2019 DEVELOPMENTS IN INDIANA EVIDENTIARY PRACTICE

COLIN E. FLORA*

This survey covers developments in all aspects of Indiana’s evidence law
between October 1, 2018 and September 30, 2019. Consistent with the practice
of this survey since the 1996 edition,1 developments are addressed in the same
order as the Indiana Rules of Evidence followed by analysis of common-law and
statutory evidentiary practices. The survey period included several major
developments with issues ranging from whether an expert may be impeached
based on an unrelated history of professional discipline2 to granting a new trial
because pre-injury nonuse of safety equipment was errantly admitted.3 As the
decisions from this period help to refine evidentiary practice, they also serve as
a reminder that there will always be areas of uncertainty in need of further
clarification.4

I. GENERAL PROVISIONS: RULES 101 THROUGH 106

A. Rule 101: To What Do the Rules Apply

The scope and general applicability of the Indiana Rules of Evidence are
established by Rule 101.5 Despite generally applying to “all proceedings in the
courts of the State of Indiana,”6 there are some common proceedings to which
most of the rules of evidence do not apply.7 In all such proceedings, however, the
rules regarding privilege remain undisturbed.8 Highlighted during the survey
period was that the Indiana Rules of Evidence do not apply to probation-
revocation proceedings.9 Accordingly, it was not error for a trial court to admit
field-test results that concluded a crystal substance was methamphetamine in a

* 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 affecting Indiana practitioners.

1. 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).

2. Tunstall v. Manning, 124 N.E.3d 1193, 1197-98 (Ind. 2019).

3. Webber v. Butner, 922 F.3d 479 (7th Cir. 2019) (Indiana law).

4. “‘[I]t would be very hard upon the profession if the law was so certain that everybody

knew it; the misfortune is that it is so uncertain that it costs much money to know what it is even

in the last resort.’” Daily v. Bd. of Comm’rs, 165 Ind. 99, 106, 74 N.E. 977, 979 (1905) (quoting

Jones v. Randall, (1774) 1 Cowp. 37, 40, 98 Eng. Rep. 954, 956).

5. See IND. R. EVID. 101(a) & (b).

6. IND. R. EVID. 101(b).

7. See generally IND. R. EVID. 101(d).

8. Id.

9. Votra v. State, 121 N.E.3d 1108, 1113 (Ind. Ct. App. 2019) (citing IND. R. EVID.

101(d)(2)).



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probation-revocation proceeding.10

B. Rule 103: Preserving Evidentiary Rulings for Appeal

One of the most indispensable skills for trial counsel is the ability to object
not only for the purpose of excluding evidence at trial, but also for the purpose
of preserving a claim of error for appeal.11 The steps for securing the right to
review evidentiary rulings are provided by Rule 103.12 Where a subsequent
challenge is to the admission of evidence, the error is preserved only if trial
counsel timely objects and provides a basis for the objection, unless the basis is
readily apparent from the record.13 If evidence was excluded, “counsel must
inform the court of the evidence’s substance by an offer of proof, allowing for
meaningful review on appeal.”14

The mere preservation of error, however, does not mean an appellate court
may reverse. In addition to the burden of overcoming a finding of harmless
error,15 challenges to evidentiary rulings confront the additional hurdle that the
error must have “affect[ed] a substantial right of the party.”16 The survey period
provides numerous instances in which the Indiana Court of Appeals rejected
challenges on the ground that the evidence, even if improperly admitted, did not
implicate a substantial right of the party. Two illustrative examples are K.H. v.
Cochran17 and Tavake v. State.18 In K.H., the court rejected a challenge to an
award of custody to a father that was based in part on the conclusion that the
mother’s mental-health status impaired her ability to effectively parent.19 The
appellate court concluded that even if a survey relating to the mother’s mental
health was improperly admitted, it was “only part of a psychological evaluation
that encompassed many other sources of information, including Mother’s clinical
interview and two other assessment tools that Mother does not challenge on

10. Id. at 1115.

11. Weisheit v. State, 109 N.E.3d 978, 1008 (Ind. 2018) (Rush, C.J., concurring in part and

dissenting in part).

12. IND. R. EVID. 103.

13. IND. R. EVID. 103(a)(1). In instances of fundamental error, a subsequent challenge may

be made even absent proper preservation. IND. R. EVID. 103(e); see, e.g., Cleveland v. State, 129

N.E.3d 227, 232 n.6 (Ind. Ct. App.) (“The record shows that Cleveland did not object to preserve

this issue for appeal, so we can only review it for fundamental error.”), trans. denied, 137 N.E.3d

920 (Ind. 2019).

14. Weisheit, 109 N.E.3d at 1008 (Rush, C.J., concurring in part and dissenting in part)

(citing IND. R. EVID. 103(a)(2)).

15. IND. R. APP. P. 66(A).

16. IND. R. EVID. 103(a); see, e.g., Saintignon v. State, 118 N.E.3d 778, 789 (Ind. Ct. App.)

(“No claim of error in the admission of photographs is permitted unless a substantial right of the

party is affected.”), trans. denied, 124 N.E.3d 46 (Ind. 2019).

17. 116 N.E.3d 504 (Ind. Ct. App. 2018), trans. denied, 123 N.E.3d 144 (Ind. 2019).

18. 131 N.E.3d 696 (Ind. Ct. App.), trans. denied, 134 N.E.3d 1021 (Ind. 2019).

19. K.H., 116 N.E.3d at 508-09 & 513.



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appeal” and that were independently sufficient for the trial court to have reached
its conclusions.20

Similarly, Tavake rejected a challenge on the basis that a criminal defendant’s
California correctional records did not redact “186.22(B)(1),” “a reference
to California Penal Code section 186.22, which criminalizes participation in a
criminal street gang.”2 1 Because “there [wa]s no suggestion that the jury had the
resources to decipher this citation, and the FBI card contained no indication that
it referred to an additional criminal conviction,” the court found no error in
including the evidence, even though it was likely irrelevant.22

Another area garnering the attention of Indiana’s appellate courts was the use
of offers of proof to preserve challenges to excluded evidence. “[A]n offer of
proof is required to preserve an error in the exclusion of a witness’s testimony.”23

“Offers of proof benefit not only the parties and the trial court, but they are
invaluable to reviewing courts.”24 A case presented to the Indiana Court of
Appeals showed that even if an offer of proof was prematurely terminated and
could have included additional information, the trial court’s premature cessation
of the offer is harmless error if “[e]nough evidence was presented” to permit
appellate review.25

Not all limitations on offers of proof as easily withstand appellate scrutiny,
as seen in Bedolla v. State, decided by the Indiana Supreme Court.26 The court
instructed:

[W]hen a party asks to make a legitimate offer of proof, the trial court
should grant that request. Of course, as part of its duty to impartially
control a proceeding, the court may exercise reasonable discretion in
determining the timing and extent of an offer of proof. But nevertheless,
absent clear abuse by a party, offers of proof should be allowed.27

The trial court, reviewing a petition for post-conviction relief, “abused its
discretion in preventing [c]ounsel from making an offer of proof concerning [a
witness]’s anticipated testimony[, which defendant] believed . . . [was able to]
prove [defendant]’s actual innocence.”28 “[T]he post-conviction court, after
hearing only the State’s argument, refused to listen to [c]ounsel’s offer of proof
and warned that a deputy would remove her if she did not yield her spot at

20. Id. at 513.

21. Tavake, 131 N.E.3d at 707.

22. Id.

23. Heckard v. State, 118 N.E.3d 823, 828 (Ind. Ct. App.), trans. denied, 127 N.E.3d 234

(Ind. 2019).

24. Bedolla v. State, 123 N.E.3d 661, 667 (Ind. 2019) (alteration, citation, and quotation

marks omitted).

25. Heckard, 118 N.E.3d at 829.

26. 123 N.E.3d at 667-68.

27. Id. at 667 (citations and quotation marks omitted).

28. Id.



898 INDIANA LAW REVIEW [Vol. 53:895

counsel’s table.”29 That response, the supreme court concluded, was unreasonable
and amounted to an abuse of discretion.30

A complicated issue of trial practice is preserving an objection without
becoming a nuisance to the court or risking prejudice with the jury by frequent
and persistent interruptions on grounds already rejected by the trial court.31 One
method of resolving that problem is through a continuing objection. In
accordance with Rule 103(b), “[o]nce 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.”32 The survey period provided examples both of how to
properly register a continuing objection and when an objection will be deemed
insufficient.

In Cleveland v. State, it was found that a single objection to introduction of
evidence obtained from a search was not a continuing objection and insufficient
to cover a criminal defendant’s statement that a firearm found in the search was
his.33 Bailey v. State provided an example on the opposite end of the spectrum.34

At trial, the defendant objected to testimony regarding a search and to fentanyl
found during the search.35 Moreover, during a hearing outside the presence of the
jury, the trial court “noted . . . it would treat its denial of [the] motion to suppress
as Defendant’s ruling under Evidence Rule 103(b).”36 Based upon that record, the
court of appeals easily found adequate preservation for review.37

C. Rule 104: Preliminary Questions About Admissibility of Evidence

The task of resolving preliminary questions on admissibility of evidence rests
squarely with the trial court.38 The precise mechanics of making such
determinations twice drew the attention of the Indiana Court of Appeals, during
the survey period. The first instance provides guidance for courts addressing
preliminary questions. In Rose v. State, the appellate tribunal addressed a trial

29. Id.

30. Id. at 667-68.

31. Cf. Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999) (en banc) (“Many lawyers

suppose that it is enough to raise an issue once and receive a definitive ruling. They may believe

that raising the question again may annoy the judge.”).

32. IND. R. EVID. 103(b). Take note of the requirement that the objection be made “at trial.”

Rule 103(b) of the Federal Rules of Evidence allows pre-trial determinations, while Indiana

requires the objection actually be made at trial even if a pre-trial determination, such as an order

in limine, has already definitively shown how the court will rule. Compare FED. R. EVID. 103(b),

and Wilson, 182 F.3d at 566-67, with IND. R. EVID. 103(b), and Golden Corral Corp. v. Lenart, 127

N.E.3d 1205, 1214 (Ind. Ct. App.), trans. denied, 138 N.E.3d 948 (Ind. 2019).

33. 129 N.E.3d 227, 231, 232 n.6 (Ind. Ct. App.), trans. denied, 137 N.E.3d 920 (Ind. 2019).

34. 131 N.E.3d 665, 676 (Ind. Ct. App. 2019), trans. denied, 141 N.E.3d 30 (Ind. 2020).

35. Id.

36. Id.

37. Id.

38. IND. R. EVID. 104(a).



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court’s decision to permit a pro se litigant’s submission of all of his evidence to
the court in consideration of whether to grant post-conviction relief.39 At the time
of the hearing, however, the trial court had not deemed the submissions
admissible, instead reserving the right to rule on admissibility after further
consideration.40 Of that approach, the court of appeals remarked: “While it did not
cause issue herein, we note the better practice would be to make a ruling on the
admissibility of evidence during the hearing so the parties have adequate notice
as to what evidence the court will use to make its decision.”41

The second case, Walters v. State, is an important lesson for trial counsel.42

There, an authenticity challenge was made to text-message records at a pre-trial
evidentiary hearing.43 The trial court, observing that Rule 104(a) frees courts
resolving preliminary questions from the binds of evidence rules other than
privilege, instructed objecting counsel that the evidence rules were not applicable
to the determination at that juncture, resulting in counsel withdrawing the
objection.4 4 But that did not resolve the underlying question of authenticity.45

“The trial court’s refusal to address the authenticity of the records during the
evidentiary hearing prior to trial [] led to confusion.”46 That confusion appears to
have contributed in the failure at trial to authenticate the evidence, leading to a
finding of reversible error on appeal.47

D. Rule 106: Remainder of or Related Writing or Recorded Statements

At common law, “when a party introduce[d] part of a conversation or
document, the opposing party [wa]s entitled to have the entire conversation or the
entire instrument placed into evidence” by operation of the doctrine of
completeness.48 The purpose was “to allow the introduction of additional material
to place incomplete, misleading evidence in its full context.”49 The doctrine of
completeness has been subsumed into Rule 106,50 which provides: “If a party
introduces all or part of a writing or recorded statement, an adverse party may
require the introduction, at that time, of any other part—or any other writing or
recorded statement—that in fairness ought to be considered at the same time.”51

Rule 106 was unsuccessfully invoked by one litigant appearing before the

39. 120 N.E.3d 262, 265 (Ind. Ct. App.), trans. denied, 127 N.E.3d 232 (Ind. 2019).

40. Id. at 265 n.2.

41. Id.

42. 120 N.E.3d 1145 (Ind. Ct. App. 2019).

43. Id. at 1149.

44. Id.

45. Id. at 1154 n.10.

46. Id.

47. Id. at 1153-56.

48. McElroy v. State, 553 N.E.2d 835, 839 (Ind. 1990).

49. R.B. v. T.J. (In re B.B.), 1 N.E.3d 151, 159 (Ind. Ct. App. 2013).

50. Atwell v. State, 738 N.E.2d 332, 335 n.3 (Ind. Ct. App. 2000).

51. IND. R. EVID. 106.



900 INDIANA LAW REVIEW [Vol. 53:895

Indiana Tax Court.52 The problem with the invocation was a procedural misstep:
during a show-cause hearing, the respondent moved to strike attachments to
affidavits as “incomplete,” but never furnished the court with the complete
documents that would be needed to place the exhibits in proper context.53 By
neither seeking the introduction of the remaining portions of the documents at the
hearing nor submitting the missing information to the court as part of the
proposed findings of fact and conclusions of law, the court had no choice but to
deny the motion to strike.54

II. JUDICIAL NOTICE: RULE 201

Judicial notice comes in two forms: notice of facts55 and notice of law.56 The
basic concept of judicial notice is that judges and “courts will not pretend to be
more ignorant than the rest of mankind.”57 Following the enactment of the Indiana
Rules of Evidence, judicial notice is governed by both Rule 201 and Indiana’s
adoption of the Uniform Judicial Notice of Foreign Law Act.58 The survey period
provided several examples of application of judicial notice to law and facts as
well as insight into when notice is appropriate. 

In accordance with Rule 201(a), there are facts that may be judicially noticed
under subdivision 201(a)(1) and facts—more accurately documents—the
existence of which may be noticed pursuant to 201(a)(2).59 Utilizing Rule 201(a),
in an action to involuntarily terminate a mother’s parental rights, the court of
appeals took judicial notice of the fact that the father was convicted of aggravated
battery and sentenced to nine years in prison,60 the Indiana Department of Child
Services policy manual,61 and, by way of the Odyssey system, that the father was
awaiting trial for sexual abuse of one of the children whose parental rights were
at issue in the case.62 The Department of Child Services’ policy manual was also
judicially noticed in a separate case before Indiana Court of Appeals.63 Other facts
that were judicially noticed by Indiana appellate courts include the geography of

52. Sahara Mart, Inc. v. Ind. Dep’t of State Revenue, 114 N.E.3d 36, 47-48 (Ind. T.C. 2018).

53. Id. at 47.

54. Id. at 48.

55. IND. R. EVID. 201(a).

56. IND. R. EVID. 201(b).

57. Henthorn v. Doe, 1 Blackf. 157, 164 (Ind. 1822); State v. Louisville & N. R. Co., 96 N.E.

340, 344 (Ind. 1911) (quoting Munn v. Burch, 25 Ill. 21, 24 (1861)) (quotation marks omitted).

58. IND. CODE §§ 34-38-4-1 et seq. (2019); In re Paternity of P.R., 940 N.E.2d 346, 349 (Ind.

Ct. App. 2010); see, e.g., Tavake v. State, 131 N.E.3d 696, 702 (Ind. Ct. App.) (taking judicial

notice of California Penal Code), trans. denied, 134 N.E.3d 1021 (Ind. 2019).

59. IND. R. EVID. 201(a).

60. L.H. v. Ind. Dep’t of Child Servs. (In re D.H.), 119 N.E.3d 578, 583 n.10, reh’g granted,

122 N.E.3d 832 (Ind. Ct. App.), trans. denied, 130 N.E.3d 1145 (Ind. 2019).

61. Id. at 589.

62. Id. at 585.

63. Hickingbottom v. State, 121 N.E.3d 648, 654 (2019).



2021] EVIDENCE 901

the country in assessing the distance between an RV dealership and locations
throughout the United States and Canada,64 the date on which Super Bowl LI
occurred,65 and adoption decrees.66

Another common area for judicial notice, “records of a court of this state,”67

also saw multiple invocations at the appellate level. In Song v. Iatarola, the
Indiana Court of Appeals took notice of the underlying trial transcript, accessed
through the Odyssey system.68 Another action saw the court of appeals permit
judicial notice of a dismissal order in a prior action undergirding a motion to
dismiss.69 K.H. v. Cochran presented a challenge to whether a trial court exceeded
the permissible bounds of judicial notice by noticing certain records from a
CHINS proceeding.70 Finding that the request below had merely been to take
judicial notice of the record, not the facts contained therein, the court of appeals
found no reversible error in the trial courts use of notice.71

Another topic of focus for the Indiana Court of Appeals was at what
procedural juncture judicial notice is permissible. The court reminded parties that
judicial notice is appropriate in motions pursuant to Trial Rules 12(B)(6),72

12(C),73 and 56.74 Similarly, because judicial notice may be taken “at any stage
of the proceeding,”75 it is appropriate to take judicial notice on appeal, and it may
be invoked through a specific request in an appellate brief.76 Nevertheless, simply
asking a court to take judicial notice is not alone sufficient, and notice may be

64. Richardson’s RV, Inc. v. Ind. Dep’t of State Revenue, 112 N.E.3d 192, 198 n.11 (Ind.

2018).

65. Mickens v. State, 115 N.E.3d 520, 521 n.1 (Ind. Ct. App. 2018), trans. denied, 123

N.E.3d 139 (Ind. 2019).

66. Walker v. Knight, 119 N.E.3d 573, 576 n.4, reh’g granted in part and denied in part, 120

N.E.3d 1157 (Ind. Ct. App.), trans. denied, 130 N.E.3d 1136 (Ind. 2019).

67. IND. R. EVID. 201(b)(5).

68. 120 N.E.3d 1110, 1116 n.2 (Ind. Ct. App.), trans. denied, 134 N.E.3d 1014 (Ind. 2019).

The same result was reachable absent judicial notice by operation of Indiana Appellate Rule 27.

Id. (“Ind. Appellate Rule 27 (providing that the ‘Record on Appeal . . . consist[s] of the Clerk’s

Record and all proceedings before the trial court . . . whether or not transcribed or transmitted to

the Court on Appeal’).”).

69. Moss v. Horizon Bank, N.A., 120 N.E.3d 560, 563-64 (Ind. Ct. App. 2019).

70. 116 N.E.3d 504, 512 (Ind. Ct. App. 2018), trans. denied, 123 N.E.3d 144 (Ind. 2019).

71. Id.

72. Moss, 120 N.E.3d at 563.

73. Hendricks Cty. v. Green, 120 N.E.3d 1118, 1122 (Ind. Ct. App.), trans. denied, 130

N.E.3d 1146 (Ind. 2019).

74. IND. R. TRIAL P. 56(C) (“At the time of filing the motion or response, a party shall

designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions,

matters of judicial notice, and any other matters on which it relies for purposes of the motion.”);

see, e.g., Walker v. Knight, 119 N.E.3d 573, 575, reh’g granted in part and denied in part, 120

N.E.3d 1157 (Ind. Ct. App.), trans. denied, 130 N.E.3d 1136 (Ind. 2019).

75. IND. R. EVID. 201(d).

76. Hickingbottom v. State, 121 N.E.3d 648, 654 (Ind. Ct. App. 2019).



902 INDIANA LAW REVIEW [Vol. 53:895

denied if the facts for which notice have been requested are not relevant to the
court’s determination.77

III. RELEVANCY & ITS LIMITS: RULES 401 THROUGH 41378

A. Rules 401 & 402: What is and is Not Relevant

Rule 402 establishes that relevant evidence is generally admissible and
irrelevant evidence is not.79 “Rule 401 provides that evidence is relevant if it has
any tendency to make a fact more or less probable than it would be without the
evidence and the fact is of consequence in determining the action.”80 There are
instances when the relevance of evidence is patently obvious, such as
“[t]estimony that, if true, would exonerate one man and implicate another.”81

Other circumstances are significantly less clear.
In Tunstall v. Manning, the Indiana Supreme Court observed that past

licensure probation of an expert witness who offers a diagnosis of a person’s
injuries is relevant evidence to assess the credibility of the witness’s medical
opinion.82 The Indiana Tax Court also addressed the issue of whether evidence
passed the basic threshold of relevance established by Rule 401.83 The court
concluded that evidence showing a business sold alcohol on Sundays, maintained
inaccurate records and fake invoices, had its majority owner skimming cash from
the company, and paid individuals in cash were relevant “because they will affect
the probability of two consequential facts: whether [the business] operated using
volunteers not employees and whether it destroyed rather than sold certain
alcohol.”84

Likely the most notable decision from the survey period addressing relevance
built upon the 2017 opinion Sims v. Pappas, wherein the Indiana Supreme Court
determined that “a drunk driver’s prior alcohol-related driving convictions” were
relevant to the question of whether the driver should be subject to punitive

77. Marion Cty. Assessor v. Stutz Bus. Ctr., LLC, 132 N.E.3d 85, 90-91 (Ind. T.C. 2019).

78. Although not addressed in this survey, shortly after the close of the survey period, the

Indiana Supreme Court approved a non-substantive amendment to Rule 412(c)(2), which became

effective on January 1, 2020. Order Amending Ind. Rules of Court, No. 19S-MS-41, 2019 Ind.

