Indiana Law Review


Indiana Rules of Evidence

Ivan E. Bodensteiner*

Introduction

By Order dated August 24, 1993 the Indiana Supreme Court adopted the Indiana
Rules of Evidence (IRE), effective January 1, 1994.' These rules are generally similar

to the Federal Rules of Evidence (PRE), with some significant differences. Part II will

discuss the new rules, comparing them with both the PRE and prior Indiana law. Part
I discusses the most important decisions of the past year, some of which continued the

Indiana Supreme Court's move toward the PRE even before the effective date of the
new IRE.

I. Important Decisions in 1993

Two controversial topics are addressed in a number of cases decided during the
past year: Admissibility of prior acts^ and use of prior statements of a witness as

substantive evidence^. In Lannan v. State, the Indiana Supreme Court adopted Pederal

Rule of Evidence 404(b),'* which disallows evidence of prior acts to show action in

conformity therewith (propensity), but allows it for other purposes, including proof of

motive, intent, plan, and identity.^ This rule was applied in Hardin v. State^ where

the defendant was charged with dealing in cocaine and evidence of prior drug dealings

was admitted to prove common scheme or plan and identity. While "common scheme
or plan" is not listed in 404(b) as one of the examples of admissible purposes of prior

acts, the court noted that the list is not exclusive. Purther, common scheme or plan fits
within the terms "plan" and "identity."^ However, the court held that the evidence

* Professor of Law, Valparaiso University School of Law. B.A., 1965, Loras College; J.D., 1968,

University of Notre Dame.

1. 617 N.E.2d LXXXIII (Ind. 1993).

2. See Fed. R. Evid. 404(b).

3. See FED. R. EviD. 801(d)(1).

4. 6(X) N.E.2d 1334 (Ind. 1992). In abandoning the depraved sexual instinct exception to the

general rule against admissibility of prior bad acts to show propensity, the court stated that "Rule 404(b) of

the Federal Rules of Evidence provides a better basis for testing the admissability of this sort of evidence

than our existing caselaw provides." Id. at 1335. While Lannan applies retroactively, at least to cases

pending on direct appeal at the time it was decided, Pirnat v. State, 607 N.E.2d 973 (Ind. 1993) (reserving

the issue of its application to cases pending on collateral review), requires that the issue was properly

preserved in the trial court and that any error in admitting evidence of prior offenses is not fundamental.

See, e.g., Posey v. State, 624 N.E.2d 515, 517-18 (Ind. Ct. App. 1993); Craig v. State, 613 N.E.2d 501, 505

(Ind. Ct. App. 1993); Stout v. State, 612 N.E.2d 1076, 1079 (Ind. Ct. App. 1993); Ried v. State, 610 N.E.2d

275, 281-82 (Ind. Ct. App. 1993). In her dissent in Reid, Judge Barteau argues that fundamental fairness

requires application of the new rule announced in Lannan because there was no "intentional or voluntary

relinquishment of a known right" by the accused. It is not reasonable to expect counsel to anticipate a

change in evidentiary rules and object to the introduction of evidence under a then well-recognized rule like

the depraved sexual instinct ntle. Id. at 282. See also Martin v. State, 622 N.E.2d 185, 187 (Ind. 1993)

(where the accused objected to evidence of past sexual misconduct both in a motion in limine and on two

occasions prior to testimony of the witness, the issue was not waived even though he did not object at the

time the testimony was actually introduced).

5. See, e.g., Hatton v. State, 626 N.E.2d 442, 443 (Ind. 1993); Thompson v. State, 625 N.E.2d

1322, 1324 (Ind. Ct. App. 1993).

6. 611 N.E.2d 123 (Ind. 1993).

7. Id. at 129.



1064 INDIANA LAW REVIEW [Vol. 27:1063

should not have been admitted to show plan because the prior acts were not similar

enough to the charged offense to constitute Hardin's "signature" and there was no

evidence that the prior acts were part of a preconceived plan that included the charged

offense.^ Further, the prior acts could not be used to show identity because the

evidence did not show who committed the charged crime.^
Hardin demonstrates that, when seeking to introduce evidence of prior acts, the

prosecution has to do more than merely recite a purpose that generally fits within Rule

404(b). The prior acts must be relevant to the identified purpose or issue and the issue

should be in dispute. For example, in James v. State, ^^ involving a prosecution for

possession of marijuana found in the automobile of the sister of the accused, the trial

court admitted evidence of the defendant's prior drug conviction and probation status

for the purpose of showing both his knowledge of drugs and his intent to possess

them.'^ The appellate court held that the evidence was improperly admitted because

the issue was whether the defendant knew there was marijuana in the car, not whether

he knew what marijuana was.'^ In addition, possession of marijuana in the past does

not support an inference of intent to possess it at a later time. Further, admission of

evidence of the prior acts was not harmless in light of the prosecutor's continual

reference to this evidence,'^

The court in Hardin explicitly adopted Rule 403,"* which gives trial courts the

discretion to exclude relevant evidence where its probative value is substantially

outweighed by (a) the danger that it will cause unfair prejudice, confuse the issues or

mislead the jury or (b) considerations related to delay, waste of time or needless

cumulative evidence.'^ More importantly, the court held that evidence admissible

under 404(b) is subject to exclusion based on Rule 403.'^ The greater the similarity,

the greater the danger that the jury will use the evidence for the forbidden reason—to
show action in conformity therewith. Therefore, while dissimilarity between the prior

acts and the charged act makes it more difficult to satisfy Rule 404(b), if the acts are

too similar Rule 403 is more likely to bar admission.''

8. Id. at 130. See also Hazelwood v. State, 609 N.E.2d 10, 16-17 (Ind. Ct. App. 1993) (mere fact

that the defendant attempted to defraud insurance companies on more than one occasion did not show a

common scheme or plan, however, it did show intent and was therefore admissible).
9. 611 N.E.2dat 130.

10. James v. State, 622 N.E.2d 1303 (Ind. Ct. App. 1993).

11. Id. at 1308. In representing the accused in criminal cases, defense counsel should take advantage

of the notice provision in Rule 404(b) so that the prosecution is forced to disclose its intended use of prior

acts before trial. Id.

12. Id. at 1309. Cf. McGuire v. State. 613 N.E.2d 861, 863-64 (Ind. Ct. App. 1993) (testimony

about previous uncharged drug transactions properly admitted to show intent).

13. Id. at 1310. Cf. Martin v. State, 622 N.E.2d 185, 188 (Ind. 1993) (evidence of Martin's prior

sexual misconduct with his daughter twenty years earlier improperly admitted under Rule 404(b), but

admission harmless because of other evidence of deviate sexual conduct and child molesting); Taylor v.

State, 615 N.E.2d 907, 912-13 (Ind. Ct. App. 1993) (admission of uncharged misconduct as part of res

gestae erroneous, but harmless).

14. Fed. R. Evid. 403 (exclusion of relevant evidence on grounds of unfair prejudice).

15. 611 N.E.2d at 128-29.

16. Id. at 129.

17. Cf. Wickizer v. State, 619 N.E.2d 947 (Ind. Ct. App. 1993) (where the accused was charged with

child molesting and argued that his intent in touching the child's genitals was not sexual gratification, the

trial court did not err in admitting, under Rule 404(b), for the purpose of refuting the argument that the

touchings were not sexually oriented, evidence that the accused touched the genitals of two others when they



1994] RULES OF EVIDENCE 1065

Application of Rule 403 in conjunction with 404(b) is demonstrated in Brim v.

State,^^ where Brim was charged with beating his lover and his identity as the

assailant was the primary factual issue in the trial. The court held that evidence of

prior beatings was properly admitted because the beatings were sufficiently similar to

the charged beating to constitute a "signature"—the victim was the same, all were
alcohol related, and the accused grabbed the victim's head or hair and bounced her

head into a hard surface.*^ Because Brim's identity as the assailant was "hotly

disputed" during trial, the court concluded that "the probative value of the evidence of

the prior beatings was not substantially outweighed by the potential for unfair

prejudice."^^ Noting there had been no admonishment nor limiting instruction

regarding the purpose for which the prior beatings could be used by the jury, the court

indicated that "the use of a cautiously worded limiting instruction in cases involving

evidence of uncharged misconduct is available upon request and is to be encour-

aged."^' Therefore, it appears the Rule 403 balance was struck in favor of the

prosecution because evidence of the prior beatings was crucial to the "hotly disputed"

404(b) issue of identity.

The second controversial topic addressed in recent Indiana decisions is the use of

a witness' prior statements as substantive evidence. Rule 801(d)(l)^^ makes three

types of prior statements of a witness admissible as substantive evidence if the witness

testifies at the trial and is subject to cross examination concerning the statements.

Under 801(d)(1)(C) a prior statement is defined as non-hearsay if it is "one of

identification of a person made after perceiving the person." This rule was applied in

Brim v. State^^ where the victim of a beating was allowed to identify the accused as

the person who beat her even though she could not remember the beating. She also
testified that her memory comes and goes, and that she remembered making a
statement to the police regarding the beating. In the recorded statement given to the

police approximately ten months after the beating and admitted at trial, the victim

recalled the details of the beating and identified the accused as the person who beat
her. The question on appeal was whether the victim's memory was "so severely
impaired that she could not be meaningfully cross-examined concerning her prior

statement."^"*

The Brim court resolved this issue by relying on the Supreme Court's decision in

United States v. Owens?^ In Owens, the Supreme Court held that the testimony of

were children; however, the court did not discuss the application of Rule 403).

18. 624 N.E.2d 27 (Ind. Ct. App. 1993). See also McGuire v. State, 613 N.E.2d 861 (Ind. Ct. App.

1993).

19. Id. at 34-35.

20. W. at 35.

21. Id. at 35 n.3.

22. Fed. R. Evid. 801(d)(1). This rule was adopted by the Indiana Supreme Court in Modesitt v.

State, 578 N.E.2d 649, 653-54 (Ind. 1991), which overruled Patterson v. Stale, 324 N.E.2d 482 (Ind. 1975),

but only prospectively. Thus Patterson continues to control cases tried before Modesitt. See, e.g.,

Saintignon v. State, 616 N.E.2d 369, 372 (Ind. 1993); Dausch v. State, 616 N.E.2d 13, 16-17 (Ind. 1993);

Alva V. State, 605 N.E.2d 169 (Ind. 1993). The decision in Modesitt addressed only the use of prior

statements as substantive evidence, not the use of prior inconsistent statements for impeachment. Dixon v.

State, 621 N.E.2d 1152, 1156 (Ind. Ct. App. 1993).

23. 624 N.E.2d 27 (Ind. Ct. App. 1993).

24. Id. at 31.

25. 484 U.S. 554 (1988).



1066 INDIANA LAW REVIEW [Vol. 27:1063

a witness to a lack of recollection about the underlying event satisfies both the

confrontation clause of the sixth amendment to the U.S. Constitution and the "subject

to cross-examination concerning the statement" requirement of Rule 801(d)(l).^^ The

requirement of cross-examination is satisfied if the declarant "is placed on the stand,

under oath, and responds willingly to questions."" While "limitations on the scope

of examination by the trial court or assertions of privilege by the witness may

undermine the process to such a degree that meaningful cross-examination within the

intent of the rule no longer exists," an assertion of memory loss does not produce that
effect.^* Rather, an assertion of memory loss "is often the very result sought to be

produced by cross-examination, and can be effective in destroying the force of the

prior statement."^^ With this analysis, the court in Brim declared that since the victim

took the stand, was under oath, and responded willingly to the questions posed, she

was available for cross examination.
^°

II. The New Indiana Rules of Evidence

Following is a comparison of the IRE with both the PRE and prior Indiana law
and practice. Where the rules are similar or the same, cases interpreting the PRE will
provide guidance in interpreting the IRE,^' but such decisions are not binding even

where the language of the PRE and the IRE is identical. More than thirty states have
adopted some version of the Uniform Rules of Evidence (URE), which are similar to

the IRE. Decisions from the courts in those states will help guide the interpretation

of the IRE.

