2018 DEVELOPMENTS IN INDIANA EVIDENTIARY PRACTICE COLIN E. FLORA* 2018 marked the twenty-fifth anniversary of adoption of the Indiana Rules of Evidence.1 Based on the Federal and Uniform Rules of Evidence, the rules were adopted in an attempt to supplant the various evidentiary procedures found only in caselaw and statutes.2 Still, some common-law and statutory procedures remain to augment the rules. This survey covers developments in all aspects of Indiana’s evidence law spanning from October 1, 2017 through September 30, 2018. Consistent with the practice of this survey since its 1996 installment,3 developments are addressed in the same order as the Indiana Rules of Evidence. I. GENERAL PROVISIONS: RULES 101 THROUGH 106 A. Rule 101: To What Do the Rules Apply Rule 101 sets forth the general applicability of the Indiana Rules of Evidence.4 Although the rules are intended to “apply in all proceedings in the courts of the State of Indiana[,]”5 they do not apply to every facet of a case.6 McGrath v. State addressed one such stage in criminal litigation: probable-cause affidavits.7 Looking to guidance from the Supreme Court of the United States, Indiana’s highest court recognized that “[a] probable-cause affidavit ‘need not reflect the direct personal observations of the affiant’ but may instead rely on hearsay information.”8 To hold otherwise, the court reasoned, would leave “‘few . . . situations in which an officer, charged with protecting the public interest by enforcing the law, could take effective action’ toward establishing probable cause.”9 Notably, statute requires the hearsay be supported by “‘reliable information establishing the credibility of the source’ and ‘a factual basis for the information furnished’” or, “[a]lternatively, . . . contain information that, under * Associate Attorney, Pavlack Law, LLC in Indianapolis, Indiana; J.D., 2011, cum laude, Indiana University Robert H. McKinney School of Law; B.A., 2008, with high distinction, Indiana University South Bend. The author also manages the Hoosier Litigation Blog, which focuses on legal developments effecting Indiana practitioners. 1. Ivan E. Bodensteiner, Indiana Rules of Evidence, 27 IND. L. REV. 1063, 1063 (1994). 2. Gault v. State, 878 N.E.2d 1260, 1262 (Ind. 2008). 3. Edward F. Harney, Jr. & Jennifer Markavitch, 1995 Survey of Indiana Evidence Law, 29 IND. L. REV. 887 (1996); see, e.g., Yvonne M. Dutton, Recent Developments in Indiana Evidence Law: October 1, 2014 to September 30, 2015, 49 IND. L. REV. 1053 (2016). 4. See IND. R. EVID. 101. 5. IND. R. EVID. 101(b). 6. See generally IND. R. EVID. 101(d). 7. 95 N.E.3d 522, 527 (Ind. 2018). 8. Id. (quoting Aguilar v. Texas, 378 U.S. 108, 114 (1964), abrogated on other grounds by Illinois v. Gates, 462 U.S. 213 (1983)). 9. Id. (quoting Brinegar v. United States, 338 U.S. 160, 174 (1949)). 716 INDIANA LAW REVIEW [Vol. 52:715 the totality of the circumstances, corroborates the hearsay.”10 B. Rule 103: Preserving Appellate Review of Evidentiary Rulings Rule 103 establishes the steps to preserve error in admission or denial of evidence.11 “A claim of error in the admission or exclusion of evidence will not prevail on appeal unless a substantial right of the party is affected.”12 Except in situations involving fundamental error,13 a party resisting admission must timely object and state the basis for exclusion to preserve the matter for appeal.14 But a party need not object ad nauseum to the same error. “Once the court rules definitively on the record at trial a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”15 Two decisions from the survey period addressed the need to reassert an objection at a later point to preserve the error. In Laird v. State, the Indiana Court of Appeals ruled that an unsuccessful pre- trial motion in limine coupled with an objection during opening statements was insufficient to preserve a challenge to admission of evidence because the objection was not made contemporaneous to the admission.1 6 A continuing objection raised prior to closing arguments also did not act to preserve the issue since “the evidence in question had already been presented to the jury, and it was too late to make a continuing objection.”17 The court found no salvation in Rule 103(b)’s dictate that an objection need not be renewed once the court has ruled definitively at trial specifically because “the court did not rule definitively on the record at trial because Laird failed to make an objection at trial when the evidence was offered.”18 The result stands in stark contrast to federal practice, which allows for rulings “either before or at trial” to preserve error.19 Concurring in the result, Judge Melissa May viewed proper procedure under Indiana’s Rule 103(b) as more closely aligned with federal practice.20 She did not, however, indicate that the mere ruling on a motion in limine would have been sufficient.21 Instead, she would have found the objection during the opening argument sufficient.22 The 10. Id. (quoting IND. CODE § 35-33-5-2(b)(1); citing IND. CODE § 35-33-5-2(b)(2)). 11. IND. R. EVID. 103. 12. Thrash v. State, 88 N.E.3d 198, 203 (Ind. Ct. App. 2017) (citing IND. R. EVID. 103(a)). 13. Fundamental error is preserved without objection. IND. R. EVID. 103(e). 14. IND. R. EVID. 103(a). 15. IND. R. EVID. 103(b). 16. 103 N.E.3d 1171, 1175-76 (Ind. Ct. App.), trans. denied, 110 N.E.3d 1147 (Ind. 2018). 17. Id. at 1176. 18. Id. at 1175 n.1 (emphasis in original). 19. FED. R. EVID. 103(b); Carmody v. Bd. of Trs. of the Univ. of Ill., 893 F.3d 397, 407 (7th Cir. 2018), cert. denied, 202 L. Ed. 2d 588 (2019). 20. Laird, 103 N.E.3d at 1179-80 (May, J., concurring in result). 21. Id. 22. Id. at 1180. 2019] EVIDENCE 717 Indiana Supreme Court denied transfer, leaving Judge May’s interpretation for another day.23 Two months later, an entirely different panel for the court of appeals addressed a similar issue in Fairbanks v. State.24 Like Laird, the question was whether an objection asserted prior to presentation of witnesses was sufficient.25 “Right before trial started, and as the jury was about ready to enter the courtroom, defense counsel told the trial court that he would like to show a continuing objection.”26 In order for a continuing objection to be effective, “the trial court [must] specifically grant the right to a continuing objection,” and if the right is not granted, it remains “counsel’s duty to object to the evidence as it is offered in order to preserve the issue for appeal.”27 In this instance, the court majority found the matter preserved.28 Following the request, “the trial court said, ‘Okay,’ and asked the State if it had a response. The State’s only response was to offer a stipulation on another matter.”29 With no further dialogue on the objection prior to the jury entering the courtroom, the majority “f[ou]nd that the trial court’s response was sufficient to preserve this issue for appeal.”30 Concurring in the result, Judge Rudolph Pyle thought the matter waived for failure to obtain permission to exercise a continuing objection.31 Judge Pyle emphasized the need for rigid adherence to the procedures for exercising continuing objections.32 In light of the burden to affirmatively obtain a ruling, Judge Pyle viewed “the trial court’s utterance of the word ‘Okay’” as “simply acknowledging the request had been made,” followed by seeking “a response from the State.”33 Because the court “was interrupted by the entry of the jury into the courtroom before it could make a ruling,” he reasoned that there was no ruling permitting a continuing objection, rendering the request insufficient to preserve the issue for appeal.34 Unlike Laird, transfer has been granted in Fairbanks, allowing the Indiana Supreme Court to provide a definitive answer.35 In light of the grant of transfer, thereby vacating the decision,36 there may be no need to square it and Laird. Nevertheless, the two opinions appear discordant. While they may be 23. Laird v. State, 110 N.E.3d 1147 (Ind. 2018). 24. 108 N.E.3d 357, 366 (Ind. Ct. App. 2018), trans. granted and opinion vacated, 119 N.E.3d 564 (Ind. 2019). 25. Id. 26. Id. 27. Id. (citation and quotation marks omitted). 28. Id. 29. Id. (citation to record omitted). 30. Id. 31. Id. at 374-76 (Pyle, J., concurring in result). 32. Id. at 375. 33. Id. at 376. 34. Id. 35. Fairbanks v. State, 119 N.E.3d 91 (Ind. 2018). 36. IND. R. APP. P. 58(A). 718 INDIANA LAW REVIEW [Vol. 52:715 distinguished on the basis that counsel in Fairbanks sought a continuing objection at the start of the case, whereas counsel in Laird did not request a continuing objection until after the evidence had been presented, the Laird majority’s focus on a definitive ruling “at trial when the evidence was offered”37 appears to be at odds with the procedure in Fairbanks. The use of the continuing objection in that case predates even opening arguments, let alone lacks simultaneity to the offer of evidence. Further, as indicated by Judge May’s Laird concurrence, the role of continuing objections appears supplanted by the 2014 amendment to Rule 103(b), which, she wrote, “eliminated the need for parties to request a continuing objection or to object repeatedly to the same class of evidence after the court has ruled once at trial.”38 The only direct reference to Rule 103 found in Fairbanks is passing citation by Judge Pyle, which was provided simply to emphasize the need for a definitive ruling on the record.39 The role of continuing objections in light of the current language of Rule 103(b) is an issue necessitating clarification. C. Rule 104: Preliminary Questions Rule 104 obligates trial courts to resolve preliminary questions of witness qualification, privilege, and admissibility.40 Hearings on preliminary questions must be conducted outside the presence of the jury if: “(1) the hearing involves the admissibility of a confession; (2) a defendant in a criminal case is a witness and so requests; or (3) justice so requires.”4 1 In Jones v. State, the Indiana Court of Appeals reviewed a trial court’s resolution of a preliminary question: Whether an officer possessed reasonable suspicion to effectuate a stop that laid the foundation of a conviction for resisting law enforcement.42 The defendant challenged the court’s jury instructions raising the issue of whether the jury must be instructed on finding reasonable suspicion.43 “In this case, the question of whether the Officers had reasonable suspicion to initiate the stop first arose as a preliminary matter in [the defendant]’s motion to suppress.”44 The appellate court found no error in omitting an instruction on reasonable suspicion.45 The trial court had appropriately resolved reasonable suspicion as a preliminary question, foregoing the need to instruct the jury on how to make a determination already 37. Laird v. State, 103 N.E.3d 1171, 1175 n.1 (Ind. Ct. App.), trans. denied, 103 N.E.3d 1171 (Ind. 2018). 38. Id. at 1179 (May, J., concurring in result). 39. Fairbanks, 108 N.E.3d at 375 (Pyle, J., concurring in result), trans. granted and opinion vacated, 119 N.E.3d 564 (Ind. 2019). 40. IND. R. EVID. 104(a). 41. IND. R. EVID. 104(c). 42. 101 N.E.3d 249, 256-57 (Ind. Ct. App.), trans. denied, 107 N.E.3d 1059 (Ind. 2018). 43. Id. at 255-57. 44. Id. at 256. 45. Id. at 256-57. 2019] EVIDENCE 719 properly made by the court.46 D. Rule 105: Instructing Jury on Evidence When evidence is introduced for a limited purpose or scope, Rule 105 requires a court, “on timely request, [to] restrict the evidence to its proper scope and instruct the jury accordingly.”47 It does not, however, require the trial court to act on its own initiative.48 The Indiana Court of Appeals rejected a challenge to a murder conviction premised solely upon the trial court declining to act sua sponte to admonish a jury that it should “not speculate about the reasons [] two witnesses[,]”whose statements from a prior trial were read into the record, “might have been unavailable to testify” in the second trial.49 The court relied both upon caselaw and the text of Rule 105, which “expressly requires the parties to” make a “timely request.”50 Because there was no obligation to act sua sponte, the trial court did not err when it chose to “not interject itself on [the Defendant]’s behalf.”51 II. JUDICIAL NOTICE: RULE 201 In Indiana state courts, judicial notice is governed by Evidence Rule 201 and the Uniform Judicial Notice of Foreign Law Act.52 Rule 201(a)(2)(C) permits courts to judicially notice “the existence of . . . records of a court of this state.”53 During the survey period, that power was used to take notice of a 1993 brief to the Indiana Supreme Court,54 the filing of a petition in a separate paternity action to establish paternity of the same mother’s other child,55 and a petitioner’s prior petition for post-conviction relief.56 Indiana courts may also take judicial notice of orders by federal appellate courts, such as certificates of appealability.57 It was also reaffirmed that Indiana trial courts may properly take notice of a 46. Id. 47. IND. R. EVID. 105. 48. Merritt v. State, 99 N.E.3d 706, 710 (Ind. Ct. App.), trans. denied, 107 N.E.3d 1059 (Ind. 2018). 49. Id. at 707, 710. 50. Id. at 710 (quoting IND. R. EVID. 105) (emphasis and internal formatting omitted). 51. Id. 52. IND. CODE §§ 34-38-4-1 et seq. (2018); In re Paternity of P.R., 940 N.E.2d 346, 349 (Ind. Ct. App. 2010). 53. IND. R. EVID. 201(a)(2)(C). 54. State v. Stidham, 110 N.E.3d 410, 419 n.3 (Ind. Ct. App. 2018). 55. In re Paternity of S.A.M., 85 N.E.3d 879, 885 n.3 (Ind. Ct. App. 2017). 56. Edmonson v. State, 87 N.E.3d 534, 538 n.3 (Ind. Ct. App. 2017). 57. Goodwin v. Deboer, 112 N.E.3d 214, 222 n.2 (Ind. Ct. App. 2018). Although the court did not cite authority in support, it appears the basis likely lies in the Uniform Judicial Notice of Foreign Law Act. IND. CODE § 34-38-4-1 (2018) (“Every court in Indiana shall take judicial notice of the common law and statutes of every state, territory, and other jurisdiction of the United States.”). 720 INDIANA LAW REVIEW [Vol. 52:715 probationer’s guilty plea in another action before the same court as a basis for revoking probation.58 Judicial notice is not confined to court records. Notice may also be taken of “a fact that: (A) is not subject to reasonable dispute because it is generally known within the trial court’s territorial jurisdiction, or (B) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”59 Under that broad basis, the Indiana Court of Appeals took judicial notice that a litigant’s “iPhone 7 Plus is equipped with what Apple refers to as ‘Touch ID,’ a biometric fingerprint sensor that can be used to unlock the phone, instead of a typed-in password,” citing to the manufacturer’s website.60 Even though a “court may take judicial notice at any stage of the proceeding,”61 courts need not take judicial notice of irrelevant matters.62 A clear example of when a court will decline to take judicial notice based on relevancy grounds was provided by a civil commitment proceeding. There, the court ruled that pending criminal matters against the person to be committed were not subject to judicial notice because “[t]he alleged crimes took place after the trial court issued its [ruling] and after the initiation of th[e] appeal,” making them “irrelevant to [the] review.”63 III. RELEVANCY & ITS LIMITS: RULES 401 THROUGH 413 A. Rules 401 & 402: What is and is Not Relevant “Only relevant evidence is admissible.”64 The scope of evidentiary relevance is established by Rule 401, such that “[e]vidence is relevant when it has any tendency to prove or disprove a consequential fact.”65 Relevance is assessed under a liberal standard with a “low bar.”66 Two decisions from the survey period delved into analyses of relevance under Rules 401 and 402. Poortenga v. State addressed whether evidence that a person’s alcohol concentration equivalent (“ACE”) was below the legal limit for operating a motor 58. Moore v. State, 102 N.E.3d 304, 309-10 (Ind. Ct. App. 2018) (adhering to Henderson v. State, 544 N.E.2d 507, 512-13 (Ind. 1989)). 