Indiana Law Review


Recent Developments in Indiana State

and Federal Evidence Law

Ellen White Quigley*
Mary Jo Hunter Wedding**

I. Introduction

This Article addresses recent noteworthy developments in both state

and federal evidence law applicable to Indiana practitioners including

the use of partial settlement agreements, expert testimony, the physician-

patient privilege, remedial measures, the amendments to Federal Rule

of Evidence 609(a), the *Trye Test,*' and attorney-client privilege. The
first section of the Article discusses significant state court decisions. The
second section highlights recent federal law developments.

II. Indiana Evidentl^y Issues

A. Admissibility of Partial Settlements

In Manns v. Indiana Department of Highways,^ the Indiana Supreme
Court clarified evidentiary uses of partial settlement agreements at trial.^

The controversy in Manns was the use at trial of a partial settlement
agreement between the plaintiff and another party.

L Background,—Generally, offers to compromise are inadmissible
in Indiana.^ Likewise, evidence of offers made by one party to non-
parties have been inadmissible to demonstrate a weakness in the offering

* Associate, Ice Miller Donadio & Ryan, Indianapolis, Indiana. B.A., Indiana
University, 1985; J.D., Indiana University School of Law—Indianapolis, 1988.

** Associate, Norris Choplin & Johnson, Indianapolis, Indiana. B.A., DePauw
University, 1985; J.D., Indiana University School of Law—Indianapolis, 1988.

The views expressed are solely those of the authors. The authors wish to express

their appreciation to Carolyn J. Bogard for her assistance in the preparation of the Article.

1. 541 N.E.2d 929 (Ind. 1989).

2. Documents evidencing partial settlement include a release, covenant not to sue,

covenant not to execute, guaranty agreements ("Mary Carter Agreements"), and loan

receipts. The release probably would not raise an issue for trial in multi-party litigation
because generally a release of one tortfeasor is a release of all. See Griffin v. Carmel

Bank & Trust, 510 N.E.2d 178 (Ind. Ct. App. 1987).
3. 12 R. Miller, Indiana Practice § 408.101, at 317 (1984) [hereinafter Indiana

Practice]. The rule seeks to encourage settlements without prejudicing a party whose
good faith attempts to settle have failed.



866 INDIANA LAW REVIEW [Vol. 24:865

party's case.'* In contrast, prior to Manns, covenants were admissible

for the purpose of allowing the jury to determine whether the consid-

eration given for the covenant was in full or partial satisfaction of the

plaintiff's claim.

^

2. The Manns Decision.—Manns sued Hintz and the Indiana De-
partment of Highways for injuries received when Manns and Hintz
collided after Hintz stopped at a stop sign but failed to yield the right

of way to Manns on the preferential highway.**
Prior to trial, Hintz paid $125,000 to Manns in exchange for a

covenant not to sue and dismissal.^ At trial, Manns called Hintz as a
witness.^ On cross-examination the State was permitted, over Manns's
objection, to question Hintz about the settlement agreement. On Manns's
redirect of Hintz, however, the trial court excluded the covenant not to

sue.^

The Indiana Court of Appeals affirmed the trial court on the issue
of the admissibility of the covenant. ^° In doing so, it interpreted the

supreme court's opinion in State v. Ingram^ ^ as holding that settlement

agreements were admissible for jury consideration. '^

The supreme court in Manns disagreed and stated, **Our holding
in Ingram did not rule that the amount or existence of a settlement
agreement was necessarily admissible. "^^ Holding that such evidence is

generally inadmissible, the supreme court departed from a line of cases
allowing the jury to consider settlement agreements to determine whether

the consideration given for a covenant is full or partial satisfaction of

the claim. ^"^ The Manns court further held that even when a defendant
asserts full or partial satisfaction as an affirmative defense, and the

existence and amount of the settlement is not disputed by the plaintiff,
the settlement agreement should not be presented to the jury; rather,

4. 12 Indiana Practice, supra note 3, § 408.103 at 322.

5. Bedwell v. DeBolt, 221 Ind. 600, 50 N.E.2d 875 (1943); see also Sanders v.

Cole Mun. Fin., 489 N.E.2d 117 (Ind. Ct. App. 1986).
6. Manns, 541 N.E.2d at 931.

7. Id.

8. Id. The court does not describe whether Hintz* testimony was favorable to
Manns.

9. Id. Indiana's Third District Court of Appeals observed that at trial Manns
offered the entire agreement containing "references to insurance and representations ben-

eficial to the plaintiff concerning the asserted liability of the state and the extent of

plaintiff's damages." Manns v. Indiana Department of Highways, 524 N.E.2d 334, 336
(Ind. Ct. App. 1988).

10. Manns, 524 N.E.2d 334.
11. 427 N.E.2d 444 (Ind. 1981).

12. Manns, 524 N.E.2d at 336.
13. 541 N.E.2d at 932.

14. Id. at 933. See cases cited supra note 5.



1991] EVIDENCE LAW 867

the trial court should make a ''pro tanto adjustment'* or set-off of the
verdict according to the settlement.'^

In so holding, the supreme court distinguished covenants not to sue

or execute from loan receipt agreements,'^ which are agreements between

a co-defendant and a plaintiff wherein the co-defendant agrees to pay

money to satisfy the plaintiff's claim against that defendant in exchange
for a release and a promise by the plaintiff to reimburse the co-defendant

if he obtains a judgment in a certain amount from the other defendant.

Because pecuniary bias could be present on the part of the defendant-

witness who executes the loan receipt agreement and testifies in favor
of the plaintiff,'^ loan receipt agreements continue to be admissible on

the issue of the lender's credibility.'^

Distinguishing loan receipt agreements from settlement agreements,

the Manns court disallowed use of settlement agreements (as opposed
to loan receipt agreements) to impeach a witness, explaining:

We recognize that situations may occur in which a defendant
may seek to impeach a witness by arguing that a prior settlement
facilitated his lack of involvement in the action. Under our

decision today, such ground is insufficient to justify admission

of the settlement with its attendant potential for confusion and

unfair prejudice.'^

This holding differs from current law being applied by federal courts.

Federal Rule of Evidence 408 provides that even settlement agreements

may be admissible when the evidence is offered to prove bias or prejudice
of a witness.^°

15. 541 N.E.2d at 934.

16. Id. at 933.

17. State V. Thompson, 179 Ind. App. 227. 245, 385 N.E.2d 198, 210 (1979),
transfer denied.

18. Manns, 541 N.E.2d at 934. Loan receipt agreements have long been held
admissible in Indiana. See also 12 Indiana Practice, supra note 3, § 611.209, at 601.

For recent developments regarding loan receipt agreements in Indiana, see Maley, De-

velopments in Federal Civil Practice Affecting Indiana Practitioners: Survey of Supreme

Court, Seventh Circuit and Indiana District Court Opinions, 22 Ind. L. Rev. 103, 131-

38 (1989) and Strohmeyer, Loan Receipts Revisited Recognizing Substance Over Form,
21 Ind. L. Rev. 439 (1988).

19. Manns, 541 N.E.2d at 934 (citation omitted). The Manns court indicated it
was taking a different approach than that found in Gray v. Davis Timber & Veneer
Corp., 434 N.E.2d 146, 148 (Ind. Ct. App. 1982). Gray, however, also involved the use

of a loan receipt agreement to impeach a former agent of the company-defendant entering

into the agreement, who, arguably, may not have retained any pecuniary bias.
20. The rule provides that the evidence of a compromise may also be admissible

when offered to rebut a contention of undue delay or to prove efforts to obstruct criminal



868 INDIANA LAW REVIEW [Vol. 24:865

The Manns court also determined that when the fact and amount
of a settlement agreement are made known to a jury, the opposing party

is permitted to introduce evidence explaining the intent and circumstances

of the agreement, including the documents evidencing settlement. Because

the evidence could further confuse and prejudice the jury, however, the

trial court may, in its discretion, **redact such an exhibit by excising

inflammatory, evocative language irrelevant to a fair explanation of the

motivating intent and circumstances of the settlement agreement.*'^'

The court did not discuss the line of cases requiring exclusion of

the amount of the settlement rather than the fact of settlement.^^ By
allowing the trial court to excise prejudicial information in a settlement

agreement, however, it appears Manns follows precedent on this issue.
Finally, Manns confirms that a joint tortfeasor is not a **collateral

source. '*23 xhe appellate court cited the collateral source rule codified

prosecution or delay. Federal Evidence Rule 408 provides:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting

or offering or promising to accept, a valuable consideration in compromising

or attempting to compromise a claim which was disputed as to either validity

or amount, is not admissible to prove liabihty for or invalidity of the claim or

its amount. Evidence of conduct or statements made in compromise negotiations
is likewise not admissible. This rule does not require the exclusion of any

evidence otherwise discoverable merely because it is presented in the course of

compromise negotiations. This rule also does not require exclusion when the

evidence is offered for another purpose, such as proving bias or prejudice of

a witness, negativing a contention of undue delay, or proving an effort to

obstruct a criminal investigation or prosecution.

Fed. R. Evid. 408 (emphasis added). The federal rule also differs from Indiana law to

the extent that in Indiana, statements of fact independent of the negotiation but made
during negotiations are admissible. See 12 Indiana Practice, supra note 3, § 408.102,

at 320. The trend, however, is to extend the "exclusionary rule" to all statements made
during negotiations. See E.W. Cleary, McCormick on Evidence § 274, at 812 (3d ed.
1984) [hereinafter McCormick] (stated reason that rule of admissibility of independent
facts gleaned in negotiations is difHcult to apply). Indeed, Indiana cases are confusing

as to application of the rule. See Tyree v. State, 518 N.E.2d 814, 816 (Ind. Ct. App.

1988), in which the factual basis established for a guilty plea was ruled inadmissible due

to inability to separate from the plea.

21. Manns, 541 N.E.2d at 935.

22. See Gray, 434 N.E.2d at 148-49; Ohio Valley Gas, Inc. v. Blackburn, 445

N.E.2d 1378, 1383 (Ind. Ct. App. 1983). Gray clarified the previous holdings in Ingram

and Erskine v. Duke's GMC, Inc., 413 N.E.2d 305 (Ind. Ct. App. 1980), in which both
courts held entire settlement agreements were admissible to rebut defendant's submission

of evidence of the fact a settlement occurred. The Gray court stated:

We ruled that it was error not to allow the plaintiff to introduce the agreement
and held that either the entire applicable portion of the agreement is admissible

or none of it is. Our ruling in Erskine does not mean that an irrelevant or
highly prejudicial portion could not be properly deleted prior to its introduction.