LEXIS 938, at *41 (Ind. Dec. 19, 2019).

79. IND. R. EVID. 402.

80. Rivera v. State, 132 N.E.3d 5, 12 (Ind. Ct. App. 2019), trans. denied, 141 N.E.3d 16 (Ind.

2020).

81. Bedolla v. State, 123 N.E.3d 661, 668 (Ind. 2019) (citing IND. R. EVID. 401).

82. 124 N.E.3d 1193, 1198 (Ind. 2019). Notably, the majority of the panel for the Indiana

Court of Appeals suggested that “an expert’s past disciplinary history” may not be relevant.

Tunstall v. Manning, 107 N.E.3d 1093, 1099 (Ind. Ct. App. 2018) (“Clearly, an expert’s past

disciplinary history is, if at all, not as relevant as the expert’s current probationary status.”

(emphasis added)), trans. granted and opinion vacated, 124 N.E.3d 1193 (Ind. 2019).

83. Sahara Mart, Inc. v. Ind. Dep’t of State Revenue, 114 N.E.3d 36, 48 (Ind. T.C. 2018).

84. Id.



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damages but not relevant to calculating an injured person’s compensatory
damages.85 Clayton v. Smith, from the Indiana Court of Appeals, addressed a
similar circumstance, wherein a severely intoxicated driver collided with a tree,
rendering a passenger quadriplegic.86 During the trial, the defendant “testified that
both he and [the plaintiff] had driven while intoxicated on some prior
occasions.”87 Despite the defense arguing that the “testimony had ‘opened the
door’ to evidence of [the plaintiff]’s criminal history,” the defendant was not
permitted to introduce evidence of the plaintiff’s prior “convictions, one of which
was alcohol-related and two of which were allegedly committed while . . . under
the influence of alcohol.”8 8 The defendant “argued the criminal history was
admissible to show [the plaintiff]’s state of mind and was evidence of his habit.
[He] also argued that the criminal history was relevant to damages, specifically,
lost wages, and to punitive damages.”89

The court acknowledged that Sims left open the question of relevance beyond
punitive damages.90 The court rejected the argument that the “criminal history
was relevant to ‘throw light on [plaintiff’s] state of mind,’” because “the
proximate cause of [the plaintiff’s] injuries was not in dispute.”91 Nor was the
evidence relevant to the question of reasonable care since the defendant had
“admitted some fault but stopped short of conceding that he had greater fault than
[the plaintiff] and non-party [restaurant].”92 Because neither proximate cause nor
reasonable care were contested to the jury, any relevance the criminal history may
have had was nonexistent at trial.93 That left the court with a single potential
avenue for admitting the plaintiff’s criminal history:

[W]hether [the plaintiff]’s prior convictions might constitute “state of
mind” evidence relevant to the jury’s apportionment of fault under the
unique circumstances of this case. We are not so persuaded. Arguably,
one who had been criminally punished in the past and was actively on
probation would be motivated to avoid drunk driving and might insist

85. Clayton v. Smith, 113 N.E.3d 693, 699-701 (Ind. Ct. App. 2018) (discussing Sims v.

Pappas, 73 N.E.3d 700, 705-07, 709 (Ind. 2017)), trans. denied, 123 N.E.3d 142 (Ind. 2019). For

a discussion of Sims, see Colin E. Flora, 2017 Developments in Indiana Evidentiary Practice, 51

IND. L. REV. 1049, 1056-57 (2018) [hereinafter 2017 Survey].

86. Id. at 697.

87. Id. at 698-99.

88. Id. at 699.

89. Id.

90. Id. at 700 (quoting Sims, 73 N.E.3d at 706 n.5 (“Amicus curiae Indiana Trial Lawyers

Association contends evidence of prior convictions is also relevant on the question of reasonable

care and proximate cause, both of which are implicated in determining liability for a negligence

claim. The parties do not explore this issue likely because liability was conceded. In similar fashion

we decline to explore this issue as well. Instead we leave it open for another day.”)).

91. Id.

92. Id.

93. Id.



904 INDIANA LAW REVIEW [Vol. 53:895

that another person drive instead. However, there is simply no evidence
that [the plaintiff] did so insist. His criminal history was not relevant to
a fact “of consequence in determining the action.”94

B. Rules 403 & 404: Character Evidence, Prior Bad Acts & Excluding
Prejudicial Evidence

Despite Rule 402’s general pronouncement that relevant evidence is
admissible, that rule may be overridden by a host of other sources, including Rule
403.95 By operation of Rule 403, even relevant evidence may be excluded “if its
probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue
delay, or needlessly presenting cumulative evidence.”96 Thus, even once a court
has found evidence to be relevant, it may still need to turn to the balancing test
of Rule 403, as the Indiana Supreme Court did in Tunstall v. Manning.97 Having
found the past licensure probation of an expert witness in a personal-injury matter
relevant to the expert’s credibility,98 the court assessed the probative value of the
evidence, finding: “Here, the probative value of the licensure-probation evidence
outweighed any of Rule 403’s dangers. [The expert] was the only medical expert
to testify on [plaintiff]’s behalf, and his medical license was placed on probation
only a few months after he first examined [plaintiff].”99

Another decision providing a useful example to practitioners, though
breaking no new ground on Rule 403,100 came from the Indiana Court of Appeals
in Saintignon v. State.101 There, the court affirmed the use of photographs at trial
depicting the criminal defendant’s tattoos while attempting to show a bruised
bicep.102 The bruise was one of numerous injuries to the defendant, which, the
court reasoned, were relevant to show that he was more likely the man who
committed a murder.103 The defense argued that showing the tattoos was
prejudicial because they were Aryan Brotherhood tattoos and the prosecution had
agreed to not admit evidence of his membership in the group.104 “Because none
of the tattoos clearly denote the Aryan Brotherhood” and the prosecution “did not
present any testimony identifying or explaining the significance of [the] tattoos,”

94. Id. (quoting IND. R. EVID. 401).

95. IND. R. EVID. 402(d); IND. R. EVID. 403.

96. IND. R. EVID. 403.

97. 124 N.E.3d 1193, 1198 (Ind. 2019).

98. Id.

99. Id.

100. See, e.g., Garrett v. Knight, No. 1:16-cv-03233-JMS-DML, 2019 U.S. Dist. LEXIS

88737, at *17-18 (S.D. Ind. May 28, 2019) (analyzing prejudice in admission of photographs under

Indiana Evidence Rule 403).

101. 118 N.E.3d 778, 790 (Ind. Ct. App.), trans. denied, 124 N.E.3d 46 (Ind. 2019).

102. Id.

103. Id.

104. Id.



2021] EVIDENCE 905

the prejudice, “if any,” was minimal and did not substantially outweigh the
probative value.105

Although Rule 403 generally focuses on the probative value of a specific
piece of evidence or an individual’s testimony, such as the professional discipline
in Tunstall and the photographs in Saintignon, it can also come into play when
multiple witnesses are called to provide repetitive testimony of out-of-court
statements from a witness who has testified to the same statements in court.106

[I]n light of a proffered non-hearsay purpose, exclusion might not be
warranted where there is a mere isolated reference to an assertion.
However, as additional testimony about the assertion “beats the drum,”
there is increasing danger the jury will use the testimony for an improper
purpose. For example, the jury might use the testimony as proof of the
matter asserted. Or, the jury could treat the repetitive testimony as a form
of vouching for the credibility of the declarant. As to the latter risk, this
type of problematic vouching is not the blatant type prohibited by
Evidence Rule 704(b)—where a witness directly opines about “the truth
or falsity of allegations” or “whether a witness has testified truthfully.”
Rather, the risk is insidious. That is, the repeated references might
eventually inundate the jury, leading them toward an inference that
witnesses are vouching for the credibility of the declarant.107

The court of appeals, however, declined to determine whether the testimony in
Kress v. State ran afoul of Rule 403, instead cutting to the chase and ruling that
any error in the admission was harmless, noting that the victim testified first,
providing specific details, while the other “witnesses gave only general testimony
about the existence of allegations.”108

Often working hand-in-glove with Rule 403 is Rule 404, which sets the
boundaries on evidence of a person’s character or prior bad acts in order to prove
or show “that on a particular occasion the person acted in accordance with the
character or trait.”109 Broken into two subdivisions, “Rule 404(a) prohibits using
evidence of a defendant’s ‘character or character trait’” and “Rule 404(b)
prohibits the use of a defendant’s ‘crime, wrong, or other act.”110 The rule derives
from “a foundation of our system of jurisprudence [] that the State may not
punish a person for his character.1 11 It shields persons—particularly, criminal

105. Id.

106. Kress v. State, 133 N.E.3d 742, 747 (Ind. Ct. App.), trans. denied, 138 N.E.3d 957 (Ind.

2019).

107. Id. (citations omitted).

108. Id. at 747-48. The court of appeals took a similar approach in Maffett v. State, opting to

forego balancing before reaching the determinative conclusion that any error was harmless. 113

N.E.3d 278, 284-85 (Ind. Ct. App. 2018) (evidence of handgun ammunition found in apartment not

sufficiently prejudicial despite no handgun found).

109. IND. R. EVID. 404(a)(1) & (b)(1).

110. Maffett, 113 N.E.3d at 283 (quoting IND. R. EVID. 404(a)(1) & (b)(1)).

111. Abd v. State, 121 N.E.3d 624, 630 (Ind. Ct. App.), trans. denied, 129 N.E.3d 781 (Ind.



906 INDIANA LAW REVIEW [Vol. 53:895

defendants—from “‘the forbidden inference,’ which is that a defendant is guilty
of the alleged crime because the defendant possesses a bad character trait.”112

The analysis “‘necessarily incorporates the relevancy test of Rule 401 and the
balancing test of Rule 403.’”113 Accordingly, the first step is to determine if
evidence is relevant; “[s]econd, the court must determine that the proponent has
sufficient proof that the person who allegedly committed the act did, in fact,
commit the act[;]” and, third, the court undergoes Rule 403 balancing.114 In Smith
v. State, it was error to permit evidence that the defendant had been seen holding
a pink handgun, fifteen days before he threatened the victim, and was arrested
while in possession of a different handgun.115 The pink gun was not used for any
permissible purpose under Rule 404(b)(2) and whatever probative value the pink
gun may have had “was outweighed by unfair prejudice.”116

Addressing an appellate challenge to character evidence in the absence of a
contemporaneous objection, the Indiana Court of Appeals took an expansive view
of Rule 404(b)(2)’s permissible use of prior bad acts to show motive in Abd v.
State.117 Affirming convictions for murder and robbery, the court rejected a
challenge to admission of “character evidence related to [defendant]’s smoking
habits, dirty apartment, prior bad acts, and aggressive attitude.”118 Determining
that such evidence may have come in to show motive, the court speculated: 

It is conceivable that the State proffered evidence of [defendant]’s living
habits and attitude to demonstrate why he wanted to rob and murder
[victim] in the first place. Due to his dire financial straits and poor living
habits, [defendant] had the motive and intent to rob someone close to him
whom he knew was financially successful. Evidence of [defendant]’s
poor living conditions reflected his inability to maintain a clean home
and his desire to rob someone else for wealth. After all, as the State
points out, [defendant and his father] were able to secure better housing,
pay off their debts, and improve their lives following [the] murder.119

Motive was also a permissible conduit for admission of otherwise excludable
evidence in Wilcoxson v. State.120 The evidence at issue was that the defendant
had fired a gun at a SWAT team attempting to take him into custody.121 The act
was particularly noteworthy because the charges against him were for “two

2019).

112. Maffett, 113 N.E.3d at 283.

113. Id. (quoting Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999)).

114. Smith v. State, 116 N.E.3d 1107, 1115 (Ind. Ct. App. 2018), trans. denied, 127 N.E.3d

229 (Ind. 2019).

115. Id. at 1116. 

116. Id. 

117. 121 N.E.3d 624, 630 (Ind. Ct. App.), trans. denied, 129 N.E.3d 781 (Ind. 2019). 

118. Id. at 630. 

119. Id. 

120. 132 N.E.3d 27, 30-32 (Ind. Ct. App.), trans. denied, 138 N.E.3d 963 (Ind. 2019). 

121. Id. at 30-31.



2021] EVIDENCE 907

counts of attempted murder and one count of criminal recklessness for shooting
up two police stations in Indianapolis.”122 The court of appeals affirmed
admission on the basis of motive and showing consciousness of guilt.123 As to
motive, the court found that “firing a gun when police went to arrest him tends
to prove that he harbors significant hostility toward police. That hostility, in turn,
strongly suggests a motive for the [prior] shootings.”124 In opposition to
consciousness of guilt, the defendant argued that he had two other warrants he
was seeking to avoid arrest from, “[b]ut the fact that [he] might have had a
consciousness of guilt with regard to other conduct does not mean that he did not
also have a consciousness of guilt with regard to the [charged] shootings.”125 The
court of appeals further found the evidence passed Rule 403 balancing, noting
that the trial court had limited the prosecution to only showing that defendant
fired a gun, not “that he shot at the officers.”126

Again, motive proved the mechanism for admitting prior bad acts in Thevenot
v. State.127 There, the defendant proclaimed his motive—vengeance for a prior
conviction of domestic battery—while committing domestic battery, announcing,
“[S]he ‘throwed [sic] him in jail for six months, so he was going to beat six
months.’”128 Since the declaration “was the motive that [defendant] himself
provided as he committed the crime,” it squarely fit the motive exception of Rule
404(b)(2).129 

Rule 404(b) also received the attention of the Indiana Supreme Court in
assessing the use of prior bad acts to rebuff a claim of accident: In Fairbanks v.
State, stemming from prosecution for the murder of an infant by suffocation, the
state admitted evidence of prior instances in which the defendant used a pillow
to stop an infant from crying.130 The key question turned on whether the state may
admit evidence in opposition to an accident defense before the defendant asserts
the defense.131 After a thorough analysis of analogous caselaw and scholarship on
Rule 404(b)’s application to intent defenses, the court established two avenues by
which “the State may offer other-bad-acts evidence of lack of accident . . . : (1)
the State had ‘reliable assurance’ that an accident defense would be raised, or (2)
the defendant placed accident at issue at trial.”132 Applying that approach, the
court affirmed admission of the pillow evidence because the state had “‘reliable
assurance’ that [the defendant] would raise an accident defense, derived from his

122. Id. at 28.

123. Id. at 31-32.

124. Id. at 31.

125. Id.

126. Id. at 32.

127. 121 N.E.3d 679, 684-85 (Ind. Ct. App. 2019).

128. Id. at 685 (alterations in original).

129. Id.

130. 119 N.E.3d 564, 566 (Ind.), cert. denied, 140 S. Ct. 198 (2019).

131. Id. at 569.

132. Id. at 571 (footnote omitted).



908 INDIANA LAW REVIEW [Vol. 53:895

pretrial statements to police and from his news interviews before trial.”133

In Maffett v. State, the court of appeals provided an important perspective on
the reach of Rule 404(b)’s exclusion of prior bad acts.134 Rejecting a challenge to
the use of a video recording in which the defendant discussed the reasoning for
maintaining firearms in his residence as a need for protecting himself in light of
what he does,135 the court determined that not all bad acts “implicate Evidence
Rule 404(b).”136 Even though “the video may create an inference [defendant] was
engaged in activities for which a gun was required for protection,” a “mere
inference” is insufficient for exclusion under Rule 404(b).1 3 7 As to the content of
the video, the language was too vague for the court to “say it demonstrates a bad
act that could be prejudicial.”138

Just as “mere inferences” are not enough for Rule 404(b), neither are
references that are “fragmentary at best.”139 The mere mention by a trooper on
cross-examination that he had not spoken with the defendant because the
defendant “had been arrested on another offense through a separate county,” was
not reversible error because “the statement did not disclose the reason for the
arrest, whether charges had been filed pursuant to that arrest, or whether the arrest
resulted in a conviction.”140

Rivera v. State provided another example of an often narrow view toward
Rule 404(b) exclusions.141 There, among other issues, the defendant was cross-
examined over receiving disability benefits.142 The cross-examination was
deemed permissible because the defendant had “testified during direct
examination that he worked and landscaped to pay bills,” and “[t]he cross
examination . . . explored the dishonesty associated with working while receiving
disability checks and was proper impeachment evidence and not a violation of
Ind. Evidence Rules 403 and 404(b).”143

It is not always the prosecution in criminal matters that must contend with the
exclusionary aspects of Rule 404(b). In Saintignon, the defendant relied on a
theory that a different man committed the murder.144 Since the other man “was

133. Id. at 572.

134. 113 N.E.3d 278, 283 (Ind. Ct. App. 2018). 

135. Id. The two statements at issue in the video were: “1. Detective DeYoung’s statement to

Maffett that, ‘so if you got a gun, like a shotgun, it’s for protection, you’re not trying to shoot the

police or nothing like that, if it’s like you said, someone rolls up three deep because of what you

do, that you own a shotgun to protect yourself.’ [] 2. Maffett’s statement to Detective DeYoung that

‘I got a whole box of 9’s because a MF’r come wanting a 3, I said cool give me the shells.’” Id.

136. Id. (citing Dixson v. State, 865 N.E.2d 704, 712 (Ind. Ct. App. 2007)).

137. Id.

138. Id.

139. Gridley v. State, 121 N.E.3d 1071, 1077 (Ind. Ct. App. 2019).

140. Id.

141. 132 N.E.3d 5, 12-13 (Ind. Ct. App. 2019), trans. denied, 141 N.E.3d 16 (Ind. 2020).

142. Id. at 10.

143. Id. at 12.

144. 118 N.E.3d 778, 786 (Ind. Ct. App.), trans. denied, 124 N.E.3d 46 (Ind. 2019).



2021] EVIDENCE 909

declared unavailable as a witness, [defendant] sought to have [the man’s ex-wife]
testify that she had procured a protective order against [him] because he had once
held knives to her throat and threatened to decapitate her.”145 The court of appeals
affirmed exclusion of that testimony, recognizing that it “is the very type of
evidence that Indiana Evidence Rule 404(b) is meant to exclude.”146 While the
defendant “had a right to present a defense, . . . that defense was still required to
comport with the rules of evidence,” which the proffered testimony did not.147

In a similar posture, Newland v. State saw a defendant attempting to point a
finger at another for the crime of unlawfully drawing a $300 check.148 In
attempting to do so, the defendant sought to admit evidence of a prior conviction
of that person for theft from his place of employment.149 The court acknowledged
a modern trend of “apply[ing] Rule 404(b) to evidence about the bad acts of non-
parties. Under what has come to be called ‘reverse 404(b),’ courts have held that
‘a defendant can introduce evidence of someone else’s conduct if it tends to
negate the defendant’s guilt.’”150 Nevertheless, the court determined that the
intended use was not permissible; instead, the court believed, defendant’s “real
motivation” was not to show “motive, plan, or identity,” but, rather, “for the sole
purpose of creating the forbidden inference, namely, prior wrongful conduct in
similar circumstances suggest[ing] present guilt” of the other person.151

C. Rule 405: When Character is an Essential Element

“If character evidence falls under one of the exceptions in Rule 404(a), . . .
Evidence Rule 405 establishes the methods by which it may be proved.”152

Indiana 405(b) further provides “[w]hen a person’s character or character trait is
an essential element of a charge, claim, or defense, the character or trait may also
be proved by relevant specific instances of the person’s conduct.”153 In
concluding that the doctrine of claims preclusion applies in CHINS proceedings
“to bar a repeated filing of a CHINS petition based on evidence that could have
been produced in the first filing,” the Indiana Supreme Court looked to the role
of character evidence in CHINS proceedings.154 The court observed “that when
children are alleged to be CHINS under Indiana Code section 31-34-1-1 . . . a

145. Id.

146. Id.

147. Id.

148. 126 N.E.3d 928, 930 (Ind. Ct. App. 2019).

149. Id. at 931-32.

150. Id. at 932 (quoting Garland v. State, 788 N.E.2d 425, 429 (Ind. 2003)) (internal citations

omitted).

151. Id. at 932.

152. Johnson v. State, 671 N.E.2d 1203, 1207 (Ind. Ct. App. 1996).

153. IND. R. EVID. 405(b). 

154. V.B. v. Ind. Dep’t of Child Servs. (In re Eq.W.), 124 N.E.3d 1201, 1205, 1210-11 (Ind.

2019). 



