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Writings, Recordings and Photographs: How to get them into evidence.

In addition to the hurdles imposed for dealing with hearsay and opinions, writings, recordings and photographs have to be properly authenticated as being true and accurate representations of what they depict or have documented. When you cannot obtain a broad stipulation that an item of evidence is admissible, then you need to address the requirements of authenticity. Below are some of the rules to be considered in meeting these threshold requirements:

Rule 1001. Definitions
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.
(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.

Rule 1002. Requirement of Original
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. An electronic record of the Indiana Bureau of Motor Vehicles obtained from the Bureau that bears an electronic or digital signature, as defined by statute, is admissible in a court proceeding as if the signature were an original.

Rule 1003. Admissibility of Duplicates
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.

Rule 1004. Admissibility of Other Evidence of Contents
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.

Rule 1005. Public Records
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 of reasonable diligence, other evidence of the contents may be admitted.

Rule 1006. Summaries
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.

Rule 1007. Testimony or Written Admissions of Party
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.

Rule 1008. Functions of Court and Jury
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 of 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.

Typically, writings and recordings require authentication. Indiana Rules of Evidence 901, 902 and 903 outline a number of ways this can be done with and without a sponsoring witness. These rules provide:

Rule 901. Requirement of Authentication or Identification
(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 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 circumstances.

(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-identification, 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.

Rule 902. Self-Authentication
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 the following manner: An official record kept within the United States, or any state, district, commonwealth, territory, or insular possession thereof, or within the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy. Such publication or copy need not be accompanied by proof that such officer has the custody. Proof that such officer does or does not have custody of the record may be made by the certificate of a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office.

(2) Foreign public documents. The original or a duplicate of a foreign official record proved in the following manner: A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof; or a copy thereof, attested by a person authorized to make the attestation, and accompanied by a final certification as to the genuineness of the signature and official position:
(a) of the attesting person; or
(b) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation.
A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown:

(i) admit an attested copy without final certification; or
(ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification.

(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.

(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 subsection (2) above. 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.

Rule 903. Subscribing Witness’ Testimony Unnecessary
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.

Writings: Writings and recordings as defined under Ind. Evidence Rule 1001(1), must be authenticated pursuant to Indiana Evidence Rule 901(a) before being admitted. See Bone v. State, 771 N.E.2d 710, 716 (Ind.Ct.App.2002) (reviewing whether data from defendant’s computer was sufficiently authenticated); Blevins v. State (1973), 259 Ind. 618, 627, 291 N.E.2d 84, 89. Questions of authentication of a document arise when their legal significance turns upon their execution, authorship, or content. “When the execution of a document is not in issue, but only … the fact of the existence of a document of such tenor, no authentication is necessary.” 4 Wigmore on Evidence Sec. 2132, at 714.
Whether a document requiring authentication is admissible is within the discretion of the trial court, and will be reversed only on a clear showing of error. Wolfe v. State (1981), Ind., 426 N.E.2d 647, 655. There are a number of ways that authenticity of a writing may be established. Wolfe v. State (1981), Ind., 426 N.E.2d 647 (inculpatory letter written by defendant properly authenticated by signature comparison); Kern v. State (1981), Ind., 426 N.E.2d 385 (inculpatory letter written by defendant properly admitted as self-authenticating); Gadacz v. State (1981), Ind., 426 N.E.2d 376 (memo book referring to “certain dates” when alibi defense offered sufficiently authenticated by showing that book was found in car which was under the exclusive control of defendant); Fair v. State (1977), 266 Ind. 380, 364 N.E.2d 1007 (inculpatory post card allegedly written by defendant sufficiently authenticated; fact that authorship not proven conclusively goes to weight, not admissibility); Blevins v. State (1973), 259 Ind. 618, 291 N.E.2d 84 (notations allegedly made by victim not properly authenticated, but error was harmless where contents of notations were proven through other testimony); Kramer v. State (1974), 161 Ind.App. 619, 317 N.E.2d 203 (letter to defendant offering sale of marijuana sufficiently authenticated “[b]ecause the letter was not the basis of the prosecution and because of the absence of any evidence indicating the letter was fraudulent …” 317 at 207); Millington v. State (1972), 154 Ind. App. 42, 289 N.E.2d 161 (trade school application executed on date of offense when alibi defense offered not sufficiently authenticated). Either non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation or the expert testimony of a questioned document examiner may be used for authentication. Ind. Evid. R. 901.

