204 the statute with- stood an attack based on the theory that the defendant was actually being resentenced for a purported crime of violating his proba- tion. 205 In the other case, Smith v. State 206 the statute withstood a challenge based upon a double jeopardy argument. In that case, the defendant was given a suspended sentence of imprisonment for one year for carrying a pistol without a license. After violating the terms of his probation, he was resentenced to serve a term of ten years in prison. In rejecting the defendant's argument that this increased sentence violated his right not to be placed in double jeo- pardy, the court held that a more severe penalty could be imposed if justified by the defendant's conduct from the time of the first sen- tencing to the time of the resentencing.207 Here the more severe penalty was justified by the probation violation, the uttering of a forged instrument. VIII. Eviitenee—Civil Marshall J. Seidman* A. Demonstrative Evidence 1. Admissibility of Photographs In Richmond Gas Corp. v. Reeves & Reinke,* the Indiana Court of Appeals dealt with the power of the trial court to exclude photo- graphic evidence. The case resulted from a series of violent explo- sions which killed forty-one persons in downtown Richmond, Indi- as id. § 35-8-2.5-1 (Ind. Ann. Stat. § 9-1828, Burns Supp. 1974) . Because of this duplication, the 1974 General Assembly repealed the 1973 statute. See Ind. Pub. L. No. 147 (Feb. 19, 1974). 203 Ind. Code §35-7-2-2 (Ind. Ann. Stat. §9-2211, Burns Supp. 1974). 2O4300 N.E.2d 656 (Ind. 1973). 205 Id. at 664. 2O6307 N.E.2d 281 (Ind. 1974). 207See North Carolina v. Pearce, 395 U.S. 711, 723 (1969). *Professor of Law, Indiana University Indianapolis Law School. LL.M., Harvard University, 1970. ^02 N.E.2d 795 (Ind. Ct. App. 1973). 172 INDIANA LAW REVIEW [Vol. 8:171 ana. Photographs showing damage to a building following a gas explosion in Terre Haute, Indiana, were introduced by the defend- ant gas corporation during cross-examination of one of plaintiff's expert witnesses. The key issue at trial was whether the explosion was a gas explosion, as argued by the plaintiff, or a gunpowder explosion as advocated by the defendant. The examiner stated that he wished to use the photographs during cross-examination of plaintiff's witness to test the witness* credibility as to the distinc- tions between the two types of explosions. The plaintiff objected on the grounds that admission of these photographs would raise questions of conditions and circumstances at a different time and place from the one at issue and would thereby lead to confusion of the jury and to pursuit of a collateral issue. The objection was sustained. Subsequently, the examiner, through his own expert witness, again attempted to introduce the photographs to illustrate "brisance," 2 a factor in determining the type of explosion. The plaintiff reiterated his objection and the judge once again refused to admit the photographs into evidence. The court of appeals stated that admission and exclusion of photographic evidence is within the discretion of the trial judge, and his decision will not be overturned unless an abuse of discre- tion is shown. The court found no such abuse and stated that pho- tographs should be admitted only when they might enlighten a jury. Photographs are improper, however, when they are a potential source of confusion or distraction. The court concluded that the admission of photographs illustrating another explosion which oc- curred under different conditions and circumstances could have confused and misled the jury. 3 Thus, the potential for delay of the trial, distraction of the jury, and introduction of collateral issues adequately justified the trial court's exclusion of the photographs. Furthermore, when a jury has been adequately informed by the testimony of an expert, it should be within the court's discretion to exclude questionable demonstrative evidence. 2Brisance is the "relatively shattering effect resulting from the detona- tion of various types of explosives. This effect is measured by experts and considered as a factor in arriving at an opinion as to the cause of the ex- plosion." Id. at 799 n.l. 3This holding involves a fusion of two branches of evidentiary law — that of demonstrative evidence and of relevancy. The court followed the accepted balancing rule in disallowing the admittance of relevant photo- graphs. The commonly accepted counterbalancing factors which may cause a court to exclude relevant evidence are that the evidence may unduly arouse the jury's prejudices, distract the jury, consume an undue amount of time, and involve the danger of unfair surprise. See McCormick's Handbook op the Law of Evidence § 185, at 439-40 (2d ed. E. Cleary 1972) [herein- after cited as McCormick]. See also Proposed Fed. R. Evid. 403, 56 F.R.D. 183, 218 (1972). 