910 INDIANA LAW REVIEW [Vol. 53:895

parent’s character is a material issue in the proceeding.”1 55 In such actions, “Rule
of Evidence 405(b) allows admission of specific instances of a parent’s character
because ‘a parent’s past, present, and future ability to provide sufficient care for
his or her child forms the basis for a CHINS adjudication’ and ‘a parent’s
character is an integral part of assessing that ability.’”156

D. Rule 408: Compromise Offers & Negotiations

“It is axiomatic that . . . courts look with great favor upon the voluntary
resolution of litigation through settlement.”157 Assisting that perspective, Rule
408 acts to protect the freedom to work toward compromises by curtailing the
subsequent use of negotiations.158 But Rule 408 is not a complete bar to use of
settlement negotiations, provided that the use is for a purpose other than “to prove
or disprove the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction . . . 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.”159

A matter before the Indiana Tax Court provides a circumstance in which Rule
408 does not prohibit admission of information gained during settlement talks.16 0

Overruling a challenge based on Rule 408, the tax court found a brief’s two
references to exchanges at the parties’ settlement conference were not
impermissible uses for two reasons.161 The first reason is not particularly notable;
in the court’s view, the references were submitted simply to show the court that
the Indiana State Department of Revenue had notified the petitioner of the
Department’s “recent discovery activities,” which is not a prohibited purpose.162

The second reason is much more notable and surprising: the court found the
assertions were not an attempt to introduce evidence at all because “the two
references to the settlement conference were contained in the Department’s brief,
and as attorney statements, they do not constitute evidence.”163

IV. PRIVILEGES: RULES 501 & 502

Rules 501 and 502 build upon the various privileges recognized by common
law and statutes.164 Although neither Rule 501 nor Rule 502 garnered much

155. Id. at 1210. 

156. Id. Similarly, Indiana Code § 31-34-12-5 “supports the . . . position that a parent’s prior

acts are relevant to that parent’s fitness at the time of a CHINS proceeding.” Id.

157. Armstrong v. Bd. of Sch. Dirs., 616 F.2d 305, 312 (7th Cir. 1980). 

158. ArcelorMittal Ind. Harbor LLC v. Amex Nooter, LLC, No. 2:15-cv-195-PRC, 2016 U.S.

Dist. LEXIS 18211, at *12 (N.D. Ind. Feb. 16, 2016); IND. R. EVID. 408(a).

159. IND. R. EVID. 408(a), (b). 

160. Sahara Mart, Inc. v. Ind. Dep’t of State Revenue, 114 N.E.3d 36, 44-45 (Ind. T.C. 2018). 

161. Id. at 45.

162. Id.

163. Id.

164. IND. R. EVID. 501; IND. R. EVID. 502.



2021] EVIDENCE 911

attention during the survey period, Indiana courts had ample opportunity to
address privileges ranging from attorney-client to insurer-insured privilege.
Indeed, both privileges were at issue in Zurich American Insurance Company v.
Circle Center Mall, LLC.165 The action followed from the injury to a patron of the
Circle Center Mall in Indianapolis, Indiana.166 This was not, however, a personal-
injury action; rather, it was a claim by Circle Center for breach of contract against
the company responsible for maintenance of escalators at the mall and the
provider of its insurance policy, under which Circle Center was supposed to be
named an additional insured.167 The issue on appeal arose from a discovery
dispute in which the insurer and the company responsible for maintaining the
escalators invoked multiple privileges to withhold production of documents.168

The court’s analysis began by rejecting Circle Center’s invitation to adhere
to Delaware precedent and adopt the “the trial is the file” approach to claims for
bad-faith denial of insurance coverage.169 Recognizing that Indiana previously
“declined to adopt the position that the contents of a claims file in a bad-faith-
denial-of-coverage case could not be protected by evidentiary privileges,” the
court transitioned to analyze application of the attorney-client and insurer-insured
privileges.170 The latter privilege applies “where the policy of insurance requires
the insurer to defend claims against the insured, [such that] statements from the
insured to the insurer concerning an occurrence which may be made the basis of
a claim by a third party are protected from disclosure.”171 The privilege did not
apply to prevent disclosure to Circle Center because Circle Center was an
additional insured of the policy, not a third-party claimant.172

Attorney-client privilege proved the more viable avenue to resist
disclosure.173 “The essential prerequisites to invocation of the privilege are to
establish by a preponderance of the evidence: 1) the existence of an attorney-
client relationship and 2) that a confidential communication was involved.”174

One of five documents for which the privilege was asserted was not covered
because it was a communication from a claims adjuster to the maintenance
company’s attorney, which is not “advice given by an attorney to a client.”175 The
other four documents were protected by the privilege, but only by way of

165. 113 N.E.3d 1220, 1229-31 (Ind. Ct. App. 2018), trans. denied, 124 N.E.3d 53 (Ind.

2019).

166. Id. at 1223.

167. Id. at 1223-24.

168. Id. at 1227-31.

169. Id. at 1227-28 (citing Tackett v. State Farm Fire & Casualty, 558 A.2d 1098, 1103 (Del.

Super. Ct. 1988)).

170. Id. at 1228-31.

171. Id. at 1230 (quoting Richey v. Chappell, 594 N.E.2d 443, 447 (Ind. 1992)) (internal

quotation marks omitted).

172. Id. at 1230-31.

173. Id. at 1229-30.

174. Id. at 1230 (citation and formatting omitted).

175. Id.



912 INDIANA LAW REVIEW [Vol. 53:895

invocation of a corollary privilege.176 Each was prepared by the maintenance
company’s attorney and then shared with the insurer.177 “[T]he general rule [is]
that the attorney-client privilege is waived when privileged information is
disclosed to a third party.”178 But the privilege remains when the common-interest
privilege applies.179 It “is ‘an extension of the attorney-client privilege’ that
‘permits parties whose legal interests coincide to share privileged materials with
one another in order to more effectively prosecute or defend their claims.’”180

Given the shared interest between the maintenance company and the insurer to
not indemnify Circle Center, their interests were “sufficiently aligned for the time
being” to invoke “the common-interest extension to the attorney-client
privilege.”181

Indiana’s attorney-client-privilege law also drove several decisions of federal
courts both within and beyond Indiana’s borders. Ranburn Corp. v. Argonaut
Great Central Insurance Company presented a complicated test to attorney-client
privilege.1 8 2 A decade-long fight over insurance coverage saw the insured retain
its own counsel, after its insurer opted to permit the insured to select its own legal
representation under a reservation of rights.183 Later in the litigation, the insurer
dropped the reservation of rights, fully assuming the defense.184 In a related
action, the insurer sought to obtain documents from the insured that related to
communications with the counsel that had been selected prior to the insurer
dropping the reservation of rights, who remained counsel after the insurer did
so.185 An initial determination was whether, upon dropping the reservation of
rights, the insurer became a co-client of the insured’s legal counsel.186

Finding no controlling decision, the United States District Court for the
Northern District of Indiana “predict[ed] that the Indiana Supreme Court would
decide that the insurance company does not automatically become a co-client of
its insured when a reservation of rights is withdrawn.”187 As such, the analysis
turned entirely on whether an independent relationship existed so as to form an
attorney-client relationship between the insurer and legal counsel.18 8 The court
determined that no such relationship was created because the counsel “did not
consent to forming an attorney-client relationship with [the insurer], [and] did not

176. Id.

177. Id.

178. Id. (quoting Groth v. Pence, 67 N.E.3d 1104, 1119 (Ind. Ct. App. 2017)) (quotation marks

omitted, alterations in original).

179. Id.

180. Id. (quoting Groth, 67 N.E.3d at 1119).

181. Id.

182. No. 4:16-cv-88-RL-PRC, 2018 U.S. Dist. LEXIS 225199 (N.D. Ind. Nov. 26, 2018).

183. Id. at *3.

184. Id.

185. Id.

186. Id. at *6-14.

187. Id. at *10.

188. Id. at *10-14.



2021] EVIDENCE 913

represent [it] in the” related litigation.189 Accordingly, the insurer could not
compel discovery of communications between the insured and its counsel, nor
could it compel discovery of communications between the counsel and an
environmental consultant retained for the related litigation.190

The United States District Court for the Western District of Texas also faced
the challenge of applying Indiana’s attorney-client privilege.191 Having found that
“Indiana privilege law applies because both parties assert Indiana state law claims
and Indiana state law provides the rule of decision for the parties’ underlying
claims,”192 the court set to determine whether the privilege had been waived.193

“[T]he asserting party may implicitly waive privilege if it ‘relies specifically on
advice of counsel to support a claim or defense and intends to prove that claim
or defense using privileged communications.’”194 The court ruled that waiver had
not occurred when the party asserted a lack of sufficient knowledge on whether
to rescind a bond.195 “[T]he mere fact that some attorney-client communications
might bear on the issue of the . . . knowledge does not mean the [party] has
waived privilege as to all communications touching on [it]’s knowledge and
intent.”196

Other guidance into Indiana’s privilege law from beyond Indiana courts came
from the Maryland Court of Special Appeals.197 Addressing whether spousal
privilege may be pierced if the marriage is shown to be a sham, the court noted
that while “Indiana has refused to create a judicial exception, . . . it has not
foreclosed the possibility that a sham marriage ‘may amount to a fraud on the
court.’”198

Another privilege gaining the attention of both Indiana’s state and federal
courts is work-product privilege. In a short mention, the Seventh Circuit
acknowledged an important point in applying the doctrine to criminal
proceedings: “Indiana’s work-product privilege does not override the Brady [v.
Maryland] obligations of its police and prosecutors.”199 A more substantive
analysis of Indiana’s work-product privilege was presented to the Indiana Court
of Appeals, seeking to interpret the meaning of “in anticipation of litigation.”200

189. Id. at *14.

190. Id. at *14-19.

191. Sw. Marine & Gen. Ins. Co. v. NCUA Bd., No. AU-17-CA-00367-SS, 2018 U.S. Dist.

LEXIS 203684, at *6-8 (W.D. Tex. Nov. 30, 2018).

192. Id. at *5.

193. Id. at *6-8.

194. Id. at *6 (quoting Franklin United Methodist Home, Inc. v. Lancaster Pollard & Co., 909

F. Supp. 2d 1037, 1047 (S.D. Ind. 2012)).

195. Id. at *7.

196. Id. 

197. Wilson v. State, 213 A.3d 655, 666 (Md. Ct. Spec. App. 2019).

198. Id. (quoting Glover v. State, 836 N.E.2d 414, 19 (Ind. 2005)).

199. Goudy v. Cummings, 922 F.3d 834, 839 (7th Cir. 2019).

200. Zurich Am. Ins. Co. v. Circle Ctr. Mall, LLC, 113 N.E.3d 1220, 1228 (Ind. Ct. App.

2018) (quoting Ind. R. Trial P. 26(B)(3)) (quotation marks omitted), trans. denied, 124 N.E.3d 53



914 INDIANA LAW REVIEW [Vol. 53:895

“A document is gathered in anticipation of litigation if it can fairly be said that
the document was prepared or obtained because of the prospect of litigation.”20 1

Although the documents at issue squarely met almost all of the dictates of work-
product privilege, a question of application remained because the documents were
prepared in anticipation of different litigation than the case in which the privilege
was asserted.202 Finding the privilege “does not specifically require that the
material had to be prepared for litigation between the party seeking discovery and
the party resisting it,” the court determined work product created in anticipation
of prior litigation remains privileged in subsequent litigation.203

The privilege against self-incrimination, enshrined in the Fifth Amendment,
also garnered substantial attention from Indiana’s state and federal courts.

The Fifth Amendment to the U.S. Constitution, made applicable to the
states through the Fourteenth Amendment, provides that no person shall
be compelled in any criminal case to be a witness against himself. “[A]
witness who desires the protection of the privilege must claim it at the
time he relies on it.” “[N]o ritualistic formula is necessary in order to
invoke the privilege” against self-incrimination. Rather, the witness must
only put the interrogating official “on notice [that he] intends to rely on
the privilege.” The express invocation requirement gives courts tasked
with evaluating a Fifth Amendment claim a contemporaneous record
establishing the witness’s reasons for refusing to answer.204

Notable observations on this privilege, from the survey period, include: the
privilege was not violated by testimony that the defendant told his mother that he
was not going to talk to the police, because the statement made to the mother was
not sufficient to invoke the privilege;205 “a witness’ constitutional privilege
against self-incrimination” does not depend “upon a judge’s prediction of the
likelihood of prosecution,” but instead, “it is only where there is but a fanciful
possibility of prosecution that a claim of fifth amendment privilege is not well
taken;”206 while neither the Supreme Court of the United States nor Indiana’s
appellate courts have decided whether post-arrest, pre-Miranda silence may be
used substantively as evidence,207 if the criminal defendant208 has opened the door

(Ind. 2019).

201. Id. (internal citation and quotation marks omitted).

202. Id. at 1229.

203. Id.

204. Davis-Martin v. State, 116 N.E.3d 1178, 1193 (Ind. Ct. App.) (internal citations omitted,

alterations in original), trans. denied, 124 N.E.3d 59 (Ind. 2019).

205. Id. at 1193-94.

206. Lacy v. Butts, 922 F.3d 371, 377 (7th Cir. 2019) (internal citations and quotation marks

omitted, emphasis in original).

207. Kelly v. State, 122 N.E.3d 803, 806 (Ind. 2019) (citing Fletcher v. Weir, 455 U.S. 603,

607 (1982)) (“With regard to whether defendant’s post-arrest, pre-Miranda silence can be used for

impeachment purposes, the U.S. Supreme Court has held that it can be used.”).

208. The privilege does not protect negative inferences from silence in civil cases. M.K. v. Ind.



2021] EVIDENCE 915

to the evidence, it may be used;209 and a witness who pleads the Fifth and is then
presented immunity in accordance with Indiana Code section 35-37-3-3 may be
held in contempt, even if acting on advice of counsel, should he or she continue
to refuse to testify.210

Two other important points regarding Indiana privileges were announced by
the United States District Court for the Northern District of Indiana. First, the
proprietary privilege announced by Delaware Chancery Courts has not been
recognized by federal or Indiana state courts.211 And, second, although there is no
privilege that protects personnel files from discovery, Indiana courts recognize
important “public policy protecting the privacy rights of individuals with respect
to sensitive personnel matters.”212

V. WITNESSES: RULES 601 THROUGH 617

A. Rule 602: Personal Knowledge in Service of Process

Unless testifying as an expert witness, all witness’s testimony is confined to
his or her “personal knowledge of the matter.”213 In a dissenting opinion for the
Indiana Court of Appeals, Judge Paul Mathias instructed that an unsigned
affidavit of service indicating service was made by a person other than the affiant
necessarily fails to meet the threshold showing of testimony from personal
knowledge.214 The majority, due to the silence in the party’s briefs regarding
service of an alias summons, determined that service had been effectuated.215

Judge Mathias, on the other hand, would have found the lack of evidence in the
record demonstrating service had been effected constituted a failure to satisfy the
requirements of procedural due process.216 Although, as a dissent, Judge
Mathias’s opinion is not binding,217 it provides an important example of the need

Dep’t of Child Servs., 6 N.E.3d 952, 957 (Ind. Ct. App. 2014) (“[A]lthough the refusal to testify

in a civil case cannot be used against the one asserting the privilege in a subsequent criminal

proceeding, the privilege against self-incrimination does not prohibit the trier of fact in a civil case

from drawing adverse inferences from a witness’ refusal to testify.”).

209. Kelly, 122 N.E.3d at 807.

210. Tunis v. State, 129 N.E.3d 258, 262-65 (Ind. Ct. App.), trans. denied, 138 N.E.3d 946

(Ind. 2019).

211. Zimmer, Inc. v. Beamalloy Reconstructive Med. Prods., LLC, No. 1:16-cv-00355-TLS-

SLC, 2019 U.S. Dist. LEXIS 47539, at *32 n.9 (N.D. Ind. Mar. 21, 2019).

212. Balderas v. Target Corp., No. 2:17-cv-270-JEM, 2019 U.S. Dist. LEXIS 52333, at *3-4

(N.D. Ind. Mar. 27, 2019) (quoting Baker v. Town of Middlebury, 753 N.E.2d 67, 72 (Ind. Ct. App.

2001)) (quotation marks omitted).

213. IND. R. EVID. 602.

214. X.S. v. Ind. Dep’t of Child Servs., 117 N.E.3d 601, 609-10 (Ind. Ct. App. 2018) (Mathias,

J., dissenting).

215. Id. at 605-06.

216. Id. at 614.

217. Save Our Sch. v. Fort Wayne Cmty. Schs., 951 N.E.2d 244, 248 (Ind. Ct. App. 2011).



916 INDIANA LAW REVIEW [Vol. 53:895

to attest to service based upon personal knowledge.218

B. Rule 608: Prior Uncharged Professional Misconduct

Rule 608(b) “makes extrinsic evidence, apart from criminal convictions
permitted under Rule 609, inadmissible ‘to prove specific instances of a witness’s
conduct in order to attack or support the witness’s character for truthfulness.’”2 1 9

In Tunstall v. Manning, the majority of the Indiana Supreme Court concluded that
an expert’s prior conduct resulting in a finding by the Medical Licensing Board
that he “engaged in ‘fraud or material deception’” by failing to disclose a pending
criminal violation on his license renewal application and that he had failed to
maintain controlled-substance dispensing records were barred by operation of
Rule 608(b).220 Because the acts were not charged and convicted as criminal acts,
they were “inadmissible to impeach the doctor.”221

Justice Geoffrey Slaughter, alone in dissent, would have applied Rule 608(b)
more narrowly than had the majority.222 While he agreed that the specific
instances of the doctor’s misconduct were properly excluded, Justice Slaughter
contended “that [the] rule did not foreclose . . . impeaching the doctor with the
fact of his prior discipline.”223 Meaning, even though the jury could not learn of
the “misconduct prompting the doctor’s discipline,” it should have been
permissible for the jury to be informed that the doctor had twice been subject to
professional discipline.224

C. Rule 609: Impeachment by Evidence of a Criminal Conviction

Rule 609 provides the parameters for the exception to Rule 608(b)’s
prohibition on use of “specific instances of a witness’s conduct in order to attack
or support the witness’s character for truthfulness.”225 Under Rule 609, a
witness’s prior criminal convictions may be used to impeach his or her
testimony.226 Not all convictions may be used; rather, the crime is admissible
“only if the crime committed or attempted is (1) murder, treason, rape, robbery,
kidnapping, burglary, arson, or criminal confinement; or (2) a crime involving
dishonesty or false statement, including perjury.”227 If the conviction and the
witness’s release from confinement are more than ten years old, evidence of

218. “As a legal analyst, you must pay attention to dissents, especially those that are well

reasoned.” BRYAN A. GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT 192 (2016).

219. Tunstall v. Manning, 124 N.E.3d 1193, 1199 (Ind. 2019) (quoting IND. R. EVID. 608(b)).

220. Id.

221. Id.

222. Id. at 1201 (Slaughter, J., dissenting). 

223. Id. 

224. Id. 

225. IND. R. EVID. 608(b).

226. IND. R. EVID. 609(a); Clayton v. Smith, 113 N.E.3d 693, 699 n.4 (Ind. Ct. App. 2018),

trans. denied, 123 N.E.3d 142 (Ind. 2019).

227. IND. R. EVID. 609(a).



2021] EVIDENCE 917

conviction is only admissible if: “(1) its probative value, supported by specific
facts and circumstances, substantially outweighs its prejudicial effect; and (2) the
proponent gives an adverse party reasonable written notice of the intent to use it
so that the party has a fair opportunity to contest its use.”228

The Indiana Supreme Court’s decision in Tunstall v. Manning was not
confined to the expert’s professional discipline; the defense also sought to admit
the reasons for his discipline, which included two misdemeanor convictions.229

Because the misdemeanor convictions were beyond the scope of Rule 609(a),
they were deemed properly excluded.230

The Indiana Court of Appeals also had occasion to address Rule 609.231 A
criminal defendant appealed his conviction for burglary because, he contended,
the trial court erred in prohibiting him from cross-examining the state’s witness
regarding the specifics of the witness’s prior conviction for theft.232 The witness
had, in fact, testified during direct examination “that he had prior convictions for
theft, conversion, and auto theft, and was currently in jail.”233 As generally
applied, Rule 609(a) limits use of convictions to the mere fact of the conviction,
not the “circumstances surrounding the conviction.”234 A party may open the door
to more extensive examination if the testimony regarding the conviction left “the
trier of fact with a false or misleading impression of the facts related.”235 The
court of appeals determined the door was not opened to further inquiry because
“[t]he State merely questioned him whether he had been convicted of theft in
2016, to which [the witness] responded affirmatively.”236 Absent some showing
that the jury had been misled, there was no basis for further inquiry.237

An important point from the decision was the court’s rejection of an attempt
to invoke federal caselaw permitting more expansive use of a prior conviction:

Referencing federal case law, [the defendant] maintains that Evid. R. 609
“does not limit the use of evidence of prior convictions for purposes
other than impeachment.” Nevertheless, Indiana case law has
consistently held that the applicability of Evid. R. 609 “is expressly
limited to those circumstances where the evidence of the prior conviction
is being offered [f]or the purpose of attacking the credibility of a
witness.”238

228. IND. R. EVID. 609(b).

229. 124 N.E.3d at 1198-99. 