At the common law and in evidence treatises, the “reply letter doctrine” has long been used to authenticate statements both oral and written. Under the reply letter doctrine, if it can be shown that an inquiry was directed to a particular person, and that in due course an apparent reply was received, which expressly refers to or seems implicitly to acknowledge the earlier inquiry, this circumstantial evidence is sufficient to conclude that the reply was sent by the person to whom the original inquiry was directed. This is because only this person was likely to have received the inquiry, know of it and respond. In a typical case, both the inquiry and reply are by means of letter (or email) sent through the mail, giving rise to the name “reply letter doctrine.” This principle of establishing authorship circumstantially applies equally to a written reply to an oral inquiry, to a telephonic response to an oral or written inquiry, and so on, regardless of whether the U.S. Mails are involved. The essentials are to establish by evidence independent of the reply indications that the author was indeed responding to the inquiry. These points are the necessary predicate underlying the inference that the author of the reply is the person to whom the inquiry was put. See generally 5 C.B. Mueller, Federal Evidence § 518 at 50-51.

Recordings: Voice identification may be required in order to admit a recording. If a telephone call is recorded, the telephone caller’s identity must be established as a foundation for the admission of the content of the telephone call. Ashley v. State, 493 N.E.2d 768, 774 (Ind. 1986); Davis v. State (1928), 200 Ind. 88, 161 N.E. 375 (overruled on other grounds). Sufficient identification has been based on witness testimony that he was familiar with the caller’s voice and recognized it in conversation. Allison v. State (1960), 240 Ind. 556, 166 N.E.2d 171. The identity of the caller need not be proved beyond a reasonable doubt. Any doubt regarding the credibility of the voice identification goes to the weight of the evidence, not its admissibility. Id., Ind., at 564, 166 N.E.2d, at 174. Likewise, opinion testimony and circumstantial evidence can be used to establish the identity of a person involved in a recorded telephone conversation. Ind. Evid. Rule 901(5) & (6). Similar requirements are needed to authenticate audio recordings of persons.

Photographs: The admission of photographs is within the sound discretion of the trial court and will not be disturbed unless there is an abuse of discretion. To be admitted, it must first be established that the photographs are a true and accurate representation of the things they are intended to portray. Bray v. State, (1982) Ind., 430 N.E.2d 1162, 1164; Chambers v. State, (1979) Ind., 392 N.E.2d 1156, 1160. The relevancy is determined by whether a witness would be allowed to describe verbally that which the photograph depicts. Bray, supra; Murphy v. State, (1977) 267 Ind. 184, 195, 369 N.E.2d 411, 416. Testimony of a witness with knowledge that a matter is what it is claimed to be will suffice. Ind. Evid. R. 901(1).

Evidence of Subsequent Remedial Measures

Indiana Evidence Rule 407 provides:

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. The 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.

Indiana Evidence Rule 407 is similar to its federal counterpart. See Fed.R.Evid. 407. Pursuant to this rule, evidence of post-occurrence remedial measures is generally inadmissible absent an excepted use. State Auto Ins. Co. v. Flexdar, Inc., 937 N.E.2d 1203, 1207 (Ind. Ct. App. 2010).
Hagerman Constr., Inc. v. Copeland, 697 N.E.2d 948, 954 (Ind.Ct.App.1998), trans. denied. Evidence of a subsequent remedial measure may be admitted when offered for purposes other than proving culpable conduct. Id. Examples listed in the rule include when done for purposes of ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
Two policy considerations underlie the prohibitions of Rule 407. Strack & Van Til, Inc. v. Carter, 803 N.E.2d 666, 670 (Ind.Ct.App.2004). First, that permitting proof of subsequent remedial measures will deter a party from taking corrective action to prevent future injuries. Id. Second, the general lack of probative value of using subsequent measures in proving omission or misconduct. Id. at 670-71.
Rule 407 of the Indiana Rules of Evidence is applied mostly in tort cases. See 23 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5285 (1st ed.1980). The most common types of remedial measures addressed under the rule are product design changes, additions of safety devices, warning provisions, and abandonment of tools or products. 12 Robert Lowell Miller, Jr., Indiana Practice: Indiana Evidence § 407.101.
Rule 407 is worded broadly and has been applied in other contexts such as intentional tort and contract claims. See Wright & Graham, supra, § 5283; see also 1 Michael H. Graham, Handbook of Federal Evidence § 407:1 n.6 (6th ed. 2009) (“The breadth of exclusion under Rule 407 includes … [m]odifications made to clarify contract language.”). For example Rule 407 has been used to exclude evidence of subsequent policy revisions in insurance coverage disputes. State Auto Ins. Co. v. Flexdar, Inc., supra; Pastor v. State Farm Mut. Auto. Ins. Co., 487 F.3d 1042, 1045 (7th Cir.2007).
I have personally used a subsequent remedial measure, taken before evidence could be collected and photographed, to prove spoliation of evidence found at the scene of an accident or a crime.