A. Article I: General Provisions

1. Rule 101: ScopeP—Indiana's new Rule of Evidence 101 is similar to PRE

26. Id. at 564.

27. Id. at 561.

28. Id. at 561-62.

29. Id. at 562.

30. Brim, 624 N.E.2d at 32. If a witness "testifies to a lack of memory of the subject matter of [her]

statement," IND. R. EviD. 804(a)(3), she is unavailable and "former testimony" is admissible as a hearsay

exception. iND. R. EviD. 804(b)(1).

31. See supra notes 25-29 and accompanying text for an example of an Indiana court's reliance on

the U.S. Supreme Court's interpretation of a federal rule for guidance.

32. These rules govern proceedings in the courts of this State to the extent and with the exceptions

stated in this rule.

(a) General Applicability. These rules apply in all proceedings in the courts of the State

of Indiana except as otherwise required by the Constitution of the United States or Indiana, by

the provisions of this rule, or by other rules promulgated by the Indiana Supreme Court. If these

rules do not cover a specific evidence issue, common or statutory law shall apply. The word

"judge" in these rules includes referees, commissioners and magistrates.

(b) Rules of Privilege. The rules and laws with respect to privileges apply at all stages of

all actions, cases, and proceedings.

(c) Rules Inapplicable. The rules, other than those with respect to privileges, do not apply

in the following situations:

(1) Preliminary questions of fact. The determination of questions of fact

preliminary to admissibility of evidence when the issue is to be determined by the

court under Rule 104(a).



1994] RULES OF EVIDENCE 1067

1101, giving direction to the application of the evidentiary rules. However, there is

some modification in Indiana's rule to accommodate a state judicial system. Further,

section (a) suggests that the IRE will control over a conflicting state statute.^^ Other

than providing that the evidence rules override conflicting statutes, Indiana's new Rule

101 is generally consistent with prior Indiana law and practice.

2. Rule 102: Purpose and Construction?"^—Indiana Rule of Evidence 102 is the
same as FRE 102 and is generally consistent with prior Indiana law and practice. Even
though rule 102 provides that the "rules shall be construed to secure fairness . . . and

promotion of growth and development of the law of evidence to the end that the truth

may be ascertained and proceedings justly determined," it should not be viewed as a

license to ignore the rules of evidence.'^

3. Rule 103'. Rulings on Evidence?^—IRE 103 is the same as FRE 103, with
only slight wording modifications. Indiana Rule 103(a)(2) requires a "proper offer of

proof to make the substance of the evidence known while the federal rule requires it

to be "made known to the court by offer." Further, IRE 103(d) uses "fundamental"

rather than FRE's "plain" to describe the type of error that can be noticed by the court

even though it was not raised.^^

(2) Miscellaneous proceedings. Proceedings relating to extradition, sentencing,

probation, or parole; issuance of criminal summonses, or of warrants for arrest or

search, preliminary juvenile matters, direct contempt, bail hearings, small claims, and

grand jury proceedings.

IND. R. EviD. Rule 101.

33. This is confirmed in Brim v. State, 624 N.E.2d 27, 33 (Ind. Ct. App. 1993), holding that iND.

Code § 35-37-4-14, which makes evidence of a previous battery admissible to show motive, intent, etc., is

a "nullity" in light of the Indiana Supreme Court's adoption of Fed. R. Evid. 403 and 404(b), in Hardin,

supra, and Lannan, supra. The court in Brim also suggested that the legislative attempt to revive the

depraved sexual instinct rule, iND. CODE § 35-37-4-15 (effective Feb. 1, 1994), is a nullity. Id. n.2.

34. These rules shall be construed to secure fairness in administration, elimination of unjustifiable

expense and delay, and promotion of growth and development of the law of evidence to the end that the

truth may be ascertained and proceedings justly determined. Ind. R. Evid. 102.

35. See David A. Schlueter, Emerging Problems Under the Federal Rules of Evidence, A.B.A. SEC.

OF LIT. (2d ed. 1991).

36. (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits

or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection

or motion to strike appears of record, stating the specific ground of objection, if the

specific ground was not apparent from the context; or

(2) Offer of proof. In case the ruling is one excluding evidence, the substance

of the evidence was made known to the court by a proper offer of proof, or was

apparent from the context within which questions were asked,

(b) Record of Offer and Ruling. The court may add any other or further statement which

shows the character of the evidence, the form in which it was offered, the objection made, and

the ruling thereon. It may direct the making of an offer in question and answer form.

(c) Hearing of Jury. Injury cases, proceedings shall be conducted, to the extent practicable,

so as to prevent inadmissible evidence from being suggested to the jury by any means, such as

making statements or offers of proof or asking questions in the hearing of the jury.

(d) Fundamental Error. Nothing in this rule precludes taking notice of fundamental errors

affecting substantial rights although they were not brought to the attention of the court.

I^fD. R. Evid. 103.

37. Neither of these differences appears significant.



1068 INDIANA LAW REVIEW [Vol. 27:1063

While the Indiana rule is generally consistent with prior Indiana law and practice,

103(a)(2) makes it clear that an offer of proof is required on cross examination where

the substance of the evidence is not clear from the context of the question.

4. Rule 104: Preliminary Questions?^—IRE is the same as PRE 104, except
"presence" is added to the first sentence of section (c).*^^ The rule is generally

consistent with prior Indiana law and practice.

5. Rule 105: Limited Admissibility.'^^—IRE 105 is the same as PRE 105 except,
when informing the jury on the restricted scope of the evidence, Indiana substitutes

"admonish" for "instruct". This change avoids application of Trial Rule 51(D) which

limits the number of tendered instructions.

The new IRE is generally consistent with prior Indiana law and practice, although

the rule now makes the admonition mandatory when requested.'*'
6. Rule 106: Remainder of or Related Writing or Recorded

Statements.
"^^—IRE 106 is the same as PRE 106 and is generally consistent with prior

Indiana law and practice. Neither the Indiana rule nor the federal rule indicates

whether the remainder of an admitted writing or recorded statement sought to be

introduced must be otherwise admissible.

B. Article 11: Judicial Notice

Rule 201.^^—Indiana's rule on judicial notice is generally similar to the federal

38. (a) Questions of Admissibility Generally. Preliminary questions concerning the

qualification of a person to be a witness, the existence of a privilege, or the admissibility of

evidence shall be determined by the Court, subject to the provisions of subdivision (b). In

making its determination, it is not bound by the Rules of Evidence, except those with respect to

privileges.

(b) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the
fulfillment of a condition of fact, the Court shall admit it upon, or subject to, the introduction of

evidence sufficient to support a finding of the fulfillment of the condition.

(c) Hearing of Jury. Hearings on the admissibility of confessions shall in all cases be

conducted out of the presence and hearing of the jury. Hearings on other preliminary matters

shall be so conducted when the interests of justice require, or when an accused is a witness and

so requests.

(d) Testimony by Accused. The accused does not, by testifying upon a preliminary matter,

become subject to cross-examination as to other issues in the case.

(e) Weight and Credibility. This rule does not limit the right of a party to introduce before

the jury evidence relevant to weight or credibility.

IND. R. EVID. 104.

39. If "presence" is interpreted literally, it could eliminate "side bar" conferences.

40. When evidence which is admissible as to one party or for one purpose but not admissible as to
another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its

proper scope and admonish the jury accordingly. iND. R. Evid. 105.

41. See, e.g.. Brim v. State, 624 N.E.2d 27, 35 n.3 (Ind. Ct. App. 1993) (limiting instruction is

available upon request in cases involving evidence of uncharged prior acts).

42. When a writing or recorded statement or part thereof is introduced by a party, an adverse party
may require at that time the introduction of any other part or any other writing or recorded statement which

in fairness ought to be considered contemporaneously with it. Ind. R. Evid. 106.

43. (a) Kinds of Facts. A court may take judicial notice of a fact. A judicially-noticed fact
must be one not subject to reasonable dispute in that it is either (1) generally known within the

territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be questioned.



1994] RULES OF EVIDENCE 1069

rule. IRE 201(a) is the same as PRE 201(b), except that Indiana adds, "[a] court may
take judicial notice of a fact." Further, IRE sections (c) - (g) are the same as the FRE.

Indiana removes the federal limitation to adjudicative facts,'*^and IRE 201(b),

providing for judicial notice of certain law, is not in the FRE.

Because prior Indiana law is less than clear, it is difficult to state the changes.

However, a few comments are appropriate. First, the mandatory language in section

(d) appears to represent a change from prior discretion. Second, in civil cases section

(g) makes judicially noticed facts binding on the jury, in contrast to a rebuttable

presumption. Third, codified municipal ordinances can now be judicially noticed.

C. Article III: Presumptions in Civil Actions

and Proceedings

Rule i6>7.^^—IRE 301 is generally the same as FRE 301, with the addition that
"[a] presumption shall have continuing effect even though contrary evidence is

received."

The first sentence of the IRE is generally consistent with prior Indiana law,

providing that a presumption affects only the burden of production, not the burden of

persuasion, and disappears once contrary evidence is introduced. However, the

addition of the second sentence represents a change because now the presumption will
have a continuing effect even after contrary evidence is introduced. In a jury trial the

party relying upon the presumption will be entitled to an instruction advising the jury

that the law creates a presumption and that it should consider the presumption along

with the other evidence.

D. Article IV: Relevancy

(b) Kinds of Laws. A court may take judicial notice of law. Law includes (1) the
decisional, constitutional, and public statutory law, (2) rules of court, (3) published regulations

of governmental agencies, (4) codified ordinances of municipalities, and (5) laws of other govern-

mental subdivisions of the United States or of any state, territory or other jurisdiction of the

United States.

(c) When Discretionary. A court may take judicial notice, whether requested or not.
(d) When Mandatory. A court shall take judicial notice if requested by a party and

supplied with the necessary information.

(e) Opportunity to be Heard. A party is entitled, upon timely request, to an opportunity
to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In

the absence of prior notification, the request may be made after judicial notice has been taken.

(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.

(g) Instructing the Jury. In a civil action or proceeding, the court shall instruct the jury to

accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the

jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

Fed. R. Evid. 201.

44. The federal rules provide that judicial notice governs only adjudicative facts. FED. R. Evid.

201(a).

45. In all civil actions and proceedings not otherwise provided for by constitution, statute, judicial

decision or by these rules, a presumption imposes on the party against whom it is directed the burden of
going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden

of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on

whom it was originally cast. A presumption shall have continuing effect even though contrary evidence is
received. Ind. R. Evid. 301.



1070 INDIANA LAW REVIEW [Vol. 27:1063

1. Rule 401: Definition of "Relevant Evidence.'"^—IRE 401 is the same as
PRE 401. Although there is a change in the language, the rule is generally consistent
with prior Indiana law and practice. Under the new rule, relevancy has two aspects:

(1) probative value, and (2) fact of consequence (formerly "material" fact). Therefore,

it is no longer necessary to state, "objection, irrelevant and immaterial." "Irrelevant"

alone, along with an appropriate explanation, will suffice.

2. Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence

Inadmissible.
"^^—IRE 402 is essentially the same as PRE 402, with a slight modifica-

tion in the "except as otherwise provided" clause."*^ This rule, with its reference to

"by statute not in conflict with these rules," supports IRE 101(a) insofar as it provides

that the evidentiary rule will control when there is a conflicting state statute. The rule

is consistent with prior Indiana law and practice.

