Indiana Law Review


176 INDIANA LAW REVIEW [Vol. 7

VIII. Evidence*

The Indiana courts decided numerous cases covering many-
points of evidence ; however, no attempt will be made here to cover
them all. Rather, the purpose of this section is to note new develop-
ments, clarifications and reaffirmations in evidence law.

A. Demonstrative Evidence

1. Exhibits in the Jury Room

In one of the more important cases, Thomas v. Stated the
trial court allowed the jury to take exhibits into the jury room over
the defendant's objection.

2 The exhibits consisted of statements
of a State's witness which had been admitted for impeachment
purposes. The Indiana Supreme Court held this to be prejudicial
error and in so doing adopted the American Bar Association's
standards for jury use of exhibits. While the trial court still has

discretion on the matter, Indiana has now adopted the following
guidelines to aid in the exercising of that discretion. The court may
permit the jury to take a copy of the charges against the defendant

and exhibits and writings which have been received in evidence

(except depositions).
3 Among the considerations to be used in the

exercising of this discretion are i) whether the material will aid

* Thomas A. Cicarella, Robert G. Neely, Gregory J. Utken.

'289 N.E.2d 508 (Ind. 1972).

2 The few cases on the subject indicate it would be error to permit such
statements to be taken to the jury room during deliberations. Toohy v.
Sarvis, 78 Ind. 474 (1881); Nichols v. State, 65 Ind. 512 (1879); Lotz v.

Briggs, 50 Ind. 346 (1875) ; Eden v. Lingenfelter, 39 Ind. 19 (1872) ; Cheek
v. State, 35 Ind. 492 (1871) ; Smith v. West, 30 Ind. 367 (1868). These cases

led to the statement:

It is settled law in this state that it is error to permit, over the
objections of the opposite party, items of documentary evidence to
be taken to their consultation room by the jury ....

1 L. Ewbanks, Indiana Criminal Law § 497, at 319 (Symmes ed. 1956).

In most jurisdictions depositions are not permitted in the jury room.
See 5 F. Busch, Law and Tactics In Jury Trials §723, at 712 (1963).
The reason for this is that to allow a deposition or other similar document
to go to the jury room allows the jury to examine it and give it a greater
emphasis or subject it to closer criticism than other evidence. Id. § 723, at

713; 1 L. Ewbanks, supra §497, at 319; accord, Model Code of Evidence
rule 105 (m), Comment (1942). See generally C McCormick, Law op Evi-
dence §217, at 539 (2d ed. 1972) [hereinafter cited as McCormick].

3ABA Project on Minimum Standards for Criminal Justice, Trial by
Jury § 5.1 (Approved Draft 1968).



1973] SURVEY OF RECENT DEVELOPMENTS 111

the jury in a proper consideration of the case, ii) whether any party
will be unduly prejudiced by submission of the material, and iii)
whether the material may be subject to improper use by the jury.4

The court in Thomas held that since the witness' statements were
similar to a deposition it was improper to permit them to go to the
jury as it violated all three considerations. 5 Chief Justice Arter-
burn, dissenting, stated that the fear that one part of the evidence
may be overly emphasized is counterbalanced by the fact that the
memory of the jury may not be sufficient to retain details as to
the exhibits.

6

In the case of Martin v. State7 the defendant, charged with
murder, argued that it was improper for the trial court to refuse
to let the jury take the court's instructions with them to the jury
room. The supreme court observed that established Indiana law
was to the contrary, but that persuasive arguments existed on both
sides. However, if the law in Indiana was to be changed, it should
be done either by legislative enactment or by rule of the court.
Hence, the trial court's action was not reversible error. 8

2. Admissibility of Gruesome Photographs

A trio of cases reaffirmed Indiana's liberal policy of admitting
photographic evidence when the exhibits are gruesome. In Dudley
Sports Co. v. Schmitt9 the plaintiff had been hit in the face by a
defective pitching machine. During the trial, over objection as in-

4Id.

5289 N.E.2d at 509. The statements would be of little aid to the jury
since they were not submitted for the truth of the matter contained therein.

Also, they were subject to improper use in two ways: the jury might

consider them for their truth and might give them undue weight.

6Id. at 510. Chief Justice Arterburn queried—why should the jury be
required to rely upon memory which can be erroneous and corrected by
actual facts. But see 1 L. Ewbanks, supra note 2:

The juror is to register the evidence as it is given on the tablets of
his memory and not otherwise.

Id. § 497, at 319.

7296 N.E.2d 793 (Ind. 1973).

8

It is certainly not the type of question of such vital import that a
case otherwise properly tried should be reversed for the sole purpose
of sending written instructions to a jury room.

Id. at 797.

9279 N.E.2d 266 (Ind. Ct. App. 1972).



178 INDIANA LAW REVIEW [Vol. 7

flammatory, the plaintiff offered color photographs of his face
while on the operating table. The injuries consisted of deep cuts
and lacerations on his upper lip, nose, and forehead, a partially
severed nose, a crushed left sinus cavity, an exposed skull bone,
and two chipped teeth. The court of appeals held the photographs
to be relevant and admissible though repulsive and gruesome. 10

Similarly, in Blevins v. State" it was held not to be error to
admit photographs of the deceased's body on an autopsy table with
a probe protruding from a bullet wound in the head. It was
relevant in that it showed the angle at which the bullet entered.12

Likewise, in Ray v. State' 3 photographs of a dead body and wounds
were held admissible.

In each case the courts applied the general rule that a photo-
graph proved to be a true representation of the person, place, or
thing which it purports to represent is competent evidence to vis-
ually display that which a witness may verbally describe. 14 Under
this tolerant rule the courts will look at the exhibits to see the

purpose for which they are offered. If they could only serve to
inflame the jury or excite their feelings, rather than enlighten
them as to any facts in issue, they will be excluded. Conversely,
if they are in any way relevant, they will be admitted regardless
of their gruesome or inflammatory nature. An extension of this
rule to its current limits is questionable and a balancing of interests
seems more equitable. Is it always necessary to sacrifice inflam-
matory prejudicial effect for relevant evidence, especially when
the evidence is merely cumulative? It seems more realistic to
acknowledge the fact that after the admission of a doctor's testi-

mony and/or hospital records, the attorney's purpose in offering
a photograph that is gruesome, but does corroborate his case, is to

excite or upset the jury and receive larger damages.- While this

decision puts Indiana in line with a majority of jurisdictions, the

rule may be clarified or narrowed in future cases. 15

yoId. at 277.

n 291 N.E.2d 84 (Ind. 1973).

12Brown v. State, 252 Ind. 161, 247 N.E.2d 76 (1969), held that photo-
graphs of probes in a wound were acceptable to show the angle at which the
bullet entered.

13291 N.E.2d 562 (Ind. Ct. App. 1973).

14Wahl v. State, 229 Ind. 521, 98 N.E.2d 671 (1951) ; Hawkins v. State,
219 Ind. 116, 37 N.E.2d 79 (1941) ; Midwest Oil Co. v. Storey, 134 Ind. App.

137, 178 N.E.2d 468 (1961).

15Examples of gruesome photographs admitted under this rule include:
Schmidt v. State, 255 Ind. 443, 265 N.E.2d 219 (1970) (photograph of



1973] SURVEY OF RECENT DEVELOPMENTS 179

3, Handwriting

In Duncan v. Binford* 6 the court of appeals discussed the rules
on authentication. A summons v/as delivered and a receipt signed,
but the defendant claimed that it was not his signature on the re-
ceipt. The plaintiff, over objection, testified that the signature,
in her opinion, was the defendant's. Defendant's objection was
that plaintiff had not testified based on a comparison of hand-

writing samples. The court noted the familiar rule that a witness
who is an expert must speak from his knowledge based on having
seen the party write or from authentic papers derived in the course

of business or from mere comparison. 17 But in Duncan the court
noted that the witness was only asked to testify based upon her
familiarity with the defendant's signature. Her opinion was based
on her actual observation of defendant's signature and went only to

the weight of the evidence. 18

decedent's torso and severed limbs) ; Brown v. State, 252 Ind. 161, 247
N.E.2d 76 (1969) (photographs of probes in wound); Wilson v. State, 247
Ind. 680, 221 N.E.2d 347 (1966) (photograph of murder victim in pool of
blood) ; Wahl v. State, 229 Ind. 521, 98 N.E.2d 671 (1951) (photographs of
deceased and her brain). But see Kiefer v. State, 239 Ind. 103, 153 N.E.2d
899 (1958) (admission of gruesome and shocking photos showing hands

and instruments of surgeon inside chest of deceased during autopsy and
additional incisions and stitches by surgeon performing the autopsy held
reversible error) ; Evansville School Corp. v. Price, 138 Ind. App. 268, 208
N.E.2d 689 (1965) (admission of photo depicting deceased youth lying in

casket held error).

Under the present law the material issue in cases involving the admis-
sion of revolting or gruesome photographs is whether or not they are relevant
to the issues involved, not whether or not they are gruesome. 247 Ind. at 684,
221 N.E.2d at 349. This may be an unnecessarily harsh rule.

Dicta in Kiefer, supra, may indicate that the application of this rule
has limits. The court stated that when necessary to prove a contested relevant
fact, the probative value of such pictures is held to outweigh any possible
prejudicial effect they might have. This would indicate that when the
photographs are not necessary to prove the fact but are used as cumulative
evidence, the probative value may not outweigh the prejudicial effect. This
may provide a method of attacking inflammatory photographs. See general-
ly 3 C. Scott, Photographic Evidence §1231 (2d ed. 1969).

16278 N.E.2d 591 (Ind. Ct. App. 1972).

w
Id. at 599. See also Forgey v. National Bank, 66 Ind. 123 (1879);

Chance v. Indianapolis & Westfield Gravel Road Co., 32 Ind. 472 (1870).
18The testimony was,

Q. Do you have an opinion based on your familiarity with Mr.
Duncan's signature as to whether or not the signature that appears
on Defendant's Exhibit A is or is not his signature?



180 INDIANA LAW REVIEW [Vol. 7

This rule was stated more succinctly in Smith v. State? 9 a
forged instrument case. The court of appeals there stated that
when the genuineness of a signature appearing on a document is in
issue, a lay witness is deemed qualified to render an opinion as to
authenticity if he is acquainted or familiar with the signature of
the person whose signature he is called upon to identify.20

While the rules stated in these cases are the accepted standards

for authenticity,
21

it may be questioned whether or not stricter
rules should be applied when the signature is in fact an issue, as
it was in these cases. In such cases perhaps a more scientific ap-
proach should be taken by the use of handwriting experts.22 As
one authority states that if a writing is questioned, "no person not

trained in the science and art of document examination is truly

competent to distinguish a skilled forgery from a genuine
writing."

23

U. Failure to Introduce Objects Taken in Theft Cases

The case of Shropshire v. State24 clarified the Indiana rule
regarding the introduction into evidence of goods taken in a theft.