230. Id. at 1199. 

231. Newland v. State, 126 N.E.3d 928, 931 (Ind. Ct. App. 2019). 

232. Id. at 931. 

233. Id. at 930. 

234. Id. at 931. 

235. Id. (internal citation and formatting omitted). 

236. Id. 

237. Id. 

238. Id. (internal citations omitted); see Appellant’s Brief at 8, Newland v. State, 126 N.E.3d

928 (Ind. Ct. App. 2019) (No. 19A-CR-95) (quoting Ricketts v. City of Hartford, 74 F.3d 1397,



918 INDIANA LAW REVIEW [Vol. 53:895

D. Rule 611: Facilitating Testimony Through Leading Questions

Rule 611(c) generally establishes that leading questions should be reserved
for cross-examinations and examinations of hostile witnesses, not for direct
examinations.2 3 9 But Rule 611(c)’s prohibition on use of leading questions on
direct examination is not absolute. Instead, “[t]he rule is phrased in suggestive
(‘should not’) rather than mandatory terms.”240 Traditionally, trial courts are
afforded a wide berth in deciding when to allow leading questions on direct
examination, which means that reversals on the grounds of inappropriate use of
leadings questions “are exceedingly rare.”241

The propriety of leading questions was put to the test in Stinson v. State.242

At the time of trial, the victim of multiple stabbings was left in a condition in
which he could only communicate using a tablet and by indicating “yes” or
“no.”243 Prior to his direct examination, the prosecution requested accommodation
from the court to permit leading questions.244 Notably, the 1975 Advisory
Committee Notes to Federal Rule of Evidence 611, on which Indiana’s Rule 611
is based, recognized the appropriate use of leading questions to facilitate the
testimony of an “adult with communication problems.”245 Receiving no objection,
the trial court permitted leading questions on direct of the witness.246

1412 (2d Cir. 1996) (“Fed. R. Evid. 608(b) does not pose a bar to admitting the tape on these

grounds. That rule generally precludes proof by extrinsic evidence of ‘specific instances of the

conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than

conviction of crime as provided in rule 609.’ We have determined, however, that this rule does not

operate to require the exclusion of impeachment evidence that demonstrates the witness’ bias, as

opposed to his character for untruthfulness.”)).

239. IND. R. EVID. 611(c).

240. MICHAEL H. GRAHAM, FEDERAL PRACTICE AND PROCEDURE: EVIDENCE § 6548 (1992);

accord United States v. Ajmal, 67 F.3d 12, 16 (2d Cir. 1995) (“the rule employs ‘words of

suggestion, not command’”). Indiana Evidence Rule 611 is identical to Federal Rule of Evidence

611. 13B ROBERT L. MILLER, JR., INDIANA PRACTICE: COURTROOM HANDBOOK ON INDIANA

EVIDENCE 196 (2016-17 ed.).

241. JOSEPH W. COTCHETT, FEDERAL COURTROOM EVIDENCE § 611.4 (5th ed. 2013).

242. 126 N.E.3d 915, 922-24 (Ind. Ct. App. 2019).

243. Id. at 922. Proving once again the Nostradamus-like skill of science-fiction writers to

predict the future. Star Trek: The Menagerie, Part I (CBS television broadcast Nov. 17, 1966)

(Captain Pike, horribly maimed in an accident, left able to communicate only through a light: one

flash for “yes,” two flashes for “no”).

244. Stinson, 126 N.E.3d at 922. The court of appeals considered the issue in spite of waiver

because, “[w]hile the waiver doctrine advances important policies of judicial efficiency, mere

expediency is not an appropriate appellate goal.” (internal citation and quotation marks omitted).

245. FED. R. EVID. 611, Advisory Committee Notes (1975); accord United States v.

Rodriguez-Garcia, 983 F.2d 1563, 1570 (10th Cir. 1993) (“According to the Advisory Committee

Notes, a leading question may be asked of an adult witness with communication problems.”).

246. Stinson, 126 N.E.3d at 922-23.



2021] EVIDENCE 919

On appeal, the convicted defendant argued that the “testimony was the result
of leading questions, and the State’s questions were specifically crafted to mirror
the testimony of prior witnesses.”247 The court of appeals found no reversible
error for two reasons. First, the witness’s limited ability to communicate
appropriately necessitated leeway on examination.248 And, second, the crucial
testimony was not, in fact, educed by leading questions.249 That may strike some
readers as peculiar, in light of a frequent misconception that a question is leading
if it is susceptible to a yes-or-no answer.250 Instead, “[a] leading question is one
that suggests the desired answer to the witness.”251 Merely asking a question
“susceptible of a simple negative or affirmative answer,” is not a leading question
unless it “take[s] the form of an assertion of fact which the witness was asked to
verify.”252

In Stinson, the victim was first asked whether he had hurt himself.253 He was
then asked systematically whether each of three other persons known to have
been present at the time the victim was stabbed had hurt him.254 After answering
“No” with regard to two of the persons, the victim testified “Yeah” when asked
whether the defendant hurt him.255 Because there were only four individuals,
including the victim, who were known to have been present, the victim had
confirmed that “he did not harm himself but knew who had attacked him,” and
the questioning provided the victim “the opportunity to identify any of the other
three as the attacker,” the questions were not leading.256

E. Rule 615: Separation of Witnesses

A routine part of Indiana trials, “Rule 615 allows litigants to move for

247. Id. at 923.

248. Id.

249. Id.

250. See EDWARD W. CLEARY ET AL., MCCORMICK ON EVIDENCE § 6 (3d ed. 1984) (“It is

sometimes supposed that a question which can be answered yes or no is by that fact marked as

leading, and the beginner may seek refuge in the form of a neutral alternative (‘State whether or

not . . .’) to escape the charge of leading. But quite often the former kind will be. The whole issue

is whether an ordinary man would get the impression that the question desired one answer rather

than another.”); see, e.g., Jeffrey A. Boyll, Note, Witness Explanations During Cross-Examination:

A Rule of Evidence Examined, 58 IND. L.J. 361, 367 n.42 (1982) (“This question, asking whether

certain facts are true and answerable with yes or no, is a classic example of the leading question.”).

251. Stinson, 126 N.E.3d at 923 (internal citation and quotation marks omitted); accord

Williams v. State, 733 N.E.2d 919, 922 (Ind. 2000).

252. Starks v. State, 325 N.E.2d 855, 857-58 (Ind. Ct. App. 1975).

253. 126 N.E.3d at 923. There may have been some basis to conclude that the question of

whether the victim hurt himself was leading since the prosecutor prefaced the question by stating,

“This may seem like a silly question . . . .” Id. (internal formatting omitted).

254. Id.

255. Id.

256. Id. at 923-24.



920 INDIANA LAW REVIEW [Vol. 53:895

separation of witnesses so they cannot hear each other’s testimony.”257 Prior to
adoption of the Indiana Rules of Evidence, “separation of witnesses [wa]s not
required by statute, nor by any rule of the common law. When asked for, it [wa]s
granted, not of right, but as a favor.”258 Rule 615 made exclusion of witnesses
during trial proceedings mandatory, unless a witness falls into one of the three
delineated categories of witnesses who cannot be excluded.259 Although Rule 615
merely requires “witnesses excluded [from trial proceedings] so that they cannot
hear other witnesses’ testimony,”260 it is not uncommon for separation orders to
bar “discussions of expected testimony among the witnesses.”261 That is precisely
what happened in Spinks v. State.262

The issue in Spinks was whether a trial court erred by allowing three
witnesses to testify on behalf of the prosecution, despite each witness having
violated the separation order.263 On review, the Indiana Court of Appeals
recognized that “[t]he determination of the remedy for any violation of a
separation order is within the discretion of the trial court.”264 And, “in the absence
of connivance or collusion by the party calling the witness, [a trial court] may
permit the witness to testify.”265 At common law, it was presumed to be “an abuse
of discretion to exclude witnesses for violations of a separation order when the
party seeking to call the witness had no part in the violation of the order.”266

Nevertheless, exclusion may be proper if the party relying on the witness is at
fault for the violation or if exclusion of the testimony does not “directly affect the
party’s ability to present its case.”267 Where a witness is not excluded, a remedy
for the violation may be had in issuance of a contempt citation or by permitting
the violation to be used for impeachment.268

The trial court acted well within its discretion by allowing the witnesses to
testify and permitting cross-examination to address the violation of the order.269

Because the violation appeared not to have been intentionally caused by the
prosecution and there was no request for a finding of contempt, the lack of any
further punitive action was not a basis for reversal.270

Not all witnesses, however, can be excluded from hearing other witnesses’

257. Spinks v. State, 122 N.E.3d 950, 954 (Ind. Ct. App. 2019).

258. Miller v. State, 648 N.E.2d 1208, 1210 (Ind. Ct. App. 1995).

259. Hernandez v. State, 716 N.E.2d 948, 950 (Ind. 1999) (construing phrase “this rule does

not authorize [excluding]” as prohibiting trial court from excluding certain witnesses).

260. IND. R. EVID. 615.

261. See, e.g., Spinks, 122 N.E.3d at 955.

262. Id.

263. Id. at 954-56.

264. Id. at 955.

265. Id. (internal citation and quotation marks omitted).

266. Id. (internal citation and quotation marks omitted).

267. Id. (quotation marks and citation omitted).

268. Id.

269. Id. at 955-56.

270. Id.



2021] EVIDENCE 921

testimony.271 Neither “a party who is a natural person” nor an officer or employee
of a party that is not a natural person and who is designated by the party’s
attorney may be excluded.272 In criminal prosecutions, the state will often
designate an investigating police officer as the state’s representative. The Indiana
Court of Appeals was confronted with what to do when the formal step of
designating the officer is overlooked.273 Following a brief recess, an officer “sat
at the prosecutor’s table as the State presented its first few witnesses.”274 When
the officer was called as a witness, the defense objected and moved to exclude the
officer’s testimony.275 The trial court denied the motion and overruled the
objection, allowing the officer to testify.276 On review, the court of appeals found
no abuse of discretion, recognizing that the officer was included on the State’s
witness list, sat at the prosecutor’s table as if properly designated, and that there
was no objection by the defense until the officer was called to testify.277 In the
absence of any apparent attempt at “subterfuge” and the fact that the State could
simply have designated him in accordance with Rule 615(b), the trial court was
soundly within its discretion to permit the testimony.278

F. Rule 617: What Constitutes a Custodial Interrogation?

After two years of significant developments,279 Rule 617 saw only a single
published decision addressing its reach, during the survey period. The rule
“requires that statements made during custodial interrogations conducted in a
place of detention in felony criminal prosecutions shall not be admitted against
the defendant unless they have been recorded.”280 Recent caselaw has primarily
focused on whether an interrogation occurred “in a Place of a Detention.”281 In
Johnson v. State, however, the court of appeals focused on whether statements

271. IND. R. EVID. 615.

272. IND. R. EVID. 615(a)-(b). There is a third category of witness that may not be excluded

embodied in subdivision (c) for “a person whose presence a party shows to be essential to

presenting the party’s claim or defense,” which is most often applied to “expert witnesses or

witnesses who summarize large amounts of information.” Hernandez v. State, 716 N.E.2d 948, 954

(Ind. 1999) (Boehm, J., dissenting).

273. Tavake v. State, 131 N.E.3d 696, 704-05 (Ind. Ct. App.), trans. denied, 134 N.E.3d 1021

(Ind. 2019).

274. Id. at 705.

275. Id.

276. Id.

277. Id.

278. Id.

279. See 2017 Survey, supra note 85, at 1063-65; Colin E. Flora, 2018 Developments in

Indiana Evidentiary Practice, 52 IND. L. REV. 715, 736-38 (2019) [hereinafter 2018 Survey].

280. Johnson v. State, 117 N.E.3d 581, 588 (Ind. Ct. App. 2018), trans. denied, 124 N.E.3d

41 (Ind. 2019).

281. Fansler v. State, 100 N.E.3d 250, 253-55 (Ind. 2018).



922 INDIANA LAW REVIEW [Vol. 53:895

were made during an interrogation.282 “Interrogation has been defined as a process
of questioning by law enforcement officials which lends itself to obtaining
incriminating statements.”283 The boundaries of interrogation are not defined
purely by express questioning; instead, “words or actions on the part of the police
that they know are reasonably likely to elicit an incriminating response from the
suspect” may also constitute an interrogation.284 The court determined that an
“interrogation” of a juvenile offender by his probation officer had not occurred
because the offender “volunteered [incriminating] information even after [he was]
advised [] of his prerogative not to talk about [a pending murder]
investigation.”285

VI. OPINIONS & EXPERT OPINIONS: RULES 701 THROUGH 705

A. Rule 701: Opinion Testimony by Lay Witnesses

In accordance with Rule 701, the opinion of a lay witness is confined “to one
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
issue.”286 Typically, that means the witness cannot base an opinion on information
gathered from others,287 as an expert witness may.288 Nevertheless, there is a
middle ground between a prototypical lay witness and an expert witness that
broadens the scope of permissible testimony: 

A witness not qualified to offer expert testimony under Evidence Rule
702 may be qualified as a “skilled witness” or “skilled lay observer.” A
skilled witness has a degree of knowledge that falls short of being
declared an expert under Rule 702, but somewhat beyond that possessed
by ordinary jurors.289

The Indiana Court of Appeals ruled that the opinions of two witnesses were
properly admitted as those of skilled witnesses where the witnesses were each
owners of businesses in the construction industry, each inspected the property at
issue, each concluded that there were numerous defects in the property, and each
“noted that the code violations found by the city inspector were consistent with

282. Johnson, 117 N.E.3d at 588.

283. Id. (citation and quotation marks omitted).

284. Id. (citation omitted).

285. Id.

286. IND. R. EVID. 701.

287. Tell City Boatworks, Inc. v. Ind. Dep’t of State Revenue, 123 N.E.3d 732, 734 (Ind. T.C.

2019) (“[I]t appears that Ms. Little’s opinions . . . were based on information received from others

not her own personal perceptions. Accordingly, Tell City has not shown that Ms. Little’s testimony

is admissible under Indiana Evidence Rule 701.” (citation omitted)).

288. See IND. R. EVID. 703.

289. Clayton v. Smith, 113 N.E.3d 693, 702-03 (Ind. Ct. App. 2018), trans. denied, 123

N.E.3d 142 (Ind. 2019).



2021] EVIDENCE 923

their observations of the property.”290 Those opinions were useful and admissible
to determine whether the work done on the property added value.291

B. Rule 702: Expert Witnesses

 “The trial court acts as the gatekeeper when determining the admissibility of
opinion evidence under Indiana Evidence Rule 702.”292 “Under this rule, a
witness may be qualified as an expert by only one of the enumerated
characteristics: knowledge, skill, experience, training, or education.”293 The most
highly anticipated expert-witness decision of the period was the Indiana Supreme
Court’s opinion in Tunstall v. Manning, ruling that “professional disciplinary
history—limitations on professional licenses and the reasons underlying
professional discipline—may be relevant to an expert’s credibility.”294

Other important takeaways from the survey period include: a post-conviction
action alleging ineffective assistance of counsel faces a challenge when based on
failure to call an expert witness because “[t]he trial court is not required to accept
the opinion of experts”;295 an expert on secondary education and employment is
not a competent expert to opine “as to how a journalist should do his job”;296

“expertise in training registrars and . . . help[ing] others learn” a healthcare-
management system was sufficient expertise for witness to provide expert
testimony on “training individuals in privacy and protected health
information”;2 9 7expert testimony on the research tax credit is admissible due to
the complexity of the provision in actions before the Indiana Tax Court, even
though it ultimately concerns a matter of statutory interpretation;298 and “[e]xpert
testimony about ‘battered woman’s syndrome’ is admissible at trial if it is
relevant to a question at issue.”299 Ironically, it is often easier to admit evidence
on battered woman’s syndrome if the expert has no knowledge of the individual
victim, in which case “there [is little] chance the expert could be seen as vouching
for the victim.”300

If the expert offers scientific opinion, then “the court [must be] satisfied that
the scientific principles upon which the expert testimony rests are reliable, and

290. A House Mechs., Inc. v. Massey, 124 N.E.3d 1257, 1265-66 (Ind. Ct. App. 2019).

291. Id. at 1266.

292. Clayton, 113 N.E.3d at 702.

293. Id.; see also IND. R. EVID. 702(a).

294. 124 N.E.3d 1193, 1198 (Ind. 2019).

295. Weisheit v. State, 109 N.E.3d 978, 988 (Ind. 2018), cert. denied, 139 S. Ct. 2749 (2019).

296. Pack v. Truth Publ’g Co., 122 N.E.3d 958, 968 (Ind. Ct. App. 2019).

297. Hayden v. Franciscan All., Inc., 131 N.E.3d 685, 695 n.5 (Ind. Ct. App. 2019), trans.

denied, 141 N.E.3d 18 (Ind. 2020).

298. Tell City Boatworks, Inc. v. Ind. Dep’t of State Revenue, 123 N.E.3d 732, 735 (Ind. T.C.

2019).

299. Thevenot v. State, 121 N.E.3d 679, 686 (Ind. Ct. App. 2019).

300. Id. at 687.



924 INDIANA LAW REVIEW [Vol. 53:895

the court determines admissibility under 702(b).”301 Indiana appellate courts
affirmed admission of expert scientific testimony where a doctor engaged in a
differential diagnosis before settling on a potential cause that could not be ruled
out;302 found that a challenge to a vocational economist’s thoroughness of
research in assessing a disability rating went to weight, not admissibility;303 and
rejected “the propositions that only an economist can project future aggregate
costs or that each individual cost must be reduced to present value for
presentment to the jury,” in an attempt to exclude the testimony of a life-care
planner.304 Along the same line, it was reminded that Indiana has no “blanket rule
[] prohibit[ing] non-physician healthcare providers from qualifying as expert
witnesses as to medical causation under [Indiana] Evidence Rule 702.”305 

C. Rule 703: Bases of Expert Opinion Testimony

Rule 703 permits experts to base their opinions “on inadmissible evidence,
provided that it is of the type reasonably relied upon by experts in the field.”306

Although an expert may base an opinion on inadmissible evidence, the expert’s
opinion must ultimately be his or her own.307 For example, an expert may not be
“merely ‘a conduit’ for placing ‘physician’s diagnoses into evidence without
meaningful opportunities for cross-examination.’”308

The Indiana Court of Appeals addressed a challenge to an expert’s opinion
as a mere conduit in Estate of Benefiel v. Wright Hardware Co.309 A crucial issue
in the case, which stemmed from a gas explosion, was the interpretation of an
Indiana Code provision derived from the International Fuel Gas Code (“IFGC”)
mandating that leak testing should occur following “interruption of service,”
which is not a term defined in the Indiana Code.310 In order to ascertain the

301. Clayton v. Smith, 113 N.E.3d 693, 702 (Ind. Ct. App. 2018), trans. denied 123 N.E.3d

142 (Ind. 2019).

302. Golden Corral Corp. v. Lenart, 127 N.E.3d 1205, 1214 (Ind. Ct. App.), trans. denied, 138

N.E.3d 948 (Ind. 2019).

303. Clayton, 113 N.E.3d at 703.

304. Id. at 704-05

305. Sheng v. Bissonnette, No. 1:17-cv-03864-JRS-TAB, 2019 U.S. Dist. LEXIS 91299, at

*5 (S.D. Ind. May 31, 2019) (quoting Totton v. Bukofchan, 80 N.E.3d 891, 894 (Ind. Ct. App.

2017)) (quotation marks omitted, alteration in original).

306. IND. R. EVID. 703.

307. Estate of Benefiel v. Wright Hardware Co., 128 N.E.3d 485, 491 (Ind. Ct. App. 2019)

(“[A]lthough an expert may rely on others’ opinions as a basis for his opinion if other experts in

the field reasonably rely on such opinions, the expert must bring his own expertise to bear in

reaching his opinion and may not simply repeat opinions of others or announce that other experts

concur with his opinion with respect to the case.”), trans. denied, 141 N.E.3d 20 (Ind. 2020).

308. Id. at 490 (quoting Faulkner v. Markkay of Indiana, Inc., 663 N.E.2d 798, 801 (Ind. Ct.

App. 1996)).

309. Id. at 490-92.

310. Id. at 487-88.



2021] EVIDENCE 925

meaning of the term, the expert sent an email to the body that authored the
IFGC.311 At trial, the expert was permitted, over objection, to read the response
to the jury.312 On appeal, the expert’s testimony was challenged as being nothing
more than a conduit for hearsay.313 The court of appeals agreed, finding the error
sufficiently prejudicial to order a new trial:

Termed “the million dollar question,” and battled over by experts on both
sides, the jury was handed a definition of ‘interruption of service’ which
was represented to be issued by the entity that also wrote the Code and
purported to provide a definitive answer on an ultimate issue. During
closing argument, counsel for [defendant] explained to the jury that
because there was a disagreement on the definition, [the expert]
contacted the [IFGC author] to “please help us to find what interruption
of service is[.]” As such the jury was given the impression that this
definition, interpreting the IFGC, was cloaked with authority to equally
define the term in the Indiana Code. It was only after [the IFGC author’s]
opinion was read verbatim that [the expert] affirmed that his own opinion
aligned with th[at] definition . . . . Viewed in the totality of the trial
proceedings, [the] testimony in essence amounted to nothing more than
a mere conduit to get otherwise inadmissible hearsay evidence in front
of the jury.314

D. Rule 704: Opinion on an Ultimate Issue

“The common law did not allow an expert witness to inform the jury of his
or her factual conclusion concerning the ‘ultimate issue’ in the case, because this
was thought to invade the province of the jury.”315 Federal courts abolished the
ultimate-issue rule in 1972, by adopting Federal Rule of Evidence 704.316 In the
same year, though still generally adhering to common-law evidentiary practice,
Indiana followed suit.317 Although an opinion may “embrace[] an ultimate
issue,”318 “[w]itnesses may not testify to opinions concerning intent, guilt, or
innocence in a criminal case; the truth or falsity of allegations; whether a witness
has testified truthfully; or legal conclusions.”319

Most often, Rule 704(b) is invoked to prohibit two types of testimony: legal
conclusions and evidence regarding the accuracy of another witness’s

311. Id. at 488.

312. Id.

313. Id. at 489-91.

314. Id. at 492.

315. Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 100 (1st Cir. 1997).