1974] SURVEY—EVIDENCE—CIVIL 173 The same court reached an opposite result from the Richmond Gas case in Smith v. Indiana State Board of Health. 4 Smith involved an appeal from an interlocutory order that granted a temporary injunction prohibiting a rock festival in Warrick County. During the trial the State was permitted, over objection, to introduce pho- tographs of rock festivals held in other locations. The evidentiary purpose was to show the trial judge the nature and effect of a rock festival. The pictures from the other rock festivals showed mem- bers of the audience trafficking in illegal drugs, engaging in sexual intercourse, and littering the grounds. The defendant argued that the photographs of other rock festivals were inadmissible since the other festivals occurred at different times and in different loca- tions. Significantly, the State had failed to show a similarity in the planning, promotion, and preparation of the other festivals and the proposed festival. As in Richmond Gas, the court of appeals stated that the admis- sion of photographs of similar acts, occurrences, or transactions rests in the discretion of the trial court and will not be disturbed unless an abuse of discretion is shown.5 The court, without expla- nation, did not find any abuse of discretion and indicated the ad- mission of the photographs would, at most, be considered harmless error. Significantly, the hearing was before a judge and not a jury. The trial judge, therefore, without prejudice, could consider the exhibits and determine their propriety and weight in relation to legal and evidentiary principles. Despite the supposed ability of a judge to overlook the prejudicial aspects of such photographs, his neutrality in a case arousing such widespread public interest is still questionable. The Smith case may be criticized for not dealing adequately with this possibility. 2. Polygraph Tests In Freeman v. Freeman,6 a mother appealed when the trial court refused to terminate a father's visitation rights. The mother alleged that the father had sexually molested their daughter. Ap- parently, a polygraph test taken by the father was introduced into evidence either by stipulation of the parties or by the mother with- 4307 N.E.2d 294 (Ind. Ct. App. 1974). 5The initial question seems to be one of relevancy, rather than one of counterbalancing the adverse effects of admission. McCormick states that proof of the existence of habit may justify the introduction of evidence of other specific instances, so long as the other instances are not too few or too many in number, are near in time, and involve sufficiently similar cir- cumstances. McCormick § 195, at 465. See also Proposed Fed. R. Evid. 406, 56 F.R.D. 183, 223 (1972). 6304 N.E.2d 865 (Ind. Ct. App. 1973). 174 INDIANA LAW REVIEW [Vol. 8:171 out objection from the father.7 The results of the test suggested that the father's denials of sexual molestation were not truthful. The court of appeals affirmed the admittance of the test results and stated that such results are not conclusive5 but are only one facet of all the evidence to be weighed by the finder of fact. In civil cases, courts should be more receptive to polygraph tests and these tests should be admitted after a proper foundation has been laid, and, in jury trials, only with cautionary instructions. Robinson v. State9 foreshadows the ultimate use of polygraph evidence in Indiana trials when there is an absence of stipulation in a civil case or a waiver of objections in a criminal case. The court stated that a qualified examiner, using proven techniques, might someday be able to produce evidence so reliable as to be admissible. This language should encourage counsel to utilize poly- graph evidence favorable to their clients. Today, the qualifications of the examiners, the sophistication of the techniques, the psycho- logical and physiological underpinnings of the examination, the technical quality of the instruments, and the experience gained in polygraph utilization should be sufficient to permit qualified and experienced operators to testify with as much assurance about the results of their testing as do other experts when questioned about results they achieved through testing. 10 B. Impeachment by Prior Inconsistent Statements In Gradison v. State," a landowner appealed from a judgment awarding him $140,000 for land condemned by the state for high- way use. At the trial, the State produced the appraiser as a wit- ness. On cross-examination, the witness denied making a previous statement that the land was worth a certain sum. The landowner 7Indiana follows the minority view which allows the results of a poly- graph test to be admitted by stipulation of the parties. See People v. Houser, 85 Cal. App. 2d 686, 193 P.2d 937 (1948). But see Pulakis v. State, 476 P.2d 474 (Alaska 1970); Stone v. Earp, 331 Mich. 606, 50 N.W.2d 172 (1951). 