Admissibility Checklist


QUESTION #1: Is it Authentic? (If Not, How do I Authenticate/Identify the Evidence?)
Is the item the “Real McCoy”? Is it what you say it is? To establish that an item is “authentic,” think about the problem from the standpoint of how you determine whether anything you come in contact is “real” versus being a “fake,” or if it has somehow been “altered” or “changed.” The more “generic” an item of evidence is, the greater the level of care and proof required to establish it is “real.” The more unique or one-of-a-kind an item of evidence is, the easier it will be to prove that it is what you say it is. Legal cases typically discuss whether an item of evidence is “fungible” versus “non-fungible.” A “fungible” item of evidence is something that is generic in character, such as a white powdery substance.
For fungible items, such as blood and drugs, an adequate foundation requires that the whereabouts of the item be shown from the time it came into the possession of the party (or state) until it is admitted into evidence at trial. Bell v. State, 610 N.E.2d 229, 233 (Ind. 1993). 
A proper foundation requires that a witness identify the item, and the item is relevant to the disposition of the case. Id. The party presenting the evidence must lay an adequate foundation by providing reasonable assurances that the evidence was undisturbed as it passed from the custody of one person to the next (the chain of custody). Id. If the party presenting the item presents evidence that strongly suggests the exact whereabouts of the evidence at all times, that is sufficient. Id.; Garrett v. State, 602 N.E.2d 139, 142 (Ind. 1992)(positive identification is not required). A reasonable probability that it is what you say it is will normally be sufficient to have the item admitted into evidence. Lahr v. State, 640 N.E.2d 756, 761 (Ind. Ct. App. 1994). Once a reasonable probability is shown, any other factual issues only impact the exhibit’s evidentiary weight, not it’s admissibility. Malone v. State, 700 N.E.2d 780, 782 (Ind. 1998).
On the other hand, for non-fungible items, like guns and vehicles (which typically have unique serial numbers or VINs), the party presenting the evidence need only show that the item is what it is purported to be, and that it is in a substantially unchanged state from the time it was first collected. Trotter v. State, 559 N.E.2d 585, 591 (Ind.1990).
A similar problem arises with documentary evidence such as letters, notes or wills. Who authored the document? Has the document been changed or altered? The degree of proof required to establish authenticity is only slight. Once established, the document may be presented to the finder of fact. Pate v. First Nat. Bank of Aurora, 63 Ind. 254 (1878). Once this initial threshold is met by the proponent of the evidence, any disputes go to the weight the evidence is to be accorded by the jury, as opposed to its admissibility.
Authenticity typically is established by the person who first found the item. You must establish that it is the same item that originally came into that person’s possession, and that it is unchanged and has not been altered. With a generic/fungible item of evidence, care must be taken to seal it up in a tamper-proof container that has a unique means of identification (evidence number assigned and dated by the person who originally secured the evidence); and a secure storage/retrieval method must be used to hold it. (e.g., evidence clerk or custodian who has held the item of evidence in a restricted area). If anyone removed the item of evidence for purposes of testing, that person may be required to provide testimony as well to explain what if any changes in the item occurred as part of the testing process.
Indiana Rules of Evidence 901(Requirement of Authentication or Identification), 902 (Self-authentication) and 903 (Subscribing Witness’ Testimony Unnecessary) directly address issues of authenticity and provide examples of how to authenticate various items of evidence this with or without a sponsoring witness. Examples of authenticity under Indiana Rule of Evidence 901 include: 1) testimony of witness with knowledge; 2) non-expert opinion on handwriting; 3) comparison by trier of fact or expert witness; 4) distinctive characteristics; 5) distinctive characteristics taken in conjunction with circumstances; 6) voice identification; 7) telephone conversations; 8) public records or reports; 9) process or system, and 10) methods provided by statute or rule.
Indiana Rule of Evidence 902 provides a list of various classes of documents that are self-authenticating, which include: 1) domestic public documents under seal; 2) domestic public documents not under seal; 3) foreign public documents; 4) certified copies of public records; 5) official publications by a public authority; 6) newspapers and periodicals; 7) trade inscriptions, signs, tags, or labels; 8) acknowledged documents; 9) commercial paper and related documents; 10) presumptions under Acts of Congress; 11) certified domestic records of regularly conducted activity, and 12) certified foreign records of regularly conducted activity.
Indiana Evidence Rule 903 provides the means by which notarized or acknowledged documents may be admitted without calling the witness who notarized the document. This Rule provides:
“SUBSCRIBING WITNESS’ TESTIMONY UNNECESSARY. 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.”
A notarized document with an appropriate acknowledgment and seal is prima facie evidence of authenticity. Indiana Code 34-37-1-5. Under I. C. 34-37-1-5, when a document is under seal and signature of an out-of-state notary public, it shall be received as presumptive evidence of the document’s authenticity. Usually authentication of an official record requires the officer having custody of the record to attest, by either testimony or through a certification, that it is a true and accurate copy of an official original record. Liberty Nat. Bank and Trust Co. v. Payton, 602 N.E.2d 530, (Ind. Ct. App. 1992).
Contracts or other documents upon which an action is based and attached to the party’s complaint or cross/counterclaim are considered authentic unless the document’s authenticity is challenged in a verified response to the claim or complaint. See Ind. Rule of Trial Procedure 9.2. This rule provides “[w]hen any pleading … is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading… and “shall be taken as part of the record.” When such a document is included in or filed with the pleading, execution of such instrument, endorsement, or assignment shall be deemed to be established and the instrument, if otherwise admissible, shall be deemed admitted into evidence in the action without proving its execution unless execution be denied under oath in the responsive pleading or by an affidavit. I encourage all to thoroughly review this rule anytime such a claim is based upon a written instrument.
Remember, agreeing or stipulating that a document is authentic does not necessarily mean the item is admissible. You need to address all of the issues that affect a document’s admissibility, so please read on.