316. United States v. Rodriguez, 125 F. Supp. 3d 1216, 1257 (D.N.M. 2015).

317. DeVaney v. State, 288 N.E.2d 732, 737 (Ind. 1972); Southlake Limousine & Coach, Inc.

v. Brock, 578 N.E.2d 677, 684 (Ind. Ct. App. 1991).

318. IND. R. EVID. 704(a).

319. IND. R. EVID. 704(b).



926 INDIANA LAW REVIEW [Vol. 53:895

testimony—so-called “vouching” testimony. Nevertheless, the Indiana Supreme
Court had opportunity to briefly discuss the reach of Rule 704(b) in excluding
opinions concerning guilt, observing “that expert testimony regarding the cause
of a fire (that does not tie the defendant to the fire) does not run afoul of Evidence
Rule 704(b).”320 The other five published Indiana decisions from the survey
period to address Rule 704(b) fell squarely into the categories of prohibiting legal
conclusions and vouching.

In Kress v. State, the court of appeals briefly touched on the rationale of
prohibiting vouching, noting that Rule 704(b) prohibits vouching “where a
witness directly opines about ‘the truth or falsity of allegations’ or ‘whether a
witness has testified truthfully.’”321 The matter was addressed in greater depth
through Watson v. State.322 The court of appeals explained the problem with
vouching testimony as “result[ing] in an invasion of the province of the jurors in
determining what weight they should place upon a witness’s testimony.”323 In that
light, the court found no problem with a witness being asked whether she had
been honest when speaking with a forensic examiner and an attending nurse,
responding in the affirmative, because the witness “was duly sworn to tell ‘the
truth, the whole truth, and nothing but the truth.’”324 Having “agreed to provide
truthful testimony and subsequently testif[ying] as to what she believed had
happened to her[,]” the testimony “was simply [an] acknowledgement that she
believed her own account of events.”325 

The Indiana Tax Court also had occasions to apply Rule 704(b), focusing on
whether an opinion was a legal conclusion. Although a “witness may [not] testify
to . . . a legal conclusion,”32 6 he or she may testify to standards of practice in a
particular field, such as calling upon expertise in the maritime industry.327

Similarly, in Sahara Mart, Inc. v. Indiana Department of State Revenue, Judge
Martha Wentworth found no problem with testimony that a business paid affiants
“for services rendered as employees[,]” where the issue for the court was to
determine whether certain persons were employees, since “whether an individual
is an employee derives from the existence of certain facts, including whether one
believes herself to be an employee.”328

320. Weisheit v. State, 109 N.E.3d 978, 991 (Ind. 2018), cert. denied, 139 S. Ct. 2749 (2019).

321. 133 N.E.3d 742, 747 (Ind. Ct. App.), trans. denied, 138 N.E.3d 957 (Ind. 2019).

322. 134 N.E.3d 1038, 1045-46 (Ind. Ct. App. 2019), trans. denied, 141 N.E.3d 21 (Ind.

2020).

323. Id. at 1045.

324. Id. at 1045-46.

325. Id. at 1046.

326. Tell City Boatworks, Inc. v. Ind. Dep’t of State Revenue, 123 N.E.3d 732, 736 (Ind. T.C.

2019).

327. Tell City Boatworks, Inc. v. Ind. Dep’t of State Revenue, 123 N.E.3d 728, 731 (Ind. T.C.

2019).

328. 114 N.E.3d 36, 47 (Ind. T.C. 2018).



2021] EVIDENCE 927

VII. HEARSAY: RULES 801 THROUGH 807

A. Rules 801 & 802: Hearsay Generally Prohibited

“Hearsay statements are not admissible, except pursuant to certain exceptions
within the Rules of Evidence.”3 2 9 But a statement is only excludable as hearsay
if it “is a statement, other than one made by the declarant while testifying at trial,
offered in evidence to prove the truth of the matter asserted.”330 That means the
purpose for which a statement is offered is crucial to determining whether the
statement is hearsay.331 For that reason, “statements providing context for other
admissible statements are not hearsay,” a rule which allowed text messages by
one witness to be properly admitted to provide context for a criminal defendant’s
own incriminating messages.332

The focus on purpose for admission creates a possibility for abuse when a
colorable argument exists to allow statements that the party wishes the jury to
hear for the truth of the statements’ contents. To safeguard against that danger,
courts “require a reasonable level of assurance that such testimony [i]s neither
offered by the proponent nor received by the trier of fact as evidence of the truth
of the third party’s statement.”333 The primary question is: “Was the out-of-court
statement used primarily to show the truth of its content, constituting inadmissible
hearsay, or merely to explain subsequent police action, excluded from
hearsay?”334 Resolution of that question is found in a three-part test: “(1) does the
testimony describe an out-of-court statement asserting a fact susceptible of being
true or false; (2) what is the evidentiary purpose of the proffered statement; and
(3) is the fact to be proved relevant to some issue in the case, and does any danger
of prejudice outweigh its probative value.”335

A common avenue for introducing hearsay evidence that walks the line of
impermissibility is “[c]ourse-of-investigation testimony[, which] is excluded from
hearsay only for the limited purpose of bridging gaps in the trial testimony that
would otherwise substantially confuse or mislead the jury.”336 “[T]he relevance
of evidence of ‘course of police work’ testimony [i]s slight when the genesis of

329. S.K. v. Ind. Dep’t of Child Servs. (In re Termination of the Parent-Child Relationship of

S.K.), 124 N.E.3d 1225, 1231 (Ind. Ct. App.) (citing IND. R. EVID. 802), trans. denied, 134 N.E.3d

1025 (Ind. 2019).

330. Rivera v. State, 132 N.E.3d 5, 11 (Ind. Ct. App. 2019) (citing IND. R. EVID. 801(c)),

trans. denied, 141 N.E.3d (Ind. 2020).

331. Hedrick v. State, 133 N.E.3d 179, 181 (Ind. Ct. App. 2019).

332. Cardosi v. State, 128 N.E.3d 1277, 1288 n.6 (Ind. 2019) (citation and quotation marks

omitted).

333. Cook v. State, 119 N.E.3d 1092, 1096 (Ind. Ct. App.), trans. denied, 124 N.E.3d 59 (Ind.

2019).

334. Hedrick, 133 N.E.3d at 182 (citation and quotation marks omitted).

335. Id. (citation omitted).

336. Id.



928 INDIANA LAW REVIEW [Vol. 53:895

the investigation was not relevant to any contested issue in the case.”337 Under
that view, the prosecution lost appellate challenges to testimony by law-
enforcement personnel in both Hedrick v. State338 and Cook v. State.339

There can be a more basic problem with excluding evidence as hearsay: It
does not constitute a “statement” as defined by Rule 801(a).340 That was an issue
in Smith v. State, after an officer testified to whether persons he interacted with
knew the defendant.341 The state argued that the testimony was not hearsay
because the officer did not directly testify to the statements of others.342 

While [the officer] did not repeat a declarant’s statement, per se, he
testified to information that could only have been obtained through
statements made by the person or persons . . . . Thus, those out of court
statements were embedded in [the officer]’s testimony and were the
predicate for that testimony, which was equivalent to repeating the
declarant’s out-of-court statements.343

Meaning “that the challenged testimony was hearsay, and the trial court abused
its discretion when it overruled [] timely objections.”344

Even if a statement meets the definition of hearsay, it may still be excluded
under Rule 801(d), which provides that certain statements otherwise meeting Rule
801(c)’s definition for hearsay are deemed to not be hearsay.345 A commonly
relied upon definitional exception is Rule 801(d)(2)’s exclusion of statements by
a party opponent.346 That exception may also extend to statements by co-
conspirators made “during and in furtherance of the conspiracy.”347 “To be
admissible under this rule, the State must establish a conspiracy exists without
using the statements at issue.”348 The evidence to support the conspiracy may also
be subject to exclusion by the rules of evidence, such as documentary evidence
lacking sufficient authenticity.349

Moreover, Rule 801(d)(2) does not extend to statements made by a criminal
defendant once taken into custody.350 For that reason, in Baker v. State, the

337. Id. at 182-83 (citation omitted).

338. Id. at 183.

339. 119 N.E.3d 1092, 1096-97 (Ind. Ct. App.), trans. denied, 124 N.E.3d 59 (Ind. 2019).

340. IND. R. EVID. 801(a) (“‘Statement’ means a person’s oral assertion, written assertion, or

nonverbal conduct if the person intended it as an assertion.”).

341. 114 N.E.3d 540, 543 (Ind. Ct. App. 2018).

342. Id.

343. Id.

344. Id.

345. IND. R. EVID. 801(d).

346. IND. R. EVID. 801(d)(2).

347. IND. R. EVID. 801(d)(2)(E).

348. Walters v. State, 120 N.E.3d 1145, 1154 (Ind. Ct. App. 2019).

349. Id.

350. Baker v. State, 111 N.E.3d 1046, 1050 (Ind. Ct. App. 2018) (citing Robinson v. State, 365

N.E.2d 1218, 1223 (Ind. 1977)), trans. denied, 123 N.E.3d 142 (Ind. 2019).



2021] EVIDENCE 929

Indiana Court of Appeals rejected application of Rule 801(d)(2) to statements
made by the defendant in response to officer’s questions because the defendant
“had been apprehended, handcuffed, and ordered to sit on a curb, and was
surrounded by several police officers when the unnamed officer asked [him] the
question at issue.”351 Baker was obviously in custody, so Rule 801(d)(2) does not
apply.

Finally, it merits note that even if hearsay testimony is errantly presented, “[a]
trial court’s timely and accurate admonishment to the jury is presumed to cure
any alleged error.”352

B. Rule 803: Statements for Medical Diagnoses, Business Records,
and Learned Treatises353

Rule 803, in conjunction with Rule 804, enumerates circumstances in which
hearsay may still be admitted.354 The key distinction between Rules 803 and 804
is the latter’s requirement that the declarant be unavailable.355 Rule 803, to the
contrary, applies irrespective of the availability of the declarant.356 The survey
period contained published decisions addressing exceptions for excited
utterances,357 statements made for medical diagnosis or treatment,358 recorded

351. Id. at 1050-51.

352. Hedrick v. State, 124 N.E.3d 1273, 1280, on reh’g, 133 N.E.3d 179 (Ind. Ct. App. 2019).

353. During the survey period, the Indiana Supreme Court approved a non-substantive

amendment to Rule 803(3), effective immediately on January 22, 2019. Order Amending Ind. Rules

of Evidence, No. 19S-MS-41, 2019 Ind. LEXIS 32 (Ind. Jan. 22, 2019). The amendment removed

a scrivener’s error that had created a redundancy in the official version of Rule 803 from a prior

amendment. Order Amending Indiana Rules of Evidence, No. 94S00-1301-MS-30 (Ind. Sept. 13,

2013); see also Walters v. State, 120 N.E.3d 1145, 1154 n.9 (Ind. Ct. App. 2019) (“This

amendment consisted of the removal of a clause from Indiana Evidence Rule 803(3) and does not

affect our analysis herein.”). Even prior to the amendment, numerous sources simply omitted the

redundant language. See, e.g., 13B ROBERT L. MILLER, JR., INDIANA PRACTICE: COURTROOM

HANDBOOK ON INDIANA EVIDENCE 298 (2016-17 ed.). But see Castaneda v. State, No. 45A05-

1601-CR-25, 2016 Ind. App. Unpub. LEXIS 1079, at *20 n.5 (Ind. Ct. App. Sep. 20, 2016)

(unpublished) (recognizing redundancy by using ellipses to omit redundant text).

354. IND. R. EVID. 803; IND. R. EVID. 804.

355. Compare IND. R. EVID. 803, with IND. R. EVID. 804.

356. IND. R. EVID. 803.

357. IND. R. EVID. 803(2); see Chambless v. State, 119 N.E.3d 182, 188-90 (Ind. Ct. App.),

trans. denied, 124 N.E.3d 50 (Ind. 2019); Ramsey v. State, 122 N.E.3d 1023, 1031-32 (Ind. Ct.

App.), trans. denied, 129 N.E.3d 777 (Ind. 2019); Stinson v. State, 126 N.E.3d 915, 920-21 (Ind.

Ct. App. 2019).

358. IND. R. EVID. 803(4); see Chambless, 119 N.E.3d at 190-92; Ramsey, 122 N.E.3d at 1030-

31; S.K. v. Ind. Dep’t of Child Servs. (In re Termination of the Parent-Child Relationship of S.K.),

124 N.E.3d 1225, 1231-32 (Ind. Ct. App.), trans. denied, 134 N.E.3d 1025 (Ind. 2019); Baxter v.

State, 132 N.E.3d 1, 3-4 (Ind. Ct. App. 2019); Shoda v. Indiana, 132 N.E.3d 454, 465-70 (Ind. Ct.

App. 2019).



930 INDIANA LAW REVIEW [Vol. 53:895

recollection,359 and records of regularly conducted activity.360

Subdivision (2) excepts excited utterances from exclusion.361 

An excited utterance is a statement relating to a startling event or
condition made while the declarant was under the stress of excitement
that it caused. The rationale behind admitting excited utterances is that
startling events and absence of opportunity for reflection vest the
statements with reliability and reduce the likelihood of falsification.362

“To meet the excited utterance exception, three elements must be present: (1) a
startling event or condition has occurred; (2) the declarant made a statement while
under the stress or excitement caused by the event or condition; and (3) the
statement was related to the event or condition.”363 “The heart of the inquiry is
whether the declarant was incapable of thoughtful reflection.”364 The statement
may even be in response to a question, provided it arises under circumstances that
it appears to be spontaneous and unrehearsed, “while still under the stress of
excitement from the startling event.”365

A key factor in determining admissibility is the amount of time that has
passed between the exciting event and the utterance.366 Although “[t]he event and
utterance need not be contemporaneous, [ ] lapse of time is a factor to consider
when deciding if the statement was spontaneous and unrehearsed[, and t]he
longer the time between an event and an utterance, the greater the likelihood that
the statement is a narrative of past events instead of an excited utterance.”367

Nevertheless, as the stress-causing event’s degree of severity increases, so too
does the likelihood a person was still operating under the stress or excitement
hours after the fact.368

Chambless v. State found a 911 call by a victim of domestic battery
admissible where the call was placed eighteen minutes after a fight in which the
victim had been beaten and strangled, the victim had fled an apartment in cold

359. IND. R. EVID. 803(5); Pelissier v. State, 122 N.E.3d 983, 987-88 (Ind. Ct. App.), trans.

denied, 130 N.E.3d 1146 (Ind. 2019).

360. IND. R. EVID. 803(6); Walters v. State, 120 N.E.3d 1145, 1153-56 (Ind. Ct. App. 2019);

A.S. v. Ind. Dep’t of Child Servs. (In re L.S.), 125 N.E.3d 628, 633-35 (Ind. Ct. App. 2019); J.C.

v. Ind. Dep’t of Child Servs., 134 N.E.3d 419, 428-29 (Ind. Ct. App. 2019); J.C. at 433-34 (Pyle,

J., concurring); A.B. v. Ind. Dep’t of Child Servs. (In re K.R.), 133 N.E.3d 754, 760-62 (Ind. Ct.

App. 2019).

361. IND. R. EVID. 803(2).

362. Chambless, 119 N.E.3d at 189 (citations and quotation marks omitted).

363. Ramsey, 122 N.E.3d at 1032 (citation and quotation marks omitted).

364. Chambless, 119 N.E.3d at 189 (citation and quotation marks omitted).

365. Id. (citation and quotation marks omitted).

366. Id.

367. Id. (citations omitted).

368. Id. (citing Yamobi v. State, 672 N.E.2d 1344, 1346-48 (Ind. 1996) (statement made one

hour after shooting admissible); Newbill v. State, 884 N.E.2d 383, 397 (Ind. Ct. App. 2008)

(admitting rape victim’s 911 call four hours after attack)).



2021] EVIDENCE 931

weather without time to wear a coat or winter boots, and the victim had trouble
breathing, which further illustrated her distressed state of mind, was admissible.369

Those facts “establish that [the] statements during the 911 call were unrehearsed
and made while still under the stress from the fight.”370

The excited-utterance exception also came into use in Ramsey v. State to
permit the statements of a woman who had been beaten over the course of several
days and had been held captive via threat to the lives of her children, which were
made during an interview with police, who were responding to a call after she
escaped from the defendant.371 It was sufficient foundation for admission that the
officer testified the victim “exhibited ‘behavior . . . of someone that . . . had been
through a traumatic ordeal and she was very upset and almost to [the] point of
[being] inconsolable’; [she] was ‘visibly shaken,’ ‘nervous,’ and had ‘[e]xtremely
severe’ injuries . . . all over her body” and that the victim’s contemporaneous
medical records also “describe[d] her as ‘very tearful,[’] ‘anxious,’ ‘frightened,’
requiring ‘emotional support,’ ‘tense,’ [and] ‘restless.’”372

In a third decision, the Indiana Court of Appeals again affirmed reliance on
Rule 803(2).373 There, an evening of revelry turned sour when one of four persons
celebrating the New Year brutally stabbed his friend while driving home.374 The
driver, just half a mile from home, finished driving home then ran inside.375 Once
inside, the driver told his awaiting girlfriend that “Cody . . . stabbed Mark.”376

Later, after driving the victim to a nearby mortuary, he called the girlfriend,
stating that “[t]he kid’s dying . . . in your car,” before hanging up and calling
911.377 At trial, the girlfriend testified to both statements, resulting in a hearsay
challenge.378 The appellate court found “little doubt” that the friends, “who were
celebrating New Year’s Eve together, did not expect that, at the end of the
evening, [defendant] would have stabbed his best friend.”379 As a result, “[i]t was
clearly a startling event” for the driver.380 The driver, upon realizing what had
happened, exclaimed, “Are you fucking kidding me? That’s your best friend.”381

When the driver arrived at the house, “he did not calmly get out of the car,
instead, he jumped out, leaving the car running, with its lights on, and the car
door open. . . . [He] ordered [another friend] to go into the house and call 911.”382

369. 119 N.E.3d at 189-90.

370. Id. at 190.

371. 122 N.E.3d 1023, 1026 (Ind. Ct. App.), trans. denied, 129 N.E.3d 777 (Ind. 2019).

372. Id. at 1026 (ellipses and second and third alterations in original).

373. Stinson v. State, 126 N.E.3d 915, 920-22 (Ind. Ct. App. 2019).

374. Id. at 918.

375. Id. 

376. Id. at 920 (alterations and quotation marks omitted).

377. Id. at 920-21 (alteration in original, quotation marks omitted).

378. Id.

379. Id. at 921.

380. Id.

381. Id. (quotation marks omitted).

382. Id. (quotation marks omitted).



932 INDIANA LAW REVIEW [Vol. 53:895

Indeed, he even pushed the other friend “through the door because he ‘figured
[defendant] might attack her [be]cause she was a witness.’”383 “Th[at] evidence
strongly support[ed] a finding that the[] two statements were excited
utterances.”384

Both Chambless and Ramsey also addressed a second hearsay exception:
statements made for medical diagnosis or treatment.385 Embodied in Rule 803(4),
the exception applies if “[a] statement []: (A) is made by a person seeking
medical diagnosis or treatment; (B) is made for—and is reasonably pertinent
to—medical diagnosis or treatment; and (C) describes medical history; past or
present symptoms, pain or sensations; their inception; or their general cause.”386

It “is based upon the belief that a declarant’s self-interest in seeking medical
treatment renders it unlikely that the declarant would mislead the medical
personnel person she wants to treat her.”387 “[T]he declarant must subjectively
believe that he or she was making the statement for the purpose of receiving
medical diagnosis or treatment.”388 Application turns on a two-prong inquiry:
“First, is the declarant motivated to provide truthful information in order to
promote diagnosis and treatment, and second, is the content of the statement such
that an expert in the field would reasonably rely on it in rendering diagnosis or
treatment.”389

In Ramsey, the court of appeals allowed narrative portions of medical records
to be admitted, “in which [the victim] stated that [the defendant] prevented her
from leaving [the] apartment by threatening to harm [her] children.”390 The choice
to affirm admission stemmed from the severity and duration of the victim’s
injuries.3 9 1 The severity of injuries lent credibility to the statements because they
made it more likely the victim “was motivated to provide truthful information to
her medical providers in order to promote diagnoses and treatment.”392 And the
duration of her captivity, accompanied by multiple days of beatings, meant that
her “injuries were in different stages of severity and healing,” making such
information pertinent to the establishment of “an effective discharge plan and to
prescribe an appropriate course of psychological counseling.”3 9 3 Notably, the

383. Id. at 921 n.4.

384. Id. at 921.

385. Chambless v. State, 119 N.E.3d 182, 190-92 (Ind. Ct. App.), trans. denied, 124 N.E.3d

50 (Ind. 2019); Ramsey v. State, 122 N.E.3d 1023, 1030-31 (Ind. Ct. App.), trans. denied, 129

N.E.3d 777 (Ind. 2019).