In Shropshire, the defendant was convicted for stealing a tape

A. I believe it's his signature.

278 N.E.2d at 599.

19284 N.E.2d 522 (Ind. Ct. App. 1972). See also Morell v. Morell, 157
Ind. 179, 60 N.E. 1092 (1901).

20284 N.E.2d at 525.

21 This is the majority rule. The minimal standards demanded of the
lay witness who authenticates a writing by identification ' of the handwriting
find their justification on the basis that no more than one in one hundred
writings is questioned. These permissive standards allow the admission of the

general run of authentic documents with a minimum of time, trouble and
expense. McCormick § 221. Professor McCormick suggests that maximum
savings of these commodities could be achieved by presuming the authenticity
for purposes of admissibility in the absence of proof raising a question as

to genuineness. Id.

22

Certainly it is incredible that an unskilled layman who saw the
person write once a decade before could make such a differentiation.
In the event of an actual controversy over genuineness both logic and

good advocacy demand a more scientific approach and resolution of
the issue mainly upon the testimony of bona fide handwriting experts.

Id.

™Id. §221, at 548.

24279 N.E.2d 219 (Ind. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 181

recorder and a bayonet. The objects were recovered but not of-
fered into evidence. On appeal the defendant contended that there
was insufficient evidence to sustain the verdict because the stolen
goods were not offered into evidence. Appellant relied on the
case of Keiton v. State25 in which the supreme court had stated
that in all future cases, unless there was good reason, because of
size, weight or unavailability, for not introducing such evidence

as part of the case in chief to prove the corpus delecti, then the

failure of the State to introduce such evidence as an exhibit would
be sufficient reason to require the trial court, on the defendant's

motion, to strike all evidence relative thereto from the record.26

The Shropshire court held the Keiton rule inapplicable because the
appellant failed to move to strike. Thus, it is now clear that mere
failure of the State to introduce the stolen goods will not be suf-

ficient to strike the testimony relating thereto. The defendant has
the affirmative duty to move for such a strike.

5. Polygraph Tests

There has been little, if any, case law in Indiana on polygraph

tests, but two cases last term indicate that Indiana is in line with
the majority rule. In Zupp v. State, 77 during the investigation of a
rape case the prosecuting witness submitted to a lie detector test.

Defendant filed a motion to require the State to produce the results

of the test. The motion was denied. Defendant appealed and the
supreme court, finding no error, affirmed. Holding that the results

were not discoverable, the court said in dictum that the results of

a lie detector test are inadmissible as evidence.
23

In a later case,

Reid v. State,79 a robbery defendant petitioned the trial court for

an order permitting him to take a polygraph. In the petition he
stated a waiver of objections. The trial court admitted the testi-
mony of a polygraph expert as a rebuttal witness for the State.
Defendant claimed this to be error. The supreme court held no

25250 Ind. 294, 235 N.E.2d 695 (1968).

76
Id. at 301, 235 N.E.2d at 699.

27283 N.E.2d 540 (Ind. 1972). In Carpenter v. State, 251 Ind. 428, 241

N.E.2d 347 (1968), the court refused to pass on the admissibility of poly-

graph tests, but held that the trial court's consideration of test results
without having a technician testify and be subject to cross-examination
was prejudicial error.

28283 N.E.2d at 543. The court cited no Indiana authority on the matter,
nor did the appellant rely on any. Rather, California authority was cited,
indicating that no Indiana law on point exists.

29285 N.E.2d 279 (Ind. 1972).



182 INDIANA LAW REVIEW [Vol. 7

error inasmuch as the defendant had petitioned for the test and
signed an express waiver of objections, and therefore the results
of the test were admissible.30 Seemingly, the rule in Indiana is
that the results of a lie detector test are inadmissible unless the

party who was the subject of the test waives objection to its ad-
missibility. However, if the reasoning behind inadmissibility of
polygraph examinations is viable, the holding of Reid can be chal-
lenged. Courts have been reluctant to admit polygraphs because
they are unconvinced of their reliability due to the numerous vari-
ables involved.

31
If inadmissibility is based upon doubt of any pro-

bative value, the fact that a person took the examination and signed
a waiver should be of no moment as to admissibility. If the results
are of doubtful probative value, they do not gain probative value by
a mere waiver. The law in Indiana awaits further clarification on
this matter.

6. Proper Foundation for the Admission of a Tape Recording

The most signficant case concerning demonstrative evidence,
Lamar v. State, 32 created new foundation requirements for the
admissibility of tape recordings. Prior law in Indiana was not
well defined and held only that sound recordings were admissible
upon proper identification and authentication.33 The defendant
was convicted of voluntary manslaughter. At the trial, the jury,
over the defendant's objection, was permitted to hear a tape re-
cording of his in-custody interrogation by police officers at the

station. Defendant based his objection on improper foundation for

admissibility and, relying on a Georgia case, requested that eight

requirements be recognized.
54 The Indiana Supreme Court, relying

3°Id. at 281. See Comment, Lie Detector Tests: Possible Admissibility
Upon Stipulation, 4 John Mar. J. Prac. & Pro. 244 (1971).

2} See generally McCormick § 207; Levitt, Scientific Evaluation of the
"Lie Detector", 40 IOWA L. Rev. 440 (1955) ; Skolnick, Scientific Theory and
Scientific Evidence: An Analysis of Lie Detection, 70 Yale L.J. 694
(1961) ; Symposium, The Polygraphic Truth Test, 22 Tenn. L. Rev. 711

(1953).

32282 N.E.2d 795 (Ind. 1972).

33 Sutton v. State, 237 Ind. 305, 145 N.E.2d 425 (1957).

34Solomon v. Edgar, 92 Ga. App. 207, 88 S.E.2d 167 (1955). The
requirements set forth in Solomon were: i) it must be shown that the
mechanical transcription device was capable of taking testimony; ii) it
must be shown that the operator of the device was competent to operate it;
iii) the authenticity and correctness of the recording must be established;
iv) it must be shown that changes, additions or deletions have not been made;

v) the manner of preservation of the record must be shown; vi) the



1973] SURVEY OF RECENT DEVELOPMENTS 183

heavily on that case, set up five standards for the admissibility of
sound recordings. In the future the admission of sound recordings

should be preceded by a foundation disclosing that i) the recording
is authentic and correct;35 ii) the testimony elicited was freely and
voluntarily made, without any kind of duress; iii) all required
warnings were given and all necessary acknowledgements and
waivers were knowingly and intelligently given; iv) the recording

does not contain matters otherwise not admissible into evidence;36

and v) it is of such clarity as to be intelligible and enlightening

to the jury. The court stated that improved methods of obtaining
and presenting competent evidence should not only be sanctioned

but encouraged. In adopting these standards, the court noted that

it must not lose sight of fundamental safeguards, but neither must
it sacrifice scientific and technological progress to preservation
of rules that have outlived their usefulness.37

7. Jury Views

The supreme court indicated that it would be amenable to a
change in the law on jury views in Robinson v. State™ After the

jury had been selected and sworn, but before the introduction of

any evidence, the jury was taken to the scene of the crime. This
was done on motion of the State. The defendant's objection to that

speakers must be identified (the Indiana Supreme Court held this to be
desirable but not required) ; vii) it must be shown that the testimony was
freely and voluntarily made, without duress. Id. at 211-12, 88 S.E.2d at 171.

The eighth requirement requested by appellant was that it be shown that
the recording does not contain matters otherwise not admissible.

35The court felt that requirements 1, 2, 4, 5, and 6, see note 34 supra,
were merely methods of assuring authenticity and so the first requirement

encompasses those points in Solomon. The court also noted that Solomon
requirements 4 and 5 are resolved by conforming to the Indiana chain of
custody rule.

36 This is the eighth requirement that the appellant requested. The court
admitted that it was sound and that other jurisdictions recognize it. E.g.,
Leeth v. State, 94 Okla. Crim. 61, 230 P.2d 942 (1951) ; Commonwealth v.
Bolish, 381 Pa. 500, 113 A.2d 464 (1955) ; State v. Meyer, 37 Wash. 2d 759,
226 P.2d 204 (1951). It could be reasoned by analogy that this was in fact
the law in Indiana. In Lee v. State, 213 Ind. 352, 12 N.E.2d 949 (1938), it
was held that if a part of a paper received in evidence is competent, but
the paper also contains matters incompetent, the whole may properly go to
the jury if the objectionable portion is obliterated or sealed off so it cannot

be read.

37282 N.E.2d at 797.

36297 N.E.2d 409 (Ind. 1973).



184 INDIANA LAW REVIEW [Vol. 7

motion was overruled. On appeal the supreme court ruled, in ac-
cordance with statutory and prior case law, that this was reversible
error.

39 In dictum the court questioned the soundness of the

statute and indicated that a jury view should be a judicial pre-
rogative.

40 However, the court was particularly reluctant to strike
down the law, when the consequences would be to deny the defend-
ant, under a life sentence, a new trial. This indication of a desire
to follow the judicial prerogative, espoused by noted commen-
tators,

41
serves as a signal to the legislature to step aside and allow

the court to exercise its prerogative.

B. Impeachment

1. Pretrial Mental Examination to Determine Credibility of Rape
Victims

Two cases involving pretrial psychiatric examinations of rape
prosecutrixes clarified prior law in Indiana. In Allen v. State42 the

defendant in a rape case made a motion for a psychiatric examina-
tion of the prosecuting witness to determine her credibility. This

motion was denied and defendant amended it to include examination
to determine competency. This motion as to competency was
granted. The defendant was convicted and on appeal claimed the
trial court erred in overruling his first motion. Defendant relied

39Id. at 412. The statute covering this point reads in part:

Inspection of place.—Whenever, in the opinion of the court and with
the consent of all the parties, it is proper for the jury to have a

view of the place in which any material fact occurred ....

Ind. Code §35-1-37-3 (1971). In Barber v. State, 199 Ind. 146, 155 N.E.

819 (1927), the court held that in light of this statute, sending a jury to

view in a criminal case, without the defendant's consent, was reversible error.

40297 N.E.2d at 412.

4, McCormick §216, at 537; 4 J. Wigmore, Evidence §1163, at 273 (3d
ed. 1940).

That the Court is empowered to order such a view, in consequence
of its ordinary common-law function, and irrespective of statutes
conferring express power, is not naturally to be inferred, but is

clearly recognized in the precedents.

Id. §1163, at 268. Wigmore also states:

Statutes now regulate the process in almost every jurisdiction of
the United States, but it may be assummed that the judicial power
to order a view exists independently of any statutory phrases of

limitation.

Id. § 1163, at 273.

42283 N.E.2d 557 (Ind. Ct. App. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 185

on Burton v. State43 which held that a sex offense charge should
not go to a jury unless a physician has examined the victim's social
history and mental make-up.44 A later case, Wedmore v. State,45
modified this. In that case the defendant did not move for an ex-
amination nor did he question the competency of the witness.