6The main reason for the exclusion of such evidence seems to be the fear of the judiciary that the trier of fact will place too much weight on this type of evidence. McCORMlCK § 207, at 507. 9309 N.E.2d 833 (Ind. 1973). Cf. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). In Frye, the court held that the requirement of scientific acceptance had not been met by polygraph tests. It is questionable whether this conclusion would be valid today. 10Burkey, Privacy, Property and the Polygraph, 18 Lab. L.J. 80 (1967); Horvath & Reid, Reliability of Polygraph Examiner Diagnosis of Truth and Deception, 62 J. Crim. L.C. & P.S. 276 (1971). The general consensus is that polygraph tests have an accuracy rate of eighty percent. McCormick § 207, at 506 n.9. "300 N.E.2d 67 (Ind. 1973). 1974] SURVEY—EVIDENCE—CIVIL 175 then offered for impeachment purposes part of the land's appraisal report which the witness had previously prepared for the State. The pages tendered reflected the witness' valuation of the property based upon hypotheticals which resulted in a higher value for the land than the one given by the appraiser at trial. The result was not his ultimate opinion or even a statement of fact because, both in his direct testimony and in the report, he clearly rejected as too speculative the "income analysis" method of appraisal which the plaintiff sought to use in this case and which the witness had con- sidered only hypothetically in his report. The trial judge excluded the offer as having no tendency to impeach. The Indiana Supreme Court affirmed and stated that the proper procedure for impeaching a witness through prior inconsist- ent statements is to have the examiner lay a proper foundation by calling the witness' attention to the time when, the place where, and the person to whom the contradictory statement was alleged to have been made. The purpose of such a specific foundation is to alert the witness to the particular statement which the examiner deems inconsistent so that the witness may intelligently admit and explain the statement or deny it. Although this approach fol- lows the traditional view, it would seem that such particularity for the foundation is not really necessary and unduly limits effective cross-examination. McCormick criticizes the traditional view for this reason and suggests it is particularly inappropriate when the witness is an expert. 12 C. Hearsay 1. Admissions of a Party-Opponent Brattain v. Herron™ involved an automobile accident in which the defendant driver's vehicle struck another vehicle resulting in the death of all the occupants of the other vehicle. The trial judge permitted plaintiffs to introduce, over defendant's objection, a cer- The purposes of the requirement are (1) to avoid unfair surprise to the adversary, (2) to save time, as an admission by the witness may make the extrinsic proof unnecessary, and (3) to give the witness, in fairness to him, a chance to explain the discrepancy. On the other hand, the requirement may work unfairly for the impeacher. He may only learn of the inconsistent statement after he has cross- examined and after the witness by leaving the court has made it impracticable to recall him for further cross-examination to lay the foundation belatedly. It is moreover a requirement which can serve as a trap since it must be done in advance before the final impeach- ment is attempted and is supremely easy to overlook. McCormick §37, at 72. ,3309 N.E.2d 150 (Ind. Ct. App. 1974). 176 INDIANA LAW REVIEW [Vol. 8:171 tified copy of defendant's guilty plea to a criminal charge arising out of the same accident. This charge was that of causing the death of another while driving under the influence of intoxicating liquor. A criminal judgment upon a plea of not guilty is generally inadmissible in a civil action, and this is especially true if the civil action is for damages resulting from the crime. 14 This rule is premised upon the disparity between the parties to civil and criminal actions, the different standards of proof, and the nature and effect of civil and criminal trials. However, a guilty plea and a resulting judgment in a criminal case may be admissible in a civil action arising from the same conduct. The criminal record is admitted as an admission of a party-opponent rather than as a certification of facts contained therein. 