59. IND. R. EVID. 201(a)(1). 60. Seo v. State, 109 N.E.3d 418, 425 n.11 (Ind. Ct. App. 2018). 61. IND. R. EVID. 201(d) (emphasis added). 62. Mizen v. State ex rel. Zoeller, 72 N.E.3d 458, 467 (Ind. Ct. App.), trans. denied, 88 N.E.3d 1078 (Ind. 2017). 63. Civil Commitment of J.B. v. Cmty. Hosp. N., 88 N.E.3d 792, 797 n.1 (Ind. Ct. App. 2017). 64. Angleton v. State, 686 N.E.2d 803, 809 (Ind. 1997) (citing IND. R. EVID. 402). 65. 99 N.E.3d 691, 695 (Ind. Ct. App. 2018) (quoting Snow v. State, 77 N.E.3d 173, 177 (Ind. 2017)) (quotation marks omitted). 66. Id. (quoting Snow, 77 N.E.3d at 177) (quotation marks omitted); accord James v. State, 96 N.E.3d 615, 618 (Ind. Ct. App.), trans. denied, 107 N.E.3d 1059 (Ind. 2018). 2019] EVIDENCE 721 vehicle was relevant in a trial for operating while intoxicated.67 Pursuant to statute, a person’s ACE in excess of the legal limit constitutes prima facie evidence of intoxication.68 The Indiana Court of Appeals has also recognized that “once an individual has consented to a chemical test, he may not then object to the results of the chemical test being used against him.”69 As a result, “[i]t would seem unjust to limit relevance of one’s ACE to only cases when the individual’s ACE is found to be 0.08 or more.”70 Accordingly, the court concluded, “the reverse should also be true that the State may not complain if a defendant who tested below the legal limit attempts to introduce that fact in an effort to discredit the State’s claim that he was intoxicated.”71 The conclusion means “that evidence of an individual’s ACE is relevant to the question of whether the individual was intoxicated, regardless of whether the individual’s ACE was more or less than 0.08,” even though the mere fact that the ACE was below the legal limit does not “per se prove[] that the individual was not intoxicated.”72 The other decision, also from the court of appeals, concerned relevance in the context of self-defense.73 In general, subject to Rule 401, “[w]hen a claim of self- defense is interposed, [a]ny fact which reasonably would place a person in fear or apprehension of death or great bodily injury is admissible.”74 Nevertheless, evidence that the victim allegedly threatened to kill the defendant two years prior was excluded at trial.75 Finding that the “previous threat was allegedly made during a contentious time for the parties[,] that the parties had since resolved their issues,” and that “the parties relationship had improved to the point that the parties were able to interact in a cordial manner on a somewhat frequent basis” afterward, the court of appeals ruled “the alleged threat was too remote in time to be relevant to whether [the defendant] acted in self-defense.”76 Key to the disposition was that “nothing suggest[ed] that the alleged threat . . . was ongoing or that [the defendant] continued to fear for his safety.”77 B. Rules 403 & 404: Excluding Otherwise Admissible Character Evidence Rule 404 bars use of prior bad acts and character to show that a person acted 67. Poortenga, 99 N.E.3d at 695-96. 68. Id. at 695 (quoting IND. CODE § 9-13-2-131 (2018)). 69. Id. (citing Temperly v. State, 933 N.E.2d 558, 566 (Ind. Ct. App. 2010), trans. denied, 950 N.E.2d 1199 (Ind.), cert. denied, 565 U.S. 976 (2011)). 70. Id. 71. Id. 72. Id. 73. James v. State, 96 N.E.3d 615, 618-19 (Ind. Ct. App.), trans. denied, 107 N.E.3d 1059 (Ind. 2018). 74. Id. at 618 (quoting Hirsch v. State, 697 N.E.2d 37, 40 (Ind. 1998)) (alterations in original; quotation marks omitted). 75. Id. 76. Id. at 619. 77. Id. (distinguishing Littler v. State, 871 N.E.2d 276 (Ind. 2007)). 722 INDIANA LAW REVIEW [Vol. 52:715 on a specific instance in accordance with the previous acts or character.78 Subdivision (a) focuses on evidence of a party’s character, while subdivision (b) addresses crimes, wrongs, and other acts.79 Subdivision (b) acts in conjunction with Rule 403 to prevent evidence that would otherwise be admissible of a person’s character or prior bad acts.80 Application of Rule 404(b) is a two-step process: “(1) determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity to commit the charged act and (2) balance the probative value of the evidence against its prejudicial effect pursuant to Indiana Evidence Rule 403.”8 1 “The well- established rationale behind Evidence Rule 404(b) is that the jury is precluded from making the ‘forbidden inference’ that the defendant had a criminal propensity and therefore engaged in the charged conduct.”82 There are specific circumstances in which evidence otherwise subject to exclusion under Rule 404(b) is still admissible.83 One such circumstance is the “intent” exception: The intent exception in Evid. R. 404(b) will be available when a defendant goes beyond merely denying the charged culpability and affirmatively presents a claim of particular contrary intent. When a defendant alleges in trial a particular contrary intent, whether in opening statement, by cross-examination of the State’s witnesses, or by presentation of his own case-in-chief, the State may respond by offering evidence of prior crimes, wrongs, or acts to the extent genuinely relevant to prove the defendant’s intent at the time of the charged offense. The trial court must then determine whether to admit or exclude such evidence depending upon whether “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, or needless presentation of cumulative evidence.”84 The Indiana Court of Appeals issued five published majority opinions during the survey period addressing Rules 403 and 404(b). Transfer to the Indiana Supreme Court was sought in each but granted in just one. In Curry v. State, the court found Rule 404(b) violated by use of a defendant’s statements from the time of his arrest that he had paid $8,000 for heroin seized during the arrest, that the 78. IND. R. EVID. 404. 79. Id. 80. Hicks v. State, 690 N.E.2d 215, 219 n.4 (Ind. 1997). 81. Curry v. State, 90 N.E.3d 677, 689 (Ind. Ct. App. 2017), trans. denied, 97 N.E.3d 235 (Ind. 2018). 82. Id. at 689 (quoting Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997)). 83. IND. R. EVID. 404(b)(2); see also Cannon v. State, 99 N.E.3d 274, 281-90 (Ind. Ct. App.) (Robb, J., dissenting) (thoroughly analyzing intent and knowledge exceptions), trans. denied, 111 N.E.3d 197 (Ind. 2018). 84. Curry, 90 N.E.3d at 690 (quoting Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993)) (formatting omitted). 2019] EVIDENCE 723 payment also covered prior shipments, “that he had recently taken twice weekly trips to Chicago to procure heroin,” and description of his sales method in his trial relating only to the drugs seized at the time of his arrest.85 The court reasoned that the portions of the statements “describ[ing] the quantity, price, and character of the seized contraband, and his reason for possession—anticipated sale— . . . did not deal with a prior bad act” so were not subject to the rule.86 But the statements of “other drug-couriering trips and describ[ing] a method of sales” were barred by Rule 404(b) as other bad acts.87 They were not subject to Rule 404(b)’s intent exception because the defendant “did not ‘affirmatively present a claim of particular contrary intent.’”88 Hill v. State posed the question of whether evidence of statements/threats made after the date a criminal defendant was charged with the crime of intimidation should be excluded by Rule 404(b).89 The trial court found the evidence admissible pursuant to the intent exception because the defendant admitted that he had “threatened [the victim] that he would cut her throat and kill her” and asserted as his defense that “what he said . . . was all talk.”90 On appeal, there was found to be no error because the defendant had put his intent at issue by asserting a defense that “amounted to a claim that although he threatened [the victim], he did not really intend for her to be placed in fear of retaliation.”91 Rule 404(b) was again at issue in Laird v. State.92 In support of a conviction for child molestation, the prosecutor admitted evidence of the defendant’s internet search history that included searches of sexual content relating to minors.93 Although the defendant “did not assert a contrary intent at trial, . . . his pre-trial statements to the police that, if he touched [the victim] in an inappropriate manner, it was accidental,” was sufficient to trigger the intent exception to Rule 404(b)(2).94 Even if the intent exception had not applied, the court found, the evidence would still have been “admissible under the ‘plan’ exception in Rule 404(b)(2) because the searches were close in time to when [defendant] committed the acts . . . and because [he] searched the internet for behavior to what he did . . . —young boys manipulating men’s penises.”95 In another decision, the court affirmed a conviction for attempted murder where the trial court admitted a threat made to the victim two months prior to the shooting.96 The victim was the boyfriend to the mother of the defendant’s 85. Id. at 689. 86. Id. at 690. 87. Id. 88. Id. (quoting Wickizer, 626 N.E.2d at 799). 89. 91 N.E.3d 1078, 1080-82 (Ind. Ct. App.), trans. denied, 98 N.E.3d 71 (Ind. 2018). 90. Id. at 1081 (quotation marks omitted). 91. Id. 92. 103 N.E.3d 1171, 1175-78 (Ind. Ct. App.), trans. denied, 110 N.E.3d 1147 (Ind. 2018). 93. Id. at 1174. 94. Id. at 1178. 95. Id. 96. Jackson v. State, 105 N.E.3d 1142, 1144 (Ind. Ct. App.), trans. denied, 111 N.E.3d 197 724 INDIANA LAW REVIEW [Vol. 52:715 children.97 In November 2016, upon learning that the victim had cut the hair of one of the children, the defendant became enraged and said to the victim, “N****, I [will] kill you.”98 In January 2017, the defendant charged toward a minivan carrying the children, their mother, and the victim, then shot the victim numerous times.99 The court of appeals ruled evidence of the November 2016 threat was admissible to show motive even though there was only a single incident.100 The court found “the nature of the two separate encounters between the men on November 11, 2016—in particular, [the] explicit threats to kill [the victim] over something as trivial as a child’s haircut”—was sufficiently related to be “probative of [defendant’s] hostility towards [the victim] and his motive in the shooting only two and a half months later.”101 The final decision was Fairbanks v. State, in which the prosecution admitted evidence that the defendant had, on a prior occasion, placed a pillow over the face of the toddler he was charged with murdering.102 The state sought admission to show that the “death was not an accident.”103 The defendant responded “that he ha[d] never claimed that [the] death was an accident.”1 0 4 Reviewing governing caselaw, the court found “no clear-cut answer under Indiana law whether a defendant must affirmatively claim mistake or accident before the State can admit evidence pursuant to Evidence Rule 404(b) that the act was not a mistake or accident.”105 Needing to answer the issue, the court “conclude[d] that, similar to intent, defendants must affirmatively claim mistake or accident before the State can admit evidence pursuant to Evidence Rule 404(b) that the act was not a mistake or accident.”106 Looking at the record as a whole, the court easily found that the defendant had squarely argued that the death was an accident.1 0 7 The Indiana Supreme Court has granted transfer, and its answer to whether the defendant must affirmatively put the question of accident at issue will be addressed in the survey covering the next survey period.108 (Ind. 2018). 97. Id. 98. Id. (alterations in original). 99. Id. 100. Id. at 1146-47. 101. Id. at 1146. 102. Fairbanks v. State, 108 N.E.3d 357, 366-70 (Ind. Ct. App. 2018), trans. granted and opinion vacated, 119 N.E.3d 564 (Ind. 2019). 103. Id. at 367. 104. Id. 105. Id. at 367-68. 106. Id. at 369. 107. Id. (“If there was any doubt whether Fairbanks claimed accident during trial, that doubt was extinguished when defense counsel argued during closing that what happened to Janna was, in fact, an ‘accident.’ In particular, defense counsel argued: ‘Was it unsafe? People sleep with their kids all the time. This is accidental. It’s an accident compounded by [Fairbanks’s] stupidity [of discarding Janna’s body in a dumpster].” (citation to record omitted)). 108. See Fairbanks v. State, 119 N.E.3d 564 (Ind. 2019). 2019] EVIDENCE 725 In addition to the cases decided under Rules 403 & 404(b), one notable opinion addressed Rule 404(a).109 The question before the Indiana Supreme Court was whether a witness’s reference to the defendant’s nickname of “Looney the Shooter” and use of that name to argue that the defendant had been the person in a group of people who shot and killed the victim was inadmissible character evidence.110 Because the defendant’s established nickname was “Looney,” the court found it would not have been error to refer to the defendant simply as “Looney” in order to prove the defendant’s identity.111 The appendage of “the Shooter” to the nickname, however, was deemed unnecessary for the purpose of identification and “merely ratcheted up the prejudice.”112 Thus, the use of “the nickname in closing to argue that [the defendant] acted in accordance with his ‘unsavory or lawless character reputation’” ran afoul of Rule 404(a)(1).113 C. Rule 406: Habit & Routine Pursuant to Rule 406, “[e]vidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.”114 In this context, “habit” means “evidence of one’s regular response to a repeated specific situation.”115 One decision during the survey period addressed habit-and-routine evidence under Rule 406. Although not resolving whether the evidence would be admissible at trial for injuries suffered by a bicyclist who was struck by a motor vehicle, the Indiana Court of Appeals determined that the bicyclist’s testimony of her habit to “stop[] and look[] both ways at intersections while riding her bicycle” “may qualify for admissibility,” such that it was admissible in opposition to a motion for summary judgment.116 D. Rule 408: Exclusion of Compromise Offers & Negotiations Rule 408 permits parties to freely negotiate compromises without concern for the negotiations later being used to establish a party’s liability or to quantify damages.117 It does so by prohibiting evidence of “furnishing, promising, or offering, or accepting, promising to accept, or offering to accept a valuable consideration in order to compromise the claim; and conduct or a statement made 109. Taylor v. State, 86 N.E.3d 157, 161-63 (Ind. 2017), cert. denied, 139 S. Ct. 591 (2018). 110. Id. at 160-61. 111. Id. at 161-63. 112. Id. at 162. 113. Id. 114. IND. R. EVID. 406. 115. Lewis v. State, 34 N.E.3d 240, 247 (Ind. 2015) (citation and quotations marks omitted). 116. Gonzalez v. Ritz, 102 N.E.3d 910, 916 (Ind. Ct. App. 2018) (emphasis added). 117. Miller v. Polaris Labs., LLC, No. 1:11-cv-01004-TWP-DML, 2016 U.S. Dist. LEXIS 55112, at *10 (S.D. Ind. Apr. 26, 2016). Indiana Evidence Rule 408 is modeled on and serves the same basic purpose of Federal Rule of Evidence 408. R. R. Donnelley & Sons Co. v. N. Tex. Steel Co., 752 N.E.2d 112, 136 n.13 (Ind. Ct. App. 2001), trans. denied, 774 N.E.2d 508 (Ind. 2002). 