Agreeing with the dissent in Burton, the court held that there is no

requirement that the examination be a condition precedent to the

witness* testifying.
46 The Allen case raised the question of whether

or not it was error to refuse a defendant's motion for such an ex-
amination ; this question was not raised in Wedmore, as the defend-
ant there made no such request. The court of appeals, following
the indications of Wedmore, held that it was not error to refuse
such motions.

A subsequent case in the court of appeals reaffirmed this
position. The defendant in Richard v. State47 contended that a
psychiatric examination of the prosecutrix in sex cases should

be had to determine her credibility. He also relied on Burton, but
the court noted that Burton has been superseded by Wedmore
and found no error. Although the requested rule appears sound,

indications are that if it is to be established, it must be done by
the legislature.

48

2. Specific Acts

The supreme court emphasized the Indiana rule on impeach-
ment by specific acts in Boles v. State.49 In Boles the defendant was

43232 Ind. 246, 111 N.E.2d 892 (1953).

44
Id. at 251, 111 N.E.2d at 894, citing 3 J. Wigmore, supra note 41,

§ 924(a). Professor Wigmore advocated that such examination be conducted
for the purpose of ascertaining the witness's probable credibility.

45237 Ind. 212, 143 N.E.2d 649 (1957).

Ab
ld. at 223, 143 N.E.2d at 653. See also Bryant v. State, 271 N.E.2d

127 (Ind. 1971); Lamar v. State, 245 Ind. 104, 195 N.E.2d 98 (1964).

The dissent in Burton stated:

Our legislature has not seen fit to require such as a condition
precedent to the right to testify in court and I do not believe this
court has any right to impose it.

232 Ind. at 260, 111 N.E.2d at 898. (Draper, J., dissenting).

47291 N.E.2d 916 (Ind. Ct. App. 1973).

48Wigmore also recognizes that a rule requiring any complaining witness
in a sex offense case to undergo a psychiatric examination to determine
competency and credibility should require a legislative mandate. 3a J.
Wigmore, supra note 41, § 924(a) (Chadbourn rev. 1970).

49291 N.E.2d 357 (Ind. 1973).



186 INDIANA LAW REVIEW [Vol. 7

convicted of second degree burglary. During the trial, one Stephen-
son testified as a Stated witness. On cross-examination he was
asked if he had ever been convicted of a felony, to which he replied
no. A later witness was asked on cross-examination by the defense
if he knew that the witness Stephenson was a drug user. An ob-
jection was sustained. On appeal the defendant claimed that the
question was relevant as bearing upon Stephenson's credibility.
The supreme court ruled that the question was properly excluded
because although the witness's credibility is a proper subject of in-

quiry, the defense's methods were improper. The court quoted the
law in Indiana that a witness may not be impeached by inquiry
as to specific acts of immorality.

50

Another case involving inquiries into specific acts of mis-
conduct was Shropshire v. State.51 There the appellant was con-
victed of first degree burglary. He assigned as the sole error that
his cross-examination violated his due process rights and that the
trial court erred in requiring him to answer highly prejudicial
questions. During the trial the prosecutor inquired if the defendant
had ever been arrested and convicted for first degree burglary.
When he answered no, he was asked if he had when he was a minor.
The defendant answered a series of such questions, some under
order of the judge. The supreme court agreed with the appellant
and held that he was denied a fair and impartial trial. The court
noted that when a defendant takes the witness stand, he may be
cross-examined concerning his credibility, but that the State is not

permitted to inquire into specific acts of misconduct other than

prior convictions.
52

Additionally, the court stated that actual con-

victions in a juvenile court are inadmissible for impeachment pur-

50Id. at 361. Woods v. State, 233 Ind. 320, 119 N.E.2d 558 (1954);
Forman v. State, 203 Ind. 324, 180 N.E. 291 (1932); Davis v. State, 197
Ind. 448, 151 N.E. 329 (1926).

Professor McCormick notes that the majority of courts limit cross-
examination concerning acts of misconduct as an attack on character to
those acts having some relation to the witness's credibility. Other courts
allow attack by a fairly wide-open cross-examination about acts of misconduct
which show bad moral character and have but an attenuated relation to
credibility. Finally, he notes that a substantial number of courts (among
them Indiana) prohibit cross-examination altogether as to acts of misconduct
for impeachment. McCormick advocates the latter as the fairest and most
expedient because of the dangers of prejudice, distraction, confusion, and
abuse by the asking of unfounded questions, etc. McCormick § 42.

5, 279 N.E.2d 225 (Ind. 1972).

52Id. at 227. Hensley v. State, 268 N.E.2d 90 (Ind. 1971) ; Woods v.
State, 233 Ind. 320, 119 N.E.2d 558 (1954).



1973] SURVEY OF RECENT DEVELOPMENTS 187

poses.
53

Therefore, the inquiry by the prosecutor about convictions

while the defendant was a minor was inadmissible for impeach-
ment purposes.

A significant case that will affect the area of impeachment is
Ashton v. Anderson54 in which the supreme court restricted the
use of prior convictions for the purposes of impeachment. At trial,
defense counsel inquired of a witness whether or not he had ever

been arrested. Objection was made and properly sustained.55

The attorney then asked whether the witness had "ever plead
[sic] guilty or been convicted of any criminal offense." Again

defendant objected and the objection was sustained. However,
on appeal the court of appeals held that it was error to disallow
this second question and granted a new trial. The court of ap-
peals rested its decision on the case of McMullen v. Cannon,56

which stated that the established rule in Indiana was that a wit-
ness, including a party to the action, who takes the stand as a
witness in his own behalf, can be required on cross-examination,
on the issue of his credibility, to answer questions as to previous

convictions, whether felonies or misdemeanors.57

The supreme court recognized the rule set forth in McMullen
but noted that it was a point of first impression whether a witness
may be impeached by any prior conviction for any criminal offense
without regard to the nature of the offense or its tendency to re-

flect on the credibility of the witness. Prior case law indicated

that any fact that might have been shown to render a witness in-
competent under statute might be shown to affect his credibility.58

53Woodley v. State, 227 Ind. 407, 86 N.E.2d 529 (1949). The relevant
Indiana statute states:

The disposition of a child or any evidence given in the juvenile court
shall not be admissible as evidence against the child in any case or
proceeding in any other court ....

Ind. Code §31-5-7-15 (1971).

54279 N.E.2d 210 (Ind. 1972).

"Shropshire v. State, 279 N.E.2d 219 (Ind. 1972) ; Hensley v. State,

268 N.E.2d 90 (Ind. 1971) ; Boles v. State, 291 N.E.2d 357 (Ind. Ct. App.

1973).

56129 Ind. App. 11, 150 N.E.2d 765 (1958).

57Id. at 12, 150 N.E.2d at 766.

58Niemeyer v. McCarty, 221 Ind. 688, 51 N.E.2d 365 (1943); Glenn v.
Clore, 42 Ind. 60 (1873). The statute that these cases referred to is now
Ind. Code §34-1-14-14 (1971) which reads:



188 INDIANA LAW REVIEW [Vol. 7

It also held that the extent to which such cross-examination shall be
allowed is within the trial court's discretion.59 In reaching its

decision, the court stated that it could perceive no reason that a
trial court should be bound to permit questions about crimes such
as speeding, etc., without regard to the nature of the crime or

its tendency to reflect the witness's credibility.60 The court also
held the exclusion of such evidence should not be discretionary.

Either the particular conviction reflects the witness's credibility

for truth and veracity or it does not. If it has a bearing, it should
be admitted ; if not, it should be excluded. In so holding, prior case

law in Indana was overruled, and now for the purposes of im-
peachment under Indiana Code sections 34-1-14-13 and 35-1-31-6

only those convictions for crimes involving dishonesty or false

statement shall be admissible. However, the court is also bound

by Indiana Code section 34-1-14-14, which permits impeachment by
a showing of prior convictions for crimes which would have ren-

Any fact which might be shown to render a witness incompetent,
may be hereafter shown to affect his credibility.

The statute which defined what convictions would render a witness incom-
petent read:

Every person, who may hereafter be duly convicted of the crimes of
treason, murder, rape, arson, burglary, robbery, manstealing,

forgery, or wilful and corrupt perjury, shall, ever after such convic-
tion, be deemed infamous, and shall be incapable of . . . giving
evidence in any court of justice.

Ind. Rev. Stat. ch. 54, §79 (1843).

Parker v. State, 136 Ind. 284, 35 N.E. 1105 (1894), established that

prior convictions could be inquired into on cross-examination to show the
depraved moral character of the witness as affecting his credibility. Sub-

sequently, in Dotterrer v. State, 172 Ind. 357, 88 N.E. 689 (1909), a witness

was asked on cross-examination whether he had previously been convicted
of assault and battery. The court recognized that assault and battery was
not an infamous crime and held such questioning was proper. The court
noted a statute which stated that in all questions affecting credibility of a

witness, his general moral character may be given in evidence, and held
that it applies to cross-examination of a witness.

The statute which the Dotterrer court referred to is Ind. Code § 35-1-31-6

(1971). The same language is also used in id. §34-1-14-13, and thus the
Ashton court noted that the ruling in Dotterrer would be applicable to
it also.

59Way v. State, 224 Ind. 280, 66 N.E.2d 608 (1946) ; Robinson v. State,
197 Ind. 148, 149 N.E. 888 (1925) ; Parker v. State, 136 Ind. 284, 35 N.E.

1105 (1894).

60"It is illogical to assume that a conviction of any crime reflects, ipso

facto, on the credibility of the witness as to truth and veracity." 279 N.E.2d

at 215.



1973] SURVEY OF RECENT DEVELOPMENTS 189

dered a witness incompetent, i.e., treason, murder, rape, arson,

burglary, robbery, kidnapping, forgery, and wilful and corrupt

perjury.
61 These are the only prior convictions admissible to im-

peach.

One final case should be noted in clarifying the use of prior
convictions. In Sipes v. State

67
it was held that it was proper for the

trial judge to refuse to permit the defense counsel to impeach a

witness with a prior conviction when the question failed to include
the specific offense and the court and date of conviction.63 Ap-

parently, prior convictions will now be inadmissible unless these
facts are shown.

3. Use of Admissions for Impeachment

In Johnson v. State,64 the Supreme Court of Indiana decided
the question of whether evidence of admissions of guilt made by
defendant to a probation officer were admissible for impeachment

purpose even though inadmissible as evidence of guilt of the crime

charged. The appellant and a companion apparently carried cans
containing combustibles into a building with the intent of setting

it on fire. When confronted by three men they threatened them
with weapons and then fled.65

The appellant first entered a plea of guilty and was assigned
a probation officer who interviewed him. The appellant contended
that the trial court erred in allowing the testimony of the probation

6 'Under the proposed federal rules, evidence of prior convictions is
admissible only if the crime is punishable by death or imprisonment in
excess of one year or involves dishonesty or false statement. If the judge
determines that the probative value of the evidence of the crime is substantial-

ly outweighed by the danger of unfair prejudice, he can refuse to admit it.
The rules also place a time limit of ten years after which evidence of the
crime is inadmissible. Proposed Fed. R. of Evid. rule 609, H.R. 5463, 93d
Cong., 1st Sess. (1973), reported in 119 Cong. Rec. 5452 (daily ed. June 26,
1973) [hereinafter cited as Proposed Fed. R. of Evid.~\.