3. Rule 403: Exclusion ofRelevant Evidence on Grounds ofPrejudice, Confusion

or Undue Delay.^^—Although IRE 403 is generally the same as PRE 403, only the
federal rule provides for exclusion of relevant evidence based on a "waste of time."

The new rule is generally consistent with prior Indiana law and practice, but it may
modify Indiana cases excluding evidence because of "unfair surprise." However, in

light of discovery and pretrial proceedings, particularly in civil cases, a continuance is

usually a more appropriate remedy if there is unfair surprise. Pinally, in applying IRE

403, a recent Indiana case, Barnes v. Barnes,^^ suggests that only marginally relevant

evidence should be excluded by this balancing test.

4. Rule 404: Character Evidence not Admissible to Prove Conduct; Exceptions;

Other Crimes.
^^—Indiana's 404(a) is the same as PRE 404(a). A prior case.

46. "Relevant evidence" means evidence having any tendency to maice the existence of any fact that

is of consequence to the determination of the action more probable or less probable than it would be without

the evidence. iND. R. Evid. 401.

47. All relevant evidence is admissible, except as otherwise provided by the United States or Indiana

constitutions, by statute not in conflict with these rules, by these rules or by other rules applicable in the

courts of this State. Evidence which is not relevant is not admissible. Ind. R. Evid. 402.

48. The federal rule provides that relevant evidence is admissible, "except as otherwise provided by

the Constitution of the United States, by Act of Congress, by these rules, or by other ailes prescribed by the

Supreme Court pursuant to statutory authority." Fed. R. Evid. 402.

49. 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 considerations of

undue delay, or needless presentation of cumulative evidence. Ind. R. Evid. 403.

50. 603 N.E.2d 1337, 1343 (Ind. 1992).

51. (a) Character Evidence Generally. Evidence of a person's character or a trait of character

is not admissible for the purpose of proving action in conformity therewith on a particular

occasion, except:

(1) Character of accused. Evidence of a pertinent trait of character offered by an

accused, or by the prosecution to rebut the same;

(2) Character of victim. Evidence of a pertinent trait of character of the victim

of the crime offered by an accused, or by the prosecution to rebut the same, or

evidence of a character trait of peacefulness of the victim offered by the prosecution

in a homicide case to rebut evidence that the victim was the first aggressor;

(3) Character of witness. Evidence of the character of a witness, as provided in

Rules 607, 608 and 609.

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity therewith.

It may, however, be admissible for other purposes, such as proof of motive, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the



1 994] RULES OF EVIDENCE 1 07

1

Niemeyer v. McCarthyy^^ applied the "character of victim" exception to civil cases

while the new IRE 402(a)(2) is limited to criminal cases. Despite this distinction,

section (a) of the rule is generally consistent with prior Indiana law.

Indiana's 404(b) does not include "opportunity" as one of the other admissible

purposes of character. Since Lannan v. State,^^ prior Indiana law is the same as

section (b) of IRE 404. Several observations related to Rule 404(b) are in order. First,

except for the notice provision, section (b) applies to civil as well as criminal cases.

Second, Rule 403 can be used to exclude evidence otherwise admissible under

404(b).^'* Third, the court determines whether the prior act is probative of a fact of

consequence other than character, per 104(a), and whether there is "evidence sufficient

to support a finding" that the act was committed, per 104(b). However, the jury, per

104(b), ultimately determines whether the prior act occurred and whether the party

against whom it is offered committed it; that is, whether it is relevant." Finally,
defense attorneys in criminal cases should routinely submit a request to determine

whether the prosecution intends to offer 404(b) evidence.

5. Rule 405: Methods of Proving Character.^^—The first part of section IRE
405(a) and all of section (b) are the same as FRE 405. The notice provision, the third
sentence of section (a), is not in the FRE.

Allowing use of opinion testimony, possibly including that of an expert

(psychologist or psychiatrist), represents at least a clarification and probably a change

in Indiana law.^^ The notice provision is also new to Indiana and may be very

helpful to the accused in determing whether to use character evidence.

6. Rule 406: Habit; Routine Practice.^^—IRE 406 is the same as FRE 406. The
rule is generally consistent with prior Indiana law and practice, although prior law

accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or

during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any

such evidence it intends to introduce at trial.

IND. R. EviD. 404.

52. 51 N.E.2d 365, 367 (Ind. 1943).

53. 600 N.E.2d 1334 (Ind. 1992) (abandoning the depraved sexual instinct exception in adopting

Federal Rule of Evidence 404(b)).

54. See Hardin v. State, 611 N.E.2d 123, 128 (Ind. 1993).

55. See Huddleston v. United States, 485 U.S. 681 (1988).

56. (a) Reputation or Opinion. In all cases in which evidence of character or a trait of

character of a person is admissible, proof may be made by testimony as to reputation or by

testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant
specific instances of conduct. Upon reasonable pre-trial notice by the accused of the intention

to offer character evidence, the prosecution in a criminal case shall provide the accused with any

relevant specific instances of conduct to be used in cross-examination.

(b) Specific Instances of Conduct. In cases in which character or a trait of character of a

person is an essential element of a charge, claim, or defense, proof may also be made of specific

instances of that person's conduct.

Ind. R. Evid. 405.

57. Allowing opinion testimony greatly expands the character evidence available in a trial.

58. Evidence of the habit of a person or of the routine practice of an organization, whether

corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of

the person or organization on a particular occasion was in conformity with the habit or routine practice. Ind.

R. EviD. 406.



1072 INDIANA LAW REVIEW [Vol. 27:1063

more clearly allowed evidence of an organization's routine practice rather than an

individual's habit.^^

7. Rule 407: Subsequent Remedial Measures.^—IRE 407 is the same as PRE
407 and is generally consistent with prior Indiana law and practice. Neither the PRE
nor the IRE addresses application of the rule to strict liability cases. Prior Indiana

cases suggest that the rule would apply to strict liability,^' while the federal circuits

are split.^^

8. Rule 408: Compromise and Offers to Compromise.^^—IRE 408 is similar to
PRE 408, with a couple of changes. The third sentence of the PRE, "[tjhis rule does
not require the exclusion of any evidence otherwise discoverable merely because it is

presented in the course of compromise negotiations," is omitted from IRE^ while the
last sentence of the Indiana rule, concerning dispute resolutions, is not found in the

PRE.

Contrary to Indiana common law, the new IRE 408 does not allow evidence of
conduct or statements made in compromise negotiations to be admitted. Otherwise the

rule is generally consistent with prior Indiana law and practice.

9. Rule 409: Payment of Medical and Similar Expenses^—IRE 409 modifies
the federal version of the rule in two ways: Pirst, Indiana excludes evidence of

"paying" as well as "furnishing, or offering or promising to pay" expenses.^ Second,

Indiana expressly covers expenses occassioned by damages to property, as well as

injury. This rule is consistent with prior Indiana law and practice.

10. Rule 410: Withdrawn Pleas and Offers!"^—^The second paragraph of IRE

59. A habit is one's "regular response to a repeated specific situation," whereas character is a more
general description of one's disposition,

60. When after an event, measures are taken which, if taken previously, would have made the event
less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable

conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent

measures when offered for another purpose, such as proving ownership, control, or feasibility of

precautionary measures, if controverted, or impeachment. Ind. R. Evid. 407.

61. See Ragsdale v. K-Mart Corp., 468 N.E.2d 524 (Ind. Ct. App. 1984); Ortho Pharmaceutical

Corp. V. Chapman, 388 N.E.2d 541 (Ind. Ct. App. 1979).

62. Compare Burke v. Deere & Co., 6 F.3d 497, 506 (8th Cir. 1993) (PRE 407 does not apply) with
Oberst v. International Harvester Co., 640 F.2d 863, 866 (7th Cir. 1980) (PRE 407 does apply).

63. 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 liability 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 exclusion when the evidence is offered for another purpose, such as

proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct

a criminal investigation or prosecution. Compromise negotiations encompass alternative dispute resolution.

iND. R. EviD. 408.

64. It is not anticipated that omission of this sentence will lead to a different result under the IRE.

65. Evidence of paying or furnishing, or offering or promising to pay medical, hospital, or similar

expenses occasioned by an injury, or damage to property is not admissible to prove liability for such injury

or damages. iND. R. EviD. 409.

66. The federal rule refers to "[elvidence of furnishing or offering or promising to pay." FED. R.

EviD. 409.

67. Evidence of a plea of guilty or admission of the charge which was later withdrawn, or a plea

of nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made

in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal

action, case or proceeding against the person who made the plea or offer.



1994] RULES OF EVIDENCE 1073

410 is the same as PRE 410. The first paragraph of IRE 410, although quite similar,
is worded differently than PRE 410. The federal rule excludes evidence of "any
statement made in the course of plea discussions with an attorney for the prosecuting

authority . . .," thus leaving admissible similar statements made to the police. While

this provision is not included in the Indiana rule, Indiana cases indicate that the courts

have adopted this position.^^ The rest of the rule is generally consistent with prior

Indiana law and practice.^^

11. Rule 411: Liability Insurance
J^—IRE 411 is the same as PRE 411 and is

consistent with prior Indiana law and practice.

12. Rule 412: Evidence of Past Sexual ConductJ^—IRE 412 is different than
PRE 412. The Indiana rule is essentially a streamlined version of the Indiana rape
shield statute.^^ Consistent with Barnes v. Barnes,^^ the rule does not apply in civil

cases.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the

cause of the same plea or plea discussion has been introduced and the statement ought in fairness to be

considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the

statement was made by the defendant under oath, on the record and in the presence of counsel. iND. R.

EVID. 410.

68. See, e.g., Martin v. State, 537 N.E.2d 491, 493 (Ind. 1989).

69. See iND. Code §§ 35-35-1-4 (1993), 35-35-3-4 (1993). In holding that a confession given by

the defendant during plea discussions with the prosecutor was inadmissible under Ind. Code § 35-35-3-4,

the court in Bell v. State, 622 N.E.2d 450, 453 n.3 (Ind. 1993), noted that this rule of inadmissibility was

consistent with Ind. R. Evid. 410. Cf. Mundt v. State, 612 N.E.2d 566 (Ind. Ct. App. 1993) (defendant, as

part of plea agreement, gave statement identifying Baird as an accomplice and, after the agreement was

withdrawn, Baird testified against defendant; statement given after plea agreement is reached is not barred

by the Indiana statutes governing plea negotiations).

70. Evidence that a person was or was not insured against liability is not adFTiissible upon the issue

whether the person acted negligently or otherwise wrongfully. This mle does not require the exclusion of

evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership,

or control, or bias or prejudice of a witness. iND. R. EviD. 411.

71. (a) In a prosecution for a sex crime, evidence of the past sexual conduct of a victim or

witness may not be admitted, except:

(1) evidence of the victim's or of a witness's past sexual conduct with the defendant;

(2) evidence which shows that some person other than the defendant committed the

act upon which the prosecution is founded;

(3) evidence that the victim's pregnancy at the time of trial was not caused by the

defendant; or

(4) evidence of conviction for a crime to impeach under Rule 609.

(b) If a party proposes to offer evidence under this rule, the following procedure must be

followed:

(1) A written motion must be filed at least ten days before trial describing the
evidence. For good cause, a party may file such motion less than ten days before

trial.

(2) The court shall conduct a hearing and issue an order stating what evidence may

be introduced and the nature of the questions to be permitted.

(c) If the state acknowledges that the victim's pregnancy is not due to the conduct of the

defendant, the court may instruct the jury accordingly, in which case other evidence concerning
the pregnancy may not be admitted.

iND. R. Evid. 412.

72. iND. Code § 35-37-4-4 (1993). See Stephens v. Miller, 13 F.3d 998 (7th Cir. 1994) (en banc)
(application of the statute did not unconstitutionally deprive the accused of his right to testify).