386. IND. R. EVID. 803(4).

387. Ramsey, 122 N.E.3d at 1030 (citation and quotation marks omitted).

388. Id. at 1031.

389. S.K. v. Ind. Dep’t of Child Servs. (In re Termination of the Parent-Child Relationship of

S.K.), 124 N.E.3d 1225, 1231 (Ind. Ct. App.) (citation and quotation marks omitted), trans. denied,

134 N.E.3d 1025 (Ind. 2019).

390. 122 N.E.3d 1023, 1030 (Ind. Ct. App.), trans. denied, 129 N.E.3d 777 (Ind. 2019).

391. Id. at 1031.

392. Id.

393. Id. 



2021] EVIDENCE 933

court found important one of the concerns for providing future treatment was “the
likelihood that she would renew her relationship with her abuser.”394

With Rule 803(4), certain circumstances necessitating medical intervention
have overlapped with the legal system with sufficient regularity to develop
additional standards for application. One such circumstance is medical treatment
of minors. That children often lack the full grasp of circumstances normally
obvious to an adult opens the door to questioning whether a minor “subjectively
believe[d] that he was making the statement for the purpose of receiving medical
diagnosis or treatment.”395 Outside the context of emergency treatment, an adult
will typically understand that he or she has gone to a medical provider for the
purpose of diagnosis or treatment. Young children, however, who must be
brought by a guardian, “may not understand the nature of the examination, the
function of the examiner, and may not necessarily make the necessary link
between truthful responses and accurate medical treatment.”396 To address that
problem, “there must be evidence that the declarant understood the professional’s
role in order to trigger the motivation to provide truthful information.”397 Under
that standard, the Indiana Court of Appeals ruled it was error to permit a
“therapist [to] testif[y] to her opinions concerning the children’s mental state
based on conversations she had . . . on the day [their f]ather killed their mother
and statements made during therapy” because the conversations “were not for the
purpose of therapy, but simply to help the children process their feelings and
provide them with support.”398

Another tragically common area for reliance on Rule 803(4) is for victims of
sexual assault.399 “Statements made by victims of sexual assault satisfy the second
prong of the analysis because they assist medical providers in recommending
potential treatment for sexually transmitted disease, pregnancy testing,
psychological counseling, and discharge instructions.”400 Such statements include
the identity of the attacker.401 

That is because: 

[a]ll victims of domestic sexual abuse suffer emotional and psychological
injuries, the exact nature and extent of which depend on the identity of
the abuser. The physician generally must know who the abuser was in
order to render proper treatment because the physician’s treatment will
necessarily differ when the abuser is a member of the victim’s family or

394. Id. 

395. S.K. v. Ind. Dep’t of Child Servs. (In re Termination of the Parent-Child Relationship of

S.K.), 124 N.E.3d 1225, 1231 (Ind. Ct. App.) (citation and quotation marks omitted), trans. denied,

134 N.E.3d 1025 (Ind. 2019).

396. Id. (quotation marks omitted).

397. Id. at 1231-32. (quotation marks omitted).

398. Id. at 1232.

399. Baxter v. State, 132 N.E.3d 1, 3-4 (Ind. Ct. App. 2019).

400. Id. at 4 (citation and quotation marks omitted).

401. Id. at 3-4.



934 INDIANA LAW REVIEW [Vol. 53:895

household.402

As a result, the standard in Indiana allows a “domestic sexual abuser’s identity
. . . under Rule 803(4) where the abuser has such an intimate relationship with the
victim that the abuser’s identity becomes ‘reasonably pertinent’ to the victim’s
proper treatment.”403 Moreover, when the victim is a child, the identity of the
perpetrator is “relevant and necessary in order for [the treatment provider] to
know if [it can] discharge [the child] into” the custody of another “without [the
child] being subjected to more abuse after” release.404 That additional standard led
the Indiana Court of Appeals to affirm admission of statements identifying a
young child’s abuser in Baxter v. State.405

In Chambless, a medic responded to the victim’s 911 call.406 While being
treated, the victim stated that the defendant had assaulted her, slapped her in the
face, strangled her with his hands, and that she escaped “just in time.”407 Although
“statements that identify the perpetrator . . . [are] usually not necessary to provide
effective medical care,” they may still be within the ambit of the exception
“where the identity of the perpetrator is relevant to appropriate diagnosis and
treatment.”408 The court analogized the reasoning applied in child-abuse cases,
wherein “knowledge of the perpetrator is important to the treatment of
psychological injuries that may relate to the identity of the perpetrator and to the
removal of the child from the abuser’s custody or control,” and found the same
reasoning appropriate to the victim’s statements because the defendant was her
live-in boyfriend.409 Finding the standard for domestic sexual abuse met, the court
of appeals affirmed admission of the statements.410

The sexual-abuse standard as applied to a child was the key to admitting
evidence of a six-year-old child’s statements to a nurse and a therapist in Shoda
v. State.411 As to the nurse, who the child saw shortly after revealing the
molestation, the Indiana Court of Appeals affirmed admission because the nurse
recorded her usual practices in her report, her practice was to explain the role of
the nurse and examination to the child, “[she] discussed why nurses need to know
what happened for purposes of medical treatment,” and her report indicated the
child understood her “role as a nurse and the purpose of the examination and
treatment.”412 With regard to the therapist, who the child saw on a later occasion,

402. Id. at 4 (citation and quotation marks omitted).

403. Id. (citation and quotation marks omitted).

404. Id.

405. Id. at 2, 4.

406. 119 N.E.3d 182, 186 (Ind. Ct. App.), trans. denied, 124 N.E.3d 50 (Ind. 2019).

407. Id.

408. Id. at 190-91 (citations omitted).

409. Id. at 191 (citations and quotation marks omitted).

410. Id. The court noted that the statements to the medic may also have been admissible as

excited utterances. Id. at 191 n.5.

411. 132 N.E.3d 454, 465-70 (Ind. Ct. App. 2019).

412. Id. at 468.



2021] EVIDENCE 935

the therapist explained to the child why they were meeting, “the purpose of ‘what
we do[,]’ and explained mental health to her.”413 Since the child “appeared to
understand the therapeutic purpose behind [the] interaction,” showing that she
understood her statements were for obtaining treatment, the statements fit within
the scope of Rule 803(4) and were properly admitted.414

Pelissier v. State concerned the recorded-recollection exception of Rule
803(5).41 5 That exception applies if the record: “(A) is on a matter the witness
once knew about but now cannot recall well enough to testify fully and
accurately; (B) was made or adopted by the witness when the matter was fresh in
the witness’s memory; and (C) accurately reflects the witness’s knowledge.”416

Part of the foundation for admission is “acknowledgment that the statement was
accurate when it was made,” meaning the statement should be excluded “when
the witness cannot vouch for the accuracy of the statement nor remember having
made the statement.”417 

At trial, the witness testified “he could not remember the events of the night
of the shooting or any details of the subsequent [recorded] statements he made to
police.”418 On appeal, the court briefly looked to Rule 803(5) but never reached
a conclusion on application of the exception, instead finding any error
harmless.419 Nevertheless, some guidance can be found for future application by
looking to what relevant factors the court considered when analyzing the
exception. The court found it notable that the recollection—i.e. the statements
made to police—were recorded on video, not merely written.420 Moreover, it was
of import that the witness “never indicated what he said was not true, and
‘repeatedly stated that he had already answered the questions and referred the
questioner to the video[.]’”421 Lastly, the video showed the witness “indicated he
was telling the truth” at the time of giving the recorded statement.422 It is entirely
possible that those factors, standing alone, would be enough to satisfy Rule
803(5), but Pelissier does not mandate that result.

Also garnering numerous analyses during the survey period was Rule
803(6)’s exception for records of regularly conducted activity. The exception
requires a five-part showing:

(A) the record was made at or near the time by—or from information
transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of
a business, organization, occupation, or calling, whether or not for

413. Id. at 469.

414. Id. at 469-70.

415. 122 N.E.3d 983, 987-88 (Ind. Ct. App.), trans. denied, 130 N.E.3d 1146 (Ind. 2019).

416. IND. R. EVID. 803(5).

417. Pelissier, 122 N.E.3d at 987 (citation and quotation marks omitted).

418. Id.

419. Id. at 988.

420. Id.

421. Id. (alteration in original).

422. Id.



936 INDIANA LAW REVIEW [Vol. 53:895

profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or

another qualified witness, or by a certification that complies with
Rule 902(11) or (12) [the rule on self-authentication] or with a
statute permitting certification; and

(E) neither the source of the information nor the method or
circumstances of preparation indicated a lack of trustworthiness.423

“This hearsay exception is grounded on the theory that records of regularly
conducted activity are reliable because they can be checked systematically.”424

Put another way, it “is based on the fact that the circumstances of preparation
assure the accuracy and reliability of the entries.”425

Three cases considered whether the exception applied to parental drug-test
results in actions seeking to terminate parental rights. The first of the decisions
was In re L.S., which ruled exhibits containing a mother’s drug-test results were
not within the reach of the exception because:

Although the [accompanying] affidavits state that the laboratory reports
were maintained in the normal course of business activity as business
records, what [the court] consider[s] is whether a business depends on
those records to function. [The lab] does not depend on these records to
operate or to conduct business. Rather, the drug test results were
documented for the benefit of DCS. Therefore, [the] exhibits were
inadmissible as hearsay and should not have been admitted.426

The second case, J.C. v. Indiana Department of Child Services, echoed L.S.427

But the J.C. panel did not decide whether admission was error, instead skipping
to the conclusion that even if there was error, it was harmless,428 which had also
been the conclusion of L.S.429

While J.C. did not depart from L.S., In re K.R.—from the same panel as
J.C.—rejected L.S.430 The K.R. panel found analogous a substantial number of
cases allowing blood-alcohol results as well as blood and DNA results under Rule
803(6).431 Rejecting the conclusion of L.S., K.R. held that drug-test results such

423. IND. R. EVID. 803(6).

424. A.B. v. Ind. Dep’t of Child Servs. (In re K.R.), 133 N.E.3d 754, 760 (Ind. Ct. App. 2019)

(citation omitted).

425. Id. (citation and quotation marks omitted).

426. A.S. v. Ind. Dep’t of Child Servs. (In re L.S.), 125 N.E.3d 628, 633-34 (Ind. Ct. App.

2019).

427. 134 N.E.3d 419, 422 (Ind. Ct. App. 2019).

428. Id.

429. In re L.S., 125 N.E.3d at 635-36.

430. A.B. v. Ind. Dep’t of Child Servs. (In re K.R.), 133 N.E.3d 754, 760-62 (Ind. Ct. App.

2019).

431. Id. at 761.



2021] EVIDENCE 937

as those in L.S., J.C., and K.R. are admissible, relying in part on decisions from
other states.432 With transfer having been obtained in K.R., the next survey will
address the Indiana Supreme Court’s resolution of this split in precedent.433

The business-records exception was also at issue in the context of phone
records in Walters v. State.434 The problem, there, was “the certificate offered to
authenticate the phone records . . . was issued approximately eighteen months
after the records were obtained, d[id] not contain the phone number for which the
search warrant requested records, . . . the number of pages it purports to
authenticate, and . . . the dates the records encompass.”435 Absent testimony of the
custodian or another qualified witness, the only avenue for admission was
through the certificate.436

Even if an affidavit purports to authenticate a business document, that
evidence still may be excluded if “the circumstances of the record’s
preparation indicate a lack of trustworthiness.” . . . By its tardiness and
lack of conformity with the other [phone] certification used in this trial,
this certificate lacks indicia of reliability. This certificate contains no
other identifying characteristics, aside from [the phone company]’s
internal case number. Without a timeframe reference and identification
of the records in some way separate from the [phone company’s] case
number, it is unclear what documents this certificate purports to
certify.437

Accordingly, admission of the phone records was error.438

C. Rule 804: Hearsay Exceptions for Unavailable Declarants

As with Rule 803, the exceptions under Rule 804, which permits hearsay
testimony only where the declarant is unavailable, are varied and delineated in the
rule.439 Two of the exceptions—former testimony at trial440 and statements against
interest441—drew attention during the survey.

In McWhorter v. State, the court of appeals affirmed admission of testimony
from a witness who was unavailable for the second trial after having testified at

432. Id. at 762 (citing In re S.D.J., 664 S.E.2d 818, 822 (N.C. Ct. App. 2008); J.G. v. State,

685 So.2d 1385, 1385 (Fla. Ct. App. 1997); Montoya v. Texas, 832 S.W.2d 138, 141 (Tex. App.

1992); Pennsylvania v. Kravontka, 558 A.2d 865, 871 (Pa. Super. Ct. 1989)).

433. In re K.R., 154 N.E.3d 818 (Ind. 2020) (affirming admission of the results).

434. 120 N.E.3d 1145, 1154-56 (Ind. Ct. App. 2019).

435. Id. at 1155.

436. Id.

437. Id. (citations omitted).

438. Id. 1155-56.

439. IND. R. EVID. 804(b).

440. IND. R. EVID. 804(b)(1).

441. IND. R. EVID. 804(b)(3).



938 INDIANA LAW REVIEW [Vol. 53:895

the first.442 The primary challenge was the defendant’s claim “that he lacked a
similar motive to develop [the] testimony during the first trial because his defense
was one of accident and he did not interject the issue of sudden heat.”443 One of
the two requirements for invoking Rule 804(b)(1)’s exception for former
testimony is that it “ is now offered against a party who had . . . an opportunity
and similar motive to develop it by direct, cross-, or redirect examination.”444 But
“[t]he plain language of Rule 804(b)(1) requires only that the opponent have had
a ‘similar’ motive to develop the former testimony.”445 Despite the change in
focus, at the first trial, the declarant “was the sole eyewitness testifying[, and the
defendant] was highly incentivized to highlight any problem with her perception
and recollection and to elicit from her any evidence that tended to negate or
lessen his criminal culpability.”446

The statement-against-interest exception arose in the odd posture of review
from a probation-revocation determination in Votra v. State.447 The posture is odd
because “the rules of evidence do not strictly apply in probation revocation
proceedings.”448 Nevertheless, the Indiana Court of Appeals used the structure of
Rule 804(b)(3) to guide its analysis.449 The court began by recognizing that
“corroborating evidence is not strictly required by [] Rule 804(b)(3), [but] such
corroboration can support a trial court’s determination that the hearsay testimony
was reliable.”450 In that instance, there was sufficient corroborative evidence and
experience with the underlying facts that the trial court was within its discretion
to admit the statements from the defendant’s girlfriend.451 The court did, however,
instruct that “the better practice might have been to present live testimony in
support of the documentary evidence.”452

D. Rule 805: Hearsay Within Hearsay

Merely satisfying an exception to hearsay is not always enough. “If a
statement involves hearsay within hearsay, also known as multiple hearsay or
double hearsay, the statement may [] be admitted if each layer of hearsay
qualifies under an exception to the hearsay rule.”453 But, such “statements are not

442. McWhorter v. State, 117 N.E.3d 614, 618 (Ind. Ct. App. 2018), trans. denied, 129 N.E.3d

783 (Ind. 2019), cert. denied, 140 S. Ct. 941 (2020).

443. Id.

444. Id.

445. Id.

446. Id.

447. 121 N.E.3d 1108, 1115-16 (Ind. Ct. App. 2019).

448. Id. at 1115.

449. Id.

450. Id. (quotation marks and citation omitted).

451. Id. at 1116.

452. Id.

453. Minor v. State, 36 N.E.3d 1065, 1070 (Ind. Ct. App. 2015) (citation and quotation marks

omitted; second alteration in original); see also IND. R. EVID. 805.



2021] EVIDENCE 939

admissible unless each layer of hearsay qualifies under an exception to the
hearsay rule.”4 54 In Cook v. State, once the court determined out-of-court
statements made to a detective were hearsay, the additional problem arose of
multiple hearsay.455 The proffered testimony was the quintessential daisy chain
of one person making a statement to another person, the second person relaying
that statement to a third, and then the third person to the detective.456 Because the
defendant did not establish an exception for each layer of hearsay, the trial court
properly excluded the evidence.457

VIII. AUTHENTICATION & IDENTIFICATION: RULES 901 THROUGH 903

A. Rule 901: Authenticating Evidence

To be admissible, the proponent of evidence must authenticate it by
“produc[ing] evidence sufficient to support a finding that the item is what the
proponent claims it is.”458

Absolute proof of authenticity is not required. The proponent of the
evidence needs to establish only a reasonable probability that the
document is what it is claimed to be. Once this reasonable probability is
shown, any inconclusiveness regarding the exhibit’s connection with the
events at issue goes to the exhibit’s weight, not its admissibility.
Additionally, authentication of an exhibit can be established by either
direct or circumstantial evidence.459

The past two surveys revealed courts struggling to apply authentication
requirements to modern technology.460 This survey period was no different.

In Rogers v. State, it was a matter of authenticating authorship of text
messages.461 “Rule 901(b)(1) provides that ‘evidence that satisfies the
requirement’ includes ‘[t]estimony that an item is what it is claimed to be, by a
witness with knowledge.’”462 Authenticity was adequately established by the
witness testifying she knew the defendant, that the exhibit containing the text

454. Cook v. State, 119 N.E.3d 1092, 1097 (Ind. Ct. App.), trans. denied, 124 N.E.3d 59 (Ind.

2019).

455. Id.

456. Id. at 1096.

457. Id. at 1097.

458. IND. R. EVID. 901(a).

459. Rogers v. State, 130 N.E.3d 626, 629-30 (Ind. Ct. App. 2019) (citation and quotation

marks omitted); accord Walters v. State, 120 N.E.3d 1145, 1154 (Ind. Ct. App. 2019) (“Without

being required to provide absolute proof of authenticity, the proponent must present ‘[e]vidence

that establishes a reasonable probability that the document is what it is claimed to be.’” (citation

omitted, alterations in original)).

460. 2017 Survey, supra note 85, at 1077-79; 2018 Survey, supra note 279, at 748-50.

461. Rogers, 130 N.E.3d at 629-30.

462. Id. at 630 (quoting IND. R. EVID. 901(b)(1)) (alteration in original).



940 INDIANA LAW REVIEW [Vol. 53:895

messages “accurately reflected the text messages she received,” that the defendant
was the only person saved in her phone as “Randy,” “and that if she were
receiving text messages from Randy it would be from the defendant.”463

Moreover, the content of the messages referred to the relationship between the
witness and defendant, mentioned the first name matching a person with whom
the defendant resides, “mentioned the night of the offense, included an apology,
informed [the witness] that she did not have to testify, and referenced the prospect
of jail time.”464 In light of that detail, the appellate court found no abuse of
discretion allowing use of the text messages.465

The court of appeals also advised: “Although this particular text message was
adequately authenticated by the witness’s testimony, the better practice would be
to ask further detailed questions i.e., whether the message appears to have been
altered in any way.”466

B. Rule 902(11): Self-Authentication of Certified Domestic Records

Bypassing the authentication procedures of Rule 901, Rule 902 designates
twelve types of evidence that are self-authenticating.467 Walters v. State addressed
one of the categories in assessing whether phone records were sufficiently
authenticated.468 The state attempted to show authentication through Rule
902(11), which deems business records admissible through Rule 803(6) as self-
authenticating when “they are accompanied by ‘a certification under oath of the
custodian.’”469 The Indiana Court of Appeals, however, rejected that basis,
finding: 

the certificate offered to authenticate the phone records . . . was issued
approximately eighteen months after the records were obtained, does not
contain the phone number for which the search warrant requested
records, does not contain the number of pages it purports to authenticate,
and does not contain the dates the records encompass.470

An affidavit certifying the authenticity of business documents “may be excluded
if ‘the circumstances of the record’s preparation indicate a lack of

463. Id.

464. Id.

465. Id. The key argument to the contrary by the defendant was “that the information in the

text messages that things ‘got out of control that night’ could have come from anyone cursorily

familiar with him and the events that transpired on the night the incident took place” and that the

messages referred to knowing each other for fifteen years despite the witness testifying at trial that

they “had known each other for ten to eleven years.” Id. at 629.

466. Id. at 630 n.1.

467. IND. R. EVID. 902.

468. 120 N.E.3d 1145, 1154-56 (Ind. Ct. App. 2019).