62293 N.E.2d 224 (Ind. Ct. App. 1973).

63
Id. at 227.

64284 N.E.2d 517 (Ind. 1972).

65Appellant contended at trial that the evidence that he and his com-
panion put the cans in the building was merely circumstantial. In Vaughn
v. State, 255 Ind. 678, 266 N.E.2d 219 (1971), however, it was held
that a conviction may be sustained by circumstantial evidence. The fact that
appellant fled is also relevant in proving his guilt. Turner v. State, 255 Ind.
427, 265 N.E.2d 11 (1970). See also note 14 supra. Contra, note 12 supra.



190 INDIANA LAW REVIEW [Vol. 7

officer in rebuttal, since the testimony concerned a conversation

the probation officer had with the appellant during which the

appellant made admissions. The court held that such testimony-
was inadmissible as evidence of guilt of the crime charged, but
that the testimony could be considered for impeachment purposes.

In reaching its decision the court relied on Harris v. New York,bb

which adopted the restricted view of the privilege of self-incrimi-

nation.

It should also be noted that the appellant in Johnson contended

that the trial judge erred because he did not determine whether

the confession was voluntarily given before it was received into
evidence.

67 This contention was dismissed by the court since the
appellant did not raise any objection as to the voluntariness of the
confession or the failure to apply the relevant statute at the trial

level.
68

Jf. Bias

It is a recognized principle of law in Indiana that the trial

court in its discretion has wide latitude in permitting cross-exam-

ination to test the credibility of a witness by disclosing his interest
in a case.69 Brooks v. State70 involved such a cross-examination

and its permissible scope. The appellant was convicted of assault
and battery with intent to kill. The defendant in cross-examining
a prosecution witness elicited the fact that the witness had a civil
law suit for damages pending against the defendant's employer.71

Such cross-examination is proper in attempting to show the witness

66401 U.S. 222 (1971). In Harris the Supreme Court held that evidence
inadmissible against an accused in the prosecution's case is not barred for
all purposes, provided that the trustworthiness of the evidence satisfies legal

standards. According to the Court in Harris the shield provided by Miranda
v. Arizona, 384 U.S. 436 (1966), is not a license to use perjury as a defense.

67Ind. Code §35-5-5-1 (1971). Pursuant to this statute the trial judge
must determine that the confession was given voluntarily before it is ad-
mitted into evidence. The trial judge can then permit the jury to hear
relevant evidence on the issue of voluntariness.

6S284 N.E.2d at 520, citing Guthrie v. State, 254 Ind. 356, 260 N.E.2d

579 (1970). Guthrie stands for the principle that when an argument on
appeal is of a different nature than the grounds for objection at the trial,

no question is raised for review.

69Blue v. State, 224 Ind. 394, 67 N.E.2d 377 (1946), cert, denied, 330

U.S. 840 (1947).

70291 N.E.2d 559 (Ind. 1973).

"Id. at 560.



1973] SURVEY OF RECENT DEVELOPMENTS 191

has an interest in the case. 72 The counsel for defendant also tried
to obtain information concerning the amount of damages prayed
for in the civil suit. Defense counsel argued that it was highly-
possible that the witness would falsify his testimony to insure a
conviction and use this to his advantage in the civil suit. The trial
court sustained an objection to the inquiry concerning the amount
of damages sought on the ground that this would not have any bear-
ing on the bias of the witness.73 The court determined that the
appellant in his cross-examination had made it clear to the jury
that the prosecution witness had a civil suit pending which could
raise an inference of prejudice. The supreme court refused to sub-
stitute its judgment for that of the trial court. 74

An additional point which should be mentioned in Brooks con-
cerned an attack on the character of the prosecuting witness dur-
ing appellant's cross-examination. This challenge to the character

of the witness was clearly outside the scope of the direct exam-
ination. The general rule in Indiana is that the scope of the cross-
examination should be limited to the subject matter of the direct
examination.75 Thus, in Brooks the Indiana Supreme Court re-
affirmed several of the traditional principles pertaining to cross-

examination.

C. Hearsay

The Supreme Court of Indiana and the Indiana Court of Ap-
peals have recently decided three significant cases involving the

question of hearsay. Hearsay evidence is testimony of an out of
court statement offered for the truth of the matter asserted there-

72McCormick § 40, at 79.

"Pending of civil litigation is admissible to show the bias of a witness.
Hughes v. State, 212 Ind. 577, 10 N.E.2d 629 (1937). The court in Brooks,
however, felt that because the amount of damages sought is often exaggerated
and is seldom an accurate appraisal of what plaintiff really wants, it has
no effect on the bias of a witness.

74The Brooks court followed the familiar rule in Indiana which states

that only a clear abuse of discretion by the trial court will call for a reversal.

In the court's opinion the trial court committed no abuse of discretion in

Brooks. 291 N.E.2d at 560.

75The court cited Hicks v. State, 213 Ind. 277, 11 N.E.2d 171 (1937),
cert, denied, 304 U.S. 564 (1938), for this Indiana rule. 291 N.E.2d at 562.

See McCormick § 27, at 54. Professor McCormick offers an excellent
discussion on the scope of cross-examination and the merits of the systems

of restricted cross-examination, which Indiana presently has, and wide-open

cross-examination, which is included in the Proposed Fed. R. of Evid. rule

611(b).



192 INDIANA LAW REVIEW [Vol. 7

in.
76 The statement's value rests upon the credibility of the out of

court declarant.

1. Admission of Party-Opponent

In the case of Moore v. Funk77 the Indiana Court of Appeals
considered a recognized exception to the hearsay rule known as
an admission of a party-opponent. 78 Moore involved an automobile
accident in which plantiff's car was hit in the rear by defendant.
The collision pushed the plantiff's car into oncoming traffic where
it was hit again by another car. Defendant subsequently pleaded
guilty to a charge of following too closely. Plaintiff introduced,

without objection, this guilty plea to show an admission against
interest. An instruction requested by defendant regarding the
introduction of the guilty plea and the court's acceptance of the
instruction constituted the main issue before the court.79

Defendant contended that the testimony concerning the con-
viction for following too closely could not be considered on the ques-

tion of the right of plaintiff to recover but only on the question of

credibility.
30 The court decided that defendant's requested instruc-

tion was an inaccurate statement of the law. Since defendant
never denied pleading guilty to the charge of following too closely,

she was in a position of explaining her guilty plea and rebutting
the inference of negligence that it raised.

81 The only apparent
reason for plaintiff to introduce the guilty plea was to establish
the defendant's negligence. Defendant's instruction inferred that

the only reason for introducing the guilty plea was for impeach-

76McCormick §246, at 584.

77293 N.E.2d 534 (Ind. Ct. App. 1973).

7aMcCORMiCK § 262, at 628. McCormick defined an admission of a party-
opponent as the words or acts of a party-opponent, or of his predecessor or
representative, offered as evidence against him.

It should be noted that the court in Moore used the phrase "admissions
against interest" in the opinion. This is a common phrase in judicial opinions,
according to McCormick, but it tends to confuse two distinct exceptions to
the hearsay rule. A declaration against interest and an admission of a
party-opponent are the two exceptions to the hearsay rule which are often
confused. When the court in Moore uses the phrase "admissions against
interest," it is referring to admissions of a party-opponent and not declara-

tions against interest.

79293 N.E.2d at 539.

aoId.

& Ud. See also Richey v. Sheaks, 141 Ind. App. 423, 228 N.E.2d 429

(1967).



1973] SURVEY OF RECENT DEVELOPMENTS 193

merit purposes. Defendant never denied making the guilty plea.
Therefore, if the purpose of the introduction of the guilty plea was
for impeachment purposes, the instruction was inaccurate.82

In another automobile accident case decided by the Indiana
Court of Appeals, the issue of an admission of a party-opponent
was raised once again. In Beard v. Dodd63 a guest passenger testi-
fied that the defendant-driver was driving approximately seventy
miles an hour when the accident occurred. The defendant offered
a witness who testified that the plaintiff-passenger had previously
told her that the defendant-driver was traveling thirty to thirty-
five miles an hour. The plaintiff then offered rebuttal witnesses
to substantiate her prior statement concerning her original esti-

mate of seventy miles an hour. The defendant objected to these
rebuttal witnesses, but the objection was overruled.84

The court of appeals concluded that the statement of the
appellee-passenger that the appellant-driver was driving thirty to
thirty-five miles an hour was an admission. Since the statement
v/as an admission, it was direct and original evidence rather than
impeaching evidence.85 The court drew a distinction between ad-
missions by party witnesses and admissions by nonparty witnesses.
A nonparty witness has the opportunity to offer evidence of prior
consistent statements to rebut evidence of inconsistent state-

ments.
86 The exception to this rule arises in the case of admissions

by a party-opponent like in Beard.67 An inconsistent statement or

&7See 1 E. Conrad, Modern Trial Evidence §475, at 376 (1956).
Conrad states that the undenied, unexplained, or unmodified admissions of
a party have substantive weight. An admission is not binding nor conclu-
sive upon a party if he subsequently modifies or explains it.

e3296 N.E.2d 442 (Ind. Ct. App. 1973).

B4Id. at 443.

65See note 3 supra. See also McCormick §§ 39, at 78, 251, at 601. Mc-
Cormick states that under the traditional hearsay rule exceptions, particular

inconsistent or consistent prior statements of a witness may be admissible
as substantive, relevant evidence as well as for impeachment purposes. The
prior statement is admissible as substantive evidence only when it falls
within one of the exceptions to the hearsay rule. Admissions of a party-

opponent is one of the exceptions.

86296 N.E.2d at 444. See also McCormick § 49, at 103-07.

67Logansport & Pleasant Grove Turnpike Co. v. Heil, 118 Ind. 135, 20
N.E. 703 (1888). This case held that when a party makes admissions they
come into evidence as original evidence. This principle is based upon the

idea that admissions of a party against his interest are made because they
accurately represent the facts. 296 N.E.2d at 445.



194 INDIANA LAW REVIEW [Vol. 7

an admission was shown and the appellee-passenger could not rebut

this testimony by calling other witnesses to support the original

statement. Thus, the court in Beard distinguished an admission

used as substantive evidence from impeaching testimony used to

discredit a witness.