15 In Brattain, the court of appeals applied this rule and affirmed the trial court's decision to admit the plea. 2. Business Records American United Life Insurance Co. v. Peffley^ 6 involved an interesting application of the business records exception to the hearsay rule. The trial judge entered judgment for the deceased's second wife who was the beneficiary of a group life insurance policy issued by the defendant. The defendant claimed that the proceeds were properly payable to the first wife of the decedent, and the appeal was based upon the exclusion of evidence concern- ing an alleged change of beneficiary by the insured prior to his death. The trial judge sustained plaintiff's objections to the intro- duction of the defendant company's form letter designating a new beneficiary, the company's form acknowledging receipt of a change card from the decedent, which certified the designated beneficiary to be the first wife, and another change form acknowledging a cor- rection of the decedent's name. After presentation of the insurance company's case, the trial judge granted plaintiff's motion for judg- ment on the evidence. The probable basis for this decision was that ,4 C/. Proposed Fed. R. Evid. 803(22), 56 F.R.D. 183, 303 (1972), which provides in part that evidence of a "final judgment, entered after a trial or upon a plea of guilty (but not on a plea of nolo contendere), adjudging a per- son guilty of a crime punishable by death or imprisonment in excess of one year" is not excluded by the hearsay rule. Uniform Rule of Evidence 63(20) is similar to proposed federal rule 803(22). }5See generally McCormick § 265. Significantly, the probative value of such an admission may be reduced by showing special circumstances or a satisfactory explanation for the guilty plea. ,6301 N.E.2d 651 (Ind. Ct. App. 1973). 1974] SURVEY—EVIDENCE—CIVIL 177 the original records of the insurance company demonstrated that plaintiff was the beneficiary. Furthermore, there was no accept- able evidence of a change of beneficiary since the original change of beneficiary card furnished to the deceased was not produced at the trial. The Indiana Court of Appeals held that the three excluded documents tended to prove that such a card was received, and the carbon copies in the carrier's records were, therefore, relevant and admissible under the business records exception to the hearsay rule. 17 The carrier laid an adequate foundation showing that the documents were prepared in the ordinary course of the carrier's business, that those documents were prepared upon receipt of a change card, and that they were prepared by an employee whose duty it was to type them and who had personal knowledge of the card's existence, receipt and content. 18 The court further found that the best evidence rule did not bar the admission of the three internal documents since the parties stipulated that a diligent search for the original change card was conducted through the files of both the carrier and decedent's employer. Secondary evidence of a writing is admissible, therefore, if it has been shown that there was a diligent search for the original writing and that the original writing is unavailable. 19 The court of appeals then considered whether the offer of decedent's policy, on which decedent had made a notation regarding the change of beneficiary, was hearsay. Judge Buchanan stated that the notation was hearsay since it constituted a declaration by dece- ,7The common law exception to the hearsay rule for regularly kept business records had four elements: (a) the entries must be original entries made in the routine of a busi- ness, (b) the entries must have been made upon the personal knowl- edge of the recorder or of someone reporting to him, (c) the entries must have been made at or near the time of the transaction re- corded, and (d) the recorder and his informant must be shown to be unavailable. . . . . . . Today, the inconvenience of calling those with firsthand knowledge and the unlikelihood of their remembering accurately the details of specific transactions convincingly demonstrates the need for recourse to their written records, without regard to physical in- ability. McCormick § 306, at 720. }&See also Uniform Rule of Evidence 63(13); Proposed Fed. R. Evid. 803(3), 56 F.R.D. 183, 300 (1972). Both provide that the requisite foundation testimony may be furnished either by the custodian of the records or by other qualified witnesses. 1 'McCormick § 230, at 560, defines the original document rule as follows : "In proving the terms of a writing, where the terms are material, the orig- inal writing must be produced unless it is shown to be unavailable . . . ." 178 INDIANA LAW REVIEW [Vol. 8:171 dent that he had changed beneficiaries and since it was offered to prove that fact. The view of the majority, however, differed with that of the opinion's author. Thus it was decided that Indiana should take a flexible approach with regard to exceptions to the hearsay rule and should allow the admission of any evidence if there is a "Circumstantial Probability of Trustworthiness and a Neces- sity for [its use]." 