Gray, 434 N.E.2d at 149.

23. 524 N.E.2d at 336.



1991] EVIDENCE LAW 869

at Indiana Code section 34-4-36-2^* as alternative support for admitting

settlements into evidence. ^^ The supreme court disagreed and distinguished

settlement agreements from the collateral sources addressed in the statute.^*

Since partial settlements offset a verdict, they will not provide a double

recovery like the collateral sources addressed in the statute .^^ Therefore,

settlements with other tortfeasors are not admissible pursuant to the

"collateral source rule."

3. Conclusion.—Attorneys should be aware that most partial settle-
ment agreements are inadmissible, and should consider filing a motion

in Umine to assure exclusion of the evidence. If for some reason the

fact of a partial settlement agreement is made known to the jury, attorneys
objecting to the admissibility should consider explaining the circumstances

of the agreement. Counsel opposing such an explanation should request

the court to excise the amount of the settlement and any prejudicial
and inflammatory language.

B. Expert Testimony

During the survey period, expert testimony also received attention

by Indiana courts. Hegerfield v. HegerfieldF^ discussed the necessity for

the expert to explain underlying formulas and calculations while In re

Paternity of K.G.^^ clarified the expert's use of information received

from third parties when rendering an opinion.

24. IND. Code § 34-4-36-2 (1988) provides:
Sec. 2. In a personal injury or wrongful death action the court shall allow the

admission into evidence of:

(1) proof of collateral source payments, other than:

(A) payments of life insurance or other death benefits;

(B) insurance benefits for which the plaintiff or members of the plaintiff's

family have paid for directly; or

(C) payments made by the state or the United States, or any agency,
instrumentality, or subdivision thereof, that have been made before trial to a
plaintiff as compensation for the loss or injury for which the action is brought;

(2) proof of the amount of money that the plaintiff is required to repay,
including worker's compensation benefits, as a result of the collateral benefits

received; and

(3) proof of the cost to the plaintiff or to members of the plaintiff's family

of collateral benefits received by the plaintiff or the plaintiff's family.

Id.

25. Manns, 524 N.E.2d at 336.

26. Manns, 541 N.E.2d at 934.

27. Id.

28. 555 N.E.2d 853 (Ind. Ct. App. 1990).

29. 536 N.E.2d 1033 (Ind. Ct. App.), aff'd and remanded, 545 N.E.2d 564 (Ind.

1989).



870 INDIANA LAW REVIEW [Vol. 24:865

1. The Hegerfield Decision.—In Hegerfield, the Indiana Third District
Court of Appeals held that the trial court abused its discretion by

allowing a certified public accountant, Wunrow, to testify as an expert
about the value of Mr. Hegerfield's pension benefit in a proceeding to

divide the Hegerfields* property.

It is well established that the competency of a witness to testify as

an expert witness is a determination for the trial court and is within

the court's discretion.^° A witness may quaUfy as an expert based upon
his or her training, education, and experience.^' The expert is not required

to '* demonstrate his knowledge of specific scientific principles, formulas

or calculations in order to be quahfied to state his opinion. "^^ Generally,

the expert's specific knowledge goes to the weight, not the admissibility,

of the testimony.^^

Prior to the Hegerfield decision, in Martin v. Roberts,^^ the supreme

court reversed a Second District Court of Appeals decision which held

that the trial court abused its discretion in permitting a police officer/

investigator to give his opinion concerning the speed of a vehicle. The
appellate court reversed the trial court because the expert had not

presented his opinion with any formula, calculation, or principle. ^^ The

supreme court, however, held that the officer's specific knowledge of

formulas, calculations, and principles was a subject for cross-examination:

There are doubtless many formulas and principles which experts
use in this field or any other to arrive at their ultimate opinions.

The determination of which factors, formulas or calculations are

necessary, either singly or in conjunction with each other, to

form an expert opinion is within the knowledge and judgment

of the expert and, again, is a subject which can be approached

and examined in the cross-examination or by bringing forward

other expert witnesses.^*

Several Indiana cases have followed the general rule that the failure

of the expert witness to state or explain a calculation or formula affected

the weight, not the admissibility, of the expert's opinion.^^

30. Hegerfield, 555 N.E.2d at 855 (citing Travelers Indemnity Co. v. Armstrong,

442 N.E.2d 349, 365 (Ind. 1982)).

31. Martin v. Roberts, 464 N.E.2d 896, 899 (Ind. 1984).

32. Id.

33. Id. See also Travelers, 442 N.E.2d 349.

34. 464 N.E.2d 896 (Ind. 1984).

35. Martin v. Roberts, 452 N.E.2d 182, 187 (Ind. Ct. App. 1983).

36. Martin, 464 N.E.2d at 900-01.

37. Id. See also Boarman v. State, 509 N.E.2d 177 (Ind. 1987); Estate of Hunt
V. Board of Comm'rs of Henry County, 526 N.E.2d 1230, 1235 (Ind. Ct. App. 1988).



1991] EVIDENCE LAW 871

The Hegerfield court appears to have appHed a stricter standard to

Wunrow*s testimony. Reviewing the testimony to determine whether a

proper foundation was laid, the court found that the requirements had

not been met.^* Those foundational requirements include first, that the

expert's testimony is not within the common knowledge of the jury;
second, that the witness is qualified to render an opinion; and third,

that the opinion would aid the jurors in understanding the facts.^^

The court determined that although Wunrow was not required to
possess experience in calculating mortality tables and discount rates, he

was required to be familiar with mortality, discount rates and life

expectancy. He was also required to "demonstrate that he knows first
what the data represent and second, why or how that data applies to
this particular case.""^

First, the court concluded from the record that Wunrow's experience
related to tax consequences for small businesses, and consequently stated,

**[T]his was the first clue that Wunrow was not competent to testify as
an expert on pension valuation."^' Second, the court decided Wunrow
needed to demonstrate his ** knowledge of the process of ascertaining

the present value of pension benefits. ""^^ The court was influenced by

Wunrow's inability to explain what the figures he obtained from a
Pension Benefit Guaranty Corporation table represented.'^^ Third, the

court suspected Wunrow was merely parroting figures calculated by
another firm."*^ Relying on Terre Haute First National Bank v. Stewart

y

the court concluded Wunrow was simply reading the other firm's cal-
culations into evidence.'*^

In short, the court concluded Wunrow was not qualified to testify
as an expert regarding pension valuation.'*^ Thus, the initial foundational

requirements had not been met.

The Fourth District Court of Appeals in Estate of Hunt also noted that the standard of
review on the issue of abuse of discretion is stringent; a reversal should occur only if

the trial court has "drawn an erroneous conclusion clearly against the logic and effect

of the facts and circumstances or the reasonable and actual deductions to be made from
such evidence." Id. at 1235 (citation omitted).

38. Hegerfield, 555 N.E.2d at 856.

39. See 13 Indiana Practice, supra note 3, § 705.101, at 73; Summers v. State,
495 N.E.2d 799, 802 (Ind. Ct. App. 1986), transfer denied.

40. Hegerfield, 555 N.E.2d at 856.

41. Id.

42. Id.

43. Id.

44. Id.

45. Id. (citing 455 N.E.2d 362 (Ind. Ct. App. 1983)).

46. '*[N]o precise knowledge or quantum of knowledge is required, if the witness

shows an acquaintance with the subject such as to qualify him to give an opinion . . . ."



872 INDIANA LAW REVIEW [Vol. 24:865

At first glance, Hegerfield appears to tighten the requirements con-

cerning an expert's knowledge of formulas and calculations forming the

basis of the expert's opinion. The court was careful, however, to avoid

this appearance by finding the expert did not possess the qualifications

necessary to aid the trier of fact concerning pension valuation. It appears,

however, that the court did not determine Wunrow's lack of qualifications

until reviewing cross-examination testimony.^^ The court explained that

the proponent needed to show Wunrow's knowledge of the process of
ascertaining the present value of pension benefits, but failed to do so.'**

It is not clear from the opinion whether Wunrow's inabilities were
apparent during direct examination when the proponent attempted to
lay the foundation for Wunrow's testimony.

Hegerfield warns counsel offering expert testimony that more than

training, education, and experience may be necessary to qualify an expert
witness who relies on another individual's calculations and tables in
forming an opinion. Again, the attorney may argue that such explanation
of calculations and formulas should be considered only when determining
the weight to be given the testimony as in Martin ^ and not when
determining whether the witness is qualified.

2. In re Paternity of K.G..—In re Paternity of K.G.*^ clarified the
expert's use of third-party reports when rendering his opinion.

Expert opinion based in part upon a report of a third person is
generally admissible in Indiana, even though the report may not be in
evidence or is inadmissible.^^ The hearsay relied upon, however, must

be the type customarily relied upon by experts in the same field.^'
The foundation for expert testimony that relies in part on hearsay

reports was set forth in Duncan v. George Moser Leather Co.^^ and
requires that

Spaulding v. State, 533 N.E.2d 597, 601 (Ind. Ct. App. 1989) (citation omitted). The

standard when reviewing a determination of the expert witness's qualifications is also

abuse of discretion. Summers, 495 N.E.2d at 802. See also 13 Indiana Practice, supra

note 3, § 702.102, at 31-32.

47. **Wunrow's/Law Data's calculations were impossible to probe on cross-ex-

amination because Wunrow did not possess sufficient skill or knowledge . . . ." Hegerfield,
555 N.E.2d at 856.

48. "As the questioning progressed, it became clear that Wimrow . . . did not
understand . . . what the figures . . . represented." Id.

49. 536 N.E.2d 1033 (Ind. Ct. App. 1989), aff'd and remanded, 545 N.E.2d 564

(Ind. 1989).

50. 13 Indiana Practice, supra note 3, § 703.104, at 54. Until fairly recently,

Indiana followed the traditional rule that expert testimony was admitted only if the opinion

was based on facts personally known to the witness or upon facts contained in a hypothetical
question. Id. at 53-54.

51. Clouse V. Fielder, 431 N.E.2d 148, 155 (Ind. Ct. App. 1982) (citing Gooch
V. Hiatt, 166 Ind. App. 521, 337 N.E.2d 585 (1975)).

52. 408 N.E.2d 1332 (Ind. Ct. App. 1980).