73. 603 N.E.2d 1337, 1342 (Ind. 1992).



1074 INDIANA LAW REVIEW [Vol. 27:1063

13. Rule 413: Medical ExpensesJ"^—There is no comparable provision in the
FRE to IRE 413 and the new rule represents a change in Indiana law.^^ Following
are several observations relating to this rule: First, the rule addresses only reasonable-

ness, not necessity, and therefore may not ease the plaintiffs burden. Second, the
"shall constitute prima facie evidence" language in the rule suggests that it is creating

a rebuttable presumption, thus triggering application of Rule 301. Third, because the

rule refers to "charges . . . occasioned by an injury," it will not apply to all medical

bills. Finally, since the rule asserts that "[sjtatements ... are admissible into
evidence," it may eliminate hearsay and Rule 403 concerns.

E. Article V. Privileges

Rule 50lJ^—mE 501 is substantially different than FRE 501, which simply
directs the federal courts to either federal common law or State law to determine the
privilege. This rule is generally consistent with prior Indiana law and practice,

although, there is very little Indiana law related to sections (c) and (d): Privileged

matter disclosed under compulsion or without opportunity to claim a privilege, and

comment upon or inference from claim of privilege. The existence of a privilege will

74. Statements of charges for medical, hospital or other health care expenses for diagnosis or

treatment occasioned by an injury are admissible into evidence. Such statements shall constitute prima facie

evidence that the charges are reasonable. Ind. R. Evid. 413.

75. See, e.g.. Smith v. Syd's, Inc., 598 N.E.2d 1065, 1066 (Ind. 1992) (party seeking to recover

medical expenses must prove that the expenses were both reasonable and necessary; reasonableness can be

proved, at least in part, by showing the amount paid by the plaintiff because it is assumed one would not

pay an unreasonable bill; necessity is generally proved by offering testimony of medical experts).

76. (a) General Rule. Except as provided by constitution or statute as enacted or interpreted

by the courts of this State or by these or other rules promulgated by the Indiana Supreme Court

or by principles of common law in light of reason and experience, no person has a privilege to:

(1) refuse to be a witness;

(2) refuse to disclose any matter;

(3) refuse to produce any object or writing; or

(4) prevent another from being a witness or disclosing any matter or producing any

object or writing.

(b) Waiver of Privilege by Voluntary Disclosure. A person with a privilege against
disclosure waives the privilege if the person or person's predecessor while holder of the privilege

voluntarily discloses or consents to disclosure of any significant part of the privileged matter.

This rule does not apply if the disclosure itself is privileged.

(c) Privileged Matter Disclosed Under Compulsion or Without Opportunity to Claim

Privilege. A claim of privilege is not defeated by a disclosure which was (1) compelled
erroneously or (2) made without opportunity to claim the privilege.

(d) Comment Upon or Inference From Claim of Privilege; Instruction. Except with respect

to a claim of the privilege against self-incrimination in a civil case:

(1) Comment or inference not permitted. The claim of a privilege, whether in the
present proceeding, or upon a prior occasion, is not a proper subject of comment by

judge or counsel. No inference may be drawn therefrom.

(2) Claiming privilege without knowledge of jury. In jury cases, proceedings shall

be conducted, to the extent practicable, so as to facilitate the making of claims of

privilege without the knowledge of the jury.

(3) Jury instruction. Upon request, any party against whom the jury might draw an
adverse inference form a claim of privilege is entitled to an instaiction that no

inference may be drawn therefrom.

iND. R. EviD. 501.



1994] RULES OF EVIDENCE 1075

continue to be determined by reference to the Indiana and U.S. Constitutions,

statutes^^ and other rules promulgated by the Indiana Supreme Court.^^

F. Article VI. Witnesses

1. Rule 601: General Rule of Competency
^'^—IRE 601, similar to the first

sentence of FRE 601, expressly makes every person competent unless otherwise
provided by the rules "or by act of the Indiana General Assembly." The federal rule

does not provide for the statutory exceptions. Further, the second sentence of FRE
601, adopting the appropriate state rule when state law provides the rule of decision,

obviously is not needed. This rule is consistent with prior Indiana law and practice.

2. Rule 602: Lack ofPersonal Knowledge}^—Indiana's exclusion from personal
knowledge of memory following hypnosis is the difference between IRE 602 and FRE
602. Under prior Indiana law a witness was presumed to have personal knowledge and

the burden was on the opponent to raise the issue. Under the new rule, the proponent

must establish personal knowledge. Two observations relating to the hypnosis
provision should be noted: First, in Rock v. Arkansas^^ the Court held that the

constitution precludes categorical exclusion of the hypnotically refreshed testimony of

an accused who cannot present a meaningful defense without such testimony; and
second, the rule's effect is unclear when a witness, who, for example, was a victim of

sexual abuse as a child, recalls the abuse "after hypnosis," but not as a result of the

hypnosis.

3. Rule 603: Oath or Affirmation}^—Although IRE 603 is worded differently
than FRE 603, the substance is similar. IRE 603 is consistent with prior Indiana law
and practice.^^

4. Rule 604: Interpreters}^—IRE 604 is the same as FRE 604 and is consistent
with prior Indiana law and practice.

^^

77. Thus cases like Shaw v. Shelby County DPW, 612 N.E.2ci 557 (Ind. 1993), holding that an
Indiana statute providing a physician-patient privilege is inapplicable in proceedings to terminate parental

rights, will not be affected by the new rule. See also Hazelwood v. State, 609 N.E.2d 10, 14-16 (Ind. Ct.

App. 1993) (statutory marital privilege does not apply to communications one month before the marriage).

78. Under prior Indiana law the courts generally left it to the legislature to create a privilege. See

Scroggins v. Uniden Corp. of Am., 506 N.E.2d 83, 86 (Ind. Ct. App. 1987).

79. Every j)erson is competent to be a witness except as otherwise provided in these rules or by act

of the Indiana General Assembly. iND. R. EviD. 601.

80. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter. A witness does not have personal knowledge as to
a matter recalled or remembered, if the recall or remembrance occurs only during or after hypnosis.

Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness. This rule

is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. Ind. R. Evid.

602.

81. 483 U.S. 44, 61 (1987).

82. Before testifying, every witness shall swear or affirm to testify to the truth, the whole truth, and

nothing but the truth. The mode of administering an oath or affirmation shall be such as is most consistent

with, and binding upon the conscience of the person to whom the oath is administered. Ind. R. Evid. 603.
83. See Ind. Code § 34-1-14-2 (1993); Ind. Const, art. I, § 8; Ind. R. Trial P. 43(D).
84. An interpreter is subject to the provisions of these rules relating to qualification as an expert and

the administration of an oath or affirmation to make a true translation. iND. R. Evid. 604.

85. See iND. CODE § 34-1-14-3 (1993); iND. R. Trial P. 43(F); Martinez Chevez v. State, 534
N.E.2d 731, 736 (Ind. 1989).



1076 INDIANA LAW REVIEW [Vol. 27:1063

5. Rule 605: Competency of Judge as Witness}^—IRE 605 is the same as PRE
605. This represents a change from prior Indiana law under which a presiding judge

appears to be competent to testify pursuant to statute.^'

6. Rule 606: Competency of Juror as Witness}^—IRE 606(a) is the same as
PRE 606(a), excluding members of the jury from testifying. IRE 606(b) is similar to
the federal rules, except it adds "drug or alcohol use by any juror" as one of the

matters to which a juror may testify. This rule is generally consistent with prior

Indiana law and practice.

7. Rule 607: Who may Impeach}^—IRE 607 is the same as PRE 607. This rule
changes prior Indiana law wjiich precluded impeachment of one's own non-hostile
witness. However, it may be improper to call a witness for the sole purpose of
impeaching the witness with, for example, a prior inconsistent statement that is

otherwise inadmissible, particularly in a criminal case.^

8. Rule 608: Evidence of Character and Conduct of Witness!^^—IRE 608(a)
follows PRE 608(a) except that "untruthfulness" is omitted from part (1) when
referring to admissible evidence of character. It appears that this omission may have
been inadvertent in light of the fact that "untruthfulness" is included in section (b) and

the proposed commentary accompanying (a) referred to "untruthfulness". IRE 608(a)

86. The judge presiding at the trial may not testify in that trial as a witness. No objection need be
made to preserve the point. IND. R. EviD. 605.

87. See iND. CODE §§ 34-1-14-4 (1993), 34-1-14-5 (1993).
88. (a) At the Trial. A member of the jury may not testify as a witness before that jury in

the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing

party shall be afforded an opportunity to object out of the presence of the jury.

(b) Inquiry into Validity of Verdict or Indictment. Upon an inquiry into the validity of a

verdict or indictment, a juror may not testify as to any matter or statement occurring during the

course of the jury's deliberations or to the effect of anything upon that or any other juror's mind

or emotions as influencing the juror to assent to or dissent from the verdict or indictment or

concerning the juror's mental processes in connection therewith, except that a juror may testify

(1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial

information was improperly brought to the jury's attention or (3) whether any outside influence

was improperly brought to bear upon any juror. A juror's affidavit or evidence of any statement
by the juror concerning a matter about which the juror would be precluded from testifying may

not be received for these purposes.

iND. R. EviD. 606.

89. The credibility of a witness may be attacked by any party, including the party calling the

witness. iND. R. Evid. 607.

90. See, e.g.. United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984).

91. (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be

attacked or supported by evidence in the form of opinion or reputation, but subject to these

limitations: (1) the evidence may refer only to character for truthfulness, and (2) evidence of
truthful character is admissible only after the character of the witness for tnithfulness has been

attacked by opinion or reputation evidence or otherwise.

(b) Specific Instances of the Conduct of a Witness. For the purpose of attacking or

supporting the witness's credibility, other than conviction of a crime as provided in Rule 609,

specific instances may not be inquired into or proven by extrinsic evidence. They may, however,

in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on

cross-examination of the witness concerning the character for truthfulness or untmthfulness of

another witness as to which character the witness being cross-examined has testified.

iND. R. Evid. 608.



1994] RULES OF EVIDENCE 1077

differs from prior Indiana law because it allows the use of opinion testimony to

establish character.
^^

IRE 608(b) differs substantially from PRE 608(b) in that Indiana does not permit
impeachment of a witness by inferences drawn from specific instances of conduct.

This section is generally consistent with prior Indiana law and practice. 9. Rule

609: Impeachment by Evidence of Conviction of Crimed—IRE 609(a) differs
substantially from PRE 609(a) by limiting impeachment use to the specific crimes
listed and making admissibility mandatory as to all of them. IRE 609(b) is essentially

the same as PRE 609(b), and Indiana's subsections (c) - (e) are the same as PRE
609(c) - (e).

IRE 609(a) is consistent with prior Indiana law. IRE 609(b) modifies prior

Indiana law under which the passage of time did not create a presumption of

inadmissibility and, therefore, notice was not required. In Nunn v. State"^^ the Indiana

Supreme Court adopted PRE 609(c). Juvenile adjudications were not admissible under
prior Indiana law, so section (d) represents a change. Section (e) is consistent with

prior Indiana law and practice.

10. Rule 610: Religious Beliefs or Opinions.
^^—IRE 610 is the same as PRE

610. This rule is inconsistent with an Indiana statute which provides that "[n]o want

92. Also, prior Indiana law allowed evidence of general moral character. See IND. Code § 34-1-14-

13 (1993).

93. (a) General Rule. For the purpose of attacking the credibility of a witness, evidence that

the witness has been convicted of a crime or an attempt of a crime shall be admitted but only if

the crime committed or attempted is (1) murder, treason, rape, robbery, kidnapping, burglary,

arson, criminal confinement or perjury; or (2) a crime involving dishonesty or false statement.