2. Spontaneous Declaration

A third case, Moster v. Bower,68 involved another exception
to the hearsay rule. In Moster a suit was brought by a sporting
goods store clerk to recover for injuries he sustained as the result

of an explosion and fire. The explosion demolished the store and
killed the defendant-administratrix' decedent who was a customer
in the store at the time of the accident. The circuit court had
directed a verdict for the administratrix.

The Moster case involved the spontaneous declaration excep-
tion to the hearsay rule. Closely associated with this exception is

the res gestae exception also discussed at length in Moster.
69 Spon-

taneous declarations, res gestae, and excited utterances are inter-

related and the Moster court used all of these terms. The most
significant aspect of the case is the relationship between res gestae

and the Indiana Dead Man's Statute.90

The proprietor of the demolished store happened to be driving
to the store when the accident occurred, and upon his arrival he
assisted the plaintiff from the entrance of the store. 91 The plaintiff

a8286 N.E.2d 418 (Ind. Ct. App. 1972).

B9See 1 E. Conrad, supra note 82, § 381, at 304. Conrad states that the
term res gestae includes those exceptions to the hearsay rule which relate
to declarations or acts concomitant with the fact in issue and which tend
to illustrate or explain it. The term includes acts, statements, occurrences
and circumstances which are substantially contemporaneous with the main
fact and are so closely connected with it as to form a part of the main
transaction. See also McCormick § 297, at 704. McCormick states that the
term res gestae has a close and significant relationship to another exception
to the hearsay rule known as excited utterances.

90Ind. Code §34-1-14-6 (1971) provides:

In suits or proceedings in which an executor or administrator
is a party involving matters which occurred during the lifetime of

the decedent where a judgment or allowance may be made or rendered
for or against the estate represented by such executor or admin-
istrator; any person who is a necessary party to the issue or record,
whose interest is adverse to such estate, shall not be a competent
witness as to such matters against such estate ....

91 286 N.E.2d at 421.



1973] SURVEY OF RECENT DEVELOPMENTS 195

said something to the proprietor about a man's firing a gun into a
stack of shotgun shell primers in the store as they hurried across

the street. At trial, plaintiff's counsel asked the proprietor what
plaintiff had said at the scene of the accident. Defendant's counsel
objected, and the objection was sustained.'92

The court of appeals noted that the Dead Man's Statute was
enacted to prevent fraud against a decedent when the decedent
had no chance to answer and defend himself. The court, however,
turned to two cases which held that even though a declarant is
incompetent to testify as a witness, this will not ordinarily affect

the admissibility of his statements under the res qestae rule. 93 The
reliability of res gestae declarations was recognized by the
Moster court, and it was stated that the Dead Man's Statute in
Indiana has no application to a statement which is part of the
res gestae.

94

D. Sufficiency of the Evidence

A series of recent Indiana cases dealt with the amount of
evidence necessary to sustain a conviction for possession of nar-

cotics equipment with the intention to unlawfully administer nar-

cotics.
95 In the case of Bradley v. State, 96 the Indiana Court of

Appeals considered the question of whether a showing of mere
possession of narcotics equipment was sufficient to sustain a
conviction absent other evidence tending to prove intent to admin-

ister narcotics.

The defendant in Bradley had thrown to the ground a wrapped
package containing an eyedropper with a needle attached when a
police officer approached. The policeman searched the defendant
and found a bottle cap with burns on the bottom of it. The
defendant was indicted for possession of narcotic-adapted instru-
ments with the intent to administer narcotic drugs and was

92Id.

93Kenney v. Phillipy, 91 Ind. 511 (1883) ; Walker v. State, 162 Tex. Crim.
408, 286 S.W.2d 144, cert, denied, 350 U.S. 931 (1955), cited in 286 N.E.2d

at 425-26.

94286 N.E.2d at 426.

95Von Hauger v. State, 266 N.E.2d 197 (Ind. 1971) ; Taylor v. State, 257
N.E.2d 383 (Ind. 1971) ; Eskridge v. State, 281 N.E.2d 490 (Ind. Ct. App.

1972) ; Dabner v. State, 279 N.E.2d 797 (Ind. Ct. App. 1972).

96287 N.E.2d 759 (Ind. Ct. App. 1972).



196 INDIANA LAW REVIEW [Vol. 7

convicted.
97 The prosecution was required to prove three elements

to obtain conviction. 93 It was defendant's contention that the
prosecution failed to prove unlawful intent. Previous Indiana

cases had found unlawful intent through evidence of flight,
abandonment of a package, previous convictions, and admissions
of narcotic use.

99 The question in Bradley was whether flight
accompanied by attempted concealment constituted sufficient proof
of intent.

100

In reversing the conviction, the court of appeals stated that

the evidentiary value of flight was tenuous since flight alone
could not support a conviction especially when an explanation was
offered.

101 The act of concealment was merely a suspicious cir-
cumstance and, according to the court, was insufficient to prove
the requisite intent.

102

In contrast to Bradley, the Indiana Court of Appeals in Harms
v. State*

03
held that evidence of flight while being held on a

charge is admissible upon the issue of guilt. In Harms the court
held that the subjective statements of the defendant as to his

reasons for fleeing went to the weight of the evidence and not
to its admissibility. This holding suggests a conflict with some of
the statements in Bradley respecting the evidentiary value of flight.

Tomlin v. State* 04 dealt with an issue concerning the suffi-

ciency of medical testimony in a sanity case. After pleading

guilty, the appellant had been convicted of robbery while armed
with a deadly weapon. He requested that the guilty plea be set
aside on the ground that he had a mental problem, and the request

was granted. The court appointed two physicians to examine the

"Id.

98Ch. 90, §2, [1961] Ind. Acts 169 (repealed 1973). Pursuant to this
statute the prosecution must prove that a person had possession of narcotic
equipment, that the equipment was adapted for the use of narcotic drugs by
injection into a human, and that the person who possessed the narcotic equip-
ment had intent to unlawfully administer the drugs.

"See note 6 supra.

100287 N.E.2d at 762.

101 £ee also McAdams v. State, 226 Ind. 403, 81 N.E.2d 671 (1948),
cited in 287 N.E.2d at 763.

102287 N.E.2d at 763.

103295 N.E.2d 156 (Ind. Ct. App. 1973).

104283 N.E.2d 363 (Ind. 1972).



1973] SURVEY OF RECENT DEVELOPMENTS 197

appellant who, upon examination, was found mentally capable of
standing trial. 105 Appellant then went through the same procedure
by pleading guilty and withdrawing the plea, and he was given
another medical examination. The second examination found the
appellant incompetent, and he was placed in an institution for five
months, after which he was found competent to stand trial.
Appellant's counsel contended that the testimony of the court
appointed physicians was inconclusive and contradictory. In a
similar case to that of Tomlin, the court held that a conviction

need not be reversed on the ground that uncontradicted psychiatric
testimony established the defendant's incompetency even though
the opinions of the doctors were not absolute. 106 The court in
Tomlin concluded, therefore, that the testimony of one of the court
appointed physicians was sufficient to sustain a finding of sanity. 107

In Turner v. State* 08 decided by the Indiana Supreme Court,
the issue involved a conviction for manslaughter based upon the
uncorroborated testimony of an accomplice. The appellant and two
codefendants were charged with first degree murder and murder
in the commission of a felony, to wit: robbery. Separate trials

were granted to appellant's codefendants. Appellant was tried
and found guilty of manslaughter. His main contention was that
the trial court erred in refusing to give an instruction concerning

the testimony of an accomplice. 109 In Indiana accomplices are

competent witnesses when they consent to testify. 110 A conviction
in Indiana may be based upon and upheld on the uncorroborated
testimony of an accomplice. 111 The court in Turner recognized

the principle that the testimony of any witness who has an obvious
interest in the case should be carefully examined. The jury, and

105
/cZ.

106Johnson v. State, 255 Ind. 324, 264 N.E.2d 57 (1970).

107283 N.E.2d at 364.

1O8280 N.E.2d 621 (Ind. 1972).

109
/d. at 622. The appellant's instruction was offered to inform the jury

that the testimony of an accomplice should be closely examined by the jury

and weighed according to its credibility.

110Ind. Code §35-1-31-3 (1971).

in 280 N.E.2d at 624, citing Green v. State, 241 Ind. 96, 168 N.E.2d

345 (1960). The court in Green made a statement to the effect that the testi-
mony of an accomplice must be received with caution. The instruction offered
by appellant in Turner reiterated this point.



198 INDIANA LAW REVIEW [Vol. 7

not the judge, however, determines the credibility of the witnesses

and the weight to be given to their testimony.
112

It was the court's
opinion that standard instructions given by the court in every

criminal trial would provide ample opportunity to an attorney

to comment about any bias of a witness. 113

E. Relevancy

1. Circumstantial Evidence

Although Brown v. Richards" 4 was decided on a sufficiency
of the evidence basis, the crucial issue in the case was whether or
not state of mind, knowledge, and mental attitude could be shown
by circumstantial evidence. In Brown, the plaintiff-appellant's
seventeen-year-old son was fatally injured while riding as a guest
passenger. The host lost control of the car while piloting it
through an S-curve. The plaintiff charged that the accident was
the proximate result of wilful and wanton misconduct by the
defendant. There were no eyewitnesses to the crash.

In finding for the appellant, the court of appeals, quoting

extensively from Brueckner v. Jones" 5 stated that in many
instances a person's actions are indicative of an indifference to
their natural consequences. That is, a person's mental attitude or

state of mind may be shown by circumstantial evidence—no
declaration or admission is necessary. In fact, such knowledge,

like premeditation in criminal prosecutions for murder, is seldom

admitted by the defendant in a civil matter. 116 Brown agreed
with the majority view espoused in both civil and criminal cases. 117

Usually, regardless of the prejudicial effect, evidence tending to

show mental attitude and state of mind is admissible and rele-
vant.

118

U2See Taylor v. State, 278 N.E.2d 273 (Ind. 1972). The court in Taylor
thought that it was error for the court to single out a particular witness and
make suggestions indicating to the jury that the witness may be testifying
falsely.

n3280 N.E.2d at 625. With this opportunity present, the rights of the
appellant are preserved, and the province of the jury is not invaded by the

trial court.

n4277 N.E.2d 910 (Ind. Ct. App. 1972).

115 146 Ind. App. 314, 322, 255 N.E.2d 535, 540 (1970).

116National City Lines v. Hurst, 145 Ind. App. 278, 283, 250 N.E.2d 507,

510 (1969).

" 7See 8 Ind. L. Encyclopedia, Criminal Law § 188 (1971).
n6Such evidence is admissible even though it occurred prior to the com-

mission of the crime. Fausett v. State, 219 Ind. 500, 39 N.E.2d 728 (1942).