1991] EVIDENCE LAW 873

1. the expert must have sufficient expertise to evaluate the

reliability and accuracy of the report;

2. the report must be of a type normally found reliable; and

3. the report must be of a type customarily relied upon by the

expert in the practice of his profession or expertise^^

The expert witness must also have expertise in evaluating the content

of the information relied upon to assure the right to cross-examination

and to assure that the expert is not merely repeating another expert's

opinion.^'*

In In re Paternity of K.G., Dr. Chen supervised blood testing for

the American Red Cross. After having been qualified as an expert witness,
Chen explained procedures followed when blood was tested under his
supervision. Chen testified as to testing done in the paternity case and
gave his opinion as to paternity. Also, over objection, he was permitted

to testify that someone under his supervision drew blood from the

pertinent parties, the rules for chain of custody were followed, and the

blood samples were tested."

In reaching its decision, the Indiana Court of Appeals first distin-

guished the factual testimony from the opinion testimony.^^ Because

Chen had no first-hand knowledge of the testing procedures actually
conducted in that case, the court determined that the trial court should

not have permitted Chen's testimony concerning the facts of testing.^"^

Second, the court determined that Chen's opinion testimony should

not have been admitted because his opinion was unfounded. The court

explained that the testimony was based neither upon first-hand knowledge

nor upon a report "of a type normally found to be reliable and of a

type customarily relied upon by him in the practice of his profession."^*

Further, the court noted that **[t]he State did not introduce a report

53. Id. at 1343 (citations omitted). Federal Rule of Evidence 703 provides:

The facts or data in the particular case upon which an expert bases an opinion

may be those perceived by or made known to the expert at or before the
hearing. If of a type reasonably relied upon by experts in the particular field

in forming opinions or inferences upon the subject, the facts or data need not

be admissible in evidence.

Fed. R. Evid. 703.

Miller notes that the Federal rule does not require the expert to be able to evaluate

the reliability and accuracy of the report. 13 Indiana Practice, supra note 3, § 703.111,

at 67.

54. Duncan, 408 N.E.2d at 1343.

55. In re Paternity of K,G., 536 N.E.2d at 1034.

56. Id. at 1035.

57. Id. at 1035-1036.

58. Id. at 1036 (citing Duncan, 408 N.E.2d 1332).



874 INDIANA LAW REVIEW [Vol. 24:865

prepared under Chen's supervision or by anyone else.*'^^ More impor-
tantly, before Chen rendered his opinion as to paternity, there was no
showing that Chen had relied upon any report.^

Thus, In re Paternity of K,G. establishes that an expert opinion can

be based upon: (1) firsthand knowledge, (2) facts otherwise in the record

or facts that can be assumed from the evidence and stated by a hy-

pothetical question, and (3) in part upon a report not in evidence or
inadmissible if the expert can evaluate the reliability of the report/^

Such expert opinion is of a type normally found to be reliable, and it

is of a type customarily relied upon in the expert's profession.^^

C The Physician-Patient Privilege
Two cases decided in this survey period examining the physician-

patient privilege are significant to understanding the scope of the privilege.

The first case, Daymude v. State,^^ addressed the scope of one of the
**CHINS'' reporting statutes^ and is a case of first impression in Indiana.

The second case. In re C.P,^^ addressed an issue conceded in Daymude:
whether communications made to the agent of the physician are included
in the privilege.

7. Background.—The physician-patient privilege is a legislative cre-
ation and did not exist at common law.^ The purpose of this evidentiary
privilege is to encourage honest communications by patients to physicians

to ensure proper treatment. As the supreme court discussed in Collins
V. Bair:^^

The privilege has been justified on the basis that its recognition
encourages free communications and frank disclosure between

59. Id. Admissibility of the relied upon report is not a requirement for the expert
opinion testimony.

60. Id.

61. Id. at 1035.

62. Id.

63. 540 N.E.2d 1263 (Ind. Ct. App. 1989).
64. iND. Code § 31-6-11-8 (1988).
65. 563 N.E.2d 1275 (Ind. 1990).

66. Towles v. McCurdy, 163 Ind. 12, 71 N.E. 129 (1904). 12 Indiana Practice,
supra note 3, cites McCormick on Evidence § 98 (2d ed. 1972) for the proposition that
the privilege was unknown at common law. 12 Indiana Practice also cites Indiana cases
that Miller contends mistakenly refer to a common law rule existing prior to the statute.
"In light of the courts' inability to decide firmly whether the privilege should be strictly

construed or liberally applied, that inconsistent holdings have resulted under the statute

should not be surprising." 12 Indiana Practice, supra note 3, § 504.103, at 394-395.

67. 256 Ind. 230, 268 N.E.2d 95 (1971). See also 12 Indiana Practice, supra

note 3, §504.102, at 392 n.l.



1991] EVIDENCE LAW 875

patient and physician which, in turn, provide assistance in proper

diagnosis and appropriate treatment. To deny the privilege, it
was thought, would destroy the confidential nature of the phy-

sician-patient relationship and possibly cause one suffering from

a particular ailment to withhold pertinent information of an

embarrassing or otherwise confidential nature for fear of being

pubHcly exposed.^^

Although the privilege's rationale has been questioned,^^ it resembles

that which underlies the attorney-client privilege. The analogy is not a

new one,^° despite several differences in the way the privileges are applied.

As early as 1894, in Springer v, Byram,''^ the Indiana Supreme Court
analogized the attorney-client privilege to the physician-patient privilege.

Noting that the physician-patient privilege was created by statute, the

Court stated:

It was said in Association v. Beck, 77 Ind. 203, that the

object of these statutes seems to be to place the communications

made to physicians in the course of their professional employment
upon the same footing with communications made by clients to
their attorneys in the course of their employment.^^

Further, as to the attorney-client privilege, the Springer court ex-

amined the scope of the privilege with respect to agents of the attorney:

It has been held that communications made through a third
person from a client to a solicitor are privileged, if otherwise

entitled to be so; also, whoever represents a lawyer in conference

or correspondence with the client is under the same protection

as the lawyer himself. The privilege extends to the attorney's
clerk, interpreter, assistant attorney, or other agent, while in the

discharge of his duty. 19 Am. & Eng. Enc. Law, 131, 132.^^

In order for the privilege to apply to the attorney-client relationship,

it must first be shown that the communication was intended to be
confidential.^'* Most statutes affording protection to physician-patient

68. Collins, 256 Ind. at 232, 268 N.E.2d at 98.

69. See 12 Indiana Practice, supra note 3, § 504.122, at 417; McCormick, supra
note 20, § 105, at 258. Miller noted that other commentators "have questioned the

underlying assumption that assurance of confidentiality is necessary to foster full disclosure

to physicians, and . . . have called for abandonment or abolition of the privilege." 12

Indiana Practice, supra note 3, § 504.122, at 417.

70. McCormick, supra note 20, § 105, at 258.
71. 36 N.E. 361 (Ind. 1894).

72. Id. at 363.

73. Id. at 362.

74. McCormick, supra note 20, § 91, at 217; 12 Indiana Practice, supra note

3, § 503.103 at 378 (citing Lewis v. State, 451 N.E.2d 50 (Ind. 1983)).



876 INDIANA LAW REVIEW [Vol. 24:865

communication, however, do not require an initial foundational showing

that the communication was intended to be confidential.^^

As for the presence of third parties during a conmiunication, an
agent of an attorney is generally included in the privilege.^^ Courts appear

to analyze the presence of third parties or adjunct personnel with respect

to the physician-patient privilege in a variety of ways: 1) whether the

third person is a ** needed and customary participant in the consulta-

tion;**^^ 2) whether the communication with or to the third person "was

functionally related to diagnosis and treatment;*' and 3) whether the

third person was intended to be included in the privilege pursuant to

a statute.^*

2. Daymude v. State,—The reporting statute at issue in Daymude
provided as follows:

The privileged communication between a husband and wife,

between a health care provider and that health care provider's

patient, or between a school counselor and a student is not a

ground for:

(1) excluding evidence in any judicial proceeding resulting

from a report of a child who may be a victim of child abuse
or neglect, or relating to the subject matter of such a report;

or

(2) failing to report as required by this chapter.^'

The foregoing statute conflicts with the physician-patient privilege as
codified in Indiana Code section 34-1-14-5.*°

75. Ind. Code § 34-1-14-5 (1990); McCormick, supra note 20, § 101, at 249.
76. Id. § 91, at 218; 12 Indiana Practice, supra note 3, § 503.103, at 378. See

Brown v. State, 448 N.E.2d 10 (Ind. 1983) (privilege applied to defendant's statements
to a polygraph expert hired by defendant's attorney). But cf. Barnes v. State, 537 N.E.2d

489 (Ind. 1989).

77. McCormick, supra note 20, § 101, at 250 (citing ShultZy 417 N.E.2d 1127 to
support the view that if the third person is a "needed and customary participant in the

consultation," the privilege should be extended to include such third person).

78. Id. McCormick criticizes this last method of analysis by contending: **[T]his
seems to be sticking in the back of the statute, rather than looking at its purpose. Thus

these courts, if casual third persons were present at the consultation, will still close the

mouth of the doctor but allow the visitor to speak." Id. (citing two old Indiana cases.
Springer, 36 N.E. at 363 and Indiana Union Traction Co. v. Thomas, 44 Ind. App. 468,

88 N.E. 356, 359 (1909)).

79. Ind. Code § 31-6-11-8 (1988).
80. The physician-patient privilege provides in part:
The following persons shall not be competent witnesses:

Physicians, as to matters communicated to them, as such, by patients, in the

course of their professional business, or advice given in such cases, except as



1991] EVIDENCE LAW 877

In Daymude, the defendant Daymude's daughter was defined as a

"child in need of services" by a public welfare department when the

department filed a petition in the juvenile court. ^^ The juvenile court

then ordered the department to provide services to the daughter and

her family. While the daughter was admitted as an in-patient at a hospital,

Daymude underwent counseling with Walker, a certified clinic mental
health counselor.^^ Walker was an independent contractor working for

the hospital under the supervision of the hospital's chief psychiatrist^^

for the hospital's child and adolescent division. ^"^

During Walker's counseling of Daymude, Daymude revealed infor-
mation relating to instances of sexual abuse. After the State formally

filed charges of child molesting, criminal deviate conduct, and incest,

the State attempted to depose Walker concerning communications between

Walker and Daymude. Daymude objected to the disclosure on grounds
the communications were privileged and confidential and were not ab-

rogated by the reporting statute. The issue was certified to the trial

court which overruled Daymude's objection, and then came before the
court of appeals via interlocutory appeal.*^ The parties apparently agreed

that a privilege existed.*^

The court held that pursuant to the reporting statute,^^ the physician-
patient privilege is abrogated only **to the extent that the health care

provider must report all suspected or known instances of child abuse. "*^

The court's decision rested on policy reasons and a refusal to construe

the abrogation statute broadly. First, the purpose of the reporting statute

provided in Ind. Code 9-4-4.5-7.