726 INDIANA LAW REVIEW [Vol. 52:715 during compromise negotiations about the claim” that would be used “to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction,”118 unless the evidence is used “for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.”119 As echoed by the United States District Court for the Southern District of Indiana, while Indiana Evidence Rule 408 may be a sound basis for excluding witness statements recorded for use as part of settlement negotiations at mediation, it is not a means to constrain the scope of discovery because it only “concerns the admissibility of evidence at trial and has nothing to do with whether something is discoverable.”120 Discovery may, however, be prohibited by other limitations, such as Evidence Rule 502(a), “which governs whether to extend a waiver to undisclosed work product material.”121 E. Rule 412: Evidence of Molestation by Another Rule 412, in conjunction with Indiana Code section 35-37-4-4, acts as Indiana’s rape-shield protection for victims of sex crimes.122 The rule “generally prohibits the introduction of evidence of prior sexual conduct of an alleged victim of a sex crime.”123 Evidence may not be “offered to prove that a victim or witness engaged in other sexual behavior; or . . . to prove a victim’s or witness’s sexual predisposition.”124 It “is intended to prevent the victim from being put on trial, to protect the victim against surprise, harassment, and unnecessary invasion of privacy, and, importantly, to remove obstacles to reporting sex crimes.”125 There are exceptions to the prohibition that differ based on whether the underlying action is civil or criminal.126 “In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.”127 118. IND. R. EVID. 408(a). 119. IND. R. EVID. 408(b). 120. Pinkham v. Coca-Cola Refreshments USA, Inc., No. 1:18-cv-01096-SEB-TAB, 2018 U.S. Dist. LEXIS 136102, at *5 (S.D. Ind. Aug. 13, 2018). 121. Id. 122. Oatts v. State, 899 N.E.2d 714, 720 (Ind. Ct. App. 2009). Rule 412 “incorporates the basic principles of [Section] 35-37-4-4,” id. (citation and quotation marks omitted), and to the extent the rule and statute are inconsistent, the rule controls. Id. at 720 n.8. 123. Johnson v. State, 6 N.E.3d 491, 498 (Ind. Ct. App. 2014). 124. IND. R. EVID. 412(a). 125. Williams v. State, 681 N.E.2d 195, 200 (Ind. 1997). 126. IND. R. EVID. 412(b). 127. IND. R. EVID. 412(b)(2). 2019] EVIDENCE 727 The exceptions to use in criminal proceedings are more circumscribed.1 2 8 There are three narrow categories for evidence that may be admitted in criminal cases: (A) evidence of specific instances of a victim’s or witness’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim’s or witness’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant’s constitutional rights.129 In Alvarado v. State, the defendant sought to admit evidence that the minor victim had been molested by another person in order to claim that it “provided [the victim] with the knowledge to fabricate her accusations against” the defendant.1 3 0 Because that purpose did not meet either of the first two circumstances for admission, the defendant turned to the third, arguing that exclusion violated his Sixth Amendment right-to-cross-examination.131 He “relie[d] on the so-called ‘sexual innocence inference theory.’”132 The theory is based on the premise that, because young children are generally presumed to be ignorant of sexual matters, a child victim’s mere ability to describe sexual conduct may be compelling enough to convince a jury that the charged conduct must have occurred. Consequently, the defense should have the opportunity to offer evidence that the victim had acquired sufficient knowledge from another source to fabricate a charge against the defendant, including evidence that the child had acquired sexual experience with someone else before he or she accused the defendant.133 The theory has been criticized as improper “based on unsubstantiated assumptions and fears about what a jury may infer from the complaining witness’s testimony.”134 Nevertheless, Indiana has adopted an approach based in part on the theory known as “the ‘compromise approach’ to questions involving the sexual innocence inference theory.”135 The so-called “compromise approach” 128. IND. R. EVID. 412(b)(1). 129. Id. 130. 89 N.E.3d 442, 443 (Ind. Ct. App. 2017), trans. denied, 96 N.E.3d 576 (Ind. 2018). 131. Id. at 445-47. 132. Id. at 446. 133. Id. (citation omitted). 134. Id. at 446 n.3 (quoting State v. Clarke, 343 N.W.2d 158, 163 (Iowa 1984)) (quotation marks omitted). 135. Id. at 446 (citing Oatts v. State, 899 N.E.2d 714, 724-25 (Ind. Ct. App. 2009)). 728 INDIANA LAW REVIEW [Vol. 52:715 places the “burden [] on the defendant ‘to show that the prior sexual act occurred and that the prior sexual act was sufficiently similar to the present sexual act to give the victim the knowledge to imagine the molestation charge.’”136 The analysis, however, only matters if the defendant can establish that it is reasonable to “assume that the jury will infer [the victim]’s innocence of sexual matters.”137 Applying that theory in Alvarado, the court of appeals ruled that the defendant failed to establish an abuse of discretion by exclusion.138 Specifically, he did not establish “that the average juror would assume [the victim] lacked the knowledge to fabricate allegations of molestation.”139 When she first reported the molestation, the victim “was two or three months shy of her tenth birthday” and may have “received ‘good touch, bad touch’ education while at school”.140 The court concluded the evidence showed that even if the court “assume[d the victim] was young enough to generally support an inference of sexual ignorance . . . that inference was rebutted.”141 There are two further important takeaways from Alvarado. First, the court found it notable, even if not determinative, “that, despite expressing grave concern about being denied the right to present evidence of possible alternate sources of sexual knowledge, [the defendant] did not pursue the issue of [the victim]’s ‘good touch, bad touch’ education at any length or argue that it was the source of [her] sexual knowledge.”142 And second, the court “suggest[ed] that if a defendant is, in fact, genuinely concerned about the jury unduly inferring sexual innocence of a young witness,” those concerns might be well “explored in voir dire.”143 IV. PRIVILEGES: RULES 501 & 502 Rules 501 and 502 preserve and incorporate the various privileges recognized beyond the Indiana Rules of Evidence and provide for the scope and applicability of such privileges.144 Indiana’s state and federal courts tackled numerous issues relating to privilege during the survey period. In the context of proceedings supplemental, an attorney was served with non- party discovery requests seeking documents showing “[c]opies of any and all check and/or wire transfers received from [the client] or from others on behalf of 136. Id. (quoting Oatts, 899 N.E.2d at 724). 137. Id. 138. Id. at 446-47. 139. Id. at 446. 140. Id. 141. Id. 142. Id. (emphasis in original). 143. Id. at 446 n.3. The court recognized that its research “uncovered not one case nationwide (including this one) in which a defendant in a child molestation case has thought to address such concerns during jury selection.” Id. 144. 13B ROBERT L. MILLER, JR., INDIANA PRACTICE: COURTROOM HANDBOOK ON INDIANA EVIDENCE 116 (2016-17 ed.). 2019] EVIDENCE 729 [the client] for legal fees paid for her representation.”145 The client, turned judgment-defendant, filed a motion to quash the requests, arguing that the documents were protected by both the attorney-client privilege146 and the client’s “Fifth Amendment right against self-incrimination.”147 Both contentions were rejected.148 The Indiana Court of Appeals recognized “a general rule [that] information regarding a client’s attorney fees is not protected by the attorney-client privilege because the payment of fees is not considered a confidential communication between an attorney and his or her client.”149 There are limited exceptions to the rule, including “where revealing the payee’s identity or the fee arrangement would be tantamount to the disclosure of a confidential communication.”150 The judgment-defendant sought to create an “incrimination” exception to the general rule, which she argued would be applicable because there had been criminal charges filed against her that were dismissed without prejudice.151 Following the Seventh Circuit’s lead, the Indiana Court of Appeals declined to recognize such an exception.152 The court more easily dispatched the judgment-defendant’s resort to the Fifth Amendment.153 Looking to the Supreme Court of the United States’ opinion in Fisher v. United States, the Indiana Court of Appeals observed that it was not the judgment-defendant seeking to invoke the privilege on her own behalf; rather, she sought to invoke it to prevent disclosure by a third-party.154 “[T]he Fifth Amendment [does] not preclude compelled disclosure of information from a third party such as a defendant’s attorney.”155 Accordingly, the privilege did not 145. Boulangger v. Ohio Valley Eye Inst., P.C., 89 N.E.3d 1112, 1115 (Ind. Ct. App. 2017) (quotation marks omitted; first alteration in original). 146. “The elements of the attorney-client privilege are: ‘(1) where legal advice was sought; (2) from a professional legal advisor in his capacity as such; (3) the communications relating to that purpose; (4) made in confidence; (5) by the client; (6) are at his instance permanently protected; (7) from disclosure by himself or by the legal advisor; (8) except the protection may be waived.’” Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006-WCL-SLC, 2018 U.S. Dist. LEXIS 19695, at *19-20 n.4 (N.D. Ind. Feb. 6, 2018) (quoting Long v. Anderson Univ., 204 F.R.D. 129, 134 (S.D. Ind. 2001) (citing in turn United States v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997); Lahr v. State, 731 N.E.2d 479, 482 (Ind. Ct. App. 2000))). 147. Boulangger, 89 N.E.3d at 1115. 148. Id. at 1116-18. 149. Id. at 1116 (citing Hueck v. State, 590 N.E.2d 581, 585 (Ind. Ct. App.), trans. denied (Ind. 1992)). 150. Id. 151. Id. at 1114-17. 152. Id. at 1117-18 (citing In re Witnesses Before the Special March 1980 Grand Jury, 729 F.2d 489, 492, 494 (7th Cir.1984)). 153. Id. at 1118. 154. Id. (citing Fisher v. United States, 425 U.S. 391, 398-99 (1976)). 155. Id. (citing Fisher, 425 U.S. at 399). 730 INDIANA LAW REVIEW [Vol. 52:715 apply.156 Several other privileges received attention from Indiana’s federal courts.157 Two decisions from the United States District Court for the Southern District of Indiana concerned Indiana’s physician-patient privilege. Codified at Indiana Code section 34-46-3-1(2), the privilege dictates that physicians may not be compelled to testify “as to matters communicated to them by patients, in the course of their professional business, or advice given in such cases.”158 The “privilege is not absolute” and may be waived when the plaintiff places his or her physical or mental condition at issue such that it has “direct medical relevance to the claim, counterclaim or defense made.”159 In Alerding Castor Hewitt LLP v. Fletcher, Magistrate Judge Mark Dinsmore ruled the privilege was not waived by an attorney resisting a claim for legal malpractice who, the claimant argued, placed “his health at issue when he checked into substance abuse rehabilitation one week before the trial date of the [client’s] lawsuit.”160 Distinguishing the case before him from Vargas v. Shepherd, Magistrate Judge Dinsmore found “[t]he mere fact that [the attorney] ‘check[ed] into substance abuse rehabilitation one week before [trial]’” was not relevant to the malpractice claim nor had he voluntarily placed his medical condition at issue by filing a claim to recover for the condition.161 Therefore, the privilege was not waived because the attorney’s medical treatment had not been 156. Id. 157. Because, in civil cases, Federal Rule of Evidence 501 incorporates “privilege[s] regarding a claim or defense for which state law supplies the rule of decision,” numerous federal decisions addressing Indiana’s state-law privileges are addressed herein. For reference, the author provides the following non-exhaustive list of decisions from Indiana’s federal courts addressing privileges under federal law not otherwise addressed herein: Hamdan v. Ind. Univ. Health N. Hosp., Inc., 880 F.3d 416, 421 (7th Cir. 2018) (“declin[ing] to recognize a federal peer-review privilege”); Taylor v. Gilbert, No. 2:15-cv-00348-JMS-MJD, 2018 U.S. Dist. LEXIS 42322, at *4-13 (S.D. Ind. Mar. 15, 2018) (federal law-enforcement investigatory and deliberative-process privilege); Wilson v. Allen Cty. Council, No. 1:15-CV-402-TLS, 2018 U.S. Dist. LEXIS 50335, at *3-9 (N.D. Ind. Mar. 27, 2018) (federal deliberative-process privilege); Johnson v. Rogers, No. 1:16-cv-02705-JMS- MPB, 2018 U.S. Dist. LEXIS 86769, at *8-16 2327713 (S.D. Ind. May 23, 2018) (analyzing federal psychotherapist-patient privilege and rejecting application of Indiana’s corresponding privilege standard); Pinkham v. Coca-Cola Refreshments USA, Inc., No. 1:18-cv-01096-SEB-TAB, 2018 U.S. Dist. LEXIS 136102 (S.D. Ind. Aug. 13, 2018) (under specific facts of case, showing of video in mediation waived work-product privilege as to the portions of the video actually shown but not to entire video pursuant to Federal Rule 502(a)); United States v. Snyder, No. 2:16-CR-160 JVB, 2018 U.S. Dist. LEXIS 166231 (N.D. Ind. Sep. 27, 2018) (federal attorney-client privilege). 158. IND. CODE § 34-46-3-1(2) (2018). 159. Sheng v. Bissonnette, No. 1:17-cv-03864-JRS-TAB, 2018 U.S. Dist. LEXIS 165816, at *2 (S.D. Ind. Sep. 27, 2018) (citations and quotation marks omitted). 160. No. 1:16-cv-02453-RLY-MJD, 2018 U.S. Dist. LEXIS 110421, at *13-14 (S.D. Ind. Jan. 26, 2018). 161. Id. (citing Vargas v. Shepherd, 903 N.E.2d 1026, 1030 (Ind. Ct. App. 2009)) (third and fourth alterations in original). 2019] EVIDENCE 731 placed at issue.162 Eight months later, the Southern District of Indiana once more addressed the privilege. In an action in which the plaintiff claimed “a brain injury affecting her cognitive functioning,” Magistrate Judge Tim Baker found the privilege waived as to the records of a psychologist who treated the plaintiff “for some of the same symptoms [she] claim[ed] were caused by the incident.”16 3 By placing “the cause of those symptoms at issue,” she waived the privilege.164 The Southern District of Indiana also confronted another of Indiana’s statutory privileges: the accountant-client privilege.165 Rejecting use of the privilege to protect disclosure of tax returns, Magistrate Judge Dinsmore observed that “tax returns [] fall outside the scope of the accountant-client privilege because those are documents intended to be communicated to a third person—either the IRS or Indiana Department of Revenue.”166 Under Indiana law, “communications intended to be transmitted to a third person are not privileged.”167 V. WITNESSES: RULES 601 THROUGH 617 A. Rule 601: Dead-Man’s Statute Under Rule 601, “[e]very person is competent to be a witness except as otherwise provided in [the Indiana Rules of Evidence] or by statute.”168 One statute that provides an exception to Rule 601 is Indiana’s Dead Man’s Statute. The purpose of dead-man’s statutes was to strike a compromise between those who sought to continue the draconian common-law procedure of barring all persons with direct pecuniary interests from testifying in litigation and those who sought to see the rule abandoned in total.169 The resulting statutes sought to maintain the procedure when a party to the transaction was rendered incapable of testifying to his or her interest due to death.170 162. Id. 163. Sheng, 2018 U.S. Dist. LEXIS 165816, at *1. 