1973] SURVEY OF RECENT DEVELOPMENTS 199

2. Prior Similar Transactions

Generally in Indiana evidence of prior independent crimes
to show a disposition, tendency, or likelihood of the defendant
to commit the offense for which he is charged is inadmissible
except for the purpose of showing: 1) intent; 2) motive; 3) pur-
pose; 4) identification; and 5) common scheme or plan. 119 A
further exception is commonly recognized by this state's courts
in prosecutions of crimes involving depraved sexual instinct and in
cases involving assault and battery with the intent to rape. 120

In Gilman v. State,
121

the defendant was charged with assault
and battery with the intent to gratify sexual desires. On appeal,
the defendant's assertion was that his defense was prejudiced
when the State introduced evidence of a prior sodomy conviction.
The defendant, in attempting to distinguish his case, argued that
prior Indiana cases 122 concerned charges for the same act involv-
ing depraved sexual instinct. The supreme court, however, stating
that all that is required is a prior similar act showing a depraved
sexual instinct, affirmed the conviction.

123 A vigorous dissent124
supported the defendant's contentions. It pointed out the danger

that existed whenever prior acts are used to demonstrate the dis-
position to commit a subsequent act. Ail individuals on trial for

U9See, e.g., Watts v. State, 229 Ind. 80, 95 N.E.2d 570 (1950); Her-
genrother v. State, 215 Ind. 89, 18 N.E.2d 784 (1939) ; Gears v. State, 203

Ind. 380, 180 N.E. 585 (1932).

]70See Miller v. State, 268 N.E.2d 299 (Ind. 1971); Kerlin v. State, 265

N.E.2d 22 (Ind. 1970) ; Woods v. State, 250 Ind. 132, 235 N.E.2d 479 (1968)

;

Lamar v. State, 245 Ind. 104, 195 N.E.2d 98 (1964). It is of great importance
in these cases that the prior acts showing depraved sexual instinct do not

have to be with the same person. The general rule is that the similar acts
must be with the same person. McCormick § 190, at 449.

121 282 N.E.2d 816 (Ind. 1972).

]72
E.g., cases cited note 32 supra.

123The rules of evidence proposed for use in federal courts do not spe-

cifically include depraved sexual instinct as one of the exceptions for the ad-

missibility of character evidence. Rule 404(b) states:

Evidence of other crimes, wrongs or acts is not admissible to prove

the character of a person in order to show that he acted in conformity

therewith. It may, however, be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation, plan, know-

ledge, identity or absence of mistake or accident.

124The dissent filed by Justice Prentice, 282 N.E.2d at 817, was similar to
Justice DeBruler's dissenting opinion in Kerlin v. State, 265 N.E.2d 22, 25-26

(Ind. 1970).



200 INDIANA LAW REVIEW [Vol. 7

sexual offenses should be afforded the same evidentiary safe-
guards against irrelevant and prejudicial information as any other
defendant.

125

In Lawrence v. Stated 26 the supreme court was again plagued
with the problem of the State's desire to enter prior similar
offenses into evidence. The defendant was charged with safe
burglary and being an habitual criminal. 127 Both counts were
heard at the same time, the evidence of one having been merged
with evidence of the other. Again, the court recited Indiana law
that evidence of prior offenses was admissible if relevant to show
intent, motive, knowledge, plan, identity, credibility, or depraved

sexual instinct.
128 However, in Lawrence no showing was made

that the prior offenses were in any way relevant to the charge of
safe burglary. Their sole relevance lay in giving support to the

habitual criminal allegation. In adopting the holding of a Connecti-

cut case,
129

the court ruled that the information in such cases should

be divided into two parts. The jury should have first heard all of
the evidence and pleas for the alleged safe burglary. After having
decided that count, the jury would proceed to the habitual crimin-

al charge and the defendant would have an opportunity to change
his plea and/or offer all evidence related thereto. Since the

procedure employed by the trial court constituted a denial of
due process, the high court ordered a new trial.

125Meeks v. State, 249 Ind. 659, 234 N.E.2d 629 (1968). It may be im-
portant to point out that the Meeks application of depraved sexual instinct
was severely criticized in Kerlin v. State, 265 N.E.2d 22 (Ind. 1970).

126286 N.E.2d 830 (Ind. 1972).

127The Indiana habitual criminal statute, Ind. Code §35-8-8-1 (1971),
reads as follows:

Every person who, after having been twice convicted, sentenced and
imprisoned in some penal institution for felony, whether committed

heretofore or hereafter, and whether committed in this state or else-

where within the limits of the United States of America, shall be
convicted in any circuit or criminal court in this state for a felony
hereafter committed, shall be deemed and taken to be an habitual
criminal, and he or she shall be sentenced to imprisonment in the

state prison for and during his or her life.

128Ashton v. Anderson, 279 N.E.2d 210 (Ind. 1972); Gilman v. State,

282 N.E.2d 816 (Ind. 1972) ; Schnee v. State, 254 Ind. 661, 262 N.E.2d 186

(1970); Burns v. State, 255 Ind. 1, 260 N.E.2d 559 (1970); Watts v. State,

229 Ind. 80, 95 N.E.2d 570 (1950). See also cases cited note 31 supra.

129State v. Ferrone, 96 Conn. 160, 113 A. 452 (1921).



1973] SURVEY OF RECENT DEVELOPMENTS 201

F. Experts

1. Expert Testimony

In DeVaney v. State,*™ sl significant change in Indiana evi-
dentiary law, the supreme court dealt with a litigious conundrum

:

the expert testifying on an ultimate issue. The defendant was
charged with reckless homicide and causing the death of another
while under the influence of intoxicating liquor. The court
permitted an expert, called by the State, to testify on the ultimate
issue in the case—in particular, the expert expressed an opinion
that the point of impact was outside the defendant's traffic lane
and thus indicated that the defendant crossed the center yellow
line. The supreme court held that an expert could direct his
testimony to the ultimate issue as long as the jury was free to
reject the opinion.

131 By so ruling, the court explicitly overruled
numerous Indiana cases 132 and joined a majority of state courts. 133

The reason cited for the change was that the rule forbidding
opinion evidence as to ultimate issues was unduly restrictive and
burdensome and incapable of uniform application. Furthermore,

under the court's new directive there will be no usurpation of the
adjudicating function, for an expert is still not permitted to

testify as to conclusions of law.
134

In Robertson v. State,*
35

the prosecution charged the defend-

ant with driving and operating a motor vehicle while under the

influence of an intoxicating liquor. The defendant's primary
contention of error on appeal rested on the State's asking his

130288 N.E.2d 732 (Ind. 1972).

131 Of course, this assumes that the preliminary requirements for an ex-

pert's opinions, e.g., that he is qualified, that he is speaking on a subject

peculiarly within his knowledge, etc., have been fulfilled. See McCormick

§ 12, at 27.

]37See, e.g., Stroud v. State, 273 N.E.2d 842 (Ind. 1971) (expert's testi-

mony that newspaper Screw had socially redeeming value was inadmissible
because it went to ultimate issue) ; Ellis v. State, 252 Ind. 472, 250 N.E.2d

364 (1969) (expert could not testify as to how a fire started); Baker v.
State, 245 Ind. 129, 195 N.E.2d 91 (1964) (expert could not testify as to

whether plaintiff was laboring under legal disability).

133McCormick §12, at 27.

134This is the general rule although there is an exception when the issue

concerns a question of foreign law. See id. at 28.

135291 N.E.2d 708 (Ind. Ct. App. 1973).



202 INDIANA LAW REVIEW [Vol. 7

family physician a hypothetical question.
136 Defendant charged

that such questioning violated the physician-patient privilege

under Indiana Code section 34-1-14-5, which renders a doctor
"incompetent" 137 to testify concerning matters communicated to
him in the course of a professional service. The court, in uphold-
ing the trial court, stated that the mere fact that a doctor was
the defendant's physician was immaterial when the question posed
was a hypothetical based on facts in evidence. Furthermore,
there was nothing in the record to indicate that the physician
took into account facts other than those stated in the hypothetical

when proffering his conclusion. This ruling reaffirmed prior
Indiana case law. 138

Blackburn v. Stated 9 decided by the supreme court, also

concerned the issue of expert testimony. The defendant, charged
with first degree murder and found guilty of murder in the
second degree, alleged on appeal 140 that the court erred in allowing

136The prosecutor asked the doctor to assume the following facts:

[The man] has the odor of alcoholic beverages about his breath and
person, his speech is slurred, he's thick-tongued, hard to understand,

he lacks control of his limbs, he's disorganized as to where he is and
why, he's loud and boisterous and verbose, he displays, to some ex-
tent, a sense of power in the sense that he knows what he can do and
what he can't ... he does not follow instructions . . . he has some
lacerations about the face, based on these facts, doctor, and based
on your expertise, do you have an opinion as to whether such a man
would be under the influence of intoxicating beverage or liquor.

Id. at 710.

137The word "incompetent" is probably a legislative oversight. Our legis-
lators probably meant to use "privileged" since there is every indication the
patient must claim the physician-patient relationship.

13flSee, e.g., Hauch v. Fritch, 99 Ind. App. 65, 189 N.E. 639 (1934). There
is no physician-patient privilege under the Proposed Federal Rules of Evi-

dence. However, rule 504 provides for a psychotherapist-patient privilege.

Under that rule a psychotherapist is:

... (A) a person authorized to practice medicine in any state or na-
tion, or reasonably believed by the patient so to be, while engaged in
the diagnosis or treatment of a mental or emotional condition, includ-

ing drug addiction, or (B) a person licensed or certified as a psy-
chologist under the laws of any state or nation, while similarly en-

gaged.

Rule 504(a) (2).

139291 N.E.2d 686 (Ind. 1973).

140Another of the defendant's arguments on appeal was that the court
erred in allowing two court-appointed psychiatrists to testify during the



1973] SURVEY OF RECENT DEVELOPMENTS 203

the State to cross-examine an expert witness beyond the scope of
the direct testimony. The court had allowed the expert to answer
a hypothetical question dealing with the mental state of a man
who would shoot his wife's lover, if he found the wife and lover
together. The lower court reasoned that the question was ad-
missible to determine the witness* opinion on emotional acts.
The supreme court affirmed and stated that hypothetical questions
may be used in cross-examination to determine the extent of the
expert's knowledge and to analyze the standard or foundation for
his opinions. Consequently, the cross-examination of an expert
through the use of hypothetical questions beyond the scope of the
direct examination was held proper and appropriate. 141 This
position was an affirmation of prior Indiana case law142 indicating
the necessity for liberality and reasonable latitude when testing
an expert's knowledge of the subject-matter. 143

An expert's testimony was again a point of objection in
Smith v. State,"4 wherein the defendant was charged with first
degree murder. The issue on appeal was whether or not the
testimony of two court-appointed psychiatrists was admissible. The
defendant charged that the psychiatrists' opinions regarding his

sanity were hearsay, since they were based in part on hospital
records, the writers of which were not in court for cross-

examination. The supreme court, adopting language used in Bird-
sell v. United States, 145 held that opinions based on tests performed

by others are not admissible pursuant to the regularly kept records

exception to the hearsay rule.
146 However, if an expert is in court

and subject to cross-examination, and if that expert customarily

State's case in chief. The court of appeals stated that court-appointed ex-
perts must be placed on the stand after both the State's and the defendant's
cases. However, for the error to be reversible, the defendant must have
shown that it prejudiced his substantive rights. Since the defendant failed

to include such a statement, the court rejected this contention of reversible

error. 291 N.E.2d at 698.