Ind. Code § 9-4-4.5-7 has been amended and is now Ind. Code § 9-11-4-6. The statute
abrogates the physician-patient privilege with regard to chemical tests performed at the

behest of a law enforcement officer. See Ind. Code § 9-11-4-6 (1988).
81. Daymude, 540 N.E.2d at 1264. A "child in need of services" is defined by

Ind. Code § 31-6-4-3 (1988).
82. Daymude, 540 N.E.2d at 1264. It is unclear whether Walker was a "certified"

psychologist as contemplated by Ind. Code § 25-33-1-17 (1985), which prohibits a certified
psychologist from disclosing information acquired from a patient except in limited cir-

cumstances. Although Ind. Code § 25-33-1-17 creates a privilege, it does not address the
issue of "competency" as a witness as referred to in the physician-patient privilege statute,

Ind. Code § 34-1-14-5, supra note 80.
83. Because a psychiatrist is a physician, the psychiatrist falls within the privilege.

SummerUn v. State, 256 Ind. 652, 271 N.E.2d 411 (1971).
84. Daymude, 540 N.E.2d at 1264.

85. Id.

86. Id. at 1265 n.2.

87. Ind. Code § 31-6-11-8 (1988).
88. Daymude, 540 N.E.2d at 1265. Ind. Code § 31-6-11-3 (1979) provides that,

"... any individual who has reason to beheve that a child is a victim of child abuse or
neglect shall make a report. . ."



878 INDIANA LAW REVIEW [Vol. 24:865

had been served because the abuse had already been reported. Second,

the family counseling was essential to diagnosis and treatment. The court

concluded that if the entire privilege were abrogated, child abusers **will

be discouraged from openly and honestly communicating with their

counselors.
"^^

The Daymude court attempted to distinguish the supreme court's
opinion in Baggett v. State.^ In Baggett, the supreme court held that
the privilege between a husband and wife **is not a ground for excluding

evidence in any judicial proceeding resulting from a report of a child

who may be a victim of child abuse or neglect, or relating to the subject
matter of such a report. ''^^ Baggett's attorney had failed to object to

testimony from Daggett's former wife regarding marital conversations

concerning Baggett's admissions to molesting his niece. The supreme

court held that because the reporting statute abrogated the marital

privilege, there was no basis for finding ineffective assistance of counsel.^^

The Daymude court distinguished its holding from Baggett by arguing
that the supreme court had given the abrogation statute a "general

interpretation" because the issue on appeal was ineffective assistance of

counsel. The court stated:

The supreme court was not faced with the fact specific application

of the statute as under the circumstances of this appeal. In the

present case, the physician-patient privilege arose as a direct

result of therapy ordered by the court during a CHINS pro-
ceeding. The privileged communications were made long after
the report of the child abuse. Since the abuse already had been

reported, the purpose of the reporting statute had been fulfilled.

To allow the abrogation of the privileged communication under
these specific facts goes beyond the purpose of the statute. Thus,

because of the specific facts of the present case, we hold that
the physician-patient privilege is not abrogated with regard to

confidential communications disclosed by a defendant while par-

ticipating in counseling sessions ordered by a trial court pursuant

to a report of child molesting.^^

After Daymude was decided, the Indiana Supreme Court also ad-
dressed the abrogation statute^'* in Davidson v. State.^^ Davidson was

89. Daymude, 540 N.E.2d at 1267.
90. 514 N.E.2d 1244 (Ind. 1987).

91. Id. at 1245 (citing Ind. Code Ann. § 31-6-11-8 (Burns 1987)).
92. Id.

93. Daymude, 540 N.E.2d at 1267-68.
94. Ind. Code § 31-6-11-8 (1988).
95. 558 N.E.2d 1077 (Ind. 1990).



1991] EVIDENCE LAW 879

on trial for the murder of two of her children. Her husband testified

over objection as to communications from Davidson to him concerning

Davidson's methods of disciplining her fourteen month-old son. Davidson

argued the privilege applied and was not superseded by the reporting

statute because the statute did not apply to murder, but only to abuse

and neglect.^ Although Davidson focuses more on the CHINS abrogation
statute^^ than privilege, it is worth noting because it relies on Baggett

to the extent Baggett found the abrogation statute and abrogation of

the marital privilege applicable to child molestation, as well as abuse

and neglect.^^ Curiously, the parties in Davidson did not discuss the fact

that the purpose of the reporting statute had already been fulfilled as

in Daymude, nor was Daymude even mentioned.
3. In re C.P.—Another significant case concerning the physician

patient privilege decided during the survey period. In re C.P.^ addressed
the conceded issue in Daymude'. whether a counselor supervised by a

psychiatrist is included in the physician-patient privilege.'^ In re C.P.

involved C.P., a delinquent child. L.K.P., C.P.'s mother, was the com-

plaining witness to Indiana's petition alleging incorrigibility of C.P.*°*

Brown was a social worker and therapist from a community mental
health center who diagnosed and treated C.P. the year before L.K.P.'s
petition was filed. Like the counselor in Daymude, Brown was a counselor
who worked under the supervision of a psychiatrist. '°^ The Indiana
Supreme Court observed:

The evidence revealed that Brown has a bachelor's degree in
special education and a master's degree in social work. He is
a member of the Academy of Certified Social Workers. He is
not, however, a certified psychologist or a psychiatrist. His

diagnoses and treatment plans are subject to approval by a

supervising psychiatrist with whom Brown consults on each case.'^^

When the incorrigibility charges were filed, L.K.P. executed a **con-
sent to disclose confidential information" allowing disclosure of C.P.'s

96. Davidson, 558 N.E.2d at 1090.

97. IND. Code § 31-6-11-8 (1988).
98. Baggett, 514 N.E.2d at 1244. The Davidson court noted that the abrogation

statute would apply to the murder charge because the statute would apply to the case

had no death resulted. Although the abrogation statute addresses child "abuse" or "neglect,"

to not apply the abrogation statute to murder "would fly in the face of the statute's

purpose of protecting children simply because the children died." Davidson, 558 N.E.2d

at 1091.

99. 563 N.E.2d 1275 (Ind. 1990).

100. Id. at 1276.

101. Id.

102. Id.

103. Id.



880 INDIANA LAW REVIEW [Vol. 24:865

treatment records from Brown and the mental health center to Walker

of the county probation department.*^

When Brown was called to testify, C.P. objected on the ground of
privilege. When Walker was called as a witness, he introduced C.P.*s
treatment records which he had received pursuant to L.K.P.'s consent.

Again, C.P. objected on the grounds of hearsay, physician-patient priv-

ilege, and L.K.P.'s invalid consent. Ultimately, the trial court overruled

C.P.*s objections, and the case went to the court of appeals on an

interlocutory order. '°^ The Indiana Supreme Court granted transfer and

recently also affirmed the trial court. '^

After making an important distinction, the supreme court held the

communications between C.P. and Brown were not privileged. ^^"^

We hold that a counselor who aids the psychiatrist is covered
by the privilege. By contrast, a counselor who is in fact the
caregiver and acts largely independently is not an adjunct to the

psychiatrist and thus is not covered by the privilege. *^^

To evaluate the supreme court's distinction fully, the court of ap-
peal's opinion is also valuable. The court of appeals had also affirmed
the trial court, but for different reasons.'^ In so holding, the appellate

court compared C.P.'s communications to Brown with a patient's com-
munications to a nurse. Relying on the holding in General Accident,

Fire & Life Assurance Co. v. Tibbs,^^^ the appellate court stated:

Both nurses and social workers, while working under the su-

pervision of a physician, gather patient information and indeed

treat patients in their own right, but ultimately treatment must
be approved by the physician. If communication between such

adjunct personnel and patients is to be privileged, the legislature

will have to specifically include such a clause in the privilege

statute. We will not extend the physician-patient privilege to
include adjunct personnel. But cf. Daymude v. State (1989),
Ind.App., 540 N.E.2d 1263.

104. In re C.P., 543 N.E.2d 410, 412 (Ind. Ct. App. 1989).

105. Id. at 411.

106. In re C.P., 563 N.E.2d 1275 (Ind. 1990).

107. Id. at 1276.

108. Id.

109. In re C.P., 543 N.E.2d 410.

110. 102 Ind. App. 262, 2 N.E.2d 229 (1936). In General Accident, the court held

that a nurse's observations of a civil plaintiff's breath [offered to show contributory
negligence] were admissible because, "the privilege does not extend to third persons who
are present and overhear a conversation . . . unless such third person was necessary for

the purpose of transmitting the information to the physician." Id. at 268-69, 2 N.E.2d

at 232.



1991] EVIDENCE LAW 881

. . . We question whether the services received by C.P. are
medical treatment as contemplated by the privilege statute.'"

The Indiana Court of Appeals majority did not mention Shultz v.

State,^^^ in which the Second District Court of Appeals held that a

technician who drew blood from the defendant at the direction of the
doctor was included in the physician-patient privilege."^ Shultz was

involved in a collision with another car. Although the appellate court

affirmed the trial court's decision to allow the technician's testimony

concerning Shultz's blood alcohol content, the affirmation was based

on Shultz' s waiver of the privilege during direct examination."'* Nev-

ertheless, the Shultz court expressly held that the technician was included

in the physician-patient privilege."^ Judge Hoffman's persuasive dis-

senting opinion in In re C.P,, however, likened the In re C.P. facts to

those in Shultz, and reasoned that both the nurse in Shultz and Brown
in In re C.P. communicated with the patients at the behest of the

physician:

Mr. Brown's responsibility was to gather information from the

patient concerning the patient's background, presenting problem,

medical history, social history and psychological status, which

information was then submitted to the supervising psychiatrist

for the formulation of a treatment plan. Mr. Brown was a
necessary organ of communication between the patient and the

psychiatrist."^

Unlike the appellate court majority, the Indiana Supreme Court held

that communications between adjunct personnel have long been privileged

and are privileged when the adjunct personnel is ** necessary to enable
the parties to communicate with each other. ""^ Nevertheless, Brown
was not included in the privilege."*

111. In re C.P., 543 N.E.2d at 412.

112. 417 N.E.2d 1127 (Ind. Ct. App.), reh'g denied, 421 N.E.2d 22 (Ind. Ct. App.