469. Id. at 1154-55 (quoting IND. R. EVID. 902(11)) (alteration in original).

470. Id. at 1155.



2021] EVIDENCE 941

trustworthiness.’”471 As to these deficiencies, the court instructed:

Although a valid certificate of authenticity may not need everything
[defendant] complains this certificate is lacking, it does require some
level of trustworthiness. By its tardiness and lack of conformity with the
other [phone company] certification used in this trial, this certificate
lacks indicia of reliability. This certificate contains no other identifying
characteristics, aside from [the company]’s internal case number.
Without a timeframe reference and identification of the records in some
way separate from the [company’s] case number, it is unclear what
documents this certificate purports to certify.472

With authentication lacking, the trial court abused its discretion in admitting the
phone records.473

IX. CONTENTS OF WRITINGS & RECORDINGS: RULES 1001 THROUGH 1008

Drawing its name from the 1700 decision Ford v. Hopkins,474 the so-called
“best evidence rule” has long been a misnomer for what is more accurately
referred to as the “original document rule.”475 What remained of the common-law
rule, after nearly three centuries of refinement, was “formalized through the
modern Rules of Evidence employed by both state and federal courts,” stretching
from Rule 1001 to Rule 1008.476 Several of the rules embodying the original-
document rule were examined by the Indiana Court of Appeals in Zartman v.
Zartman.477

Former Chief Justice, now-Senior Judge Randall Shepard authored the
unanimous opinion of the appellate panel, necessitating a trek through caselaw
and treatises to suss out the intricacies of the rule.478 The controversy followed the
generational transfer of properties from parents to children by way of revocable

471. Id. at 1155 (quoting Speybroeck v. State, 875 N.E.2d 813, 819 (Ind. Ct. App. 2007)).

472. Id. at 1155 (citation omitted).

473. Id. at 1156.

474. 1 Salk. 283, 91 Eng. Rep. 250 (1700); see also CLEARY, supra note 250, at § 229

(attributing origin of name to Ford v. Hopkins); Dale A. Nance, The Best Evidence Principle, 73

IOWA L. REV. 227, 234 n.33 (1988) (same).

475. Guillermety v. Sec’y of Educ. of the United States & Sec’y of Treasury of the United

States, 341 F. Supp. 2d 682, 689 n.5 (E.D. Mich. 2003); J. ALEXANDER TANFORD & RICHARD M.

QUINLAN, INDIANA TRIAL EVIDENCE MANUAL § 5.1(2d ed. 1987) (“There is no such thing as a

general ‘best evidence rule’ . . . . There is a rule requiring a party to either produce or account for

the original document . . . .” (emphasis in original); CLEARY, supra note 250, at § 229 (“The only

actual rule that the ‘best evidence’ phrase denotes today is the rule requiring the production of the

original writing.”).

476. Zartman v. Zartman, 127 N.E.3d 242, 243 (Ind. Ct. App.), trans. denied, 134 N.E.3d 1026

(Ind. 2019).

477. Id.

478. Id. at 244.



942 INDIANA LAW REVIEW [Vol. 53:895

trusts.479 Key to the resolution of the dispute amongst siblings was the documents
forming the mother’s trust.480 “Because the parties have only the first and last
pages of [the] original trust document, they turned to the series of rules about
‘best evidence’ to prove the content of the trust and the amendment.”481

Indiana Evidence Rule 1002 provides that an original writing is required
in order to prove its content unless the rules of evidence or a statute
provide otherwise. In the absence of an original, Rule 1004 states that
other evidence of the content of a writing is admissible if all originals are
lost or destroyed, and the loss or destruction was not caused by the
proponent acting in bad faith. Evidence Rule 1007 allows proof of the
content of a writing by the testimony, deposition, or written statement of
the party against whom the evidence is offered. Finally, Rule 1008
provides:

Ordinarily, the court determines whether the proponent has fulfilled
the factual conditions for admitting other evidence of the content of
a writing, recording, or photograph under Rule 1004 or 1005. But in
a jury trial, the jury determines in accordance with Rule 104(b) any
issue about whether:

(a) an asserted writing, recording, or photograph ever existed;
(b) another one produced at the trial or hearing is the original; or
(c) other evidence of content accurately reflects the content.482

There was no dispute that Rule 1004 was satisfied as the original trust
documents were unavailable, lost, or destroyed.483 Accordingly, two of the
siblings sought to establish the content of the trust by way of summary
judgment.484 The undisputed evidence submitted at summary judgment indicated
that the mother’s trust documents had not been seen in full since 2009, that the
father’s trust documents were still existent and submitted in support of the
motion, and that the mother’s trust was identical to the trust of the father “with
the exception of the substitution of names, gender pronouns, and the like where
appropriate.”485

Summary judgment was denied, however, because the trial judge interpreted
Rule 1008 as necessitating that the jury, not the court, determine the content of
the missing writing.486 The court of appeals disagreed, recognizing that “it would

479. Id.

480. Id.

481. Id. at 245.

482. Id.

483. Id.

484. Id.

485. Id.

486. Id. at 246 (“Based upon what the parties have reported to the Court, it appears that the

requirements of IRE 1004(a) and (b) are satisfied with respect to the documents associated with the



2021] EVIDENCE 943

be illogical to read Rule 1008 as requiring a trial judge to disregard completely
the undisputed designated evidence as to the content of a lost writing” and that
“the more pragmatic reading of the rule is that it requires evidentiary disputes
about the content of a lost writing be determined by a jury only during a jury
trial.”487 Accompanying pragmatism was a decision interpreting the identical
Federal Rule of Evidence 1008 entrusting the decision to the trier of fact, which
is the court at summary judgment.488 Finding no genuine dispute of material fact
in the content of the mother’s trust documents, the court of appeals held that
summary judgment should have been granted and ordered the case reversed and
remanded.489

X. COMMON LAW RULES: CORPUS DELICTI, RES IPSA LOQUITUR, PAROL
EVIDENCE & SPOLIATION

Although the Indiana Rules of Evidence largely supplanted common-law
evidentiary practice, “[i]f the[] rules do not cover a specific evidence issue,
common or statutory law shall apply.”490 Numerous common-law evidentiary
issues were addressed during the survey period.

A. Corpus Delicti Rule

A confession to guilt made outside the confines of a court, standing alone, is
an insufficient basis for a criminal conviction in Indiana.491 Embodied in the
corpus delicti rule, the rationale for exclusion “is to prevent . . . confession to a
crime which never occurred.”492 That is not to say confessions are inadmissible.
Instead, “admission . . . requires some independent evidence of commission of the
crime charged. The independent evidence need not prove that a crime was
committed beyond a reasonable doubt, but merely provide an inference that the
crime charged was committed.”493 Circumstantial evidence of guilt is sufficient
to make a confession admissible.494

establishment and/or operation of the Marilyn M. Zartman Revocable Trust. The Plaintiffs may

seek to prove the content of such writings through the application of IRE 1007. However, IRE

1008(c) provides that the jury is to determine in accordance with IRE 104(b) any issue about

whether evidence of the content of such writings accurately reflects the content.” (emphasis in

original)).

487. Id. (emphasis in original).

488. Id. at 247 (citing Coltec Indus. v. Zurich Ins. Co., No. 99 C 1087, 2002 U.S. Dist. LEXIS

18979 (N.D. Ill. Sept. 30, 2002)).

489. Id.

490. IND. EVID. R. 101(b).

491. Roach v. State, 119 N.E.3d 170, 172 (Ind. Ct. App.), trans. denied, 127 N.E.3d 222 (Ind.

2019); Gibson v. State, 111 N.E.3d 247, 253 (Ind. Ct. App. 2018), trans. denied, 120 N.E.3d 559

(Ind. 2019).

492. Gibson, 111 N.E.3d at 253 (citation and formatting omitted).

493. Id. (citation and formatting omitted); see also Roach, 119 N.E.3d at 172.

494. Gibson, 111 N.E.3d at 253; Roach, 119 N.E.3d at 172.



944 INDIANA LAW REVIEW [Vol. 53:895

In two reported decisions, the Indiana Court of Appeals denied challenges to
convictions based upon admission of confessions.495 Gibson v. State stemmed
from a conspiracy to commit robbery.496 The defendant argued that his
inculpatory statements presented the sole evidence to establish the conspiracy.497

The argument was unsuccessful because a witness testified she saw the defendant
commit the robbery with another person, and such evidence of working together
to commit a robbery was sufficient “circumstantial evidence to support a
reasonable inference that they had made a plan before they arrived to commit the
robbery.”498

In Roach v. State, the defendant was convicted for abuse of a corpse and for
criminal confinement.499 On appeal, the defendant contested only his conviction
for abuse of a corpse.500 “[W]here a defendant confesses to several crimes of
varying severity within a single episode, strict and separate application of the
corpus delicti rule to each offense adds little to the ultimate reliability of the
confession once independent evidence of the principal crime is introduced.”501 So
long as there is “independent evidence of the principal offense,” the confession
alone may suffice to convict “the other crimes in the same episode.”502 The
presence of the defendant’s DNA “on duct tape and on a cigarette butt collected
from the abandoned attic room where [the victim]’s mummified body was
discovered” was sufficient independent evidence to permit presentation of the
confession to the jury and to sustain the verdict.503

B. Res Ipsa Loquitur

Often overlooked when considering evidentiary procedures is the doctrine of
res ipsa loquitor. “Res ipsa loquitur literally means ‘the thing speaks for
itself.’”504 It “is a rule of evidence that permits an assumption that in some
situations an occurrence is so unusual that, absent a reasonable justification or
explanation, the person in control of the situation should be held responsible.”505

“The doctrine operates on the premise that negligence, like any other fact or

495. Gibson, 111 N.E.3d at 253-54; Roach, 119 N.E.3d at 172-73.

496. 111 N.E.3d at 253-54.

497. Id. at 254.

498. Id.

499. 119 N.E.3d at 171.

500. Id. at 172.

501. Id. (citation and formatting omitted).

502. Id.

503. Id. at 172-73.

504. Till v. Dolgencorp, LLC, No. 1:18-cv-00127-TWP-DLP, 2019 U.S. Dist. LEXIS 117715,

at *10 (S.D. Ind. July 16, 2019) (quoting Gold v. Ishak, 720 N.E.2d 1175, 1180 (Ind. Ct. App.

1999)) (further quotation marks omitted), aff’d, 801 F. App’x 428 (7th Cir. 2020).

505. Golden Corral Corp. v. Lenart, 127 N.E.3d 1205, 1218-19 (Ind. Ct. App.) (citation and

quotation marks omitted), trans. denied, 138 N.E.3d 948 (Ind. 2019).



2021] EVIDENCE 945

condition, may be proved by circumstantial evidence.”506 “Nevertheless, the
doctrine of res ipsa loquitur is a limited exception to the general rule that the
mere fact of injury will not create an inference of negligence.”5 07 In order to
invoke the doctrine, a plaintiff must satisfy a two-part test showing: “1) the
injuring instrumentality is . . . under the management or exclusive control of the
defendant or his servants, and 2) the accident is such as in the ordinary course of
things does not happen if those who have management of the injuring
instrumentality use proper care.”508

One of the most common contexts for invoking the doctrine is in pursuing
claims for medical malpractice.509 The reason for its use in that setting is because
“[u]nless satisfied by the rule of res ipsa loquitur, a medical malpractice plaintiff
is ordinarily required to present expert opinion that a defendant health care
provider’s conduct fell below the applicable standard of care.”510 As a result,
whenever possible, plaintiffs in such actions seek to alleviate the need for expert
testimony and have a finding under the doctrine. That does not mean, however,
the doctrine is easily applied to medical malpractice claims. “In the medical
malpractice context, application of this exception is limited to situations in which
the defendant’s conduct is so obviously substandard that a jury need not possess
medical expertise in order to recognize the defendant’s breach of the applicable
standard of care.”511 “Cases that do not require expert testimony generally involve
the physician’s failure to remove surgical implements or foreign objects from the
patient’s body,”512 such as leaving mesh in a patient’s abdomen,513 a “patient’s
oxygen mask catching fire during surgery,”514 or a “wire left in [a patient’s] breast
following biopsy.”515 Two cases from the survey period exemplify the difficulty
of invoking the doctrine in that setting.

In St. Mary’s Ohio Valley Heart Care, LLC v. Smith, the court of appeals
found the doctrine inappropriate to assess the decision to perform a lobectomy

506. Bell v. Wal-Mart Stores E. LP, No. 3:17-cv-705 JD, 2019 U.S. Dist. LEXIS 41382, at *5

(N.D. Ind. Mar. 14, 2019) (quoting Rector v. Oliver, 809 N.E.2d 887, 889 (Ind. Ct. App. 2004))

(quotation marks omitted).

507. St. Mary’s Ohio Valley Heart Care, LLC v. Smith, 112 N.E.3d 1144, 1150 (Ind. Ct. App.

2018), trans. denied, 121 N.E.3d 127 (Ind. 2019).

508. Golden Corral, 127 N.E.3d at 1219 (internal citation and formatting omitted).

509. See e.g., St. Mary’s, 112 N.E.3d at 1150-51; Gearnhardt v. United States, No. 2:17-cv-

00186-JRS-DLP, 2018 U.S. Dist. LEXIS 192822, at *17-18 (S.D. Ind. Nov. 13, 2018).

510. Overshiner v. Hendricks Reg’l Health, 119 N.E.3d 1124, 1132 (Ind. Ct. App.), trans.

denied, 132 N.E.3d 379 (Ind. 2019).

511. St. Mary’s, 112 N.E.3d at 1150 (citation and quotation marks omitted).

512. Gearnhardt, 2018 U.S. Dist. LEXIS 192822, at *17 (quoting Simms v. Schweikher, 651

N.E.2d 348, 350 (Ind. Ct. App. 1995)).

513. Id. (citing Ciesiolka v. Selby, 261 N.E.2d 95 (Ind. Ct. App. 1970)).

514. Till v. Dolgencorp, LLC, No. 1:18-cv-00127-TWP-DLP, 2019 U.S. Dist. LEXIS 117715,

at *13 (S.D. Ind. July 16, 2019) (citing Cleary v. Manning, 884 N.E.2d 335, 339 (Ind. Ct. App.

2008)), aff’d, 2020 U.S. App. LEXIS 3799 (7th Cir. 2020).

515. Id. (citing Wright v. Carter, 622 N.E.2d 170, 171-72 (Ind. 1993)).



946 INDIANA LAW REVIEW [Vol. 53:895

because the decision “was informed by [the doctor’s] review of [the patient]’s
medical and social history, as well as [another doctor]’s intraoperative pathology
consultation.”516 The court viewed the issue as akin to Narducci v. Tedrow, which
found the doctrine inappropriate to assess injury and removal of a spleen during
colon surgery.517 The evaluation necessary to find negligence was beyond that of
lay jurors and required “[a]n evaluation of [the doctor]’s conduct and the medical
reasons for proceeding with the lobectomy in light of [patient]’s entire clinical
picture,” necessitating expert testimony.518

The same result was reached by Judges James Sweeney II on behalf of the
United States District Court for the Southern District of Indiana in an action
based on the use of surgical staples.519 Despite the plaintiff’s attempt to invoke the
foreign-object line of cases, the court reasoned that “staples are not accidentally
left in a patient after surgery. They are purposely placed to promote healing.”520

Because the staples were placed intentionally and “left in beyond the expected
removal date . . . [due to] a medical decision,” the question of whether the
decisions were negligent required expert testimony to assess.521

Medical-malpractice cases were not alone in addressing the doctrine during
the survey period. Jones v. Hoosier Energy Rural Electric Cooperative, Inc.
rejected application by the estate of a worker who, while working alone, died
after apparently falling into a canal.522 The court found the doctrine inapplicable
because neither exclusivity of control nor irregularity of occurrence was shown.523

Not only did the defendant lack control over the relevant bridge, but “[f]alling
and injuring one’s self proves nothing. Such happenings are commonplace
wherever humans go.”524

Similarly, Till v. Dolgencorp, LLC saw invocation of the doctrine unable to
prevent summary judgment.525 There, a delivery driver was injured when an
improperly loaded cart, called roll-tainers, trapped and severely injured his arm.526

The injured driver argued the defendant “managed and had exclusive control over
the instrumentality that caused the injury—the roll-tainer and the area through
which he was instructed to push it. [Defendant] packed the roll-tainers, inspected

516. 112 N.E.3d at 1150-51.

517. Id. at 1150 (citing Narducci v. Tedrow, 736 N.E.2d 1288, 1292 (Ind. Ct. App. 2000)).

518. Id. at 1151.

519. Gearnhardt v. United States, No. 2:17-cv-00186-JRS-DLP, 2018 U.S. Dist. LEXIS

192822, at *17-18 (S.D. Ind. Nov. 13, 2018).

520. Id.

521. Id.

522. No. 2:18-cv-00443-JRS-DLP, 2019 U.S. Dist. LEXIS 125410, at *7-10 (S.D. Ind. July

29, 2019).

523. Id. at *9.

524. Id. at *9-10 (quoting Ogden Estate v. Decatur Cty. Hosp., 509 N.E. 2d 901, 903 (Ind. Ct.

App. 1987)) (alteration in original) (quotation marks omitted).

525. No. 1:18-cv-00127-TWP-DLP, 2019 U.S. Dist. LEXIS 117715, at *10-16 (S.D. Ind. July

16, 2019).

526. Id. at *2-6.



2021] EVIDENCE 947

the roll-tainers, loaded the roll-tainers onto the trailer, and sealed the roll-tainers
in the trailer.”527 Judge Tanya Pratt, writing for the United States District Court
for the Southern District of Indiana, disagreed, reasoning that even though the
defendant had packed and loaded the roll-tainers, at the time of the driver’s
injury, the defendant had relinquished control to the driver who “maintained
control over the roll-tainers until they were placed inside the [defendant’s]
store.”528 Because, “at most, [defendant] shared control with” the driver, the
doctrine “cannot be applied.”529

But not all invocations of the doctrine were unsuccessful. Summary judgment
was avoided in Bell v. Wal-Mart Stores East LP through an expansive
interpretation of exclusive control.530 The case stemmed from injuries to a store
patron suffered when an endcap fell on her—the parties disputed whether the
patron had run into the endcap with a motorized scooter.531 In addressing
exclusivity of control, the court found:

“The element of ‘exclusive control’ is an expansive concept which
focuses upon who has the right or power of control and the opportunity
to exercise it, rather than actual physical control. “Exclusive control is
satisfied if the defendant had control at the time of the alleged
negligence.” “[P]roof in a res ipsa loquitur case seldom points to a single
specific act or omission; typically, it points to several alternative
explanations involving negligence without indicating which of them is
more probable than the other.” Because of this, [plaintiff] need not
“eliminate with certainty all other possible causes and inferences[.]”532

The court rejected defendants’ contention “that they could not have had
exclusive control over the endcap because ‘[i]t is common knowledge that
customers will peruse the racks and shelves of retail stores like Walmart while
shopping, and in doing so may move merchandise around the store.’”533 That
contention missed the mark because it focused on control over merchandise, not
shelving.534 In the absence of evidence that plaintiff “or any third parties touched
the endcap prior to the accident,” an issue of material fact remained as to
exclusive control.535 

527. Id. at *11.

528. Id. at *15-16.

529. Id. at *16.

530. No. 3:17-cv-705 JD, 2019 U.S. Dist. LEXIS 41382, at *5-12 (N.D. Ind. Mar. 14, 2019).

531. Id. at *3-4.

532. Id. at *5-6 (quotations in original, citations omitted, first and third alteration in original).

533. Id. at *6 (citations to record omitted, emphasis in original).

534. Id. at *6-7. Notably, even had the issue been one of merchandise, there is authority

indicating the absence of “‘a hard-and-fast rule that retail stores do not have exclusive control over

merchandise on their shelves.’” Id. at *7 (quoting Assenato v. Target Corp., No. 11 C 6846, 2012

U.S. Dist. LEXIS 8014, at *7 (N.D. Ill. Jan. 24, 2012)).

535. Id. at *8 (citing Norris v. Ross Stores, Inc., 859 A.2d 266, 269 & 272 (Md. Ct. Spec. App.

2004)). 



948 INDIANA LAW REVIEW [Vol. 53:895

The court also found a question of fact, necessitating trial, as to the second
element of res ipsa loquitor, “that ‘the accident is of the type that does not
ordinarily happen if those who have the management and control exercise proper
care.’”536 This element was more easily resolved by the court because Indiana law
already recognized, “as a matter of common sense and experience, display racks
do not ordinarily fall for no apparent reason on customers in stores.”537 The
question of whether a collision by the plaintiff’s scooter was the actual cause,
thereby defeating the second element, remained a question for the jury.538

Exposure to food poisoning also proved a viable instance for reliance on the
doctrine.539 Addressing whether an instruction on the doctrine was properly given
to a jury, the Indiana Court of Appeals observed “that the quantum of evidence
necessary for the giving of an instruction ‘is deliberately set at a relatively low
level in order to assure the right of parties to have the trier of fact determine
factual disputes thus preserving the constitutional rights to a trial by jury.’”540

Importantly, the plaintiff need not “exclude every other possibility other than the
defendant’s negligence as a cause for the plaintiff’s injury.”541 Instead, plaintiffs
need only “‘show that the event or occurrence was more probably the result of
negligence by relying upon common sense and experience or by expert
testimony.’”542 Having shown that the plaintiff had no history of abdominal
problems, was fine before eating at the defendant restaurant, became violently ill
within two hours of consuming food from the restaurant—which correlates with
plausible foodborne pathogens—and that other pieces of chicken at the restaurant
were undercooked, there was sufficient basis to invoke res ipsa loquitor.543

C. Parol & Extrinsic Evidence Rule544

In general, where . . . the parties to an agreement have reduced the

536. Id. at *12 (quoting K-Mart Corp. v. Gipson, 563 N.E.2d 667, 669 (Ind. Ct. App. 1990)).

537. Id. at *12 (quoting Gipson, 563 N.E.2d at 670) (quotation marks omitted).

538. Id. at *12-13.

539. Golden Corral Corp. v. Lenart, 127 N.E.3d 1205, 1219-20 (Ind. Ct. App.), trans. denied,

138 N.E.3d 948 (Ind. 2019).

540. Id. at 1219 (quoting Shull v. B.F. Goodrich Co., 477 N.E.2d 924, 927-28 (Ind. Ct. App.

1985)).