(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of

more than ten years has elapsed since the date of the conviction or, if the conviction resulted in

confinement of the witness then the date of the release of the witness from the confinement unless

the court determines, in the interests of justice, that the probative value of the conviction

supported by specific facts and circumstances substantially outweighs its prejudicial effect.

However, evidence of a conviction more than ten years old as calculated herein is not admissible

unless the proponent gives to the adverse party sufficient advance written notice of intent to use

such evidence to provide the adverse party with a fair opportunity to contest the use of such

evidence.

(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction

is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment,

certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation

of the person convicted, and that person has not been convicted of a subsequent crime which was

punishable by death or imprisonment in excess of one year, or (2) the conviction has been the

subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile Adjudications. Evidence of juvenile adjudications is generally not admissible

under this rule. The court may, however, in a criminal case allow evidence of a juvenile

adjudication of a witness other than the accused if conviction of the offense would be admissible

to attack the credibility of an adult and the court is satisfied that admission in evidence is

necessary for a fair determination of the issue of guilt or innocence.

(e) Pendency of Appeal. The pendency of an appeal therefrom does not render evidence

of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

I^fD. R. EviD. 609.

94. 601 N.E.2d 334, 338 (Ind. 1992).

95. Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the

purpose of showing that, by reason of their nature, the witness's credibility is impaired or enhanced. iND.

R. EviD. 610.



1078 INDIANA LAW REVIEW [Vol. 27:1063

of a belief in a Supreme Being, or in the Christian religion shall render a witness

incompetent[,] [b]ut the want of such religious belief may be shown upon the trial."^
11. Rule 611: Mode and Order.^^—IRE 611 is the same as PRE 611 and is

generally consistent with prior Indiana law and practice.

12. Rule 612: Writing or Object Used to Refresh Memory.^^—Although IRE
612(a) and (b) are different in language and structure from PRE 612, the effect of the
rule is essentially the same, except that the Indiana rule includes an "object" in addition

to a writing, and requires production of the writing or object at "the trial, hearing, or

deposition in which the witness is testifying" whereas the PRE refers only to the
"hearing."^ Section (c) of the Indiana rule is very similar to PRE 612, but it includes
a sentence indicating that if production at the trial, hearing or deposition is impractica-

ble, the court may order that the writing or object be made available for inspection.
At least with regard to a writing or object used to refresh memory before

testifying, the rule changes Indiana law insofar as it may, in the discretion of the court.

96. IND. Code § 34-1-14-13 (1993).
97. (a) Control by Court. The court shall exercise reasonable control over the mode and order

of interrogating witnesses and presenting evidence so as to (1) make the interrogation and

presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time,

and (3) protect witnesses from harassment or undue embarrassment.

(b) Scope of Cross-Examination. Cross-examination should be limited to the subject matter

of the direct examination and matters affecting the credibility of the witness. The court may, in

the exercise of discretion, permit inquiry into additional matters as if on direct examination.

(c) Leading Questions. Leading questions should not be used on the direct examination

of a witness except as may be necessary to develop the witness's testimony. Ordinarily, leading

questions should be permitted on cross-examination. Whenever a party calls a hostile witness,

an adverse party, or a witness identified with an adverse party, interrogation may be by leading

questions.

iND. R. EVID. 611.

98. (a) While Testifying. If, while testifying, a witness uses a writing or object to refresh the

witness's memory, an adverse party is entitled to have the writing or object produced at the trial,

hearing, or deposition in which the witness is testifying.

(b) Before Testifying. If, before testifying, a witness uses a writing or object to refresh the

witness's memory for the purpose of testifying and the court in its discretion determines that the

interests of justice so require, an adverse party is entitled to have the writing or object produced,

if practicable, at the trial, hearing, or deposition in which the witness is testifying.

(c) Terms and Conditions of Production and Use. A party entitled to have a writing or
object produced under this rule is entitled to inspect it, to cross-examine the witness thereon, and

to introduce in evidence those portions which relate to the testimony of the witness. If production

of the writing or object at the trial, hearing, or deposition is impracticable, the court may order

it made available for inspection. If it is claimed that the writing or object contains matters not

related to the subject matter of the testimony, the court shall examine the writing or object in

camera, excise any portions not so related, and order delivery of the remainder to the party

entitled thereto. Any portion withheld over objections shall be preserved and made available to

the appellate court in the event of an appeal. If a writing or object is not produced, made

available for inspection, or delivered pursuant to order under this mle, the court shall make any

order justice requires, but in criminal cases if the prosecution elects not to comply, the order shall

be one striking the testimony or, if the court in its discretion determines that the interests of

justice so require, declaring a mistrial.

iND. R. EviD. 612.

99. Requiring production of the writing or object at a deposition may be significant in that it gives

the receiving party more time to assess its value or use at trial.



1994] RULES OF EVIDENCE 1079

require production of the writing or object even if it includes attorney work

product'^ or privileged information.

13. Rule 613: Prior Statements of Witnesses
}^^—IRE 613 is the same as PRE

613. The foundation requirements are changed substantially from prior Indiana law in

that "the statement need not be shown nor its contents disclosed to the witness at the

time . . .." Although extrinsic evidence of the statement is not admissible unless the

witness has an opportunity to explain or deny the statement, this opportunity does not

have to be provided by the cross examining party and it does not have to be provided

before introducing the statement.

14. Rule 614: Calling and Interrogation of Witnesses by Court and Jury.^^^—
IRE 614(b) and (c) are the same as PRE 614(b) and (c). However, section (a) of the
Indiana rule is more restrictive than PRE 614(a), which does not require "extraordinary
circumstances" before allowing the court to call witnesses. IRE 614(d), interrogation

by jurors, is not included in the federal rule.

This rule is generally consistent with prior Indiana law and practice, with the

exception that IRE 614(a) clarifies, and possibly expands, the authority of the court to

call witnesses. '^^ In addressing interrogation by jurors, Stancombe v. State^^ holds

that while the practice of permitting jurors to propound questions should not be

encouraged, it should not be forbidden if for the purpose of discovering the truth.

75. Rule 615: Separation of Witnesses.
^^^—IRE 615 is the same as PRE 615,

100. See IND. R. TRIAL P. 26(B)(3).

101. (a) Examining Witness Concerning Prior Statement. In examining a witness concerning

a prior statement made by the witness, whether written or not, the statement need not be shown

nor its contents disclosed to the witness at that time, but on request the same shall be shown or

disclosed to opposing counsel.

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of

a prior inconsistent statement by a witness is not admissible unless the witness is afforded an

opportunity to explain or deny the same and the opposite party is afforded an opportunity to

interrogate the witness thereon, or the interests of justice otherwise require. This provision does

not apply to statements of a party-opponent as defined in Rule 801(d)(2).

iND. R. EviD. 613.

102. (a) Calling by Court. The court may not call witnesses except in extraordinary circum-

stances or except as provided for court-appointed experts, and all parties are entitled to cross-

examine witnesses thus called.

(b) Interrogation by Court. The court may interrogate witnesses, whether called by itself

or by a party.

(c) Objections. Objections to the calling of witnesses by the court or to interrogation by

it may be made at the time or at the next available opportunity when the jury is not present.

(d) Interrogation by Juror. A juror may be permitted to propound questions to a witness
by submitting them in writing to the judge, who will decide whether to submit the questions to
the witness for answer, subject to the objections of the parties, which may be made at the time

or at the next available opportunity when the jury is not present. Once the court has ruled upon

the appropriateness of the written questions, it must then rule upon the objections, if any, of the

parties prior to submission of the questions to the witness.

iND. R. EviD. 614.

103. See, e.g., Isaac v. State, 605 N.E.2d 144, 148-49 (Ind. 1992) (calling and questioning probation

officer in probation revocation proceeding approved).

104. 605 N.E.2d 251 (Ind. Ct. App. 1992).

105. At the request of a party, the court shall order witnesses excluded so that they cannot hear the

testimony of or discuss testimony with other witnesses, and it may make the order on its own motion. This
rule does not authorize the exclusion of (1) a party who is a natural person, or (2) an officer or employee

of a party that is not a natural person designated as its representative by its attorney, or (3) a person whose



1080 INDIANA LAW REVIEW [Vol. 27:1063

except for Indiana's addition of "or discuss testimony with.'*'^ This rule is generally

consistent with prior Indiana law and practice, although the trial court had some

discretion under prior law.

16. Rule 616: Bias of Witness
}^^—There is no federal counterpart to IRE 616.

While evidence of bias, prejudice or interest is generally admissible to attack the

credibility of a witness, the Indiana rule simply states that it "is admissible." This

creates a question as to whether Rule 403 considerations are applicable. In this

author's opinion, the court should have the discretion to exclude such evidence if its

probative value is substantially outweighed by the danger of unfair prejudice,

particularly to the accused in criminal cases.

G. Article VIL Opinions and Expert Testimony

1. Rule 701: Opinion Testimony by Lay Witnesses.
^^^—IRE 701 is the same as

PRE 701 and is consistent with prior Indiana law and practice.
2. Rule 702: Testimony by Experts.

^^—Although IRE 702(a) is the same as
PRE 702, Indiana adds section (b) making expert scientific testimony admissible only
if the court is satisfied that the scientific principles upon which the expert testimony

rests are reliable. However, to the extent that section (b) of the Indiana rule

implements Daubert v. Merrell Dow Pharmaceuticals, Inc.,^^^ IRE 702 is consistent
with federal law. In Daubert the Court held that the "general acceptance" standard

adopted in Frye v. United States^^^ is superseded by PRE 702 which requires the trial
court to ensure that "an expert's testimony both rests on a reliable foundation and is

relevant to the task at hand."''^ Emphasizing the importance of methodology, the

Court noted that "in order to qualify as 'scientific knowledge' an inference or assertion

must be derived by the scientific method.""^ Pursuant to Rule 104(3),""* in

determining whether an expert is proposing to testify to scientific knowledge that will

assist the trier of fact to understand or determine a fact in issue, trial judges should

consider the following factors: (1) whether the theory or technique has been tested;

presence is shown by a party to be essential to the presentation of the party's cause. IND. R. EviD. 615.

106. Even though not included in PRE 615, if requested, federal courts will generally instruct the
witnesses not to discuss their testimony.

107. For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest

of the witness for or against any party to the case is admissible. Ind. R. Evid. 616.

108. If the witness is not testifying as an expert, the witness's testimony in the form of opinions or

inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the

witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in

issue. Ind. R. Evid. 701.

109. (a) 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, exf>erience, training, or education, may testify thereto in the form of an opinion

or otherwise.

(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific

principles upon which the expert testimony rests are reliable.

I^a). R. EviD. 702.

110. IBS.Ct. 2786(1993).
111. 293 F. 1013 (D.C. Cir. 1923).

112. Daubert, 113 S. Ct. at 2799.

113. Id. at 2795.

114. Fed. R. Evid. 104(a) (Questions of Admissibility Generally).



1994] RULES OF EVIDENCE 1081

(2) whether the theory or technique has been subjected to peer review and publication;

(3) the known or potential rate of error and the utilization of standards to control the

technique's operation; and (4) whether the technique has general acceptance in the

relevant scientific community.**^

This rule changes prior Indiana law in at least three respects: First, it rejects the

Frye standard as the exclusive method of establishing reliability."^ Second, it

eliminates the need for a hypothetical question. Finally, it adopts the "assist the trier

of fact" standard in the place of "beyond the knowledge" of an average juror.