1981). Tanford and Quinlan, Indiana Trial Evidence Manual § 46.6, at 263 (2d ed.
1987), concluded that nurses and technicians working under the direction of the physician

are "probably included" in the privilege, as did McCormick, supra note 20, § 101, at
250 (2d ed. 1972).

113. Shultz, 417 N.E.2d at 1134.

114. Id. Subsequent to the trial in Shultz, the legislature enacted Ind. Code § 9-

4-4.5-7, which excluded from the privilege the results of chemical blood tests when the

prosecutor requests the results as part of an investigation. Shultz, 417 N.E.2d at 1135

n.3.

115. Schultz, 417 N.E.2d at 1134.

116. In re C.P., 543 N.E.2d at 414.

117. In re C.P., 563 N.E.2d at 1278 (quoting Springer, 137 Ind. at 22, 36 N.E.

at 363).

118. Id. at 1276.



882 INDIANA LAW REVIEW [Vol. 24:865

First, the court noted that the physician-patient privilege is conferred

by statute and did not exist at common law."* The court further noted
that the statute'^^ does not mention a ^'privilege;*' rather, it states that

physicians "shall not be competent witnesses'*'^' with respect to com-

munications by patients to the physicians. '^^ Further, despite the statute's

wording, the supreme court **has long regarded the statute as erecting

a privilege." '2^ Second, because the **privilege" is statutory and is in

derogation of common law, it must be strictly construed. '^'^ Third, the
court contended that the Indiana Supreme Court "has long recognized

that the privilege covers both physicians and those who aid physi-
cians . . .,"'^' including a "third person" if the third person is " *nec-

essary for the purpose of transmitting information and aiding the

physician.' "'^^ The court cited Shultz^^'' as support for this rule.

Lastly, the court distinguished counselors and caseworkers who func-
tion as primary caregivers, holding that they are not included in the

privilege. '2^ In highlighting this distinction between caregivers and a

physician's adjunct personnel, the court relied on In re L.J.M.^^^ and

Hulett V. State. ^^^ Both In re L.J.M. and Hulett involved counselors or

caseworkers who were not certified psychologists and who were working
independently, without supervision of a psychiatrist. Because Brown in
In re C,P, was supervised by a psychiatrist, the court proceeded to

measure "the nature and degree of control exercised by the psychia-

trist.
'"^^

After examining the testimony from the record, the Indiana Supreme

Court held that the "existence of the relationship is a question of fact

119. Id. at 1277.

120. IND. Code § 34-1-14-5(4) (1988).
121. Id.

122. In re C.P., 563 N.E.2d at 1277.

123. Id.

124. Id.

125. Id. at 1278 (citing and quoting Springer, 137 Ind. 15, 36 N.E. 361, for the

proposition that the privilege covers "other persons whose intervention is strictly necessary

to enable the parties to communicate with each other").

126. Id. (citing and quoting Doss v. State, 256 Ind. 174, 181, 267 N.E.2d 385, 390

(1971)). The issue in Doss, however, was whether the privilege extended to a deputy sheriff

who was present when a physician removed a bullet from the defendant and then gave
the bullet to the sheriff. The defendant had objected to the sheriff's testimony regarding

his observations.

127. 417 N.E.2d 1127.

128. In re C.P., 563 N.E.2d at 1278.

129. 473 N.E.2d 637 (Ind. Ct. App. 1985).
130. 552 N.E.2d 47 (Ind. Ct. App. 1990).
131. In re C.P., 563 N.E.2d at 1278.



1991] EVIDENCE LAW 883

to be determined by the trial court, **'^^ and concluded that the evidence

supported the trial court's decision that Brown was not included in the
privilege because C.P. never saw the psychiatrist and because Brown
worked with very little supervision by the psychiatrist.*^^ The court relied

heavily on a commentator's opinion (which the court quoted) that ***par-

aprofessionals who are left virtually unsupervised ... are probably not
considered by the patient as psychotherapists and they should not be

included in the privilege.'"'^* It seems the opposite could be argued with

the same set of facts; a patient seeing a counselor, infrequently seeing

the counselor's supervisor, would more likely look to the counselor as

the physician. Further, perhaps the more intervention or supervision by

the psychiatrist, the less the patient would rely on the counselor. Un-

fortunately, however, analysis from the patient's perspective was not the

basis of the holding.

In re C,P. appears to be a rather narrow holding, applying only

to instances in which the treatment is almost entirely delegated to a

third-party not included in the privilege statute. As for treatment by a
physician with the assistance of adjunct personnel. In re C.P. embraces

"functional" analysis for determining whether a patient's communication

to the physician's assistant is privileged. Although counselors and case

workers, often under the direction of physicians, provide valuable **treat-

ment" for many who arguably view them as physicians, it is clear that
communications to such counselors will not be privileged without leg-

islative action. Such action is necessary if society wishes to reinforce

the rationale for the physician-patient privilege, to encourage full dis-

closure by patients in order to ensure proper diagnosis and treatment.

D. Subsequent Remedial Measures

Indiana courts have long followed the common law rule that evidence
of remedial measures or repairs by a defendant subsequent to an accident

is generally inadmissible to prove a defendant's negligence. •" In 1989,

the Indiana Court of Appeals expanded application of this rule to exclude

evidence of firing an employee after the employee was engaged in allegedly

negligent conduct. '^^

132. Id. at 1279.

133. Id.

134. Id. at 1278 (citing and quoting J. Weinstein and M. Berger, Weinstein's
Evidence \ 504[05], at 504-26 (1989)).

135. See, e.g., Dukett v. Mausness, 546 N.E.2d 1292 (Ind. Ct. App. 1989); Welch
V. Railroad Crossing, Inc., 488 N.E.2d 383, 392 (Ind. Ct. App. 1986); City of Indianapolis

V. Swanson, 436 N.E.2d 1179, 1182 (Ind. Ct. App. 1982); Dudley Sports Co. v. Schmitt,

151 Ind. App. 217, 279 N.E.2d 266 (1972).
136. Dukett, 546 N.E.2d at 1294.



884 INDIANA LAW REVIEW [Vol. 24:865

1. Background.—The rule concerning treatment of subsequent re-
medial conduct is well established in Indiana. *^^ Courts following this

rule have relied primarily on two rationales supporting appHcation of

the rule. The first and most often cited reason for reliance on the rule

is premised on public poHcy. Courts have been reluctant to allow evidence

of subsequent remedial conduct because of concern that use of this

evidence will deter defendants from making repairs or improvements.'^*

Recognizing that defendants should be encouraged to make repairs rather
than deterred by the fear that taking remedial measures will be construed

as an admission of guilt, Indiana courts have held that evidence of

remedial measures must be excluded. '^^

The second rationale for excluding evidence of subsequent remedial

measures stems from doubt over the probative value of such evidence.''"'

The primary purpose for offering this type of evidence is to show that
the defendant, by his conduct, admitted that he was negligent.''*' However,

many reasons may exist to explain the defendant's conduct, some of
which are not attributable to consciousness of wrongdoing. For example,

**evidence of repair may also connote the defendant's exercise of care
beyond that required by the law: the plaintiff's having been injured

despite the exercise of reasonable care, the defendant turns to measures

beyond those required by reasonable care.""*^ Although such evidence

may be relevant, it poses the danger that a jury would misconstrue the
evidence, causing prejudice to the defendant."*^ Balancing the lack of

probative value against the highly prejudicial effect of such evidence,

courts have chosen to exclude this type of evidence on most occasions."*^

There are circumstances in which the rule does not apply because

the probative value of the evidence outweighs its inherently prejudicial

nature. Evidence of subsequent remedial measures has been allowed

under the following circumstances: (1) to prove defendant's ownership

or control of property;"*^ (2) to show the feasibility of preventative

137. See cases cited supra note 135.

138. See Dukett, 546 N.E.2d at 1294; Terre Haute & Indianapolis R.R. v. Clem,
123 Ind. 15, 23 N.E. 965 (1890); 12 Indiana Practice, supra note 3, § 407.101, at 312.

139. See sources cited supra note 138. See also 12 Indiana Practice, supra note

3, § 407.101, at 312 (notes that scholars have criticized this rationale as unsound).

140. Ortho Pharmaceutical Corp. v. Chapman, 180 Ind. App. 33, 388 N.E.2d 541

(1979).

141. See 12 Indiana Practice, supra note 3, § 407.101, at 313.

142. Id.

143. Chapman, 180 Ind. App. at 41, 388 N.E.2d at 561.
144. Id.

145. City of Indianapolis v. Swanson, 436 N.E.2d 1179, 1182 (Ind. Ct. App. 1982),
vacated, 448 N.E.2d 668 (Ind. 1983) (citing City of Lafayette v. Weaver, 92 Ind. 477

(1883); Town of Argos v. Harley. 114 Ind. App. 290, 49 N.E.2d 552 (1943)).



1991] EVIDENCE LAW 885

measures when the defendant denies feasibility;*'*^ (3) **to prove a faulty
condition, later remedied, was the cause of the injury by showing that

after the change the injurious effect disappeared;'**^^ and (4) impeach-

ment. *"** Interestingly, although these exceptions have been recognized,

they have seldom been applied.

2. Dukett V. Mausness.—In Dukett v. Mausness,^^^ two separate
actions arose from a collision between Floyd Mausness, and Joseph

Dukett, an employee of Indianapolis Yellow Cab, Inc. Mausness's car

was struck by a taxi cab driven by Dukett and owned by Indianapolis
Yellow Cab, Inc.*^° In the first action, Mausness*s wife, Waneda, sued

Dukett and Yellow Cab for loss of consortium. In the second lawsuit.
Yellow Cab sued Floyd Mausness for property damage. In response to
the latter action, Mausness filed a counterclaim against Yellow Cab and
a cross-claim against Dukett for personal injuries.*^* For the sake of

efficiency, the trial court consolidated the two actions.*"

Although the court disposed of the Mausnesses* claims against Yellow

Cab on a directed verdict, it submitted their claims against Dukett to
a jury, which returned a verdict in their favor. Yellow Cab was un-
successful in its claim for property damage. *^^ The Mausnesses then filed

a motion for proceedings supplemental, naming Yellow Cab as a garnishee
defendant, which was granted by the trial court. Dukett and Yellow

Cab appealed. They argued, among other things, that the trial court
improperly allowed testimony that Yellow Cab terminated Dukett im-
mediately after the accident. *^^ According to Dukett and Yellow Cab,

this testimony constituted evidence of subsequent remedial conduct; thus,

it was inadmissible.