164. Id. at *1-3. 165. IND. CODE § 25-2.1-14-1 (2018). 166. Order on Motion for Protective Order, Crop Prod. Servs. v. Robinson V., Inc., No. 2:12- cv-00182-MJD-JMS, 2018 U.S. Dist. LEXIS 23767, at *15-16 (S.D. Ind. Feb. 14, 2018) (quotation marks and citation to record omitted). 167. Id. at *15-16 (quoting Airgas Mid-Am., Inc. v. Long, 812 N.E.2d 842, 845 n.3 (Ind. Ct. App. 2004)). The court also declined to apply 26. U.S.C. § 6103 (dictating that tax returns “shall be confidential”) as a privilege prohibiting discovery and use of tax returns and also rejected resort to a federal common-law “qualified privilege providing added protection to [] tax returns and return information” because the matter arose in the posture of proceedings supplemental, which are governed by state not federal law. Id. at *14-18. 168. IND. R. EVID. 601. 169. EDWARD W. CLEARY ET AL., MCCORMICK ON EVIDENCE § 65 (3d ed. 1984). 170. Id. 732 INDIANA LAW REVIEW [Vol. 52:715 Codified at Indiana Code section 34-45-2-4, Indiana’s “Dead Man’s Statute establishes, as a matter of legislative policy, that claimants to the estate of a deceased person should not be permitted to present a court with their version of their dealings with the decedent.”171 It applies exclusively to actions that include an estate’s executor or administrator, “involv[e] matters that occurred during the lifetime of the decedent,” and where judgment is sought against the estate.1 7 2 “[R]ather than excluding evidence, the statute prevents a particular class of witnesses from testifying as to the claims against the estate.”173 It arose in three decisions during the survey period. Following the death of a farmer, the farmer’s supplier of cattle claimed several hundred thousand dollars against the resulting estate for an alleged outstanding balance on an oral contract.174 The testimony of the supplier regarding conversations with the farmer’s widow were disallowed by the trial court pursuant to the Indiana Dead Man’s Statute.175 On appeal, the court found it did not matter whether the discussions were had before or after the death of the farmer; they were barred because “the substance of those conversations involves oral contracts that . . . may have formed during [the farmer]’s lifetime,” which “would present the trial court with [the supplier]’s version of its dealings with [the farmer], who cannot testify to his version of any oral contracts because his lips are closed by death. This proposed testimony, therefore, is precisely what the Dead Man’s Statute aims to preclude.”176 In D.H. v. Whipple, the Indiana Court of Appeals was able to easily dispense with a challenge to testimony by a police detective advanced in a claim for damages resulting from child molestation.177 With limited exceptions, the Dead Man’s Statute renders a witness incompetent only if he or she has an interest “adverse to the estate.”1 7 8 “Because [the detective] would neither gain, nor lose, by the direct legal operation of the judgment, he d[id] not have an interest which renders him incompetent to testify.”179 The third decision resulted from one year of marriage and five decades of inconclusive proceedings to dissolve that union.180 While the final in a long line of dissolution proceedings across multiple jurisdictions was pending, the husband passed away.181 The wife then elected “to take against the will as a surviving 171. Childress Cattle, LLC v. Estate of Cain, 88 N.E.3d 1121, 1123 (Ind. Ct. App. 2017). 172. IND. CODE § 34-45-2-4(a) (2018); cf. D.H. v. Whipple, 103 N.E.3d 1119, 1126 n.2 (Ind. Ct. App.), trans. denied, 119 N.E.3d 91 (Ind. 2018). 173. D.H., 103 N.E.3d at 1126 n.2. 174. Childress Cattle, 88 N.E.3d at 1122. 175. Id. at 1122-23. 176. Id. at 1124. 177. 103 N.E.3d at 1126 n.2. 178. Id. (quoting IND. CODE § 34-45-2-4(d)) (quotation marks omitted). 179. Id. (quoting IND. CODE § 34-45-2-4(d)) (quotation marks omitted). 180. Riggs v. Hill, 84 N.E.3d 699, 700-01 (Ind. Ct. App. 2017), trans. denied, 95 N.E.3d 1292 (Ind. 2018). 181. Id. at 701. 2019] EVIDENCE 733 spouse in the [ensuing] probate action.”182 The probate court barred the election pursuant to the doctrine of laches and the wife appealed, contending that portions of her designation of evidence were improperly struck in accordance with the Dead Man’s Statute.183 Concluding that “the Dead Man’s Statute prohibits the testimony of an alleged surviving spouse about her relationship with the decedent where she is seeking to inherit a portion of the decedent’s estate,” the court of appeals upheld exclusion of the testimony.184 B. Rule 606: Post-Trial Testimony of Jurors “Rule 606 governs the permissible limits of investigation into a juror’s service and experience.”1 85 It generally prohibits impeachment of a verdict through subsequent juror testimony.186 That general rule yields when any of the four enumerated exceptions of Rule 606(b)(2) apply.187 One such exception—permitting “[a] juror [to] testify about whether: . . . extraneous prejudicial information was improperly brought to the jury’s attention”—was the basis for an unsuccessful challenge to a $1.3 million jury verdict in Tunstall v. Manning.188 During the course of jury deliberation, the trial court received a note from juror Staton stating, “I don’t feel as we are close to a decision. I need to leave to pick up my grandson. Can I be excused?”189 At that time, the court refused the request.190 Over an hour later, the court received a second note from the jury room, this one instructing that “the jury cannot reach a verdict at this point due to the award amount.”191 The note continued, “We find for the plaintiff, but can’t agree on the award. We are one million dollars apart with one juror unable, or unwilling to budge.”192 In response, the court “instructed the jury to continue deliberating.”193 Just under an hour after the second note, a third note arrived from the jury 182. Id. 183. Id. 184. Id. at 703. 185. Green v. State, 994 N.E.2d 1276, 1279 (Ind. Ct. App. 2013) (citations and formatting omitted). 186. IND. R. EVID. 606(b)(1); Tunstall v. Manning, 107 N.E.3d 1093, 1101 (Ind. Ct. App. 2018), trans. granted and opinion vacated, 120 N.E.3d 554 (Ind. 2019). 187. The four exceptions are: “(A) any juror’s drug or alcohol use; (B) extraneous prejudicial information was improperly brought to the jury’s attention; (C) an outside influence was improperly brought to bear on any juror; or (D) a mistake was made in entering the verdict on the verdict form.” IND. R. EVID. 606(b)(2)(A-D). 188. IND. R. EVID. 606(b)(2)(B); Tunstall, 107 N.E.3d at 1101-02. 189. Tunstall, 107 N.E.3d at 1099. 190. Id. 191. Id. 192. Id. 193. Id. 734 INDIANA LAW REVIEW [Vol. 52:715 room.194 Once again, the note was from juror Staton who, this time, “wrote, ‘I would like to be excused due to pain in my legs. Can the alternate take over in my absence? I hate to ask but I’m in pain and can’t take it any longer.’”1 9 5 After consulting with counsel for the respective parties, who each indicated no objection, the court agreed to discharge juror Staton.196 Following her discharge, the jury returned a verdict in the amount of $1.3 million for the plaintiff.197 One month after the trial, juror Staton contacted counsel for the defendant to “express[] her disagreement with the amount of the verdict.”198 She executed an affidavit, prepared by defense counsel, explaining that “a juror . . . shared during deliberations that she had been treated by . . . one of [the plaintiff]’s physicians, for similar back injuries. Based on her own experience with that doctor, [the juror] maintained that the doctor would not have ‘ordered the MRI or prescribed injections unless he saw something.’”1 99 The affidavit was used unsuccessfully in support of a motion to correct error based upon juror misconduct.200 On appeal, the court recognized that “[a]lthough a verdict may not normally be impeached by juror testimony, an exception exists [under Rule 606(b)(2)(B)] where ‘extraneous prejudicial information was improperly brought to the jury’s attention.’”201 Traditionally, Indiana applies a two-step analysis, which requires the party challenging the verdict to first show “that the jury or a juror was exposed to ‘extraneous prejudicial information’ or ‘outside influence.’”202 Once that showing has been made, then the burden shifts to the party defending the verdict to show that there was no substantial possibility that it tainted the verdict.203 The Tunstall court did not, however, provide a considered analysis of whether juror Staton’s affidavit sufficiently established evidence that the jury was exposed to extraneous prejudicial information so as to implicate the exception of Rule 606(b)(2)(B).204 Instead, the court appears to have presumed the evidence was admissible and progressed to determine whether the juror’s personal knowledge was sufficiently prejudicial to warrant a new trial, though “not[ing] that the trial court impliedly questioned Staton’s credibility.”205 The court determined that it 194. Id. 195. Id. at 1099-1100. 196. Id. at 1100. 197. Id. 198. Id. at 1101. 199. Id. 200. Id. 201. Id. 202. MILLER, JR., supra note 144, at 167 (citation omitted); see also Stephenson v. State, 742 N.E.2d 463, 477 (Ind. 2001). 203. MILLER, JR., supra note 144, at 167; Stephenson, 742 N.E.2d at 477. 204. Tunstall, 107 N.E.3d at 1101. 205. Id. at 1101 n.7 (“At the hearing on the motion to correct error, the court noted that Staton ‘didn’t have the courage to stay in that room and fight for her beliefs and wanted out’ and then returned after the verdict to try to ‘nullify’ it.” (citation to record omitted)). 2019] EVIDENCE 735 could not “say that there was a substantial possibility that [the] statements prejudiced the verdict. Accordingly, the trial court did not abuse its discretion in refusing to grant a new trial on this ground.”206 After the close of the survey period, the Indiana Supreme Court granted transfer, vacating the decision.207 The Indiana Supreme Court’s ultimate decision will be addressed in the next survey period.208 C. Rule 611: Courts’ Authority to Control Examination of Witnesses Rule 611 establishes the authority of courts to control and intercede into examination of witnesses.209 Courts are to “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: (1) make the interrogation and presentation effective for the ascertainment of the truth; (2) avoid needless consumption of time; and (3) protect witnesses from harassment or undue embarrassment.”210 To further those purposes, a “trial judge is provided wide latitude to control the flow of the trial proceedings.”211 The breadth of that latitude was tested in Woods v. State, wherein a criminal conviction was assailed on the basis of alleged judicial bias due to the judge’s sua sponte interjections to prohibit a criminal defendant from repeatedly testifying in violation of hearsay rules.212 The court of appeals ruled that there was no showing of bias because the defendant-witness “had demonstrated a propensity to utter hearsay testimony, and the trial court had repeatedly informed counsel to ask direct questions to avoid the issue. . . . The court properly interceded to ensure that counsel followed the Rules of Evidence.”213 D. Rule 616: Witness’s Bias In addition to the bases for impeachment of witnesses enshrined in Rules 608, 609, and 613, Rule 616 provides a catchall provision preserving common-law practices to attack a witness’s credibility by evidence showing “bias, prejudice, or interest for or against any party.”214 Traditionally, “[c]redibility of a witness may be attacked by showing that he may have an ulterior motive or may be under coercion to testify.”215 Nevertheless, not every conceivable argument for what ulterior motive a witness may possess is admissible. Such a circumstance was 206. Id. at 1102 (internal citations omitted). 207. Tunstall v. Manning, 120 N.E.3d 554 (Ind. 2019). 208. Tunstall v. Manning, 124 N.E.3d 1193 (Ind. 2019). 209. IND. R. EVID. 611. 210. IND. R. EVID. 611(a). 211. Isaacs v. State, 659 N.E.2d 1036, 1042 (Ind. 1995). 212. 98 N.E.3d 656, 664-65 (Ind. Ct. App.), trans. denied, 107 N.E.3d 1060 (Ind. 2018). 213. Id. at 65. 214. IND. R. EVID. 616; Pickett v. Kolb, 250 Ind. 449, 451, 237 N.E.2d 105, 107 (1968); MILLER, JR., supra note 144, at 217. 215. Hall v. State, 267 Ind. 512, 514, 371 N.E.2d 700, 701 (1978). 736 INDIANA LAW REVIEW [Vol. 52:715 presented in Hinkle v. State.216 Seeking to undermine the credibility of a minor victim of sexual misconduct, the criminal defendant sought to admit evidence of the victim’s drug use.217 The rationale for admission was that the “drug use was relevant to [the defendant]’s theory that [the victim] had fabricated the molestation allegations in order to avoid facing consequences from his family for his drug use.”218 The trial court excluded the evidence, determining that the defendant “had not demonstrated a connection between [the victim]’s family discussion on his drug use and a motive . . . to falsely accuse [the defendant] of molestation.”219 On appeal, the defendant contended that the 2013 decision Hyser v. State required reversal.220 Hyser was an appeal of convictions for child molestation in which the defendant sought to introduce evidence that the alleged victim fabricated his testimony “as a retaliatory act in response to the report [Hyser] made to DCS that he believed [the alleged victim] was being abused.”2 2 1 Finding the evidence relevant because it “had, at a minimum, the tendency to show that the molestation allegations against Hyser were untrue and were made, or caused to be made by [the alleged victim] . . . in retaliation or in response to Hyser’s action of making a child abuse report,” the Indiana Court of Appeals reversed the conviction.222 The Hinkle court found Hyser distinguishable because, the court reasoned, the Hyser “defendant established a foundation for his theory that the witnesses against him may have acted in retaliation.”223 But, “unlike in Hyser, there [wa]s no question of retaliation and Hinkle did not present any basis, other than speculation, to support his assumption that [the victim] had invented the allegations of molestation against Hinkle.”224 Further distinguishing Hinkle from Hyser was that evidence indicated the Hinkle victim did not know he was facing consequences with his family for his drug use, thereby undercutting his motivation to fabricate his testimony.225 E. Rule 617: “Places of Detention” It “is not a constitutional requirement or a prophylactic rule meant to enforce 216. 97 N.E.3d 654, 662-64, modified on reh’g, 2018 Ind. App. LEXIS 202 (Ind. Ct. App. 2018). 217. Id. 218. Id. at 662. 219. Id. at 662-63. 220. Id. at 663 (citing Hyser v. State, 996 N.E.2d 443 (Ind. Ct. App. 2013)). 221. Id. (quoting Hyser, 996 N.E.2d at 448) (internal formatting omitted; first alteration in original). 222. Id. (quoting Hyser, 996 N.E.2d at 448-49) (internal formatting marks omitted; first alteration in original). 223. Id. 224. Id. at 663-64. 225. Id. at 664. 