3. Rule 703: Bases of Opinion Testimony by Experts.
^^^—The first sentence in

IRE 703 is the same as that in FRE 703. The second sentence is worded differently,
but does not appear to be different in substance. Although the rule provides that an

expert may disclose to the trier of fact the data relied upon in forming an opinion, it
does not create an exception to the hearsay rule and, therefore, the data cannot be

considered as substantive evidence unless otherwise admissible. IRE 703 is generally

consistent with prior Indiana law and practice.

4. Rule 704: Opinion on Ultimate Issue}^^—IRE 704(a) is similar to FRE
704(a). "^ IRE 704(b) differs from FRE 704(b), in that the federal rule only excludes
testimony relating to a "mental state or condition constituting an element of the crime

charged or of a defense thereto." Indiana also excludes testimony relating to: (1) the

truth or falsity of allegations, (2) whether a witness has testified truthfully, and (3)

legal conclusions. This rule is generally consistent with prior Indiana law and

practice.

5. Rule 705: Disclosure of Facts or Data Underlying Expert OpinionP^—IRE
705 is the same as FRE 705, as modified effective December 1, 1993. This rule is
generally consistent with prior Indiana law and practice.

115. inS.Ct. at 2796-97.
116. For a recent application of the Frye standard, see K-Mart Corp. v. Morrison, 609 N.E.2d 17, 23-

26 (Ind. Ct. App. 1993) (infrared thermography inadmissible under the Fiye standard). See also Burp v.

State, 612 N.E.2d 169, 172-73 (Ind. Ct. App. 1993) (reliability of procedures employed in a particular case

goes to weight, not admissibility).

117. 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. Experts may testify to opinions

based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field.

Ind. R. Evid. 703.

118. (a) Testimony in the form of an opinion or inference otherwise admissible is not

objectionable merely because it embraces an ultimate issue to be decided by the trier of fact.

(b) Witnesses may not testify to opinions concerning intent, guilt, or innocence in a
criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal

conclusions.

Ind. R. Evid. 704.

1 19. The admissibility of evidence embracing an ultimate issue in Federal Rules of Evidence 704(a)

is subject to the limitation provided in subdivision (b). The Indiana rules does not have this clause. iND.

R. Evid. 704(a).

120. See. e.g., Columbia City v. Utility Regulatory Comm'n, 618 N.E.2d 21. 28 (Ind. Ct. App. 1993)
(expert opinion on the ultimate fact in issue is admissible). Cf. Vanness v. State, 605 N.E.2d 777. 782 (Ind.

Ct. App. 1992) (attorney's opinion on the meaning of an unambiguous provision in a dissolution decree

properly excluded because it was on a matter of common knowledge).
121. The expert may testify in terms of opinion or inference and give reasons therefor without first

testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event

be required to disclose the underlying facts or data on cross-examination. Ind. R. Evid. 705.



1082 INDIANA LAW REVIEW [Vol. 27:1063

6. Court Appointed Experts.—FRE 706 provides for court appointed experts, but
there is no comparable Indiana nile.

H. Article VIII: Hearsay

1. Rule 801: Definitions^^^—IRE 801(a) - (c) and (d)(2) are the same as FRE
801(a) - (c) and (d)(2). Indiana's section (d)(1) imposes two limitations not found in

FRE 801(d)(1): First, subsection (B) requires that prior consistent statements be made
"before the motive to fabricate arose;" and second, subsection (C) requires that the

statement of identification be made "shortly" after perceiving the person.

The definition of hearsay found in 801(a) - (c) is consistent with prior Indiana law

and practice. ^^^ However, Rule 801(d)(1) is now inconsistent with prior Indiana law
which had adopted FRE 801(d)(l).*^'' Rule 801(d)(2), statement by party-opponent,
represents a formal change, defining such statements as non-hearsay rather than treating

them as an exception. There is also a substantive change in subsection (D) in that the

statement of an agent or employee no longer has to be made while the agent is actually

working, it is sufficient if made "during the existence of the relationship".

2. Rule 802: Hearsay RuleP^—Under FRE 802 hearsay is not admissible
"except as provided by these rules or by other rules prescribed by the Supreme Court

... or by Act of Congress." Indiana Rule 802 provides that hearsay is not admissible

"except as provided by law'^^ or by these rules." Therefore, the outcome will vary

122. The following definitions apply under this Article:

(a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct
of a person, if it is intended by the person as an assertion.

(b) Declarant. A "declarant" is a person who makes a statement.
(c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(d) Statements Which are Not Hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or hearing and

is subject to cross-examination concerning the statement, and the statement is (A)

inconsistent with the declarant's testimony was given under oath subject to the penalty

of perjury at a trial, hearing or other proceeding, or in a deposition; or (B) consistent

with the declarant's testimony, offered to rebut an express or implied charge against

the declarant of recent fabrication or improper infiuence or motive, and made before

the motive to fabricate arose; or (C) one of identification of a person made shortly

after perceiving the person; or

(2) Statement by party-opponent. The statement is offered against a party and is (A)

the party's own statement, in either an individual or representative capacity; or (B) a

statement of which the party has manifested an adoption or belief in its truth; or (C)

a statement by a person authorized by the party to make a statement concerning the

subject; or (D) a statement by the party's agent or servant concerning a matter within

the scope of the agency or employment, made during the existence of the relationship;

or (E) a statement by a co-conspirator of a party during the course and in furtherance

of the conspiracy.

IND. R. EviD. 801.

123. See, e.g., Craig v. State, 613 N.E.2d 501, 503-04 (Ind: Ct. App. 1993) (out-of-court statements

not considered hearsay when offered to show why an officer took certain actions).
124. Modesitt v. State, 578 N.E.2d 649, 653-54 (Ind. 1991).

125. Hearsay is not admissible except as provided by law or by these rules. iND. R. EviD. 802.

126. It is not clear whether this preserves all exceptions established by Indiana cases and statutes.



1994] RULES OF EVIDENCE 1083

to the extent that federal exceptions differ from Indiana exceptions. This rule is

consistent with prior Indiana law and practice.
'^^

3. Rule 803: Hearsay Exceptions: Availability of Declarant Immaterial.—
a. 803(1): Present sense impression^^^

IRE 803(1) modifies PRE 803(1) by limiting the exception to statements
describing or explaining a "material" event. Indiana's rule also adds "transaction" as

one of the things that can be described or explained, but it is not clear that this

represents a substantive change. The hearsay exception under this rule was not a

recognized exception under prior Indiana law and practice, although the "res gestae"

exception included some of the statements covered by this rule.

b. 803(2): Excited utterance,
^^'^ and 803(3): Then existing mental, emotional,

or physical condition^^^

Both IRE 803(2) and 803(3) are the same as PRE 803(2) and PRE 803(3), and
both are generally consistent with prior Indiana law and practice.

c. 803(4): Statements for purposes of medical diagnosis or treatment^^^

IRE 803(4) is the same as PRE 803(4). This was not a recognized exception
under prior Indiana law and practice.

d. 803(5): Recorded recollection^^^

IRE 803(5) is the same as PRE 803(5). This rule modifies prior Indiana law and
practice in that the foundation requirement for admitting recorded recollection is now

"insufficient recollection" rather than total exhaustion of memory, thereby slightly

expanding the exception. In addition, the memorandem or record is only "read into

evidence," not admitted and sent to the jury room.

e. 803(6): Records of regularly conducted business activity^^^

127. The confrontation clauses (in the sixth amendment to the U.S. Constitution and art. I, § 13 of

the Indiana Constitution) may affect the admissibility of hearsay in criminal cases.

128. (1) Present sense impression. A statement describing or explaining a material event, condition
or transaction, made while the declarant was perceiving the event, condition or transaction, or immediately

thereafter. IND. R. EviD. 803(1).

129. (2) Excited utterance. A statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition. iND. R. Evid. 803(2).

130. (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then
existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental

feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact

remembered or believed unless it related to the execution, revocation, identification, or terms of declarant's

will. iND. R. EviD. 803(3).

131. (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes

of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or

sensations, or the inception or general character of the cause of external source thereof insofar as reasonably

pertinent to diagnosis or treatment. iND. R. Evid. 803(4).

132. (5) Recorded recollection. A memorandum or record concerning a matter about which a witness
once had knowledge but now has insufficient recollection to enable the witness to testify fully and

accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's

memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into

evidence but may not itself be received as an exhibit unless offered by an adverse party. iND. R. EviD.

803(5).

133. (6) Records of regularly conducted business activity. A memorandum, report, record, or data
compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by,

or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted

business activity, and if it was the regular practice of that business activity to make the memorandum, report,

record, or data compilation, all as shown by the testimony or affidavit of the custodian or other qualified



1084 INDIANA LAW REVIEW [Vol. 27:1063

IRE 803(6) is the same as PRE 803(6), except the Indiana rule allows the
proponent of the record to establish the foundation by affidavit,'^'* representing a

clear change in Indiana law. In addition, the rule clearly allows admission of business

records that include opinions and diagnoses.
'^^

/ 803(7): Absence of entry in records kept in accordance with the provisions of
paragraph (6)^^^

IRE 803(7) is the same as PRE 803(7) and is generally consistent with prior
Indiana law and practice.

g. 803(8): Public records and reports^^^

Although worded differently, the first sentence of IRE 803(8) is generally

consistent with PRE 803(8). The second sentence of the Indiana rule is confusing and,
with the exception of subpart (c), seems inconsistent with PRE 803(8). The following
are not within the exception created in the first sentence: (a) "investigative reports

by police . . . except when offered by an accused in a criminal case." This seems to

exclude the use of such reports in civil cases when they would be admissible under

PRE 803(8)(B); (b) "investigative reports prepared by or for a government, a public
office, or an agency when offered by it in a case in which it is a party." There is no

comparable provision in PRE 803(8), however, such reports would normally be
excluded under the federal rule because the "circumstances indicate lack of trustworthi-

ness;" and (d) "factual findings resulting from special investigation of a particular

complaint, case, or incident, except when offered by an accused in a criminal

case"—PRE 803(8)(D) does not exclude such factual findings in civil cases. '^^
While confusing, the rule appears generally consistent with prior Indiana law and

practice.

witness, unless the source of information or the method or circumstances of preparation indicate a lack of

trustworthiness. The term "business" as used in this Rule incKides business, institution, association,

profession, occupation, and calling of every kind, whether or not conducted for profit. Ind. R. Evid. 803(6).

134. See In re Paternity of Tompkins, 542 N.E.2d 1009, 1012 (Ind. Cl. App. 1989).

135. Cf. Burp V. State, 612 N.E.2d 169, 171-72 (Ind. Ct. App. 1993) (no error in admitting, as a

business record, the results of a blood test showing the blood alcohol content).

136. (7) Absence of entry in records kept in accordance with the provisions of paragraph (6).

Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form,

kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the

matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly

made and preserved, unless the sources of information or other circumstances indicate lack of trustworthi-

ness. iND. R. Evid. 803(7).

137. (8) Public records and reports. Unless the sources of information or other circumstances

indicate lack of trustworthiness, records, reports, statements, or data compilations in any form, of a public

office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed

pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting

from an investigation made pursuant to authority granted by law. The following are not within this

exception to the hearsay rule: (a) investigative reports by police and other law enforcement personnel, except

when offered by an accused in a criminal case; (b) investigative reports prepared by or for a government,

a public office, or an agency when offered by it in a case in which it is a party; (c) factual findings offered

by the government in criminal cases; and (d) factual findings resulting from special investigation of a

particular complaint, case, or incident, except when offered by an accused in a criminal case. iND. R. EviD.

803(8).

138. Unless a "special investigation of a particular complaint" is something different than "an

investigation made pursuant to authority granted by law" (first sentence of Indiana rule), this provision

appears to eliminate most of the "factual findings" exception provided in the first sentence.