In a brief decision, the Dukett court considered the admissibility of

the following testimony of Dukett during the Mausnesses* case-in-chief:

146. Id. (citing Indianapolis & St. Louis R.R. v. Horst, 93 U.S. 291 (1876); Toledo,
Wabash and Western R.R. v. Owen, 43 Ind. 405 (1873); Hickey v. Kansas City Southern
R.R., 290 S.W.2d 58 (Mo. 1956)).

147. Id. (citing Kentucky Utilities Co. v. White Star Coal Co., 244 Ky. 759, 52

S.W.2d 705 (1923)).
148. Id. (citing Kenney v. Southeastern Pennsylvania Transport, 581 F.2d 351 (3d

Cir. 1978), cert denied, 439 U.S. 1073 (1979); Daggett v. A.T. & S.F.R. Co., 48 Cal.
2d 655, 313 P.2d 557 (1957); Brazil Block Coal Co. v. Gibson, 160 Ind. 319, 66 N.E.

882 (1903)).

149. 546 N.E.2d 1292 (Ind. Ct. App. 1989).
150. Id. at 1293.

151. Id.

152. Id.

153. Id.

154. Id.



886 INDIANA LAW REVIEW [Vol. 24:865

Q. Did you not state in your deposition, Mr. Dukett, in response

to the question, you got fired as a result of this accident on

December 12 and your answer was yes.

A. Yes, I used those words.

Q. Now, who did you talk to on that date?
A. I had talked to a ... .

Q. On December 13, the day after the accident? Who fired you?
A. The man who fired me was Mr. Hunt.'"

Counsel for Yellow Cab and Dukett sought to exclude this testimony
as evidence of subsequent remedial measures by filing a motion in limine,

which was denied, and interposing objections at trial, which were over-

ruled. '^^

On appeal, the court only briefly discussed the basis for its ruling.
It set forth policy considerations underlying the general rule that evidence

of subsequent remedial conduct is generally inadmissible.'^^ The court

stated that remedial measures should be encouraged, rather than deterred

by a fear among defendants that by making subsequent repairs, such
conduct can be used as proof of consciousness of wrongdoing. '^^ Noting

that this rule had never been applied in this context in Indiana, the

court of appeals examined cases from other jurisdictions to determine

whether evidence of firing can be considered a subsequent remedial

measure. '^^

In determining the admissibility of evidence of an employee's ter-

mination, those courts seemed to rely on the second rationale underlying

the rule of conduct by looking to the purpose for the tender of evidence

of termination.'^ Finding that the evidence was offered as proof of

negligence or as an admission, these courts held that such reasons were

not legitimate.'^' One court, in Engle v. United Traction Co., recognized
that employees are discharged for a variety of reasons, some of which

are totally unrelated to an employee's careless or negligent conduct. '^^

It found that the discharge of an employee is just as likely to raise

155. Id.

156. Id.

157. Id. at 1294 (citing Terre Haute & Indianapolis R.R. v. Clem, 123 Ind. 15,
19, 23 N.E.2d 965, 966 (1890)).

158. Id.

159. Id.

160. Rymar v. Lincoln Transit Co., 129 N.J.L. 525, 30 A.2d 406 (1946) (trial court
improperly admitted evidence of permanent severance of relationship between driver and

bus company); Engel v. United Traction Co., 203 N.Y. 321, 96 N.E. 731 (1911) (evidence

of discharge of motorman inadmissible); White v. Missouri Motors Distributing Co., 266
Mo. App. 453, 47 S.W.2d 245 (1932) (discharge of driver inadmissible).

161. See supra note 129.

162. 203 N.Y. at 323, 96 N.E. at 732.



1991] EVIDENCE LAW 887

inferences of legitimate reasons for discharge unrelated to the accident

as it is an inference that the discharge was prompted by the employee's

negligence.'"

In Duketty although the Indiana Court of Appeals set forth the

policy reason for the rule as the basis for its decision, it actually relied

on the rationale followed by other courts in decisions such as Engle.

The court in Dukett found that evidence of Dukett's termination was

offered to prove, by Yellow Cab's attitude toward the defendant, that

Dukett was careless.'^ Because this evidence was not "legitimate or

competent for that purpose," and constituted evidence of subsequent

remedial conduct, the court ruled that it should have been excluded at

trial. '^^ The trial court's failure to exclude such evidence constituted

reversible error.

Despite the brevity of the court's decision in Dukett, the court's

ruling is instructive and helpful to the defense bar in general. When
litigation arises involving an employee fired after his or her involvement

in a controversy forming the basis of a lawsuit, defense counsel should

consider filing a motion in limine to avoid introduction of evidence of

the discharge if negligence and liability on the part of the employer or

employee is alleged. In addition, the defendant should avoid raising the

issue by presenting this evidence directly or by introducing evidence that

could justify appHcation of an exception to the rule.'^ Plaintiff may be
able to introduce evidence of the discharge by arguing that the defendant

waived its right to object by introducing same or similar evidence of

its own remedial conduct or by arguing that an exception to the rule
appHes.

III. Federal Evidentiary Issues

A. Amendment to Federal Rule of Evidence 609(a)

In 1990, the United States Supreme Court amended Rule 609(a)(1)
and (2) of the Federal Rules of Evidence, which allows use of certain

prior convictions to impeach a litigant or witness. '^^ Prior to promulgation

of these amendments, courts disagreed about Rule 609' s interaction with

163. Id.

164. 546 N.E.2d at 1294.

165. Id.

166. See supra notes 145-48 and accompanying text.

167. Fed. R. Evid. 609 (a)(1), (2).



888 INDIANA LAW REVIEW [Vol. 24:865

Rule 403,**^* which provides for the exclusion of otherwise relevant ev-

idence if the evidence is unduly prejudicialJ^^ The rule was amended to
lay to rest this confusion among courts and inconsistency in application.
To accomplish this goal, two major changes were made First, the
amendment removed from the rule the limitation that a prior conviction

can be elicited only on cross-examination. ^^° Second, the rule resolves

the ambiguity as to the relationship between Rule 609 and 403 by

specifically engrafting into the rule the requirement that the general

balancing test of Rule 403 be applied.*^'

7. Application of Rule 609(a)(1), (2) Prior to Amendment.—
Prior to December 1, 1990, Rule 609(a)(1), (2) provided:

(a) General rule. For the purpose of attacking the credibility
of a witness, evidence that the witness has been convicted of a

crime shall be admitted if elicited from the witness or established

by public record during cross-examination but only if the crime

(1) was punishable by death or imprisonment in excess of one

year under the law under which the witness was convicted, and

the court determines that the probative value of admitting this

evidence outweighs its prejudicial effect to the defendant, or (2)

involved dishonesty or false statement, regardless of the pun-

ishment. '^^

The question of how to interpret this rule in both criminal and civil
contexts has been the subject of considerable controversy among courts
and commentators.'^' Some courts held that Rule 609(a) was to be applied
in conjunction with Rule 403 with the result being that evidence of prior

convictions of witnesses or Htigants other than the criminal defendant

otherwise admissible under Rule 609 could still be excluded if its probative

value was substantially outweighed by its prejudicial effect on any lit-

168. Fed. R. Evid. 403. Rule 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by consideration of undue delay, waste of time, or

needless presentation of cumulative evidence.

Id.

169. Id.

170. Fed. R. Evid. 609(a)(1), (2) (effective Dec. 1, 1990).

171. Id.

172. Id.

173. See Donald v. Wilson, 847 F.2d 1191 (6th Cir. 1988); Wierstak v. Hefferman,

789 F.2d 968 (1st Cir. 1986). See also Note, Prior Convictions Offered for Impeachment

in Civil Trials: The Interaction of Federal Rules of Evidence 609(a) and 403 y 54 Fordham
L. Rev. 1063 (1986).



1991] EVIDENCE LAW 889

igant.'^* In contrast, other courts held that Rule 609 was all inclusive

and was not meant to be read in tandem with Rule 403.^^^ Pointing to

language of the rule, which was regarded as mandatory, these courts

also found that evidence falling within the scope of the rule "shall be

admitted," thus precluding any additional consideration under Rule 403

of the probative value or prejudicial effect of the evidence. *^^ The Seventh

Circuit followed the latter view.^^^

In Campbell v. Greer, the Seventh Circuit held that except as to

defendants in criminal cases, prior convictions meeting the Rule 609(a)

requirements were always admissible to impeach a witness and were not

reviewed to determine whether their probative value outweighs their

prejudicial effect. '^^ The court found that the trial court was permitted

to weigh only the prejudicial effect of such evidence on a defendant in

a criminal trial. '^' The court also held that Rule 609 was all-inclusive,
meaning that no independent balancing test under Rule 403 could be

applied. **° The Seventh Circuit reaffirmed this view in Hernandez v.

Cepeda,^^^

In 1989, the Supreme Court resolved the controversy with regard

to civil witnesses and parties in Green v. Bock Laundry Machine Co.^^^
The Court noted after a review of the Rule's legislative history that the
balancing test was intended only to apply to bar impeachment by prior

felony convictions when admission of such evidence would unduly prej-
udice a defendant in a criminal matter.'" Thus, in the civil context, the

balancing test was inapplicable. '^'^ Analyzing the mandatory language of

Rule 609 and finding that its language prevented an independent ap-

plication of Rule 403, the Court held that Rule 609(a)(1) **requires a

judge to permit impeachment of a civil witness with evidence of prior

174. See, e.g., Jones v. Board of Police Comm'rs, 844 F.2d 500 (8th Cir. 1988);

Petty V. IDECO, 761 F.2d 1146 (5th Cir. 1985); Czajka v. Hickman, 703 F.2d 317 (8th
Cir. 1983); Shows v. M/V Red Eagle, 695 F.2d 114 (5th Cir. 1983).

175. See, e.g., Cambeil v. Greer, 831 F.2d 700 (7th Cir. 1987); Diggs v. Lyons,

741 F.2d 577, 582 (3d Cir. 1984); United States v. Kuecker, 740 F.2d 496 (7th Cir. 1984);

United States v. Wong, 703 F.2d 65 (3d Cir.) {per curiam), cert, denied, 464 U.S. 842

(1983); see also McCormick, supra note 20, § 43, at 95 (3d ed. 1984); 2 C. Wright,
Federal Practice and Procedure § 416, at 554 (1982).

176. See sources cited supra note 175.

177. Campbell, 831 F.2d at 706; see also Hernandez v. Cepeda, 860 F.2d 260 (7th

Cir. 1988).

178. Campbell, 831 F.2d at 703-04.

179. Id.

180. Id. at 706.

181. Hernandez, 860 F.2d 260 (7th Cir. 1988).

182. 109 S. Ct. 1981 (1989).