141 This seems to be the general rule even in jurisdictions adopting the

most restrictive view on scope of cross-examination. McCormick § 22.

,42See, e.g., McHargue v. State, 193 Ind. 204, 139 N.E. 316 (1923);
Wheeler v. State, 158 Ind. 687, 63 N.E. 975 (1902).

143 Sharp v. State, 215 Ind. 505, 506, 19 N.E.2d 942, 943 (1939).

,44285 N.E.2d 275 (Ind. 1972).

145346 F.2d 775, 779-80 (5th Cir. 1965).

146See 13 Ind. L. Encyclopedia Evidence § 162 (1959) for a general

discussion of "regularly kept records" as an exception to the hearsay rule.



204 INDIANA LAW REVIEW [Vol. 7

relies on reports made by qualified personnel, he may state an
opinion based at least in part on the report. 147 There was no
reason to deprive the expert of the tools ordinarily used in making
his diagnosis merely because he took the witness stand. Of
great import to the court was the high reliability of reports.
Additionally, with the complexity of and specialization in medicine,
it would be difficult, if not impossible, to find a physician who
participated in the diagnosis at all levels and phases.

The Smith decision appears to have changed Indiana case
law.

14a In the past, Indiana courts had ruled that an expert could
give an opinion based either on information already in evidence, 149

e.g., testimony of others, or in response to hypothetical questions.150

By so expanding the traditional rule in Smith, the court was
assured of receiving not only the opinion of two experts, but also
a distillation of reliable information.

2. Experts* Qualifications

The trial court, generally, has great discretion when deciding
whether or not it will allow a witness to be categorized as an
expert.

151
In Chappel v. State, ]52 the defendant was convicted of

breaking and entering with the intent to commit theft. The
defendant's objection was that the police captain should not have
been considered an expert in the use of tools for burglary. At
trial, the captain testified that the defendant's crowbar could

have been used to pry open a door. The supreme court, citing
past Indiana authority, defined an expert as one who, either

through special training or education or through experience, had

acquired a special skill or knowledge in a particular area. 153

,47285 N.E.2d at 275, 276.

14SFor a general discussion of evidence based on the testimony of others,

see 13 Ind. L. Encyclopedia Evidence §303 (1959).

149Burns v. Barenfield, 84 Ind. 43 (1882).

150Mounsey v. Bower, 78 Ind. App. 647, 136 N.E. 41 (1922).

151 McCormick § 13, at 30.

152282 N.E.2d 810 (Ind. 1972).

' 53See, e.g., Patterson v. State, 262 N.E.2d 520 (Ind. 1970) (case involv-

ing illegal possession of heroin wherein court stated "extensive experience,"

I41/2 years on the force and graduation from a federal training school, was
sufficient) ; Spencer v. State, 237 Ind. 622, 147 N.E.2d 581 (1958) (in prose-

cution for forgery of a check, employees of bank were deemed experienced
in reading signatures) ; Dougherty v. State, 206 Ind. 678, 191 N.E. 84 (1934)
(in prosecution for possession of burglary tools, ten years experience on police



1973] SURVEY OF RECENT DEVELOPMENTS 205

Here the experts had been on the police force for thirteen years
and had spent five of those years as a detective. The court held that
such a witness should be allowed to testify to the obvious. 1154

G. Privilege

1. Plea Bargaining

In civil cases, it is well established that communications and
acts of a party in furtherance of compromise or settlement of a
legal dispute are privileged and, therefore, inadmissible. 1 " 5 The
rule in criminal cases in Indiana, however, has never been settled.
Such communications have been treated as confessions, admissions
against interest, and evidence showing a consciousness of guilt.
In Moulder v. State? 56 the defendant appealed a conviction for
involuntary manslaughter. The defendant objected to the admis-
sion of a sheriff's statement that the defendant told him that
the prosecutor failed to take a plea of guilty for manslaughter.

Such a statement, the defendant contended, was made in further-
ance of a compromise and consequently should have been privileged.
The court of appeals, hearing this case of first impression, reversed
the conviction. Any communication relating to plea bargaining
was privileged and therefore inadmissible unless there was a
subsequent plea of guilty. 157 By so ruling, the Indiana court
aligned with the majority of courts158 and substantially adopted

the rule recommended by the American Bar Association in its

force was sufficient) . Furthermore, in all of the above cited cases, the courts
stated that the trial courts' rulings should stand unless there was an abuse
of discretion.

154282 N.E.2d at 812. The supreme court may have expanded the grounds
for experts' opinions with this statement. Generally, an expert may give an
opinion only on some subject distinctly beyond the ken of the layman. See

McCormick § 12, at 29. However, here the court went much further and
seemingly allowed the expert to state an opinion based on facts within the

layman's knowledge.

]55See, e.g., Northern Ind. Steel Supply Co., Inc. v. Chrisman, 139 Ind.

App. 27, 204 N.E.2d 668 (1965).

,56289 N.E.2d 522 (Ind. Ct. App. 1972).

]57See Proposed Fed. R. of Evid., rule 410:

Evidence of a plea of guilty, later withdrawn, or a plea of nolo con-

tendere, or of an offer to plead guilty or nolo contendere to the crime

charged or any other crime, or of statements made in connection with

any of the foregoing pleas or offers, is not admissible in any civil

or criminal proceeding against the person who made the plea or offer.

15SMcCormick §274, at 665.



206 INDIANA LAW REVIEW [Vol. 7

Minimum Standards for Criminal Justice? 59 This new Indiana
rule will promote an effective criminal court administration by
allowing for the disposition of many criminal cases by compromise.

2. Comment on Refusal to Take Stand

In Rowley v. State? b0 the defendant, convicted of burglary,
contended on appeal that the trial court erred when it did not
promptly admonish the jury to disregard a statement by the
prosecution that there was no evidence indicating that the defend-
ant was not guilty. Indiana's highest court found that the remark
violated the defendant's right to a fair trial and reversed the
judgment. Indiana statutory law proscribes prosecution com-
mentary on a defendant's refusal to take the stand. 161 Moreover,
it is not sufficient for the judge merely to instruct the jury at the

end of the case that they are not to consider such a comment.

The judge is required to admonish the jury immediately. 162 Fur-
thermore, it is important to note that this long-standing prohibition

against commenting on the silence of the accused was constitu-
tionalized by the United States Supreme Court in Griffin v. Cali-
fornia?^

,59ABA Project on Minimum Standards for Criminal Justice, Pleas
of Guilty §3.4 (Approved Draft 1968).

Unless the defendant subsequently enters a plea of guilty or nolo

contendere which is not withdrawn, the fact that the defendant or

his counsel and the prosecuting attorney engaged in plea discussions
or made a plea agreement should not be received in evidence against
or in favor of the defendant in any criminal or civil action or admin-
istrative proceedings.

160285 N.E.2d 646 (Ind. 1972).

161 Ind. Code §35-1-31-3 (1971) states that the following people are com-
petent as witnesses:

First. All persons who are competent to testify in civil actions.

Second. The party injured by the offense committed.

Third. Accomplices, when they consent to testify.

Fourth. The defendant, to testify in his own behalf. But if the de-
fendant does not testify, his failure to do so shall not be commented
upon or referred to in the argument of the cause nor commented upon,
referred to, or in any manner considered by the jury trying the same;
and it shall be the duty of the court, in such case, in its charge, to

instruct the jury as to their duty under the provisions of this section.

162Knopp v. State, 233 Ind. 435, 120 N.E.2d 268 (1954) ; Keifer v. State,
204 Ind. 454, 184 N.E. 557 (1933) ; Showalter v. State, 84 Ind. 562 (1882).

163380 U.S. 609 (1965). In Griffin, the highest Court said that the fifth

amendment in its bearing on the states through the fourteenth amendment
forbids comment by the prosecution on the accused's silence.



1973] SURVEY OF RECENT DEVELOPMENTS 207

H. Miscellaneous

1. Confessions

The concept of treating juveniles by standards different than
those applied to adults pervades our statutory scheme. It would
be somewhat naive to assume that a juvenile, needing protection
when deciding when to drink, 164 marry, 165 or smoking ciga-
rettes,

166
could stand on the same footing as adults when waiving

fifth and sixth amendment rights. Lewis v. Stated 7 an appeal
from a conviction of first degree murder, involved the admissibility
of a juvenile's confession taken while defendant was under cus-
todial interrogation and without the aid and support of either
parents or counsel. The supreme court, in reversing the conviction,
held that although a juvenile could waive his rights under the
constitution, all efforts must be taken to insure the voluntariness
of the confession. Therefore, a juvenile's statement could be used

against him if both he and his parents understand his rights to
remain silent and to an attorney. This ruling was an affirmation
of prior Indiana168 and federal case law169 and finds support in
the Model Rides for Juvenile Courts^

70 and Proposed Indiana

,64Ind. Code §7-2-1-9 (1971).

:b5Id. §31-1-1-1.

'"Id. §35-1-105-1.

167288 N.E.2d 138 (Ind. 1972), noted in 6 Ind. L. Rev. 577 (1973).

16SMcClintock v. State, 253 Ind. 333, 253 N.E.2d 233 (1969); Sparks v.

State, 248 Ind. 429, 229 N.E.2d 642 (1967).

' 69See, e.g., Haley v. Ohio, 332 U.S. 596 (1948) ; In re Gault, 387 U.S. 1

(1967) (confessions of juveniles require special caution).

170National Council on Crime and Delinquency, Model Rules for
Juvenile Courts rule 25 (1968)

:

Only testimony that is material and relevant to the allegations of the

petition shall be admitted into evidence. No testimony that would be
inadmissible in a civil proceeding shall be admitted into evidence.

No extra-judicial statement by the child to a peace officer or court
officer shall be admitted into evidence unless made in the presence
of a parent or guardian of the child, or of the child's counsel. No
such statement shall be admitted into evidence unless the person of-

fering the statement demonstrates to the satisfaction of the court

that, before making the statement, the child and his parents were
informed and intelligently comprehended that the child need not make
a statement, that any statement made might be used in a court pro-
ceeding, and that the child has a right to consult with counsel prior

to or during the making of a statement.



208 INDIANA LAW REVIEW [Vol. 7

Rules of Juvenile Procedure.'
7

' The rule adopted by the court
does not make a juvenile's confession inadmissible per se but only
emphasizes the safeguarding procedures deemed necessary to avoid
all elements of coercion, duress, or inducement.