1994] RULES OF EVIDENCE 1085

h, 803(9): Records of vital statistics^^^

IRE 803(9) is the same as PRE 803(9). Although generally consistent with prior
Indiana law and practice, the new rule more clearly indicates that such records are

admissible to prove their entire content.

/. 803(10): Absence ofpublic record or entry^'^^

IRE 803(10) is the same as PRE 803(10) and is generally consistent with prior
Indiana law and practice.

/ 803(11): Records of religious organizations
i^'^^

803(12): Marriage,

baptismal, and similar certificatesi^'^^ 803(13): Family records:^'^^ 803(14):

Records of documents affecting an interest in property
;^'^ and 803(15): Statements

in documents affecting an interest in property^'^^

Each of these Indiana rules is the same as the corresponding federal rule and none

was a recognized exception under prior Indiana law or practice. However, records of

documents affecting an interest in property were generally admissible as public records

and statements in documents affecting an interest in property were generally admissible

pursuant to Indiana statute.'"*^

k. 803(16): Statements in ancient documents^^^

PRE 803(16) requires only twenty (20) years for a document to be declared
ancient while the Indiana rule requires thirty (30) years. This rule is consistent with

prior Indiana law and practice.

139. (9) Records of vital statistics. Records or data compilations in any form, of births, fetal deaths,

deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. Ind.

R. EVID. 803(9).

140. (10) Absence of public record or entry. To prove the absence of a record, report, statement,

or data compilation in any form, or the nonoccurrence or nonexistence of a matter of which a record, report,

statement, or data compilation in any form was regularly made and preserved by a public office or agency,

evidence in the form of a certification in accordance with Rule 902, or testimony, that a diligent search failed

to disclose the record, report, statement, or data compilation, or entry. Ind. R. Evid. 803(10).

141. (11) Records of religious organizations. Statements of births, marriages, divorces, deaths,

legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history,

contained in a regularly kept record of a religious organization. iND. R. Evid. 803(1 1).

142. (12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate

that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman,

public official, or other person authorized by the rules or practices of a religious organization or by law to

perform the act certified, and purporting to have been issued at the time of the act or within a reasonable

time thereafter. Ind. R. Evid. 803(12).

143. (13) Family records. Statements of fact concerning personal or family history contained in

family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns,

crypts, or tombstones, or the like. iND. R. Evid. 803(13). See also Ind. R. Evid. 902(9) (self-authentication

of certified domestic records of regularly conducted activity).

144. (14) Records of documents affecting an interest in property. The record of a document

purporting to establish or affect an interest in property, as proof of the content of the original recorded

document and its execution and delivery by each person by whom it purports to have been executed, if the
record is a record of a public office and an applicable statute authorized the recording of documents of that

kind in that office. iND. R. EviD. 803(14).

145. (15) Statements in documents affecting an interest in property. A statement contained in a
document purporting to establish or affect an interest in property if the matter stated was relevant to the

purposes of the document, unless dealings with the property since the document was made have been

inconsistent with the tmth of the statement or the purport of the document. Ind. R. Evid. 803(15).

146. See iND. Code § 32-1-2-28 (1979).
147. (16) Statements in ancient documents. Statements in a document in existence thirty years or

more, the authenticity of which is established. Ind. R. Evid. 803(16).



1086 INDIANA LAW REVIEW [Vol. 27:1063

/. 803(17): Market reports, commercial publications^^^

IRE 803(17) is the same as PRE 803(17). This rule expands the exception under
prior Indiana law.^''^

m. 803(18): Learned treatises^^^

IRE 803(18) is the same as PRE 803(18) except "that contradict the expert's
testimony" does not appear in the PRE.'^' The learned treatises exception was not

recognized under prior Indiana law and practice which limited the use of such treatises

to impeachment purposes.

n. 803(19): Reputation concerning personal or family history;^^^ 803(20):

Reputation concerning boundaries or general history;^^^ 803(21): Reputation as to

character;^^^ 803(22): Judgment of previous conviction^^^ and 803(23): Judgment

as to personal, family, or general history, or boundaries^^^

Each of these Indiana rules is the same as the corresponding federal rule and was

not a recognized exception under prior Indiana law and practice.

o. Other Exceptions

PRE 803(24) allows the federal courts to make "other exceptions" where certain
conditions are met, but there is no similar provision in the Indiana rules.

4. Rule 804: Hearsay Exceptions: Declarant Unavailable.—
a. 804(a): Definition of unavailability^^^

148. (17) Market reports, commercial publications. Market quotations, tabulations, lists, directories,

or other published compilations, generally used and relied upon by the public or by persons in particular

occupations. IND. R. EviD. 803(17).

149. See iND. CODE § 26-1-2-724 (1993).
150. (18) Learned treatises. To the extent called to the attention of an expert witness upon cross-

examination or relied upon by the expert witness in direction examination, statements contained in published

treatises, periodicals, or pamphlets that contradict the expert's testimony on a subject of history, medicine,

or other science or art, established as a reliable authority by the testimony or admission of the witness or

by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but

may not be received as exhibits. iND. R. Evid. 803(18).
151. This restriction in the Indiana rule significantly limits the exception.

152. (19) Reputation concerning personal or family history. Reputation among members of a

person's family by blood, adoption, or marriage, or among a person's associates, or in the community,

concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption,

or marriage, ancestry, or other similar fact of a person's personal or family history. Ind. R. Evid. 803(19).

153. (20) Reputation concerning boundaries or general history. Reputation in a community, arising

before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as

to events of general history important to the community or state or nation in which located. Ind. R. Evid.

803(20).

154. (21) Reputation as to character. Reputation of a person's character among associates or in the

community. iND. R. Evid. 803(21).

155. (22) Judgment of previous conviction. Evidence of a final judgment entered after a trial or

upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guihy of a crime

punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the

judgment, but not including, when offered by the government in a criminal prosecution for purposes other

than impeachment, judgments against persons other than the accused. The pendency of an appeal may be

shown but does not affect admissibility. Ind. R. Evid. 803(22).

156. (23) Judgment as to personal, family, or general history, or boundaries. Judgments as proof

of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would

be provable by evidence of reputation. Ind. R. Evid. 803(23).

157. (a) Definition of Unavailability. "Unavailability as a witness" includes situations in which

the declarant



1994] RULES OF EVIDENCE 1087

IRE 804(a) is the same as PRE 804(a), except PRE 804(a)(5) includes the
following after "declarant's attendance": "(or in the case of a hearsay exception under

subdivision (b)(2), (3) or (4), the declarant's attendance or testimony)." This was

added to the PRE by Congress and was "designed primarily to require that an attempt
be made to depose a witness (as well as to seek his attendance) as a precondition to

the witness being deemed unavailable."'^^ By omitting this clause, it appears that

Indiana will not require an attempt to depose the witness as a condition of a finding

of unavailability.

This rule is generally consistent with prior Indiana law and practice, although

omission of the clause referred to above might suggest a change in the requirement that

a deposition be taken, at least in some circumstances, before a declarant will be found

unavailable under IRE 804(a)(5).

b. 804(b): Hearsay exceptions^^^

(i) 804(b)(1): Former testimony^^

IRE 804(b)(1) is the same as PRE 804(b)(1). This rule is generally consistent with
prior Indiana law and practice, with the exception that former testimony is not limited

to a deposition or former trial of the same case or a case involving similar issues.

(ii) 804(b)(2): Statement under belief of impending death^^^

Although IRE 804(b)(2) is similar to PRE 804(b)(2), PRE limits this hearsay
exception to statements made under belief of impending death to prosecutions for

homicide and civil actions. The new Indiana rule expands the use of dying declara-

tions because (1) it is no longer necessary to show that the declarant has actually died

(the declarant must, however, be unavailable), and (2) the exception is no longer

limited to prosecutions of homicides.

(Hi) 804(b)(3): Statement against interest^^^

(1) is exempted by ruling of the court on the ground of privilege from testifying

concerning the subject matter of the declarant's statement; or

(2) persists in refusing to testify concerning the subject matter of the declarant's

statement despite an order of the court to do so; or

(3) testifies to a lack of memory of the subject matter of the declarant's state-

ment; or

(4) is unable to be present or to testify at the hearing because of death or then

existing physical or mental illness or infirmity; or

(5) is absent from the hearing and the proponent of a statement has been unable

to procure the declarant's attendance by process or other reasonable means.

A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or
absence is due to the procurement of wrongdoing of the proponent of a statement for the purpose of

preventing the witness from attending or testifying. IND. R. EviD. 804(a).

158. House Commn. on Judiciary, Fed. R. Evid., H.R. Rep. No. 650, 93d Cong., 1st Sess. 15 (1973).
159. (b) Hearsay Exceptions. The following are not excluded by the hearsay nile if the declarant

is unavailable as a witness. Ind. R. Evid. 804(b).

160. (1) Former testimony. Testimony given as a witness at another hearing of the same or a

different proceeding, or in a deposition taken in compliance with law in the course of the same or another

proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a
predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or

redirect examination. Ind. R. Evid. 804(b)(1).

161. (2) Statement under belief of impending death. A statement made by a declarant while
believing that the declarant's death was imminent, concerning the cause or circumstances of what the

declarant believed to be impending death. Ind. R. Evid. 804(b)(2).

162. (3) Statement against interest. A statement which was at the time of its making so far contrary
to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or



1088 INDIANA LAW REVIEW [Vol. 27:1063

The first sentence of IRE 804(b)(3) is the same as the first sentence in PRE
804(b)(3), but the second sentence of the Indiana rule differs from the second sentence

of the PRE. Under the federal rule, a statement that exposes the declarant to criminal

liability and is offered to exculpate the accused is not admissible absent a clear

indication of trustworthiness through corroborating circumstances. In contrast, the

Indiana rule only excludes from the exception a statement, made by someone other

than the accused, that implicates both the maker and the accused, and is offered against

the accused. Therefore, the federal rule is less friendly toward the accused in criminal

cases. Indiana's new rule is generally consistent with prior Indiana law and practice.

(iv) 804(b)(4): Statement ofpersonal orfamily history^^^

IRE 804(b)(4) is the same as PRE 804(b)(4). Although this rule is generally
consistent with prior Indiana law and practice, the inclusion of statements by one

"intimately associated with the other's family" seems to expand the scope of the

exception in Indiana.

(vj Other Exceptions

Although PRE 804(b)(5) allows federal courts to make "other exceptions" where
certain conditions are met, there is no similar provision in the Indiana rules.

5. Rule 805: Hearsay within Hearsay.
^^—IRE 805 is the same as PRE 805 and

is generally consistent with prior Indiana law and practice.

6. Rule 806: Attacking and Supporting Credibility of Declarant.
^^^—IRE 806

is the same as PRE 806. Since there does not appear to be prior Indiana authority for
attacking the credibility of the declarant of a hearsay statement, this rule modifies prior

Indiana law or, at least clarifies it.

/. Article IX: Authentication and Identification

I. Rule 901: Requirement of Authentication or Identification.^^^—IRE 901 is

criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in

the declarant's position would not have made the statement unless believing it to be true. A statement or
confession offered against the accused in a criminal case, made by a codefendant or other person implicating

both the declarant and the accused, is not within this exception. iND. R. EviD. 804(b)(3).

163. (4) Statement of personal or family history. (A) A statement concerning the declarant's own
birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other

similar fact of personal or family history, even though declarant had no means of acquiring personal

knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of

another person, if the declarant was related to the other by blood, adoption, or marriage or was so intimately

associated with the other's family as to be likely to have accurate information concerning the matter declared.

iND. R. EviD. 804(b)(4).

164. Hearsay included within hearsay is not excluded under the hearsay rule if each part of the

combined statements conforms with an exception to the hearsay rule provided in these rules. Ind. R. Evid.