183. Id. at 1991-92.

184. Id.



890 INDIANA LAW REVIEW [Vol. 24:865

felony convictions, regardless of the ensuant unfair prejudice to the

witness or the party offering the testimony.
"•^^

The implication of this decision was that a trial court could no

longer exercise discretion and balance the probative value of prior con-

victions against the prejudicial impact of their admission at trial. Rather,

under Bock Laundryy the court was required to permit such impeachment
regardless of its prejudicial effect.'^

The issue of the interaction of Rule 403 with Rule 609 was also

raised in criminal cases when prior convictions were used to impeach
witnesses to the detriment of the government. There seemed to be

confusion as to whether the balancing test applied when the evidence
of prior felony convictions of witnesses other than the criminal defendant

was offered as impeachment.^*^ Some courts determined that Rule 609(a)
applied to evidence of witnesses' prior felony convictions without regard

to its prejudicial impact on the government. •** This approach ignored

the government's interest in a fair trial and the potential for frustrating

this interest by introduction of highly prejudicial impeachment evidence.

Because Rule 609 was the source of so much confusion and discord,
amendment was necessary to resolve the conflicts.

2, The Amended Rule 609 (a)(1), (2).—As amended. Rule 609 now
reads in relevant part:

(a) General rule.- For the purpose of attacking the credibility

of a witness,

(1) evidence that a witness other than an accused has been

convicted of a crime shall be admitted, subject to Rule 403 y if

the crime was punishable by death or imprisonment in excess

of one year under the law under which the witness was convicted,

and evidence that an accused has been convicted of such a crime

shall be admitted if the court determines that the probative value

of admitting this evidence outweighs its prejudicial effect to the

accused; and

(2) evidence that any witness has been convicted of a crime

shall be admitted if it involved dishonesty or false statement,

regardless of the punishment.'*^

As previously noted, this version contains two major changes. First,
the rule omits the limitation that the conviction may only be elicited

185. Id. at 1993.

186. Id.

187. See, e.g.. United States v. Thome, 547 F.2d 56 (8th Cir. 1976); United States
Nevitt, 563 F.2d 406 (9th Cir. 1977), cert, denied, 444 U.S. 847 (1979).

188. See cases cited supra note 187.

189. Fed. R. Evid. 609(a)(1), (2) (effective Dec. 1, 1990) (emphasis added).



1991] EVIDENCE LAW 891

on cross-examination.'^ Recognizing the common practice of eliciting
this information from witnesses on direct examination to **remove the

sting" of the impeachment, the Conference Committee on Rules of

Practice and Procedure noted that this limitation was ineffective and

found to be inapplicable by virtually every circuit.'^*

The second change resolves the uncertainty of the relationship be-

tween Rule 609 and 403 concerning impeachment of witnesses other than

a criminal defendant. '^^ The amendment simply provides that the Rule
403 balancing test will be applied when proof of prior convictions is

offered as impeachment.'^^ With the exception of the criminal defendant

who chooses to testify, this rule applies to all litigants (that is, the civil
plaintiff, the civil defendant, and the government in criminal cases). '^"^

Explaining the purpose for this amendment, the Committee stated:

The amendment reflects the view that it is desirable to protect
all litigants from the unfair use of prior convictions, and that

the ordinary balancing test of Rule 403, which provides that

evidence shall not be excluded unless its prejudicial effect sub-

stantially outweighs its probative value, is appropriate for as-

sessing the admissibility of prior convictions for impeachment

of any witness other than a criminal defendant. '^^

In addition, the Committee stated, **[T]he amendment reflects a judgment
that decisions interpreting Rule 609(a) as requiring a trial court to admit

convictions in civil cases that have little, if anything, to do with credibility

reach undesirable results.'*'^

The Committee also clarified the role of Rule 403 with regard to

government witnesses. As already stated, the amendment applies to
impeachment of government witnesses. '^^ The amendment recognizes that
the government's interest in a fair trial may be compromised by evidence
of prior convictions to impeach the witness when the prior convictions
only remotely relate to credibility.'^^ The Committee noted, however,
that in most criminal cases it is unlikely that prior convictions of the

190. Id.

191. Advisory Committee Note, Amendments to Federal Rules of Evidence — Rule
609, 129 F.R.D. 353 (1990) [hereinafter Committee Note].

192. Id.

193. See supra note 168 and accompanying text.

194. Committee Note, 129 F.R.D. at 354. See also Fed. R.. Evid. 404 (evidence

of other crimes is only admissible to prove motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident).

195. Committee Note, 129 F.R.D. at 353-54.

196. Id. at 354.

197. Id.

198. Id.



892 INDIANA LAW REVIEW [Vol. 24:865

ordinary government witness will be unduly prejudicial.*^ Thus, trial

courts "will be skeptical when the government objects to impeachment

of its witnesses with prior convictions.
'*2°^

Finally, the Committee noted that amendment of the Rule to include

language limiting use of prior convictions only for impeachment purposes

is unnecessary because the title of the Rule, its first sentence, and its

placement among other impeachment rules clearly show that such evidence
can be offered under Rule 609 only for the purpose of impeachment.^^^

3. Affect of the Amendment in the Seventh Circuit.—Because courts
in the Seventh Circuit previously adhered to the view that the deter-

mination of the admissibility of evidence of prior convictions under Rule

609 did not include an analysis under Rule 403, the amendments to

Rule 609 represent a substantial change in those courts' approach to

such evidence. Although courts routinely allowed such evidence prior to

the amendment, they now must engage in an analysis that balances the
probative value of the evidence against its prejudicial impact any time

evidence of prior convictions is offered to impeach a witness. The effect

of this shift will be that evidence of prior convictions is not as likely

to be introduced if the opponent of the evidence is aware of the change

in the rule and can illustrate the prejudicial impact of the evidence to

the court. To take advantage of the benefit of the amendment, counsel
should be prepared to argue that introduction of the evidence of prior

convictions will be unduly prejudicial.

Thus, civil and criminal litigants who fear that evidence of their
own prior convictions or of their witnesses might be introduced for
impeachment may wish to file a motion in limine to obtain a pre-trial
ruling regarding the admissibility of the evidence, citing the new rule
and showing the court the prejudicial impact that would result from

admission of such evidence. It is important to note, however, that a

trial court's determination of admissibility under Rule 403 is discretionary^^^

and is unlikely to be overturned on appeal unless the court has abused

its discretion. Therefore, it is important to convince the trial court of

the proper ruling before or during trial rather than attempt to persuade

the appellate court of the trial court's harmful error.

B. The **Frye Test** and Spectrographic Voice Analysis

In 1989, the Seventh Circuit decided United States v. Smith?^^ This

decision is noteworthy for two reasons. First, the Seventh Circuit re-

199. Id.

200. Id. at 354-55.

201. Id. at 355.

202. See Thronson v. Meisels, 800 F.2d 136 (7th Cir. 1986).

203. 869 F.2d 348 (7th Cir. 1989).



1991] EVIDENCE LAW 893

affirmed its commitment to use of the Frye test as a method for assessing

the admissibihty of scientific evidence.^^ Second, applying the Frye test,

the court ruled for the first time that expert testimony concerning

spectrographic voice analysis is admissible.^^^

7. Background,—Prior to adoption of the Federal Rules of Evidence,
courts generally applied a test articulated in Frye v. United States to

determine the admissibility of scientific evidence and expert testimony

premised upon scientific data.^^* This standard, known as the Frye test,
was set forth in 1923 and described in the following manner:

Just when a scientific principle or discovery crosses a line
between experimental and demonstrable stages is difficult to

define. Somewhere in this twilight zone the evidential forces of

a principle must be recognized, and while courts will go a long

way in admitting expert testimony deduced from a well-recognized
scientific principle or discovery, the thing from which the de-

duction must be made must be sufficiently established to have
gained general acceptance in a particular field in which it be-

longs.^°^

After the Federal Rules of Evidence were adopted, specifically Federal

Rule 702^°^ and 703,^^ the Frye test began being criticized by commen-
tators and abandoned by courts as being unnecessarily restrictive.^*^ The

Seventh Circuit, however, has continued to affirm and apply the Frye
test.^'^ii

204. Id.

205. Id.

206. 293 F.2d 1013 (D.C. Cir. 1923).

207. Id. at 1014.

208. Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in issue, a witness qualified

as an expert by knowledge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.

Fed. R. Evid. 702.

209. Rule 703 provides:

The facts or data in the particular case upon which an expert bases an opinion

or inference may be those perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied upon by experts in the particular

field in forming opinions or inferences upon the subject, the facts or data need

not be admissible in evidence.

Fed. R. Evid. 703.

210. See United States v. Hope, 714 F.2d 1084, 1087 n.3 (11th Cir. 1983); see also

McCoRMiCK, supra note 20, § 203, at 606-08.

211. Smith, 869 F.2d at 351; United States v. Carmel, 801 F.2d 997 (7th Cir. 1986);

United States v. Franowski, 659 F.2d 705 (2d Cir. 1981).



894 INDIANA LAW REVIEW [Vol. 24:865

In Smith, the Seventh Circuit once again showed its resolve to adhere

to the rule, despite this increasing criticism.^^^ In Smith, the Seventh

Circuit applied the Frye test to determine for the first time the admis-

sibility of expert testimony concerning spectrographics voice identifica-

tion.2»3

2. The Smith Decision,—Tanya and Tamara Smith, identical twins,
were charged with conspiracy to commit bank and wire fraud and

substantive counts of bank, credit card, and wire fraud. The twins,

posing as bank employees, telephoned various banks and authorized them

to make fictitious transfers of nonexistent funds. The women then
arranged for other persons to retrieve the money at transferee banks or
Western Union. After retaining a small portion of the money themselves,
these persons turned the remainder over to the twins.

^•'^

To establish the twins' identity, a crucial issue at trial, the government
called a spectrographic voice identification expert to testify. The expert

who testified at trial based his testimony on data compiled by another
voice identification expert who was unable to testify at the last minute.
After comparing the recorded voices of Tamara and Tanya Smith to
the recorded voice of the person who called a number of banks and
falsely identified herself as a bank employee attempting to arrange a

wire transfer, the expert concluded that it was highly probable that the

caller was Tanya Smith rather than Tamara Smith.^^^
Tamara Smith, the appellant, was convicted of thirty-one of the

thirty-seven counts with which she was charged. On appeal, Tamara
challenged the use of the expert testimony concerning spectrographic

voice identification, arguing that voice spectrograms are not generally

accepted by the scientific community.^*^

Confronted with this issue of whether to use the Frye test to determine

the admissibility of the evidence, the Seventh Circuit declined to depart

from precedent. Rather, it reviewed with approval other circuits that

applied the Frye test to find that expert testimony concerning spectro-

graphic voice analysis is admissible when the proponent of the testimony
has estabUshed a proper foundation.^^^

212. 869 F.2d at 351.