2. Parol Evidence

Succinctly stated, the parol evidence rule dictates that the

terms and conditions of a written agreement cannot be altered,
modified, or changed by statements de hors the instrument. 172

Or as stated in a recent Indiana decision: "The parol evidence
rule states that a written agreement or contract, signed by the
parties, is conclusively presumed to represent an integration or
meeting of minds of the parties." 173 In Vernon Fire & Casualty
Insurance Co. v. Thatcher, WA the defendant appealed from a judg-
ment for fire loss not covered in the insurance policy. The de-
fendant argued that the lower court should have excluded evidence

of misrepresentation since the parol evidence rule renders such

evidence inadmissible and, therefore, limits the liability to the

terms of the policy. Plaintiff-appellee, however, asserted that the

complaint for damages did not attempt to change the terms of the
instrument but merely alleged misrepresentation. The court upheld
the verdict for the plaintiff and stated that the parol evidence
rule had never operated to exclude evidence of misrepresentation. 175

A plethora of Indiana cases dating from 1856 had developed this

All oral testimony shall be given under oath, and may be given in
narrative form.

(The Model Rules were proposed by the Council of Judges of the National
Council on Crime and Delinquency.)

171 Report of Ind. Civil Code Study Comm'n, Proposed Juvenile Pro-
cedure Code rule 9 (1970) :

Any self-incriminating admission or omission obtained by the juve-
nile court or its staff during the performance of juvenile court duties,

including but not limited to the preliminary inquiry, the period of

informal adjustment or the waiver hearing, shall not be admitted at

any fact-finding hearing or at any time prior to conviction if the pro-
ceeding is transferred to a criminal court over objections thereto

made at that time.

172Lewis v. Burke, 248 Ind. 297, 305, 226 N.E.2d 332, 337 (1967).

173Weaver v. American Oil, 276 N.E.2d 144, 147 (Ind. 1971).

174285 N.E.2d 660 (Ind. Ct. App. 1972).

W5See generally 13 Ind. L. Encyclopedia Evidence §204 (1959).



1973] SURVEY OF RECENT DEVELOPMENTS 209

proposition.
176 Whenever fraud or misrepresentation is alleged,

the evidence is inadmissible to change the instrument but admis-
sible to determine the validity of the contract or the award of
damages. 177

3. Refreshing Memory

It is an established practice that in interrogating a witness
an attorney may hand the witness a writing to refresh his recol-
lection. In the case of LeFlore v. Stated

76
the Supreme Court of

Indiana considered this evidentiary rule.

The appellant had been convicted of robbery by a jury. He
contended that the trial court erred in denying his request for
production of a card file which belonged to a witness for the
prosecution.

179 The witness was a police officer who kept a card
file at his home. The cards recorded investigations that the police-
man had made, and the officer said that he had used the file to
refresh his memory prior to trial. The appellant contended that
the card file should have been produced at the trial to allow
appellant to adequately cross-examine the policeman.

The court relied on two cases in resolving the question as to
whether or not the card file should have been made available to
the appellant.

150 These cases held that there is a right to have

writings produced only when the witness uses the writing while
he is on the stand. The policeman in LeFlore did not use the notes
to refresh his memory while he was on the stand; therefore, the
trial court did not err when it refused to order a production of
the writing.

181

176McClure v. Jeffrey, 8 Ind. 79, 83 (1856) ; Tribune Co. v. Red Ball Tran-
sit Co., 84 Ind. App. 666, 151 N.E. 338 (1926) ; Paxton-Eckman Chemical Co.
v. Mundell, 62 Ind. App. 45, 112 N.E. 546 (1916).

177In Tyler v. Anderson, 106 Ind. 185, 191, 6 N.E. 600, 603 (1886), the

court said that if misrepresentation is used as a defense rather than to in-

validate the contract or for damages, the parol evidence rule operates to ex-

clude the information.

176281 N.E.2d 876 (Ind. 1972).

179
7d. at 877.

ieo281 N.E.2d at 877-78, citing Northern Ind. Pub. Serv. Co. v. W.J. &
M.S. Vesey, 210 Ind. 338, 200 N.E. 620 (1936) ; Lennon v. United States, 20
F.2d 490 (8th Cir. 1927). It is only when the witness uses the writing to
refresh his memory while on the stand that there is a right to compel produc-
tion.

18, 281 N.E.2d at 878.



210 INDIANA LAW REVIEW [Vol. 7

A. Evidentiary Harpoons

An "evidentiary harpoon" is defined as evidence calculated
to prejudice unfairly the minds of jurors against a defendant. 182

In King v. State™ 2 the prosecutor asked the arresting police officer
whether or not he had previously known the appellant. The officer
testified that he had arrested the appellant ten days previously.
Appellant's counsel objected to this testimony as being an "evi-
dentiary harpoon." The King court considered the thirteen factors
listed in White v. State™4 to determine whether sufficient pre-
judicial harm had been done, but distinguished the case on a
different ground. The appellant was tried by the court alone,
and it has been held in Indiana that many errors may be practi-
cally nullified when no jury is present. 185

In another "evidentiary harpoon" case, Brown v. State,™6

the appellant had been convicted of first degree burglary. During
the course of the trial, a police officer was asked if the appellant
had said anything when arrested. The policeman answered no,
but proceeded to make a reference to the fact that the appellant
was an escapee from the reformatory. 187 The defense counsel
moved for a mistrial on the ground that this statement unduly
prejudiced the jury. The supreme court recognized the principle
that it is improper for a witness to inject statements concerning

unrelated prior crimes committed by defendant. In the court's

,62King v. State, 292 N.E.2d 843, 846 (Ind. Ct. App. 1973).

183
/d.

1S4272 N.E.2d 312 (Ind. 1971). The thirteen factors include: (1) effect
of constitutional provisions, statutes, or rules relating to harmless error;

(2) degree of materiality of the testimony; (3) other evidence of guilt;

(4) other evidence tending to prove the same fact; (5) other evidence that
may cure improper testimony; (6) evidence of waiver by injured party; (7)
voluntariness of the witness' statement and deliberateness of the prosecutor

to present the matter to the jury; (8) penalty assessed; (9) action by de-
fendant or his counsel in partially eliciting the testimony; (10) existence of

other errors; (11) existence of a close, clear, or compelling question of guilt;

(12) standing and experience of person giving objectionable testimony; (13)
repetition of objectionable testimony or misconduct.

ia5 Shira v. State, 187 Ind. 441, 119 N.E. 833 (1918). The reason that
many errors are nullified is that the trial judge sitting alone is presumed to
know what evidence to consider and what prejudicial evidence to reject. In
King the trial judge made no reference to the police officer's statement in
deciding the case, therefore, it may be presumed that the "evidentiary har-
poon" had no prejudicial effect on the outcome of the case.

lfl6281 N.E.2d 801 (Ind. 1972).

)&7
Id. at 802.



1973] SURVEY OF RECENT DEVELOPMENTS 211

opinion, however, the statement made by the police officer consti-
tuted harmless error for two reasons: the facts given during
the trial substantially connected the appellant with the crime and
the trial court had sufficiently instructed the jury to disregard
the testimony referring to the appellant as an escapee. 1188

5. Dead Man's Statute

In the case of Jenkins v. Nachand, ]89 the court of appeals
reviewed the question of whether certain testimony offered was
admissible under the Dead Man's Statute. The appellant was
involved in a car accident while riding with appellee's decedent.
If the appellant had been allowed to testify, she would have told
the trial court that appellee's decedent recklessly turned the car

into oncoming traffic after appellant had repeatedly warned him
not to do so. 190 Appellant's main contention was that the Dead
Man's Statute did not preclude her testifying as to matters relating
to the collision and occurring during the lifetime of the decedent.
She based her contention on the fact that a judgment would not be
adverse to the estate of appellee-decedent, but rather against

the administrator only to reach an insurance policy. The decedent's
heirs or estate did not have any right, title, or interest in the
insurance policy and therefore, according to the appellant, a judg-
ment would neither indirectly nor directly affect the estate. 1 91

The court concluded that appellant's claim would not affect the
assets of the estate for two primary reasons. The first was that
there was no claim filed against the estate within six months of
the first publication of notice as required by statute. 192 Secondly,

the estate had been fully administered, distribution made, and
the estate closed before a suit was initiated. Considering the intent
of the Indiana General Assembly in passing the Dead Man's

188
/d. See Capps v. State, 282 N.E.2d 833 (Ind. 1972). In Capps a police

officer testified that the defendant was initially arrested for his suspected
connection with the interstate transportation of stolen suits. Appellant con-

tended that the testimony was prejudicial, but the testimony was not objected
to at trial nor raised in a motion to correct errors and therefore, the court

did not have to rule on it.

,89290 N.E.2d 763 (Ind. Ct. App. 1972).

190
/d. at 764.

191 Appellant contended that because a judgment would not affect the de-

cedent's estate in this case, the Dead Man's Statute would be inapplicable. A
judgment must affect the estate of the decedent for the statute to operate.

See note 15 supra.

192Ind. Code §29-1-14-1 (1971).



212 INDIANA LAW REVIEW [Vol. 7

Statute, the court decided that it was reversible error to refuse to
allow appellant to testify in this case.

193

IX. Probate and Trusts*

A. Executors and Administrators

During the survey period the Indiana Court of Appeals decided
several cases concerning the administration of decedents' estates.

In Krick v. Farmers & Merchants Bank 1 the appellant moved to
set aside the compromise of an earlier contest of the decedent's
will on the ground that he had no notice of the settlement and
that the terms of the compromise were not reduced to writing.2

After his motion was denied, the appellant waited over five years
before filing an objection to the administrator's final report.

Though the administration of an estate is considered "one
proceeding ... in rem" 3 many Indiana courts treat collateral or

193The Jenkins court felt that it was not the intent of the legislature in
enacting the Dead Man's Statute to prevent testimony that could not affect
a decedent's estate. 290 N.E.2d at 769.

"Bruce W. Claycombe, Mark T. McDermott, John R. Politan.

'279 N.E.2d 254 (Ind. Ct. App. 1972).

2 Ind. Code § 29-1-9-1 (1971) provides that a will compromise is invalid
if not reduced to writing. It should be noted that the appellant filed objec-

tions to the will compromise at three different times on the basis of this
statute and his lack of actual notice. The first motion was denied by the
trial court in September 1964, and no appeal was taken. The second motion
was filed over three and one-half years later when the administrator filed
his final report. This time the trial court realized its error in failing to

comply with the statute and granted appellant partial relief. The ad-
ministrator subsequently filed a supplemental final report showing that the

corrections ordered by the court had been made. The appellant was not
satisfied with this order of the court sustaining his objections and filed a
Motion to Correct Errors in August of 1970, with substantially the same
allegations of error. Denial of this third motion was the foundation for this
appeal.

3
Id. §29-1-7-2 provides:

The probate of a will and the administration of the estate shall be

considered one proceeding for the purposes of jurisdiction, and said

entire proceeding and the administration of a decedent's estate is a

proceeding in rem.