2019] EVIDENCE 737 the Constitution; rather, it is a rule of judicial administration.”226 Rule 617 heightens the requirements for admissibility of statements in certain circumstances by specifically providing that, “[i]n a felony prosecution, evidence of a statement made by a person during a Custodial Interrogation in a Place of Detention shall not be admitted against the person unless an Electronic Recording of the statement was made, preserved, and is available at trial . . . .”227 Last year’s survey addressed the court of appeals’ decision in Fansler v. State, which was only the second appellate decision interpreting the meaning of “Place of Detention.”228 After the close of the previous survey period, the Indiana Supreme Court granted transfer to construe Rule 617 for the first time.229 The specific question presented was whether a motel room used to conduct a sting and interrogation constituted a “Place of Detention.”230 Rule 617(b) defines “Place of Detention” as “a jail, law enforcement agency station house, or any other stationary or mobile building owned or operated by a law enforcement agency at which persons are detained in connection with criminal investigations.”231 The open-ended nature of the definition led the court of appeals to conclude that the hotel room was a “Place of Detention.”232 On transfer, the Indiana Supreme Court found the particular circumstances in the case did not transform the room into a “Place of Detention.”233 Because the motel room was not a jail, law enforcement agency, or facility owned by law enforcement, the analysis turned on whether the room was transformed into a “Place of Detention” by its operation.234 Based on the common meaning of “operate,” the court established three factors to determine whether a space has been transformed into a “Place of Detention”: “1) the control that law enforcement has over the premises, 2) the frequency of use to conduct custodial interrogations, and 3) the purpose for which law enforcement uses the space.”235 Finding that the room was used only temporarily by law enforcement, without 226. Fansler v. State, 100 N.E.3d 250, 253 (Ind. 2018). 227. Id. (quoting IND. R. EVID. 617(a)) (alteration in original) 228. Colin E. Flora, 2017 Developments in Indiana Evidentiary Practice, 51 IND. L. REV. 1049, 1063-65 (2018). 229. Fansler, 100 N.E.3d at 253 (“Since our Court has yet to construe Rule 617, we elect to address whether the trial court erred in admitting Fansler’s incriminating statements without an electronic recording.”). 230. Id. at 251-52. 231. IND. R. EVID. 617(b). 232. Fansler v. State, 81 N.E.3d 671, 675 (Ind. Ct. App. 2017). Interestingly, the court of appeals called the location a “hotel room,” while the Indiana Supreme Court clarified that the facility was actually a “motel” (though the court noted that the classification did not the outcome). See Fansler, 100 N.E.3d at 251 n.1. 233. Fansler, 100 N.E.3d at 254-55. 234. Id. at 254. 235. Id. 738 INDIANA LAW REVIEW [Vol. 52:715 significant alteration, that the “police did not exercise the type of long-term control that is ordinarily associated with operating a space,” having used it only sporadically over the course of three sting operations in the span of a year, and that the primary use was for surveillance not interrogation, the court concluded that the motel room was not a “Place of Detention” for purposes of Rule 617.236 That does not mean a hotel room may never constitute a “Place of Detention.”237 As the court emphasized in leaving the door open for future cases, “[h]ad the degree of control over the motel room, frequency of use, and the purpose of the use indicated that law enforcement was operating the motel room as the functional equivalent of a station house, then perhaps we would have a different outcome.”238 Even where a space constitutes a “Place of Detention,” there are exceptions set forth in subdivision (a). One such exception is the booking exception of Rule 617(a)(1).239 The now-vacated decision of the court of appeals specifically addressed the exception, deciding that “the language of Rule 617 plainly evokes the formal, administrative setting of the routine-booking exception to the warning requirement of Miranda v. Arizona and related Fourth Amendment contexts.”240 The Indiana Supreme Court’s opinion, however, passes on the argument without offering any guidance.241 Although the court of appeals’ analysis on the matter is persuasive, future litigants are well to remember that the effect of transfer renders the intermediate Fansler decision vacated and not citable in future cases.242 That leaves no citable published Indiana decision interpreting the booking exception.243 VI. OPINIONS & EXPERT OPINIONS: RULES 701 THROUGH 705 A. Rule 701: Opinion Testimony by Lay Witnesses Even if a witness is unable to satisfy the rigors of Rule 702 to provide expert testimony, he or she may still provide opinion testimony under Rule 701 “that is: (a) rationally based on the witness’s perception; and (b) helpful to a clear understanding of the witness’s testimony or to a determination of a fact in 236. Id. at 254-55. 237. Id. at 255. 238. Id. 239. IND. R. EVID. 617(a)(1) (“In a felony criminal prosecution, evidence of a statement made by a person during a Custodial Interrogation in a Place of Detention shall not be admitted against the person unless an Electronic Recording of the statement was made, preserved, and is available at trial, except upon clear and convincing proof of any one of the following: (1) The statement was part of a routine processing or ‘booking’ of the person . . . .”). 240. Fansler v. State, 81 N.E.3d 671, 675 (Ind. Ct. App. 2017) (citations omitted). 241. Fansler, 100 N.E.3d at 255-56. 242. Id. at 253 (citing IND. R. APP. P. 58(A)); Hubbard v. Hubbard, 690 N.E.2d 1219, 1221 n.2 (Ind. Ct. App. 1998) (applying predecessor to IND. R. APP. P. 58(A)). 243. Fansler, 81 N.E.3d at 675. 2019] EVIDENCE 739 issue.”244 Such testimony must be “rationally based on some combination of the witness’s own personal observation, knowledge, and past experience” and cannot be mere “speculation or [] based on improper inferences.”245 “[A] statement is rational if a reasonable person could form the opinion from the perceived facts.”246 In D.H. v. Whipple, a police detective testified that it was his impression a child’s step-grandfather had admitted to his wife that he had molested the child prior to a specific date.247 The impression was based upon the step-grandfather informing the detective “that he had told his wife [] that he had molested a girl in the past.”248 On review, the Indiana Court of Appeals concluded that the detective’s testimony was “both rationally based on his perception and helpful to a clear understanding of his testimony.”249 The court further opined that “even absent an express statement, there are countless context clues in the course of a conversation from which the recipient of information can determine, or at least opine, the order in which events occurred.”250 Carter v. State presented the question of whether a statute fixing a quantity of heroine as presumptively sufficient to establish intent to deliver the drug foreclosed skilled-witness testimony that a lesser amount could constitute a “dealer quantity.”251 The court of appeals rejected the argument, “conclud[ing] that the statute does not operate to bar admission of probative evidence related to the defendant’s intent to deal the drug. Rather, the statute eliminates the State’s burden of presenting additional intent evidence when there is evidence that the drug weighed at least twenty-eight grams.”252 Therefore, the statute does not exclude otherwise admissible opinion evidence of intent to distribute an amount beneath the threshold at which the presumption attaches.253 244. IND. R. EVID. 701; Satterfield v. State, 33 N.E.3d 344, 352 (Ind. 2015) (“Helpful opinions are not exclusive to experts or skilled witnesses.”). 245. D.H. v. Whipple, 103 N.E.3d 1119, 1127 (Ind. Ct. App.) (citation and quotation marks omitted), trans. denied, 119 N.E.3d 91 (Ind. 2018). 246. Id. at 1128. 247. Id. at 1126-28. 248. Id. at 1127. 249. Id. at 1128. 250. Id. 251. 105 N.E.3d 1121, 1131-32 (Ind. Ct. App.) (citing IND. CODE § 35-48-4-1 (2018)), trans. denied, 110 N.E.3d 1146, (Ind. 2018). “A skilled witness is a person with a degree of knowledge short of that sufficient to be declared an expert under Indiana Evidence Rule 702, but somewhat beyond that possessed by the ordinary jurors” who is permitted to testify under Rule 701. Haycraft v. State, 760 N.E.2d 203, 211 (Ind. Ct. App. 2001) (citations and quotation marks omitted), trans. denied, 774 N.E.2d 514 (Ind. 2002). 252. Carter, 105 N.E.3d at 1132. 253. Id. 740 INDIANA LAW REVIEW [Vol. 52:715 B. Rule 702: Expert Witnesses Rule 702 permits admission of testimony from a witness “who is qualified as an expert by knowledge, skill, experience, training, or education [to] testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.”254 One of the most notable evidentiary rulings of the survey period addressed the ability to assail the credibility of an expert based upon prior professional discipline. Despite not specifically addressing Rule 702, the decision provided important insight into expert testimony. At issue in Tunstall v. Manning was whether “the trial court abused its discretion by refusing to admit evidence regarding [a medical expert]’s disciplinary history with the Indiana Medical Licensing Board.”255 The expert was twice disciplined by the Medical Licensing Board (the “Board”); first in 2009, resulting in a $500 fine, and again in 2016, yielding a $1,000 fine with “his license [] placed on indefinite probation for a minimum of 1 year with certain terms and conditions.”256 At the time of trial, the expert was no longer under probation, having returned to “good standing.”257 In resolving the issue, the Indiana Court of Appeals looked to its 2008 decision Linton v. Davis.258 “In Linton, th[e] court held that ‘the licensure status of a physician who gives an expert opinion is admissible to impeach the doctor’s opinion.’”259 The majority opinion found Linton distinguishable and emphasized that Linton ruled “[o]nly the final action taken by the Board [] was admissible.”260 While the license of the Linton expert was on probation at the time of testifying, the expert in Tunstall “was in good standing (i.e., not on probation) at the time he testified.”261 Rejecting the appellant’s contention that it was “a distinction without a difference,” the court, applying an abuse of discretion standard, emphasized that “an expert’s past disciplinary history is, if at all, not as relevant as the expert’s current probationary status.”262 Further, the majority thought the minimal portion of the expert’s deposition that was excluded would not have had a significant impact on the jury’s verdict, rendering any error harmless.263 The court’s majority opinion drew a dissent from Judge John Baker.264 Unlike 254. IND. R. EVID. 702(a). 255. Tunstall v. Manning, 107 N.E.3d 1093, 1098 (Ind. Ct. App. 2018), trans. granted and opinion vacated, 120 N.E.3d 554 (Ind. 2019). 256. Id. 257. Id. 258. Id. (citing Linton v. Davis, 887 N.E.2d 960 (Ind. Ct. App.), trans. denied, 898 N.E.2d 1226 (Ind. 2008)). 259. Id. at 1098-99 (quoting Linton, 887 N.E.2d at 969). 260. Id. at 1099 (quoting Linton, 887 N.E.2d at 969). 261. Id. 262. Id. 263. Id. 264. Id. at 1102-03 (Baker, J., dissenting). 2019] EVIDENCE 741 his colleagues, Judge Baker agreed with the appellant that the distinction between an expert who was currently as opposed to formerly subject to discipline was immaterial.265 He further looked for guidance in Sneed v. Stovall, in which the Court of Appeals of Tennessee “found that evidence regarding the expert’s past disciplinary history—not just his licensure status at the time of trial—was admissible.”266 The majority dismissed “the dissent’s reliance on Sneed” as “curious” because the Sneed expert was still subject to license restrictions at the time of trial and had testified untruthfully in his deposition, answering that he had not been subject to professional discipline.267 Further departing from the majority, Judge Baker thought that erroneous exclusion was not harmless because the doctor was the appellee’s only medical expert “and his testimony squarely and profoundly disagreed with the” appellant’s experts.268 The dissent further recognized that there was a motion to compel that was denied on the first day of the trial, which, if granted, would have permitted the appellant to probe more deeply into the expert’s disciplinary history than the limited portion preserved in the deposition used at trial.269 The majority rebutted that point as well: During the deposition, rather than address the timing of Dr. Paschall’s one instance of probation, defense counsel attempted to ask a series of questions exploring the reasons for the discipline. Dr. Paschall refused to answer these questions. [Appellant] openly acknowledges on appeal that testimony regarding the reasons for the discipline would not have been admissible at trial. Despite this, the dissent references the last- minute motion to compel that [Appellant] filed on the eve of trial and eleven days after the deposition. In the motion, which was denied, [Appellant] asked the trial court to compel Dr. Paschall to answer the unanswered questions from the deposition, as well as reasonable follow- up. [Appellant] did not submit additional questions for the witness or request another deposition. A review of the unanswered questions reveals that the answers to these questions would not have been admissible, and the questions themselves were permeated with inadmissible references to criminal convictions.270 Although a broad reading of Tunstall suggests evidence of past suspensions of an expert’s license is necessarily inadmissible, such an interpretation may be ill-advised. In addition to Judge Baker’s dissent, there is another reason to be cautious: shortly after the close of the survey period, another panel of the court 265. Id. at 1102. 266. Id. (citing Sneed v. Stovall, 22 S.W.3d 277, 282 (Tenn. Ct. App. 1999), appeal denied (Tenn. May 22, 2000)). 267. Id. at 1099 n.4 (citing Sneed, 22 S.W.3d at 278, 281). 268. Id. at 1103. 269. Id.; see also Appellant’s Brief at 14-15, Tunstall v. Manning, 107 N.E.3d 1093 (Ind. Ct. App. 2018) (No. 49A04-1711-CT-02572). 270. Tunstall, 107 N.E.3d at 1099 n.4 (emphasis in original). 742 INDIANA LAW REVIEW [Vol. 52:715 of appeals issued an unpublished memorandum opinion addressing a similar circumstance.271 Writing for the unanimous panel, Judge James Kirsch made no reference to Tunstall and instead relied on Linton and Fridono v. Chuman to find that an expert “could [] be impeached with the status of his medical license and the fact that it had been previously [] suspended” by mere virtue of the fact “he was a testifying expert witness.”272 Typically, a memorandum opinion failing to even mention new, controlling precedent would not merit caution—the decision not only lacks precedential value, it cannot even be cited to Indiana courts.273 What adds note, however, is that Judge Kirsch was part of the panel that decided Tunstall, concurring in Judge Robert Altice’s majority opinion. To the degree that the law is “[t]he prophecies of what the courts will do in fact, and nothing more pretentious,”274 on this issue, prognostication of future appellate treatment seems a difficult task, with a substantial possibility that subsequent appellate panels may confine Tunstall to its facts. Further complicating matters is that the Indiana Supreme Court has granted transfer in Tunstall, vacating the underlying opinion.275 Another decision from the survey period, Taylor v. State, provided important guidance for sufficiency in establishing the predicate for expert testimony on forensic investigations based on the expert’s technical expertise despite the expert having no knowledge of the science behind the technological tools used.276 There, a detective testified regarding the contents of the defendant’s cellular telephone based on what the detective recovered “using the ‘Chip-Off’ forensic technique.”2 77 The technique “involves first de-soldering and removing a phone’s memory chip from the phone’s circuit board, primarily by heating the board until the solder and epoxy connecting the chip to the board loosens . . . then plac[ing] the memory chip into a standalone memory chip reader and retriev[ing] the data from the chip.”27 8 The defendant challenged the testimony claiming the state failed to lay sufficient foundation for the opinion.279 The foundation for scientific testimony may be laid either through “judicial notice or by sufficient foundation to convince the court that the relevant scientific principles are reliable.”280 271. Seidenstucker v. Ferguson, No. 18A-CT-962, 2018 Ind. App. Unpub. LEXIS 1375, at *6- 11 (Ind. Ct. App. Nov. 20, 2018). 