805.

165. When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been
admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by

any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence

of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement,

is not subject to any requirement that the declarant may have been afforded an opportunity to deny or

explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness,
the party is entitled to examine the declarant on the statement as if under cross-examination. iND. R. Evid.

806.

166. (a) General Provision. The requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter



1994] RULES OF EVIDENCE 1089

the same as FRE 901, except for section (b)(8). The federal rule requires that an
ancient document be in existence 20 years while Indiana's rule requires 30 years. This

rule is generally consistent with prior Indiana law and practice.

2. Rule 902: Self-authentication.^^^—Indiana Rules 902(3) - (8) are generally

in question is what its proponent claims.

(b) Illustrations. By way of illustration only, and not by way of limitation, the following

are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony of a witness with

knowledge that a matter is what it is claimed to be.

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness

of handwriting, based upon familiarity not acquired for purposes of the litigation.

(3) Comparison by trier or expert witness. Comparison by the trier of fact or

by expert witnesses with specimens which have been authenticated.

(4) Distinctive characteristics and the like. Appearance, contents, substance,

internal patterns, or other distinctive characteristics, taken in conjunction with circum-

stances.

(5) Voice identification. Identification of a voice, whether heard firsthand or

through mechanical or electronic transmission or recording, by opinion based upon

hearing the voice at any time under circumstances connecting it with the alleged

speaker.

(6) Telephone conversations. Telephone conversations, by evidence that a call

was made to the number assigned at the time by the telephone company to a particular

person or business, if (i) in the case of a person, circumstances, including self-identifi-

cation, show the person answering to be the one called, or (ii) in the case of a

business, the call was made to a place of business and the conversation related to

business reasonably transacted over the telephone.

(7) Public records or reports. Evidence that a writing authorized by law to be

recorded or filed and in fact recorded or filed in a public office, or a purported public

record, report, statement, or data compilation, in any form, is from the public office

where items of this nature are kept.

(8) Ancient documents or data compilation. Evidence that a document or data

compilation, in any form, (i) is in such condition as to create no suspicion concerning

its authenticity, (ii) was in a place where it, if authentic, would likely be, and (iii) has

been in existence 30 years or more at the time it is offered.

(9) Process or system. Evidence describing a process or system used to produce

a result and showing that the process or system produces an accurate result.

(10) Methods provided by statute or rule. Any method or authentication or

identification provided by the Supreme Court of this State or by a statute or as

provided by the Constitution of this State.

IND. R. EviD. 901.

167. Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with

respect to the following:

(1) Domestic public documents. The original or a duplicate of a domestic official record

proved in a manner provided by Trial Rule 44(A)(1).

(2) Foreign public documents. The original or a duplicate of a foreign official record

proved in the manner provided by Trial Rule 44(A)(2).

(3) Official publications. Books, pamphlets, or other publications issued by public

authority.

(4) Newspapers and periodicals. Printed materials purporting to be newspapers or

periodicals.

(5) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have

been affixed in the course of business and indicating ownership, control, or origin.

(6) Acknowledged documents. Original documents accompanied by a certificate of

acknowledgment executed in the manner provided by law by a notary public or other officer

authorized by law to take acknowledgments.



1090 INDIANA LAW REVIEW [Vol. 27:1063

the same as FRE 902(5) - (10), except that Indiana limits "acknowledged documents"
(902(6)) to "original" documents. There is no federal provision comparable to Indiana

Rule 902(9) & (10) providing for self-authentication of business records (both domestic
and foreign). FRE 902(1) - (4) provide for authentication of public documents and
records, while Indiana Rule 902(1) & (2) simply refer to Trial Rule 44(A). The
Indiana rule is generally consistent with prior Indiana law and practice, with the

exception of Indiana Rule 902(9) & (10), self-authentication of domestic and foreign
business records, 902(4), self-authentication of newspapers and periodicals, and 902(5),

self-authentication of trade inscriptions.

3. Rule 903: Subscribing witness' testimony unnecessary.
^^^—IRE 903 is the

same as FRE 903 and is generally consistent with prior Indiana law and practice.

J. Article X: Contents of Writings, Recordings, and Photographs

1. Rule 1001: Definitions. ^^^—IRE 1001 is the same as FRE 1001 except

(7) Commercial paper and related documents. Commercial paper, signatures thereon, and

documents relating thereto to the extent provided by general commercial law.

(8) Presumptions created by law. Any signature, document, or other matter declared by

any law of the United States or of this state, to be presumptively or prima facie genuine or

authentic.

(9) Certified domestic records of regularly conducted activity. Unless the source of

information or the circumstances of preparation indicate lack of trustworthiness, the original or

a duplicate of a domestic record of regularly conducted activity within the scope of Rule 803(6),

which the custodian thereof or another qualified person certifies under oath (i) was made at or

near the time of the occurrence of the matters set forth, by or from information transmitted by,

a person with knowledge of those matters; (ii) is kept in the course of the regularly conducted

activity, and (iii) was made by the regularly conducted activity as a regular practice. A record
so certified is not self-authenticating under this subsection unless the proponent makes an

intention to offer it known to the adverse party and makes it available for inspection sufficiently

in advance of its offer in evidence to provide the adverse party with a fair opportunity to

challenge it.

(10) Certified foreign records of regularly conducted activity. Unless the source of

information or the circumstances of preparation indicate lack of trustworthiness, the original or

a duplicate of a foreign record of regularly conducted activity within the scope of Rule 803(6),

which is accompanied by a written declaration by the custodian thereof or another qualified

person that the record (i) was made at or near the time of the occurrence of the matters set forth,

by or from information transmitted by, a person with knowledge of those matters; (ii) is kept in

the course of the regularly conducted activity; and (iii) was made by the regularly conducted

activity as a regular practice. The record must be signed in a foreign country in a manner which,

if falsely made, would subject the maker to criminal penalty under the laws of that country, and

the signature certified by a government official in the manner provided in Trial Rule 44(A)(2).

The record is not self-authenticating under this subsection unless the proponent makes his or her

intention to offer it known to the adverse party and makes it available for inspection sufficiently

in advance of its offer in evidence to provide the adverse party with a fair opportunity to

challenge it.

IND. R. EviD. 902.

168. The testimony of a subscribing witness is not necessary to authenticate a writing unless required

by the laws of the jurisdiction whose laws govern the validity of the writing. iND. R. EviD. 903.

169. For purposes of this Article the following definitions are applicable:

(1) Writings and recordings. "Writings" and "recordings" consist of letters, words, sounds,

or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating,

photographing, magnetic impulse, mechanical or electronic recording, or other form of data

compilation.



1994] RULES OF EVIDENCE 1091

Indiana 1001(1) includes "sounds'* in the definition of writings and recordings, and

Indiana 1001(4) includes "facsimile transmission, or video tape" in the definition of a

duplicate. This rule is generally consistent with prior Indiana law and practice.

2. Rule 1002: Requirement of Original}^^—IRE 1002 is the same as PRE
1002, but the exception clause of the IRE refers to "statute" while the PRE refers to
"Act of Congress." The rule is generally consistent with prior Indiana law and

practice, except the prior "best evidence" rule in Indiana did not clearly include

photographs (including X-rays) and recordings.

3. Rule 1003: Admissibility of Duplicates.
^^^—IRE 1003 is the same as PRE

1003 and is generally consistent with prior Indiana law and practice.
'^^

4. Rule 1004: Admissibility of other Evidence of Contents.
^^^—IRE 1004 is the

same as PRE 1004 and is generally consistent with prior Indiana law and practice.'^''
Under this rule there is no hierarachy of "other evidence" and IRE 1004(3) clarifies

that a request for production is not needed to invoke the rule.

5. Rule 1005: Public Recordsf^ Rule 1006: Summaries
;^''^

Rule 1007:

(2) Photographs. "Photographs" include still photographs, x-ray films, videotapes, and

motion pictures.

(3) Original. An "original" of a writing or recording is the writing or recording itself or
any counterpart intended to have the same effect by a person executing or issuing it. An
"original" of a photograph includes the negative or any print therefrom. If data are stored in a

computer or similar device, any printout or other output readable by sight, shown to reflect the

data accurately is an "original."

(4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the
original, or from the same matrix, or by means of photography, including enlargements and

miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by

facsimile transmission, or video tape or by other equivalent techniques which accurately

reproduces the original.

IND. R. EviD. 1001.

170. To prove the content of a writing, recording, or photograph, the original writing, recording, or

photograph is required, except as otherwise provided in these rules or by statute. Ind. R. Evid. 1002.

171. A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised
as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in

lieu of the original. iND. R. Evid. 1003.

172. See Wilson v. State, 348 N.E.2d 90, 95 (Ind. Ct. App. 1976).

173. The original is not required, and other evidence of the contents of a writing, recording, or

photograph is admissible if:

(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the

proponent lost or destroyed them in bad faith;

(2) Original not obtainable. No original can be obtained by any available judicial process
or procedure;

(3) Original in possession of opponent. At a time when an original was under the control

of the party against whom offered, such party was put on notice, by the pleadings or otherwise,
that the contents would be a subject of proof at the hearing; and such party does not produce the

original at the hearing; or

(4) Collateral matters. The writing, recording, or photograph is not closely related to a

controlling issue.

iNfD. R. Evid. 1004.

174. But see Trial Rule 9.2(E) (providing for inspection of the original when a document is filed with

the pleadings).

175. The contents of an official record, or of a document authorized to be recorded or filed and

actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved

by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has

compared it with the original. If a copy complying with the foregoing cannot be obtained by the exercise



1092 INDIANA LAW REVIEW [Vol. 27:1063

Testimony or Written Admissions of Party
;^^^ and Rule 1008: Functions of Court

and Jury}^^—Each of these Indiana rules is the same as the corresponding federal
rule and is generally consistent with prior Indiana law and practice.

K. Article XI: Rules Committee

Rule 1101}^^—IRE 1101 provides for an evidence rules review committee.
Much of what is found in PRE 1101—applicability of rules—is also found in IRE
101—scope. Although there is no comparable provision in the PRE designating an
evidence rules committee, PRE 1102 does provide for amendments. There was no
comparable committee under prior Indiana law.

of reasonable diligence, other evidence of the contents may be admitted.

IND. R. EviD. 1005.

176. The contents of voluminous writings, recordings, or photographs which cannot conveniently be

examined in court may be presented in the form of a chart, summary, or calculation. The originals, or

duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time

and place. The court may order that they be produced in court. iND. R. EviD. 1006.

177. Contents of writings, recordings, or photographs may be proved by the testimony or deposition

of the party against whom offered or by a written admission, without accounting for the nonproduction of
the original. iND. R. Evid. 1007.

178. Whenever the admissibility of other evidence of contents of writings, recordings, or photographs

under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has

been fulfilled is ordinarily for the court to determine in accordance with the provisions of Rule 104.

However, when an issue is raised whether (1) the asserted writing ever existed, or (2) another writing,

recording, or photograph produced at the trial is the original, or (3) other evidence of contents correctly

reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact. Ind.

R. EviD. 1008.

179. A. The Chief Justice of the Supreme Court of Indiana or a designated Justice shall serve as

chairman of a permanent Evidence Rules Review Committee, which shall consist of the Chief Justice or a

designated Justice, four state court trial judges, a federal court trial judge, a professor of law, and four

practicing lawyers appointed to a four-year term by the Chief Justice.

B. The Evidence Rules Review Committee shall meet at the call of the Chief Justice or the designated

Justice for the purpose of considering recommending amendments or additions to the Indiana Rules of

Evidence. Amendments or additions may be as suggested by the Supreme Court of Indiana in current case

law or the Indiana General Assembly through enactment of legislation. Ind. R. Evid. 1 101.