20 Both of these requirements were apparently met in the instant case. The decedent's copy of the policy was found among his effects in a logical place for its storage, and his writing was authenticated. Therefore, the element of trustworthi- ness was established. The loss of the original change of beneficiary card supplied the necessity for the use of the evidence. The majority opinion in this case implicitly overruled prior cases 21 by stating that all exceptions to the hearsay rule have not been finally determined. This holding should be commended since a contrary view would perpetuate the present status of the hearsay rule and its exceptions. The many exceptions to the hearsay rule indicate the substantial discontent which courts have demonstrated in applying the rule over the years, and it would be unwise to freeze these exceptions now for all time. D. Discretion in the Admission of Evidence In Apple v. Apple™ the Indiana Court of Appeals again dem- onstrated that, in a bench trial, a judge has wide discretion in rul- ing on procedural and substantive evidentiary matters. The court commended the trial judge for his liberal admission of evidence and stated that such a policy would more easily determine the truth of all the facts. The court emphasized that, in this case, there was 2O301 N.E.2d at 658, quoting from 5 J. Wigmore, Evidence § 1420, at 202 (rev. ed. 1970). This would seem to conform with Proposed Fed. R. Evid. 803(24), 56 F.R.D. 183, 303 (1972), which allows hearsay evidence to be admitted if the statement has "circumstantial guarantees of trustworthiness." The comments to this rule state: "It would, however, be presumptuous to as- sume that all possible desirable exceptions to the hearsay rule have been catalogued and to pass the hearsay rule to oncoming generations as a closed system." One may only speculate as to why neither counsel nor the court sug- gested the state of mind exception to the hearsay rule. See Proposed Fed. R. Evid. 803(3), 56 F.R.D. 183, 300 (1972) ; McCormick § 249; Uniform Rule op Evidence 63(12). See also Hinton, States of Mind and the Hearsay Rule, 1 U. Chi. L. Rev. 394 (1934). It could have been argued that the writings were admissible either to show the decedent's belief that the beneficiary had been changed or to show the intent of the decedent to change the beneficiary. Cf. Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892). 2} See, e.g., Barger v. Barger, 221 Ind. 530, 48 N.E.2d 813 (1943). "301 N.E.2d 534 (Ind. Ct. App. 1973). 1974] SURVEY—EVIDENCE—CIVIL 179 no jury that might be prejudiced by admission of the evidence23 and noted that a judge has complete control of the scope, extent, method, and manner of direct and cross-examination of all wit- nesses. Consequently, a judge's rulings in such a case will not be overturned except for an abuse of the wide discretion accorded him. Even if evidence is erroneously admitted, the appellate courts pre- sume that trial judges, because of their experience, would ade- quately consider the propriety and weight of all of the evidence and would not rely on the erroneously admitted evidence in making their findings of fact and in drawing their conclusions of law. Thus, a reversal will only occur when a trial judge makes direct reference to his exclusive reliance on clearly inadmissible evidence.24 Another example of the almost limitless powers of a trial judge as to evidentiary matters in a bench trial is found in City of Indian- apolis v. Medenwald,75 an eminent domain proceeding. Two of plaintiff's witnesses testified, over the City's objection, that the value of plaintiff's property had substantially deteriorated because the rights of ingress and egress were impaired. The Indiana Court of Appeals stated that, if this were the only evidence of value, the City would have been entitled to a reversal. The court found, how- ever, that there was adequate testimony in the record from which the trial judge could determine value without regard to this evi- dence and stated that the decision of a trial judge will not be over- turned if there is sufficient evidence of probative value to support it. The court of appeals further noted that, in a bench trial, a presumption arises that the trial judge only considers proper evi- dence in arriving at his judgment. While these cases appear to allow trial judges some freedom to make evidentiary errors in bench trials, State v. Maplewood Heights Corp.26 demonstrates that this freedom does not apply to evidentiary errors made by trial counsel. In this case, the State appealed from an award of damages for land condemned for a high- way project. At trial, counsel for the State objected and moved to strike the valuation testimony of witnesses for the defendant 23 /