541. Id.

542. Id. (quoting Gold v. Ishak, 720 N.E.2d 1175, 1181 (Ind. Ct. App. 1999)).

543. Id. at 1219-20.

544. 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 (Ind. Ct. App. 1973) (referring to the rules as a single “parol and extrinsic evidence rule”).



2021] EVIDENCE 949

agreement to a written document and have included an integration clause
that the written document embodies the complete agreement between the
parties, the parol evidence rule prohibits courts from considering parol
or extrinsic evidence for the purpose of varying or adding to the terms of
the written contract.545

That is because “[t]he goal of contract interpretation under Indiana law is to
determine the parties’ intent,” which requires unambiguous contracts “be given
[their] plain and ordinary meaning[s]” and permits extrinsic evidence only where
the contract is ambiguous and requiring further insight “to determine the parties’
intent.”546 Despite the nomenclature of an evidentiary rule, “[t]he parol evidence
rule is a rule of substantive law rather than a rule of evidence.”547 This survey
covers the issue because it is a matter taken up by other scholarship on
evidentiary procedures and acts to control relevancy in contract interpretation
under Rule 401.548

Several cases provided the following guidance on the parol evidence rule:
The rule does not apply to agreements after the execution of a contract, rather, it
only applies to “antecedent understandings and negotiations”;549 under the
Uniform Commercial Code, the parol evidence rule does not apply absent a final
written expression or agreement;550 an email showing an abbreviated deadline to
execute a settlement agreement directly contradicting a provision of the
agreement setting a “reasonable period of time” for execution was barred by the
rule;551 a list containing a wife’s premarital property at the time of a premarital
agreement should have been permitted as it did not “contradict[] the terms of the
agreement, but merely would have provided specific determination of Wife’s
premarital property at the time the Agreement was executed”;552 and parol
evidence may be admitted to show a written agreement is void or fraudulently

545. Downs v. Radentz, 132 N.E.3d 58, 63-64 (Ind. Ct. App. 2019).

546. Div. Six Sports, Inc. v. Finish Line, Inc., 928 F.3d 631, 635 (7th Cir. 2019) (citations and

quotation marks omitted).

547. 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). It is a codified rule under

the Uniform Commercial Code. See IND. CODE § 26-1-2-202 (2020).

548. 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.”).

549. R3 Composites Corp. v. G&S Sales Corp., No. 1:16-cv-387-HAB, 2019 U.S. Dist. LEXIS

96579, at *9 (N.D. Ind. June 5, 2019) (quoting Dicen v. New Sesco, Inc., 839 N.E.2d 684, 688 (Ind.

2005)) (quotation marks omitted).

550. Mid-American Salt, LLC v. Bob & Dave’s Lawn & Landscape Maint., Inc., No. 1:16-cv-

285-HAB, 2019 U.S. Dist. LEXIS 157284, at *12 (N.D. Ind. Sep. 16, 2019).

551. Downs v. Radentz, 132 N.E.3d 58, 64-65 (Ind. Ct. App. 2019).

552. Perrill v. Perrill, 126 N.E.3d 834, 844 (Ind. Ct. App.), trans. denied, 137 N.E.3d 917 (Ind.

2019).



950 INDIANA LAW REVIEW [Vol. 53:895

created, meaning that an integration clause does not preclude introduction of
“parol evidence to a fact finder [to show a party was] fraudulently induced to
execute” agreements, “and, as such, that those agreements do not in fact represent
the parties’ intended agreements.”553

D. Spoliation

Although not embodied in the Indiana Rules of Evidence, the common-law
doctrine of spoliation is an important tool in presentation of evidence at trial. “In
Indiana, the exclusive possession of facts or evidence by a party, coupled with the
suppression of the facts or evidence by that party, may result in an inference that
the production of the evidence would be against the interest of the party which
suppresses it.”554 If spoliation is established, the inference may take the form of
an instruction to the jury that the evidence would have been unfavorable to the
party responsible for spoliation.555

Although the rule against spoliation has most often been applied to parties
who suppress evidence in their possession at the time suit is initiated, “[t]he duty
to preserve evidence occurs when a first-party claimant knew, or at the very least,
should have known, that litigation was possible, if not probable.”556 That means
spoliation may be found for pre-suit conduct if “the party knew or should have
known [a lawsuit] was imminent.”557

The pre-suit duty of preservation resulted in a spoliation instruction in Golden
Coral Corp. v. Lenart.558 A severe incident of food poisoning from a buffet was
the catalyst for the litigation.559 Following a verdict in favor of the plaintiff, in
which a spoliation instruction was presented to the jury, the court of appeals
found the instruction was appropriately given.560 The restaurant had a policy of
checking and recording “the temperature of [the] food on the buffet” to be kept
in logs, preserved for ninety days.561 The logs were not preserved beyond the
ninety-day window despite the restaurant knowing of the plaintiff’s illness and
having been contacted by her attorney within the ninety-day period.562 That was

553. Jones v. Oakland City Univ. Founded by Gen. Baptists, Inc., 122 N.E.3d 911, 921 (Ind.

Ct. App.), trans. denied, 134 N.E.3d 1013 (Ind. 2019).

554. Golden Corral Corp. v. Lenart, 127 N.E.3d 1205, 1217 (Ind. Ct. App.) (citation and

quotation marks omitted), trans. denied, 138 N.E.3d 948 (Ind. 2019).

555. See, e.g., id. at 1217-18; see also IND. MODEL CIVIL JURY INSTRUCTION 535 (2019).

556. Golden Corral, 127 N.E.3d at 1217 (citation and quotation marks omitted). Remedies

also exist for third-party spoliation claims. N. Ind. Pub. Serv. Co. v. Aqua Envtl. Container Corp.,

102 N.E.3d 290, 301 n.8 (Ind. Ct. App. 2018).

557. Id. at 1218 (citation and quotation marks omitted).

558. Id. at 1217-18.

559. Id. at 1210-13.

560. Id. at 1218.

561. Id. at 1212.

562. Id. at 1218.



2021] EVIDENCE 951

enough to justify issuance of the instruction as to the temperature logs.563 The
court, however, did find error in issuing the jury instruction to cover a specific
piece of food that was presented by the plaintiff to an employee of the restaurant
to show that the food appeared undercooked.564 But that error was deemed
harmless.565

Further advancing spoliation jurisprudence was a decision from Chief Judge
Jane Magnus-Stinson on behalf of the United States District Court for the
Southern District of Indiana.5 6 6 The evidence in that instance was a coupling that
may have played a role in the malfunction of a fire-suppression sprinkler resulting
in damage to warehouse inventory.567 The coupling was lost or misplaced while
in the defendant’s possession prior to trial.568 Based upon the recognition by the
defendant’s principal that the coupling was important to preserve, the duty to
preserve was triggered.569 The court further concluded that the storage of the
component and its ultimate loss was the product of the defendant’s negligence,
thereby leading to a finding of spoliation.570 Still, the court did not find the
imposition of an adverse inference warranted.571 Instead, because photographs of
the coupling remained, the court was satisfied to prohibit a witness for the
defendant from testifying to information garnered from his actual interaction with
the coupling, opting to confine his testimony to only what he could ascertain from
the photographs.572

XI. STATUTORY EVIDENTIARY PROCEDURES

Where the Indiana Rules of Evidence “do not cover a specific evidence issue,
common or statutory law shall apply.”573 Two such evidentiary procedures
established under statute are the Protected Person Statute574 and the Child’s
Hearsay Statute,575 both of which gained further insight through appellate
decisions, over the course of the survey period.

563. Id.

564. Id.

565. Id.

566. Charter Oak Fire Ins. Co. v. FSSI, Inc., No. 1:17-cv-03451-JMS-MPB, 2019 U.S. Dist.

LEXIS 122892 (S.D. Ind. July 24, 2019). Because the matter presented pursuant to the federal

court’s diversity jurisdiction, Indiana law on spoliation governed. Id. at *11.

567. Id. at *2-3.

568. Id. at *5-7.

569. Id. at *13-14.

570. Id. at *14-15.

571. Id. at *15-16.

572. Id.

573. IND. EVID. R. 101(b).

574. IND. CODE § 35-37-4-6 (2019).

575. IND. CODE § 31-34-13-3 (2019).



952 INDIANA LAW REVIEW [Vol. 53:895

A. Testimony Under Indiana’s Protected Person Statute

“Indiana Code section 35-37-4-6, known as the ‘protected person statute,’
provides a list of certain conditions under which evidence that would otherwise
be inadmissible will be allowed in cases involving certain crimes against
‘protected persons.’”576 A statement or recording of a protected person’s
testimony may be admissible in evidence if, inter alia, the person testifies at trial
or is determined to be unavailable.577 One basis for unavailability is met when
“the testimony of a psychiatrist, physician, or psychologist, and other evidence,
if any, [shows] that the protected person’s testifying in the physical presence of
the defendant will cause the protected person to suffer serious emotional distress
such that the protected person cannot reasonably communicate.”578 The court of
appeals rejected a challenge to admissibility raised on the assertion that the
testimony came from a person who was not a licensed psychologist and the
licensed psychologist who testified did not personally interview the protected
person.579 The court’s rationale was that “[m]edical professionals, like
professionals in many areas, utilize subordinates, and when a medical
professional signs off on a subordinate’s work product, it becomes the medical
professional’s work product.”580 Thus, because “a licensed psychologist adopted
and ratified the work of her subordinate and made it her own,” indicating the
protected person would be emotionally distressed by testifying in person, the
statute was properly utilized by the trial court.581

Another requirement for utilizing the Protected Person Statute is that the
witness be available for cross-examination either at the time the video is made or
at a protected-person hearing.582 Where a protected person is subject to cross-
examination at a protected-person hearing, a defendant is not deprived of his or
her constitutional right to confrontation merely because the protected person may
not have understood, and been responsive to, some of the questions asked on
cross-examination.583

B. Child’s Hearsay Statements in CHINS Proceedings

A child in need of services (“CHINS”) proceeding provides additional
allowances for hearsay due to the need to facilitate the testimony of children.
“Indiana Code Section 31-34-13-2 provides that a statement or videotape made
by a child under age fourteen is admissible as evidence in a CHINS proceeding
if certain requirements are met.”584 Those requirements are provided by “Indiana

576. Shoda v. Indiana, 132 N.E.3d 454, 462 (Ind. Ct. App. 2019) (citations omitted).

577. IND. CODE § 35-37-4-6(e)(2) (2019).

578. IND. CODE § 35-37-4-6(e)(2)(B)(i) (2019).

579. Vega v. State, 119 N.E.3d 193, 200 (Ind. Ct. App. 2019).

580. Id.

581. Id.

582. IND. CODE § 35-37-4-6(f) (2019).

583. Shoda v. Indiana, 132 N.E.3d 454, 462-65 (Ind. Ct. App. 2019).

584. A.M. v. Ind. Dep’t of Child Servs., 121 N.E.3d 556, 560 (Ind. Ct. App.), trans. denied,



2021] EVIDENCE 953

Code Section 31-34-13-3, known as the Child Hearsay statute.”585 In A.M. v.
Indiana Department of Child Services, the parents argued that their child’s
hearsay statements were not reliable and lacked specificity, and were, therefore,
inadmissible.586 The court rejected the fact-based challenges because there was
nothing atypical to the child’s interview: the child “could identify body parts that
[the f]ather had allegedly touched,” the child agreed with the interviewer that she
would “only talk about things that really happened,” and the child’s “statements
were consistent throughout the interview, though not particularly detailed, which
is typical for a child her age.”587

XII. ADDITIONAL EVIDENTIARY INSIGHTS

A. Preinjury Nonuse of Safety Equipment Irrelevant to Causation

When a person suffers an injury at the hands of another, it may often be said
that the person’s injuries may have been lessened by pre-injury use of safety
equipment. The problem with such arguments, however, is that a diminution in
the severity of harm is a question of mitigation,588 and “the question of whether
mitigation of damages has occurred looks to the acts of the injured party only
after the injury has occurred.”589 It is that logic which has long led Indiana to
exclude from evidence acts such as a person’s nonuse of a seatbelt prior to a
motor-vehicle collision.590

Before the Seventh Circuit was the question of whether nonuse of other safety
equipment—specifically a hardhat—should also be excluded under Indiana
law.591 The primary plaintiff592 suffered traumatic brain injury after being struck
by a falling branch while assisting in removal of dead trees on the defendant’s
property.593 At trial, the plaintiffs moved to exclude all testimony regarding the
primary plaintiff’s nonuse of a hardhat.594 Finding the evidence admissible, the
district court denied the motion and instructed the jury that “[e]vidence relating

129 N.E.3d 775 (Ind. 2019).

585. Id.

586. Id.

587. Id. at 560-61.

588. Kocher v. Getz, 824 N.E.2d 671, 674 (Ind. 2005).

589. State v. Ingram, 427 N.E.2d 444, 448 (Ind. 1981).

590. Id.; Hopper v. Carey, 716 N.E.2d 566, 571-73 (Ind. Ct. App. 1999); City of Fort Wayne

v. Parrish, 32 N.E.3d 275, 277-80 (Ind. Ct. App. 2015). Indiana also excludes evidence of seatbelt

nonuse in actions governed by the Indiana Comparative Fault Act by way of statutory mandate.

IND. CODE § 9-19-10-7(a) (2020).

591. Webber v. Butner, 923 F.3d 479 (7th Cir. 2019).

592. The plaintiffs were a husband and wife pursuing recovery for physical injuries to the

husband and a derivative claim for loss of consortium on behalf of the wife. Webber v. Butner, No.

1:16-cv-01169-TWP-DML, 2017 U.S. Dist. LEXIS 209062, at *1 (S.D. Ind. Dec. 20, 2017).

593. Webber, 923 F.3d at 481.

594. Id.



954 INDIANA LAW REVIEW [Vol. 53:895

to the use of a hardhat is offered to show assumption of risk, comparative fault,
and whether [the primary plaintiff] acted as a reasonably careful person. You may
not consider it to show whether it would have prevented or altered the extent of
[his] injuries.”595

Following a narrow verdict for the defendant based upon the allocation of
fault under the Indiana Comparative Fault Act, the plaintiffs appealed, seeking
a new trial on the basis of the presentation of evidence to the jury of the primary
plaintiff’s nonuse of a hardhat.596 Because the question of admission turned on
whether the evidence was relevant to apportion fault to the primary plaintiff, the
analysis focused on the meaning of “fault” as applied to the Indiana Comparative
Fault Act.597

For guidance, the Seventh Circuit looked to the Indiana Supreme Court’s
decision in Kocher v. Getz.598 There, the court rejected an argument seeking to use
post-injury conduct as evidence to guide apportionment of fault.599 In the process,
the court interpreted the definition of “fault,” adding, in dicta:

The phrase “unreasonable failure to avoid an injury or to mitigate
damages” included in the definition of “fault” . . . applies only to a
plaintiff’s conduct before an accident or initial injury. An example of
such unreasonable failure to avoid an injury or to mitigate damages
would be a claimant’s conduct in failing to exercise reasonable care in
using appropriate safety devices, e.g., wearing safety goggles while
operating machinery that presents a substantial risk of eye damage.600

The Seventh Circuit did not, however, find substantial guidance in
Indiana’s seatbelt caselaw.601

Nevertheless, as a matter of Indiana law, the Seventh Circuit found reversible
error in allowing admission of hardhat evidence.602 The court observed that “[t]he
reason the branch fell and struck [the primary plaintiff] had nothing to do with
whether he wore a hardhat.”603 “Since there was no causal relationship between
[his] lack of a hardhat before the injury and the injury-causing event or the
injuries themselves, Indiana law did not provide a basis for admitting th[e]

595. Id. (quotation marks omitted).

596. Id. at 482.

597. Id. at 482-84. “Fault” is defined at Ind. Code § 34-6-2-45 (2019).

598. Id. at 483-84 (citing Kocher v. Getz, 824 N.E.2d 671, 674-75 (Ind. 2005)) .

599. Kocher, 824 N.E.2d at 673-75.

600. Id. at 674-75; see also Webber, 922 F.3d at 483 (recognizing this language as dicta)

(emphasis in original).

601. Webber, 923 F.3d at 485.

602. Id. at 484-85. Although beyond the scope of this survey, it merits note that the finding

that the error was not harmless stemmed from the “razor-thin split when apportioning fault”—i.e.

51% allocated to plaintiff. Id. at 481, 485. Notably, the Indiana Comparative Fault Act permits

recovery by an injured person who is allocated not more than 50 percent of fault. Id. at 480.

603. Id. at 484.



2021] EVIDENCE 955

evidence.”604 The court illustrated the point with examples:

First, suppose a person does not wear safety goggles while cutting down
a tree. That person is then hit on the head by a falling branch, suffering
injury. The absence of goggles has nothing to do with the falling branch
and the injury he suffered. This arguable “fault” did not contribute to the
accident or injury. . . . [T]herefore, evidence and argument to attribute
fault for not using safety goggles would be irrelevant.

Second, suppose another person does not wear safety goggles while
cutting down a tree. A splinter of wood flies off the chainsaw blade and
hits him in the eye. In that case, the failure to wear safety goggles would
have been a proximate cause of his injury. If he had been wearing safety
goggles, the splinter of wood would not have been able to injure his eye.
The injury-causing event and the injury would never have occurred. In
that case, evidence of the failure to use safety goggles would be
admissible to show fault.605

The key takeaway from Webber is that nonuse of safety equipment cannot be
admitted to impact the allocation of fault in a personal-injury action governed by
Indiana law in the absence of a “causal connection” between the evidence of
nonuse and the injury-causing event.606

B. Pleadings as Evidence at Trial

The winding path of civil litigation often leaves initial pleadings forgotten
remnants of the early days of a case. Nevertheless, Indiana Trial Rule 9.2(B)
ensures that there are circumstances in which the pleadings remain an important
part of trial evidence.607 One such circumstance presented in Dunlap v. Lange,
wherein the trial court erroneously excluded the governing purchase agreement
in a breach-of-contract action.6 0 8 The basis for exclusion was that the plaintiffs
did not include the purchase agreement in exchanging final trial exhibits as
required by a pretrial order.609 With the purchase agreement excluded, the defense
was able to successfully have the action involuntarily dismissed.610

The purchase agreement, however, was neither a mystery to the parties nor
to the court. As required by Trial Rule 9.2(A)(1)(a),611 the plaintiffs attached a

604. Id.

605. Id. at 484-85.

606. Id. at 484.

607. IND. R. TRIAL P. 9.2(B).

608. Dunlap v. Lange, 113 N.E.3d 785, 786-88 (Ind. Ct. App. 2018), trans. denied, 123 N.E.3d

133 (Ind. 2019).

609. Id. at 787.

610. Id.

611. IND. R. TRIAL P. 9.2(A)(1)(a).



956 INDIANA LAW REVIEW [Vol. 53:895

copy of it as an exhibit to their complaint.612 The defendant “did not deny
execution of the [p]urchase [a]greement in either her answer or amended
answer.”613 Accordingly, under Trial Rule 9.2(B), “the instrument, if otherwise
admissible, shall be deemed admitted into evidence in the action without proving
its execution unless execution be denied under oath in the responsive pleading or
by an affidavit filed therewith.”614 In the absence of any other basis for finding the
purchase agreement inadmissible, the Indiana Court of Appeals determined the
exclusion amounted to reversible error because the purchase agreement was
already “deemed admitted into evidence by operation of Trial Rule 9.2(B), with
no other action by the [plaintiffs] required.”615

XIII. CONCLUSION

As with every survey period, developments in caselaw have continued to shift
and mold our understanding of Indiana evidentiary practice, which will continue
for years to come.

612. Dunlap, 113 N.E.3d at 786.

613. Id. at 787.

614. IND. R. TRIAL P. 9.2(B).

615. Dunlap, 113 N.E.3d at 787-88.


	  II. Judicial Notice: Rule 201
	  III. Relevancy & Its Limits: Rules 401 through 41378
	  IV. Privileges: Rules 501 & 502
	  V. Witnesses: Rules 601 through 617
	  VI. Opinions & Expert Opinions: Rules 701 through 705
	  VII. Hearsay: Rules 801 through 807
	  VIII. Authentication & Identification: Rules 901 through 903
	 IX. Contents of Writings & Recordings: Rules 1001 through 1008
	  X. Common Law Rules:  Corpus Delicti, Res Ipsa Loquitur, Parol Evidence & Spoliation
	  XIII. Conclusion