272. Id. (citing Fridono v. Chuman, 747 N.E.2d 610, 610, 615, 620 (Ind. Ct. App.), trans. denied, 761 N.E.2d 418 (Ind. 2001); Linton v. Davis, 887 N.E.2d 960, 965, 968-69 (Ind. Ct. App.), trans. denied, 898 N.E.2d 1226 (Ind. 2008)). 273. IND. R. APP. P. 65(D); see generally Colin E. Flora, Citing Unpublished Cases in Indiana: Rules & Caselaw, 61 RES GESTAE 31 (2018). 274. Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 460-61 (1897). 275. Tunstall v. Manning, 120 N.E.3d 554 (Ind. 2019). 276. 101 N.E.3d 865, 869-72 (Ind. Ct. App. 2018). 277. Id. at 869-70. 278. Id. at 869. 279. Id. at 869-72. 280. Id. at 870 (citation omitted). 2019] EVIDENCE 743 In determining reliability, courts may consider the following nonexclusive factors: (1) whether the technique has been or can be empirically tested; (2) whether the technique has been subjected to peer review and publication; (3) the known or potential rate of error as well as the existence and maintenance of standards controlling the technique’s operation; and (4) general acceptance within the relevant scientific community.281 Rule 702 “was meant ‘to liberalize, rather than to constrict, the admission of reliable scientific evidence.’”282 Had the detective attempted to provide expert scientific testimony, then his testimony may not have been admissible.283 But the court of appeals found the detective did not provide expert scientific testimony; rather, he provided testimony based on “‘technical’ or ‘specialized’ knowledge” under Rule 702(a).284 Because the testimony was “not ‘scientific,’ it need not be proven reliable by means of ‘scientific principles’ under Evidence Rule 702(b).”285 And, as testimony under Rule 702(a) instead of Rule 702(b), “any weaknesses or problems in the testimony go only to the weight of the testimony, not to its admissibility, and should be exposed through cross-examination and the presentation of contrary evidence.”286 Accordingly, the court of appeals affirmed admission of the detective’s testimony in accordance with Rule 702. C. Rule 704: Opinion on an Ultimate Issue Although Rule 704(a) generally allows otherwise admissible opinion testimony to “embrace[] an ultimate issue,”287 such testimony may not extend “to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.”288 Even if opinion testimony runs afoul of the specific limitations, it may still be admissible if the opposing party opens the door to it, such that evidence introduced by one party “leave[s] the trier of fact with a false or misleading impression of the facts related.”289 Opening the door allows the opposing party to “introduce otherwise inadmissible evidence if it is a fair response to evidence elicited by the defendant.”290 281. Id. (citation omitted). 282. Id. at 870 (quoting Sears Roebuck & Co. v. Manuilov, 742 N.E.2d 453, 460 (Ind. 2001)). 283. Id. at 871. 284. Id. 285. Id. (citation omitted). 286. Id. (citation and quotation marks omitted). 287. IND. R. EVID. 704(a). 288. IND. R. EVID. 704(b). 289. Wilder v. State, 91 N.E.3d 1016, 1023 (Ind. Ct. App. 2018) (citation and quotation marks omitted). 290. Id. (citation and quotation marks omitted). 744 INDIANA LAW REVIEW [Vol. 52:715 A common form of impermissible opinion testimony arises when a witness offers an opinion as to the veracity of another’s testimony, which is often referred to as “vouching evidence.”291 Prior to the Indiana Supreme Court’s 2012 ruling in Hoglund v. State, there was a limited exception “for cases in which a child was called to testify about sexual conduct, . . . allow[ing] ‘some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters.’”292 Finding “[t]his indirect vouching testimony [] little different than testimony that the child witness is telling the truth,” the Hoglund court abandoned the exception as in conflict with Rule 704(b).293 On habeas review of that decision, the United States District Court for the Northern District of Indiana strongly questioned the Indiana Supreme Court’s harmless error analysis, yet left the evidentiary conclusions otherwise undisturbed.294 VII. HEARSAY: RULES 801 THROUGH 807 A. Rules 801 & 802: Hearsay Generally Prohibited “Hearsay is not admissible unless the Rules of Evidence or other law provides otherwise.”295 “Hearsay is an out-of-court statement offered for ‘the truth of the matter asserted,’ and it is generally not admissible as evidence.”296 The prohibition on hearsay extends both to speech and conduct “when [the conduct] indicates an implied assertion by the declarant.”297 If evidence is offered for a purpose other than the truth of the matter asserted, then it is not hearsay.298 “Whether a statement is hearsay will most often hinge on the purpose for which it is offered.”299 In Thrash v. State, the Indiana Court of Appeals found that an officer’s testimony that the defendant’s ex-girlfriend said the defendant had outstanding warrants was impermissible hearsay.300 The exception for “out-of- 291. See, e.g., Hamilton v. State, 49 N.E.3d 554, 556 (Ind. Ct. App. 2015). 292. See, e.g., id., see Hoglund v. Superintendent, No. 3:16-CV-313-PPS-MGG, 2018 U.S. Dist. LEXIS 142552, at *22 (N.D. Ind. Aug. 22, 2018) (discussing Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012); quoting Lawrence v. State, 464 N.E.2d 923, 925 (Ind. 1984)), appeal filed, No. 18-2949 (7th Cir. Sep. 7, 2018). 293. Hoglund, 962 N.E.2d at 1237. 294. Hoglund, 2018 U.S. Dist. LEXIS 142552, at *21-32. 295. Carr v. State, 106 N.E.3d 546, 554 (Ind. Ct. App.) (citing IND. R. EVID. 802), trans. denied, 111 N.E.3d 197 (Ind. 2018). 296. Thrash v. State, 88 N.E.3d 198, 203 (Ind. Ct. App. 2017) (quoting IND. R. EVID. 801(c)(2)). 297. Bates-Smith v. State, 108 N.E.3d 399, 404 (Ind. Ct. App. 2018). 298. See, e.g., J.G. v. State, 93 N.E.3d 1112, 1125 n.11 (Ind. Ct. App.), trans. denied, 102 N.E.3d 286 (Ind. 2018); Bates-Smith, 108 N.E.3d at 405. 299. Thrash, 88 N.E.3d at 203 (quoting Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014)). 300. Id. at 203-05. 2019] EVIDENCE 745 court statements made to law enforcement . . . if introduced primarily to explain why the investigation proceeded as it did” did not apply because the testimony failed the three-part Craig test.301 The Craig test considers: (1) “whether the challenged hearsay statement asserts a fact susceptible of being true or false”; (2) “the evidentiary purpose for the proffered statement”; and (3) if the assertion is “for a purpose other than to prove the truth . . . whether the fact to be proved is relevant to some issue in the case, and whether the danger of unfair prejudice that may result from its admission outweighs its probative value.”302 The statements in Thrash were susceptible to being true or false, for the purpose of “document[ing] the course of police investigation,” and of only slight relevance.303 Thus, it was error to admit the testimony.304 B. Rule 803: Statements for Medical Diagnoses, Business Records, and Learned Treatises Rule 803 sets out exceptions to Rule 802's general prohibition on hearsay evidence that apply regardless of whether the declarant is available to testify.305 Three categories of exceptions drew meaningful attention during the survey period: statements made for medical diagnoses or treatments;306 records of regularly conducted activities;307 and statements in learned treatises.308 The exception for statements made for medical diagnosis or treatment “requires that the statements must be made by persons who are seeking medical diagnosis or treatment and describing medical history, past or present symptoms, pain, sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.”309 In order to apply, “the declarant must subjectively believe that he was making the statement for the purpose of receiving medical diagnosis or treatment.”310 At the heart of the exception is the presumed reliability of the statement based upon “the declarant’s self-interest in obtaining proper medical treatment.”311 To invoke the exception, a proponent must show: (1) that “the declarant [was] motivated to 301. Id. at 203-04 (citing Craig v. State 630 N.E.2d 207, 211 (Ind. 1994)). 302. Id. at 204. 303. Id. at 204-05. 304. Id. at 205. 305. IND. R. EVID. 803. 306. IND. R. EVID. 803(4). 307. IND. R. EVID. 803(6). 308. IND. R. EVID. 803(18). 309. Q.J. v. Ind. Dep’t of Child Servs., 92 N.E.3d 1092, 1099 (Ind. Ct. App.) (quotation marks and citations omitted), trans. denied, 102 N.E.3d 890 (Ind. 2018). 310. Hoglund v. Superintendent, No. 3:16-CV-313-PPS-MGG, 2018 U.S. Dist. LEXIS 142552, at *14-18 (N.D. Ind. Aug. 22, 2018) (quoting McClain v. State, 675 N.E.2d 329, 331 (Ind. 1996)), appeal filed, No. 18-2949 (7th Cir. Sep. 7, 2018). 311. Q.J., 92 N.E.3d at 1099 (quotation marks and citation omitted). 746 INDIANA LAW REVIEW [Vol. 52:715 provide truthful information in order to promote diagnosis and treatment”; and (2) that “the content of the statement [was] such that an expert in the field would reasonably rely on it in rendering diagnosis or treatment.”312 That exception under Rule 803(4) was presented to the Indiana Court of Appeals on review of adjudications of minors as children in need of services.313 There, a father challenged statements of his fourteen-year-old son, arguing that there was no evidence demonstrating the boy knew he was speaking with a medical professional for the purpose of obtaining a diagnosis and no evidence demonstrating his motivation to tell the truth.314 Finding that the boy was not a young child and that the statements were made in a hospital—creating an “inference that he knew he was talking to a medical professional and that he was motivated to provide truthful information is obvious”—the appellate court rejected the challenge.315 Also arising during the survey period was the business-records exception, embodied in Rule 803(6), which makes admissible records of a regularly conducted activity if: the record was made at or near the time by—or from information transmitted by—someone with knowledge; the record was kept in the course of a regularly conducted activity of a business; making the record was a regular practice of that activity; all these conditions are shown by the testimony of the custodian or another qualified witness; and neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.316 Holmes v. National Collegiate Student Loan Trust exemplified the difficulty of utilizing the exception in the context of consumer credit. There, the Indiana Court of Appeals reversed summary judgment finding that the affidavit from an employee of a loan subservicer lacked sufficient knowledge of the business practices of the loan originator to admit evidence proving the loan under the business-records exception.317 Echoing a prior ruling, the court reminded that “one business ‘c[an]not lay the proper foundation to admit the records of another business because the requesting business lacked the personal knowledge required to ensure reliability.’”318 A third exception also received appellate attention. Although “excerpts from a journal or treatise offered to discredit an expert’s testimony [] meet the 312. Id. at 1100 (quotation marks and citation omitted). 313. Id. 314. Id. 315. Id. 316. Holmes v. Nat’l Collegiate Student Loan Tr., 94 N.E.3d 722, 725 (Ind. Ct. App. 2018). 317. Id. at 725-26. 318. Id. at 725 (quoting Speybroeck v. State, 875 N.E.2d 813, 821 (Ind. Ct. App. 2007)); see also Childress Cattle, LLC v. Estate of Cain, 88 N.E.3d 1121, 1125 (Ind. Ct. App. 2017) (finding Rule 803(6) not satisfied due to lack of testimony establishing “the invoices [we]re regularly conducted business records”). 2019] EVIDENCE 747 definition of hearsay,” they are admissible as an exception under Rule 803(13) if: (A) the statement is brought to an expert’s attention or relied on by the expert; (B) it “contradicts the expert’s testimony on a subject of history, medicine, or other science or art”; and (C) it “is established as a reliable authority.”319 On appellate review, the court found no error in the exclusion of the text of a medical journal because the expert witness was unfamiliar with the article and did not read the journal, making the expert incapable of establishing the authority’s reliability.320 Even though defense counsel “stated he would demonstrate later in the case that the periodical was a reliable authority, [] the court was not obligated to accept that statement.”321 Accordingly, there was no error in exclusion without first authenticating the journal as authoritative.322 C. Rule 804: Hearsay Exceptions for Unavailable Declarants Like Rule 803, Rule 804 creates exceptional circumstances in which the court may still admit hearsay.3 2 3 Rule 804, however, is applicable only when the declarant is unavailable.324 Whether a witness is unavailable can be a matter subject to debate, the resolution of which is entrusted to the sound discretion of the trial court.325 Such a debate arose in Burns v. State when a deposition was entered into evidence in lieu of the witness’s live testimony.326 The defendant argued that the witness was available and “able to travel from Florida to Indiana to testify at trial” “because [she] testified she was able to do housework.”327 The Indiana Court of Appeals found no abuse of discretion in ruling the witness was unavailable because “[h]er doctor submitted documentation” showing that she “was diagnosed with a malignant brain tumor,” “was involved in clinical trials requiring her to have therapy six days per week without interruptions to avoid any detrimental response,” “needs to stay close to the Cancer Center so she can be closely followed and observed for any adverse events,” and that her immune system was compromised by treatment.328 Those limitations were within the ambit of Rule 804(a)(4)’s criteria for unavailability.329 319. Lindhorst v. State, 90 N.E.3d 695, 700 (Ind. Ct. App. 2017) (quoting IND. R. EVID. 803(18)) (internal formatting omitted). 320. Id. at 700-01. 321. Id. at 701. 322. Id. 323. IND. R. EVID. 804(b). 324. IND. R. EVID. 804(a). 325. Burns v. State, 91 N.E.3d 635, 639 (Ind. Ct. App. 2018). 326. Id. at 638-39. Depositions are admissible as former testimony under IND. R. EVID. 804(b)(1)(A). Id. at 639. 327. Id. 328. Id. at 639. 329. IND. R. EVID. 804(a)(4) (“A declarant is considered to be unavailable as a witness if the declarant: . . . (4) cannot be present or testify at the trial or hearing because of death or a then- existing infirmity, physical illness, or mental illness . . . .”). 