213. Id.

214. Id. at 349-50.

215. Id. at 350.

216. Id. On appeal, Tamara also argued that admission of the substitute expert's
testimony violated her rights to confrontation under the sixth amendment to the Consti-

tution. In addition, she appealed the denial of her motion to sever her trial from that

of her sister.

217. Id. at 351.



1991] EVIDENCE LAW 895

Specifically, the court relied on a two-pronged analysis applied by

other circuits.2^® This inquiry focuses upon whether the scientific technique

at issue is reliable and likely to mislead the jury.^^^ With regard to the

first element, the court stated that a scientific technique may be reliable
if several factors are present, including "the potential rate of error, the

existence and maintenance of standards, the care and concern with which

a scientific technique has been employed (and whether it appears to lend

itself to abuse), and its analogous relationship with other types of

scientific techniques. "^^^ An additional indicia of reliability is° the presence
of **fail-safe" characteristics, (that is, "characteristics the variability of

which will lead to different rather than similar results"). ^^^

When discussing the second prong of the analysis, the court em-
phasized the danger of a jury giving undue weight to scientific evidence

because of the apparent objectivity of opinions premised upon scientific

data.2^2 It noted, however, that the tendency of such evidence to mislead

the jury is reduced if the technique is comprehensible to a jury, the

jury is able to make the same comparisons as the expert, the evidence
is subject to cross-examination, and the trial judge instructs the jury

about its responsibility to discredit such evidence if it is found to be

unconvincing.^^^

Applying these factors to the facts of the case, the Seventh Circuit

found that the government provided ample evidence of the reliability

of spectrographic voice analysis through the testimony of the expert

regarding the principles and techniques behind voice identification, his

own studies, and the studies of other experts as to the reliability of the
techniques. Despite the fact that the expert admitted that the technique

was not infallible and was not unanimously supported by the scientific

community, the court held that the expert's testimony contained several

of the indicia of reliability and was therefore sufficiently reliable.^^"* The

court also held that the presence of the safeguards mentioned above

prevented the testimony from misleading the jury.^^^ Therefore, because

the testimony was both rehable and unlikely to mislead the jury, it was

admissible and properly presented to the jury.^^^

218. Id. (citing United States v. Williams, 583 F.2d 1194, 1198-1200 (2d Cir. 1978)).

See also United States v. Bailer, 519 F.2d 463, 465-67 (4th Cir.), cert, denied, 423 U.S.

1019 (1975).

219. Smith, 869 F.2d at 351.

220. Id. at 352.

221. Id.

111. Id.

113. Id.

224. Id. at 353-54.

225. Id. at 354.

226. Id. at 354-55.



896 INDIANA LAW REVIEW [Vol. 24:865

3. Conclusion.—Smith is important for two reasons. First, the court's
adherence to the Frye test in the midst of increasing criticism in other

jurisdictions counsels attorneys to build the proper foundation for expert

testimony under the test in cases involving innovative or new scientific

techniques. Proof of the factors set forth above to establish general

acceptance in the scientific community may be necessary in such cases.
Failure to prepare expert testimony in this manner may result in exclusion
of the evidence.

Second, Smith is noteworthy because of its determination that spec-

trographic voice identification passes the Frye test and is admissible in

cases in which a sufficient foundation has been laid. It is important to

note that the law in the Seventh Circuit now differs from the law
followed in Indiana. With regard to spectrographic voice identification,

Indiana courts have specifically rejected this technique as unreliable.^^^

However, because of the advancement in technology and the increasing

acceptance by courts of this scientific technique as reliable, it is Ukely

that an Indiana court will depart from its previous ruUngs when presented
with the issue in the future. In the meantime, attorneys should be aware

of the different approaches and should proceed accordingly.

C. Attorney-Client Privilege

Although the law concerning attorney-client privilege is well estab-

lished in the Seventh Circuit, a recent case provides an interesting example

of the application of this doctrine to information concerning the identity

of a fee payer who sought legal advice from an attorney.^^^ In In re
Grand Jury Proceeding, Cherney,^^ the Seventh Circuit considered whether

the identity of an individual who paid a legal fee is confidential, and
therefore privileged. The court held that the identity of the person who
paid legal fees was protected by the attomey-cUent privilege.^^^

1. Background.—The attorney-client privilege is an evidentiary doc-
trine that prohibits disclosure of confidential communications between

an attorney and a client. This doctrine is premised on the theory that

encouragement of full disclosure by a client allows the attorney to act

in a matter that is more effective, efficient, and just, and that these

benefits outweigh the risks raised by preventing full disclosure in court.^^^

The privilege is narrowly confined, applying only when necessary to
achieve its purpose.^^^ Thus, the privilege applies only when a client

227. Cornett v. State, 450 N.E.2d 498 (Ind. 1983).

228. In re Grand Jury Proceeding, Cherney, 898 F.2d 567 (7th Cir. 1990).
229. Id.

230. Id.

231. See Fisher v. United States, 425 U.S. 391 (1976).

232. Id.



1991] EVIDENCE LAW 897

makes confidential communications in order to obtain informed legal

advice, and does not protect all communications that merely relate to

or have a bearing upon the attorney-client relationship.2" The deter-
mination of whether the privilege protects disclosure of certain infor-

mation is fact-sensitive and varies from case to case.

2. The Cherney Case.—In Cherneyy the Seventh Circuit considered
these general principles in the context of grand jury proceedings in which

an attorney refused to disclose the identity of a person who paid his
fee to represent another individual. ^^"^ The attorney, who had previously
represented a man named Jack Hrvatin in a conspiracy-narcotics trial,
was served with a subpoena to appear before a grand jury to answer

questions concerning who paid him to represent Hrvatin. The attorney
filed a motion to quash the subpoena on the ground that the fee-payer*s

identity was protected by the attorney-client privilege. After conducting

an in camera review of documents submitted by the attorney, the district

court granted the motion to quash based on application of the privilege.

The government appealed. ^^^

On appeal, the Seventh Circuit cited the general rule that "infor-
mation regarding a client*s fees is not protected by the attorney-client

privilege because the payment of fees is not a confidential communication

between the attorney and client. '^^^^ Although the court stated that

payment of fees is incidental and does not usually involve disclosure of

confidential communications, it recognized that under certain circum-

stances, **disclosure of fee-payer*s identity could reveal a confidential

communication.* '2^^ Under such circumstances, the privilege applies.^^^

The privilege does not apply, however, merely when disclosure of the
identity of the fee-payer may be incriminating to that client."' Thus,
the appropriate inquiry is ** whether the revelation of the identity of the

fee payer along with information regarding the fee arrangement would

reveal a confidential communication*' between the attorney and the fee-

payer.2^

With this in mind, the court turned to the case at bar. It rejected

the government's argument that despite the admitted existence of an

attorney-client relationship between the attorney and the fee-payer, in-

233. Cherney, 898 F.2d at 567.

234. Id. at 566.

235. Id. at 566-67.

236. Id. at 567 (quoting In re Witnesses Before Special March 1980 Grand Jury,
729 F.2d 489, 491 (7th Cir. 1984)).

237. Id.

238. Id.

239. Id. at 568.

240. Id.



898 INDIANA LAW REVIEW [Vol. 24:865

formation regarding the payment of fees could not be confidential.^^^^

The court stated that when disclosure of an unknown client's {i.e., fee-
payer) identity would reveal the client's motive for seeking legal advice,

the client's identity is protected by the privilege.^^ It then found that

disclosure of the fee-payer's identity would necessarily reveal the fee-

payer's involvement in the drug conspiracy and would, therefore, reveal

his motive for seeking legal advice.^^^ Because the client paid Hrvatin's

fees in the same matter giving rise to the attorney-client relationship,

the court ruled that disclosure of his identity would, in effect, reveal

the substance of a confidential communication.^ In other words, the

disclosure would have exposed the very reason that the client fee-payer

initially sought legal advice from the attorney. Thus, although this

information could have been incriminating, and incriminating information

alone is not privileged, it was still shielded by the privilege because it

was confidential.^^

The court distinguished this situation from the typical case in which

the government seeks information about a known client's fee. The court
stated that the purpose of that inquiry is usually to determine whether

the attorney was paid with illicit funds. Although revelation in that case

would probably incriminate the client, it would not risk exposure of a

confidential communication.^^ In contrast, revelation of the fee-payer's

identity in the case at bar would simultaneously reveal a confidential

communication.

Finally, although the court recognized the frustration of the gov-

ernment in its effort to learn the identity of a suspected drug felon, it

held that these interests had to succumb to interests served by the attorney-

client privilege under the circumstances. ^^^^

3. Conclusion.—Although the Seventh Circuit specifically stated that
its holding did not constitute an expansion of the attorney-client priv-

ilege,^"** its decision provides clues regarding how it may decide similar
cases in different contexts in the future. As governmental entities acquire
increasing power to inquire about information concerning legal fees, this

decision reveals that such power is not unlimited. Attorneys seeking to
invoke the privilege on behalf of cHents who paid fees should examine
their own circumstances to determine whether this case could apply.

241. Id.

242. Id.

243. Id.

244. Id.

245. Id.

246. Id.

247. Id. at 569.

248. Id.



1991] EVIDENCE LAW 899

IV. Conclusion

Attorneys should recognize that numerous cases addressing eviden-

tiary issues have been decided at both the state and federal level during

the survey period — too numerous to mention here. This Article intends
only to highlight some of the developments in the law of evidence

significant to practitioners in federal and state courts in Indiana.

At the state level, this Article discusses the inadmissibility of set-
tlement agreements, foundational requirements for expert testimony when
the expert uses formulas, calculations, and information from third parties

to form an opinion, the scope of the physician-patient privilege, and

the inadmissibility of subsequent remedial measures, including the sub-

sequent firing of an employee who was allegedly negligent.
At the federal level, this Article discusses the recent amendment to

Rule 609 of the Federal Rules of Evidence involving impeachment of

witnesses with evidence of prior crimes, the Seventh Circuit's use of the

Frye test to admit expert testimony concerning spectrographic voice

analysis, and a recent application of the attorney-client privilege to protect

the identity of a fee-payer.