748 INDIANA LAW REVIEW [Vol. 52:715 “A declarant is considered to be unavailable as a witness if the declarant is absent from trial and the proponent of the statement has been unable to procure the declarant’s attendance at trial by process or other reasonable means.”330 When the unavailability is due to the wrongful conduct of a party against whom the testimony is offered, hearsay will not prohibit the testimony’s admission.331 To trigger the exception in criminal prosecutions, “the State must only show [by a preponderance of the evidence] that the defendant was motivated at least partially by a desire to silence the witness with his wrongdoing.”332 That exception was found to apply when a cooperating witness became unresponsive to the prosecution after the criminal defendant violated a no-contact order to communicate with the witness “and offered her money, a car, and place to stay.”333 Those actions accompanied with conversations about “not going forward to trial [provided] strong, probative evidence of [] wrongdoing as well as [] intent, at least in part, to prevent [the witness] from appearing at trial.”334 The lack of evidence showing an explicit urging to be absent from trial did not prevent application of the exception.335 VIII. AUTHENTICATION & IDENTIFICATION: RULES 901 THROUGH 903 A. Rule 901: Authenticating Evidence “To lay a foundation for the admission of evidence, the proponent of the evidence must show that it has been authenticated.”336 Authentication of evidence is governed by Rule 901,337 which provides a general rule in subdivision (a) that “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is,”338 and a non-exhaustive list of “examples . . . of evidence that satisfies the requirement” in subdivision (b).339 The Indiana Supreme Court’s opinion in McCallister v. State afforded insight into authentication through three different pieces of evidence.340 The first question addressed whether the state had sufficiently authenticated video from a hotel- 330. Carr v. State, 106 N.E.3d 546, 554 (Ind. Ct. App.) (citing IND. R. EVID. 804(a)(5)(A)), trans. denied, 111 N.E.3d 197 (Ind. 2018). 331. IND. R. EVID. 804(b)(5). 332. Carr, 106 N.E.3d at 554. 333. Id. 334. Id. at 554-55. 335. Id. at 555. 336. Hape v. State, 903 N.E.2d 977, 989 (Ind. Ct. App.) (citing Bartlett v. State, 711 N.E.2d 497, 502 (Ind. 1999)), trans. denied, 915 N.E.2d 994 (Ind. 2009). 337. Taylor v. State, 943 N.E.2d 414, 418 (Ind. Ct. App.), trans. denied, 950 N.E.2d 1207 (Ind. 2011). 338. IND. R. EVID. 901(a). 339. IND. R. EVID. 901(b); see also Richardson v. State, 79 N.E.3d 958, 963 (Ind. Ct. App.) (recognizing Rule 901(b) as a non-exhaustive list), trans. denied, 92 N.E.3d 1090 (Ind. 2017). 340. 91 N.E.3d 554, 561-65 (Ind. 2018). 2019] EVIDENCE 749 lobby surveillance camera.341 Despite the hotel manager being unable “to say with certainty that the DVD contained accurate footage of the lobby on” the date in question, sufficient evidence of authenticity was established by “verif[ying] the time-and-date-stamp system was accurate and attuned to ‘standard accepted time’ and was reset ‘in January each year’ to ensure accuracy,” and the manager’s testimony that “[h]e ‘recognize[d] every piece of furniture and some of the people working’ in the lobby, [a]nd he said the surveillance system is always on, and the videos are backed up to ‘the cloud’—meaning they are saved to external servers accessible to the hotel’s managers through the internet.”342 Coupled with the chain-of-custody evidence, the manager’s testimony was sufficient to admit the surveillance video.343 Next was evidence of text messages taken from the phone of someone with whom the defendant had messaged.344 The state did not introduce the phone,345 instead offering an FBI report of its contents that included the messages.346 Concluding that the trial court did not err in admitting the report, the Indiana Supreme Court found authenticity established by a detective’s testimony that one of the phone numbers in the report belonged to the defendant, that the detective “obtained the phone number form [the defendant]’s parole officer . . . and matched it to one in the report,” and that the “number was labeled in [the] phone as ‘MM- C.’”347 That evidence was sufficient even though the detective “did not try to confirm the number was [the defendant]’s through his service provider. . . .”348 The third issue of authenticity arose in the admission of an audio recording from the phone of the defendant’s girlfriend.349 The challenge was premised on lack of evidence to identify the voice of the speaker.350 Again, the supreme court found sufficient testimony to satisfy Rule 901.351 “The authentication requirement of Evidence Rule 901(a) is satisfied by testimony identifying a person’s voice, ‘whether heard firsthand or through mechanical or electronic transmission or recording based on hearing the voice at any time under circumstances that 341. Id. at 561-62. 342. Id. at 562 (second alteration in original). 343. Id. 344. Id. at 564. 345. Even if the state had introduced the phone, the text messages would still have needed to be independently authenticated. See Hape v. State, 903 N.E.2d 977, 990 (Ind. Ct. App.) (“Even though we have determined that a text message stored in a cellular telephone is intrinsic to the telephone, a proponent may offer the substance of the text message for an evidentiary purpose unique from the purpose served by the telephone itself. Rather, in such cases, the text message must be separately authenticated pursuant to Indiana Evidence Rule 901(a).”), trans. denied, 915 N.E.2d 994 (Ind. 2009). 346. McCallister, 91 N.E.3d at 564. 347. Id. 348. Id. 349. Id. at 564-65. 350. Id. at 564. 351. Id. at 565. 750 INDIANA LAW REVIEW [Vol. 52:715 connect it with the alleged speaker.’”352 The detective’s testimony identifying the voices “based on familiarity” due to having “listened to hundreds of hours of all of the[] subjects on the phone” provided the requisite foundation for admission under Rule 901(b)(5).353 The Indiana Court of Appeals also addressed the application of Rule 901(b). After concluding self-authentication of records from a prior conviction was insufficient to authenticate the signatures therein,354 the court turned to whether there was sufficient evidence to authenticate the signatures under either 901(b)(2) or 901(b)(3).355 “Handwriting,” such as signatures, “can be identified and authenticated through a non-expert’s opinion if the opinion is ‘based on familiarity with [the handwriting] that was not acquired for the current litigation.’”356 Alternatively, it may be accomplished “through the trier of fact or an expert’s comparison of the handwriting with an authenticated specimen.”357 Because the defendant did not admit to the signature, and there was neither “expert [n]or non-expert testimony to authenticate the signature[s],” there was no evidence to establish authenticity.3 5 8 Without authenticating the signatures, the state failed to carry its burden to establish the prior conviction to support a charge for “unlawful possession of a firearm by a serious violent felon.”359 B. Rule 902(1): Self-Authentication of Signed & Sealed Domestic Public Documents Rule 902 creates twelve categories of documents that need not be authenticated through external evidence because the documents themselves are self-authenticating.360 Payne v. State, from the Indiana Court of Appeals, addressed subdivision (1) of the Rule: signed and sealed domestic public documents.361 At issue was whether the state sufficiently proved a prior conviction of the defendant to support a charge for “unlawful possession of a firearm by a serious violent felon.”362 The state attempted to prove the prior conviction by only offering “certified records from a 2010 robbery conviction and claimed that the records proved that Payne was the defendant in that cause who had previously been convicted of robbery.”363 Among the records were: 352. Id. (quoting IND. R. EVID. 901(b)(5)). 353. Id. at 564-65. 354. Discussed in detail infra Section VIII.B., note 366. 355. Payne v. State, 96 N.E.3d 606, 612-13 (Ind. Ct. App.), trans. granted and opinion vacated, 102 N.E.3d 287, trans. vacated and opinion reinstated, 99 N.E.3d 624 (Ind. 2018). 356. Id. at 613 (quoting IND. R. EVID. 901(b)(2)). 357. Id. (citing IND. R. EVID. 901(b)(3)). 358. Id. 359. Id. at 608, 613. 360. IND. R. EVID. 902. 361. Payne, 96 N.E.3d at 612-13. 362. Id. at 608. 363. Id. at 609. 2019] EVIDENCE 751 [T]he charging information, probable cause affidavit, supplemental probable cause affidavit, plea agreement, the trial court’s order on plea hearing, and the trial court’s sentencing order, which were all labeled with the same cause number. The charging information included the robbery defendant’s name and birth date, which matched Payne’s name and birth date as listed in the instant cause, as well as the robbery defendant’s driver’s license number, which did not match the information in the instant cause. The plea agreement included the robbery defendant’s name, birth date, and signature. The trial court’s order on plea agreement and sentencing order contained only the robbery defendant’s name.364 The documents were self-authenticating under Rule 902(1).365 But, standing alone, they were insufficient to prove the prior conviction.366 The Indiana Court of Appeals “previously held that a matching name and birth date, absent other identifying evidence, are not sufficient to prove identity.”367 Accordingly, the state needed to establish the identity of the person convicted in the prior cause by some additional evidence.368 For that, the state sought to rely upon the signatures contained within the records.369 The problem with the state’s reliance arose because the signatures, unlike the documents in which they were contained, were not self-authenticating.370 That is because “self-authentication of a document merely relieves the proponent of providing foundational testimony for admission of the document as evidence. In other words, because the certified records for [the prior conviction] were self- authenticating, the State did not have to provide foundational testimony to prove that they were official court records.”371 Rule 902(1) “did not[, however,] relieve the State of its burden of authenticating that the signature[s] . . . belonged to Payne.”372 IX. CONTENTS OF WRITINGS & RECORDINGS: RULES 1001 THROUGH 1008 Rule 1002 requires the use of “[a]n original writing, recording, or photograph . . . in order to prove its content unless the[] rules or a statute provides otherwise.”373 The requirement is typically referred to as the “best evidence rule.”374 The “purpose of the rule is to ensure that the best version of a particular 364. Id. 365. Id. at 612-13. 366. Id. 367. Id. at 612 (citing Livingston v. State, 537 N.E.2d 75, 78 (Ind. Ct. App. 1989)). 368. Id. 369. Id. 370. Id. at 612-13. 371. Id. at 613 (citation omitted). 372. Id. 373. IND. R. EVID. 1002. 374. D.Z. v. State, 100 N.E.3d 246, 249 (Ind. 2018). 752 INDIANA LAW REVIEW [Vol. 52:715 item of evidence is presented—not that one item of evidence should be disregarded as being less reliable or somehow not as good as another.”375 The Indiana Supreme Court briefly addressed the best-evidence rule in D.Z. v. State.376 The question before the court was whether photos “pulled from [a] school’s surveillance video” were sufficient for admission as substantive evidence under the silent witness theory.377 The court did not answer the question, instead determining that any error in admission was harmless.37 8 Still, the court signaled a willingness to address the issue again in a future challenge by adding a footnote stating: D.Z.’s arguments cue interesting questions about silent witness foundation, whether photos pulled from a video are “duplicates,” and the interaction between Indiana Rules of Evidence 1003 and 1004. Because the answers would not affect the outcome here, we leave them for another case.379 X. COMMON LAW RULES: CORPUS DELICTI, RES IPSA LOQUITUR, PAROL EVIDENCE & SPOLIATION Although the Indiana Rules of Evidence largely supplanted common-law and statutory evidentiary practice, “[i]f the[] rules do not cover a specific evidence issue, common or statutory law shall apply.”380 Several evidentiary rules rooted in common-law confronted Indiana courts during the survey period. A. Corpus Delicti Rule One common-law doctrine garnering attention was the corpus-delicti rule. “In Indiana, a person may not be convicted of a crime based solely on a nonjudicial confession of guilt. Rather, independent proof of the corpus delicti is required before the defendant may be convicted upon a nonjudicial confession.”381 The doctrine has evolved alongside modern criminal law, with a trend toward supplanting it with a trustworthiness standard such as that applied in federal courts.382 “[T]he rule applies only to an out-of-court confession in a criminal proceeding” and does not apply in civil matters including civil forfeiture proceedings.383 375. Swihart v. State, 71 N.E.3d 60, 63 n.3 (Ind. Ct. App. 2017). 376. D.Z., 100 N.E.3d at 249. 377. Id. For general discussion of the silent-witness theory see 8 IND. LAW ENCYC. Criminal Law § 174 (2015); Wise v. State, 26 N.E.3d 137, 141-43 (Ind. Ct. App. 2015). 378. D.Z., 100 N.E.3d at 249. 379. Id. at 249 n.1. 380. IND. EVID. R. 101(b). 381. Seal v. State, 105 N.E.3d 201, 206 (Ind. Ct. App.) (quoting Shinnock v. State, 76 N.E.3d 841, 843 (Ind. 2017)), trans. denied, 110 N.E.3d 1147 (Ind. 2018). 382. Id. at 206-08. 383. State v. Timbs, 84 N.E.3d 1179, 1185 (Ind. 2017), vacated, 139 S. Ct. 682 (2019) 2019] EVIDENCE 753 The doctrine was raised as a challenge to a Level-1 conviction for child molestation stemming from the defendant’s admission to digital penetration of a female child’s sexual organ because there was no independent evidence of penetration.384 The defendant conceded, however, that the independent evidence was sufficient to establish a Level-4 conviction, which did not require penetration.385 The Indiana Court of Appeals rejected the challenge as “improperly focuse[d] on a single element.”386 The court reasoned that “the admission of a confession requires some independent evidence that supports an inference that the crime charged was committed, but the corpus delicti rule does not require the State to ‘make out a prima facie case as to each element of the offense charged.’”387 The child’s testimony was sufficient to “justif[y] a reasonable inference that [the defendant] committed the offense of child molesting” and “her testimony include[d] details that match [the] confession.”388 In the court’s esteem, a requirement of additional evidence of penetration would “add ‘little to the ultimate reliability of the confession.’”389 Siding with the trend away from the corpus-delicti rule, the court of appeals stated that the case “may illustrate that it is time for our supreme court to consider updating our approach and adopting some form of the modern trustworthiness standard, as is now used by the federal courts and many states.”390 Whether the Indiana Supreme Court may choose to do so in the future remains an open question. But the court declined this opportunity by denying transfer.391 B. Res Ipsa Loquitur Often viewed as an artifact of tort law, res ipsa loquitor is fundamentally “a rule of evidence that permits an inference of negligence to be drawn based upon the surrounding facts and circumstances of the injury.”392 “[T]ranslated from Latin as ‘the thing speaks for itself,” the inference attaches when “a plaintiff [] establish[es] that (1) the circumstances under which the injury occurred were under the management or exclusive control of the defendant and (2) the occurrence is of the type that does not ordinarily happen if those who have the management and control exercise proper care.”393 The inference, however, is not dispositive and may be weighed against the defendant’s evidence.394 Application (emphasis omitted). 384. Seal, 105 N.E.3d at 210. 385. Id. 386. Id. 387. Id. (citations omitted). 388. Id. 389. Id. (quoting Willoughby v. State, 552 N.E.2d 462, 467 (Ind. 1990)). 390. Id. at 210 n.6. 391. Seal v. State, 110 N.E.3d 1147 (Ind. 2018). 392. Johnson v. Blue Chip Casino, LLC, 110 N.E.3d 375, 378 (Ind. Ct. App. 2018). 393. Id. (emphasis omitted). 394. 12 ROBERT LOWELL MILLER, JR., INDIANA PRACTICE: INDIANA EVIDENCE § 301.106 (3d 754 INDIANA LAW REVIEW [Vol. 52:715 depends on “whether the incident more probably resulted from the defendant’s negligence as opposed to another cause,” which may be established by “common sense and experience or expert testimony.”395 As the unfortunate small-claims litigant in Johnson v. Blue Chip Casino, LLC discovered, it can be a difficult doctrine to utilize.396 Having suffered bed-bug bites during a hotel stay, the plaintiff sought to establish negligence by the mere presence of bed bugs.397 Both the trial court and the Indiana Court of Appeals disagreed.398 The plaintiff’s “argument assume[d] that he would not have woken up to bed-bug bites if the housekeepers had done a better job cleaning and/or inspecting his room.”399 But, the appellate court reasoned, the nature of bed bugs make them difficult to locate, leaving a possibility that even reasonable care would not have prevented the infestation.400 Absent a showing “that the presence of bedbugs . . . more probably resulted from [the hotel]’s negligence as opposed to another cause,” the doctrine could not apply.401 An additional takeaway from Johnson is that the court of appeals took for granted that the doctrine applies to small claims. Small Claims Rule 8(A) renders “rules of . . . evidence except provisions relating to privileged communications and offers of compromise” inapplicable.402 The strongest justification for applying the evidentiary doctrine in the distinctly informal setting of small claims appears to be that it is a matter of substantive Indiana law.403 Absent further analysis, it remains dubious whether res ipsa loquitor properly applies in such an informal forum. In the more well-developed setting of medical malpractice, the court of appeals addressed whether the doctrine relieved a plaintiff of the obligation to produce expert testimony to support her claim.404 Following “cementless total hip replacement” surgery, the plaintiff suffered “a three-part displaced fracture of her right femur” that appears to have occurred when “a nurse and patient care assistant rolled [the plaintiff] onto her side to give them access to remove [an] epidural.”405 Typically, a medical-malpractice plaintiff must produce expert testimony to establish that a medical provider has fallen below the applicable standard of care.406 But “[e]xpert opinion is not necessary . . . when the case fits ed. 2007). 395. Johnson, 110 N.E.3d at 378. 396. Id. at 378-79. 397. Id. 398. Id. at 377-79. 399. Id. at 378. 400. Id. at 378-79. 401. Id. 402. IND. SM. CL. R. 8(A). 403. Maroules v. Jumbo, Inc., 452 F.3d 639, 642-45 (7th Cir. 2006). 404. Glon v. Mem’l Hosp. of S. Bend, Inc., 111 N.E.3d 232, 237-39 (Ind. Ct. App. 2018). 405. Id. at 234-35. 406. Narducci v. Tedrow, 736 N.E.2d 1288, 1292 (Ind. Ct. App. 2000). 2019] EVIDENCE 755 within the res ipsa loquitur exception.”407 As in all other settings, the doctrine applies to medical-malpractice actions when the plaintiff can show “the incident more probably resulted from the defendant’s negligence than from another cause.”408 [T]here are some situations in which a physician defendant’s allegedly negligent act or omission is so obvious as to allow plaintiffs to rely on the doctrine of res ipsa loquitur. Juries do not need an expert to help them conclude, say, that it is malpractice to operate by mistake on the wrong limb[.]409 The plaintiff argued that her injury fell within the exception because it “is of the type that does not ordinarily happen if the hospital staff exercised proper care.”410 The flaw in the argument, from the court’s perspective, was that it did not account for the medical review panel’s conclusion that the evidence did not support finding that the hospital fell below the standard of care.411 Further, the hospital’s expert testified “that it is not physically possible that a nurse’s act of rolling [plaintiff] over or grabbing [her] right leg and twisting it caused the three- part displaced fracture of her right femur.”412 The court did not explain precisely how the existence of that evidence impacted the determination of whether the doctrine applied. But it appears to have been factored into the finding that “[r]isks and complications associated with cementless hip replacement surgery are not commonly known to lay people,” such that res ipsa loquitor did not apply.413 C. Parol & Extrinsic Evidence Rule414 “In general, ‘[t]he parol evidence rule provides that extrinsic evidence is inadmissible to add to, vary, or explain the terms of a written instrument if the terms of the instrument are clear and unambiguous.’”415 Despite its name 407. Glon, 111 N.E.3d at 237. 408. Id. at 238. 409. Id. (alterations in original; citation and quotation marks omitted). 410. Id. (citation to record and formatting omitted). 411. Id. at 238-39. 412. Id. at 239. 413. Id. 414. In a technical sense, the parol evidence rule may be considered as distinct from the extrinsic evidence rule, with parol evidence constituting a class of extrinsic evidence. See David G. Epstein et al., Extrinsic Evidence, Parol Evidence, and the Parol Evidence Rule: A Call for Courts to Use the Reasoning of the Restatements Rather than the Rhetoric of Common Law, 44 N.M. L. REV. 49, 53-61 (2014). Nevertheless, Indiana and a great many other jurisdictions have not meticulously recognized a distinction, instead using the terms interchangeably. See id. at 56; E. ALLAN FARNSWORTH, CONTRACTS, § 7.2, at 416 (4th ed. 2004); Pepka v. Branch, 294 N.E.2d 141, 154 (1973) (referring to the rules as a single “parol and extrinsic evidence rule”). 415. Dulworth v. Bermudez, 97 N.E.3d 272, 280 (Ind. Ct. App. 2018) (quoting Cooper v. Cooper, 730 N.E.2d 212, 215 (Ind. Ct. App. 2000)). 756 INDIANA LAW REVIEW [Vol. 52:715 indicating that it is a rule of evidence, “[t]he parol evidence rule is a rule of substantive law rather than a rule of evidence.”416 Nevertheless, it is covered here because it is a matter addressed in other works on evidentiary practice417 and it fundamentally dictates relevance in contract interpretation under Rule 401.418 Two decisions from the survey period provide meaningful insight into application of the parol evidence rule. In Harris v. Davis, the Indiana Court of Appeals reminded that “[g]enerally, where parties have reduced an agreement to writing and have stated in an integration clause that the written document embodies the complete agreement . . . the parol evidence rule prohibits courts from considering extrinsic evidence for the purpose of varying or adding to the terms of the written contract.”4 1 9 The mere absence of an integration clause does not control “whether a writing was intended to be a completely integrated agreement,” otherwise rendering parol evidence admissible.420 Nevertheless, the court found the parol evidence rule inapplicable in that case because the agreement did not contain an integration clause and the parties did not argue that it “was intended to be a completely integrated agreement.”421 The other noteworthy decision is of vital importance to plaintiffs’ attorneys, which addressed the stranger-to-the-contract-rule exception to the parol evidence rule.422 “[U]nder the stranger to the contract rule, ‘the inadmissibility of parol evidence to vary the terms of a written instrument does not apply to a controversy between a third party and one of the parties to the instrument.’”423 The exception does not allow a court to consider extrinsic evidence to interpret an unambiguous agreement.4 2 4 Accordingly, a release of one tortfeasor stating that it released the 416. Kruse Classic Auction Co. v. Aetna Cas. & Sur. Co., 511 N.E.2d 326, 329 (Ind. Ct. App. 1987); accord Franklin v. White, 493 N.E.2d 161, 165-66 (Ind. 1986) (“The parol evidence rule is not a procedural rule that excludes evidence. It is a rule of preference and is one of substantive law which prohibits both the trial court and appellate court from considering such evidence even though it was admitted to trial without objection.”); CHARLES T. MCCORMICK, HANDBOOK OF THE LAW OF EVIDENCE § 213 (1954) (“[T]he parol evidence doctrine fails to fit into this category of rules of evidence with any comfort.”). It is a codified rule under the Uniform Commercial Code. See IND. CODE § 26-1-2-202 (2018). 417. See, e.g., J. ALEXANDER TANFORD & RICHARD M. QUINLAN, INDIANA TRIAL EVIDENCE MANUAL §§ 44.1-44.5 (2d ed. 1987); J. Alexander Tanford, Indiana Trial Evidence Manual, §§ 67.01-67.07 (7th ed. 2014); MCCORMICK, supra note 416, at §§ 210-222. 418. Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 895 (10th Cir. 2006) (Hartz, J., concurring in part and dissenting in part) (“[I]f, under a state parol-evidence rule, the contract between two parties does not incorporate oral agreements that contradict the terms of the written contract, then evidence of the oral agreement is not relevant under Rule 401.”). 419. 88 N.E.3d 1081, 1087 n.3 (Ind. Ct. App. 2017). 420. Id. 421. Id. 422. Dulworth v. Bermudez, 97 N.E.3d 272, 280-81 (Ind. Ct. App. 2018) . 423. Id. at 280 (quoting Cooper v. Cooper, 730 N.E.2d 212, 216 (Ind. Ct. App. 2000)). 424. Id. at 280 (citing Huffman v. Monroe Cty. Cmty. Sch. Corp., 588 N.E.2d 1264, 1267 (Ind. 1992)). 2019] EVIDENCE 757 tortfeasor, her insurer, her “agents, servants, successors, heirs, executors, administrators, and all other persons” was sufficient to release a second tortfeasor and the plaintiff’s own insurer because “[t]he location of the clause ‘[a]ll other persons’ in the Release mirror[ed] its location in other releases, which were determined by th[e] court to have released the world.”425 Presumably, had extrinsic evidence been allowed, it would have shown that the plaintiff and settling defendant did not intend to release the second tortfeasor or plaintiff’s own insurer. But such evidence was deemed inadmissible, thereby allowing release of the second tortfeasor and plaintiff’s own insurer through apparent inadvertence. The decision stands as an important lesson for attorneys to avoid such unintended traps.426 D. Spoliation Like several remnants of common-law evidentiary practice, the doctrine of spoliation is not directly embodied in the Indiana Rules of Evidence. Nevertheless, it remains an important litigation tool governing use of evidence at trial. “A party raising a claim of spoliation must prove that (1) there was a duty to preserve the evidence, and (2) the alleged spoliator either negligently or intentionally destroyed, mutilated, altered, or concealed the evidence.”427 Among the broad remedies afforded a trial court when spoliation is established, “rules of evidence permit the jury to infer that the missing evidence was unfavorable to that party.”428 Such remedies are only available in first-party spoliation claims in which the spoliator is a party to the action.429 In NIPSCO v. Aqua Environmental Container Corp., the Indiana Court of Appeals recognized a duty to preserve a furnace that was the possible source of a fire attached when a fire marshal informed the eventual plaintiffs of the need to preserve it because “at that time, Plaintiffs knew, or at the very least, should have known, that litigation was possible, if not probable.”430 That the plaintiffs did not act intentionally to destroy the evidence did not prevent a finding of spoliation because Indiana recognizes negligent spoliation.43 1 Once spoliation was found, the appropriate sanction was to be shaped by “two primary factors: (1) the degree of culpability of the party who lost or destroyed the evidence; and (2) the degree 425. Id. at 276, 280-81 (citing Stemm v. Estate of Dunlap, 717 N.E.2d 971, 976 (Ind. Ct. App. 1999)). 426. Cautious counsel is well advised to not only avoid such language but to also avoid sharing releases with parties outside the agreement unless required to do so, lest they open similar challenges. 427. N. Ind. Pub. Serv. Co. v. Aqua Envtl. Container Corp., 102 N.E.3d 290, 301 (Ind. Ct. App. 2018). 428. Id. at 303. 429. Shirey v. Flenar, 89 N.E.3d 1102, 1107 (Ind. Ct. App. 2017) (recognizing viable third- party claim for damages due to spoliation). 430. N. Ind. Pub. Serv. Co., 102 N.E.3d at 301. 431. Id. at 302. 758 INDIANA LAW REVIEW [Vol. 52:715 of actual prejudice to the other party.”432 The court of appeals determined that the balancing of those factors is best addressed by the trial court.433 And, since the trial court ended its analysis of spoliation upon the errant conclusion that the lack of intentionality in the evidence’s destruction prohibited sanction, the court of appeals remanded the case for further consideration.434 While a duty was easily found in NIPSCO, another case presented a considerably more-surprising circumstance finding none. “[T]he duty to preserve evidence may be assumed voluntarily or imposed by statute, regulation, contract, or certain other circumstances.”435 But what if “[t]here is no statutory authority or reported case law establishing a duty to maintain ‘adequate’ records’” such that the records were never created in the first place?436 That was the issue presented in the “extremely unusual case” Henderson v. Kleinman.437 The matter arose as a claim for medical malpractice, but the plaintiff encountered difficulty in advancing her claim due to the doctor’s failure to maintain adequate records.438 The medical review panel found that the lack of adequate records fell below the standard of care, but the resulting dearth of information as to the actual surgery prevented the panel from determining whether “the actual surgery [the doctor] performed was within the standard of care.”439 The plaintiff attempted to rely on the panel’s finding and did not designate expert evidence supporting the claim that the surgery itself fell below the standard of care.440 Absent such evidence, the plaintiff was unable to survive summary judgment, which was supported by expert testimony.441 Reluctantly concurring in the result, Judge Edward Najam wrote separately to “urge our Legislature to amend the [Indiana Medical Malpractice] Act to provide that health care providers have an affirmative duty to maintain adequate and accurate medical records and that a violation of that duty could support a prima facie medical malpractice claim.”442 He further suggested that the “failure to maintain adequate and accurate medical records is the functional equivalent of spoliation of evidence” to which “an inference that the production of the evidence would be against the interest of the party which suppresses it” may attach.443 432. Id. at 303. 433. Id. at 304. 434. Id. 435. Id. at 301 (citations omitted). 436. Henderson v. Kleinman, 103 N.E.3d 683, 687 (Ind. Ct. App. 2018). 437. Id. 438. Id. at 685-86. 439. Id. 440. Id. at 689. 441. Id. at 687-89. 442. Id. at 689 (Najam, J., concurring). 443. Id. at 689-90 (citation and quotation marks omitted). 2019] EVIDENCE 759 XII. CONCLUSION Just a quarter century into application, the Indiana Rules of Evidence continue to be an area for substantial caselaw development. And, despite Indiana’s common-law evidentiary procedure having been largely abandoned by adoption of the rules of evidence, the handful of remaining statutes and doctrine that left undisturbed by the rules persist as integral parts of Indiana evidentiary practice for years to come.