QUESTION #2: Is it Hearsay?
When I took evidence in class over 30 years ago, my professor cautioned that the “Hearsay Rule” and the “Rule against Perpetuities” in real property class were two of the most difficult concepts to master. My daughter, who is in law school now, advises that the “Rule against Perpetuities” is not even taught in law school anymore. On the other hand, if you are going to try cases you need to understand and quickly recognize what hearsay is. The way I break it down is as follows:
a. Was the statement (oral or written) first made outside of the courtroom? 
If the statement is being made for the very first time in the courtroom, then it is not hearsay. If the witness is repeating something that was said outside of the courtroom, or the document being tendered as an exhibit was drafted outside of the courtroom, then you need to ask the next question.
b.Is there a statement of fact being conveyed? If the statement is a question or a command, then it is not 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. Ind. R. of Evid. 801(c). Only declarative statements of fact can be hearsay (i.e. the car is red). A “question” or a “command” is neither true or false.
c.Does the statement only have evidentiary value at trial if it is true? For example, a false statement made to a victim by a con man in a fraud case is not being offered because it is true. In fact, it is being offered because it is false to show the “effect of the hearer”. Therefore, it is not hearsay.
d.Does the statement fall outside of the definition for non-hearsay as a prior statement by a witness subject to cross-examination? For example, if the statement is not considered an admission by party-opponent offered against them (i.e. their own statement; a statement of another adopted by the party; a statement by an authorized spokesperson, employee or agent; or that of a co-conspirator in furtherance of the joint scheme) then it is non-hearsay by definition. Indiana Rule of Evidence 801(d).
If you answered “yes” to each of these questions, then you have hearsay and need to look for an exception to the hearsay rule under Indiana Rules of Evidence 803 (hearsay exceptions; availability of declarant immaterial), 804 (hearsay exceptions; declarant unavailable), 806 (attacking and supporting credibility of declarant) or 807 (residual or catchall exception).
Another rule that can impact the admissibility of a hearsay statement, that is often overlooked, is Indiana Rule of Evidence 1007 which deals with testimony or written admissions of a party. Rule 1007 provides:
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission, without accounting for the nonproduction of the original.
This rule can be very powerful in situations where you take a Trial Rule 30(B)(6) deposition of a party or a corporate representative. If they summarize written policies or the content of documents, recordings or photos, then you can dispense with using the original.

QUESTION #3: Is There a Proper Foundation?
These are usually preliminary questions of fact to the admissibility of a document or statement. In a bind, the Indiana Rules of Evidence provide some assistance in establishing an item’s authenticity or other foundational prerequisites. Rule 104(a) of the Indiana Rules of Evidence allows a court to consider matters outside of the record presented to the jury. Under Rule 104(a) you can sometimes establish foundational requirements outside of the presence of the jury. This portion of the Rule provides:

(a) IN GENERAL. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. [Emphasis Added].

This means, theoretically speaking, that the court is free to suspend the Rules of Evidence in making foundational determinations, and could theoretically rely on otherwise inadmissible information in assessing whether an item meets the foundational requirements. Foundation is needed to establish:

1.Authenticity. Is it the “Real McCoy”? Does it have a proper chain of custody?
2.Competency, expertise or qualifications to render a lay or expert opinion or testify 
in general (i.e. a person cannot appreciate the significance of their oath to tell the truth). See Indiana Rules of Evidence 701 and 702.
3.The requirements of a hearsay exception.
4.The truth and accuracy of a depiction through the use of a copy, duplicate, photograph, x-ray, diagram, recording, video, printout, etc.
5.The validity of the procedure and results of forensic testing or examinations. (DNA, blood typing, fiber/hair analysis, fingerprints, handwriting identification, etc.).

QUESTION #4: Is it Relevant?
“Relevant evidence” means evidence having any tendency to make 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. of Evid. 401. It does not have to win the case to be admissible, it just has to have a tendency to help your case or hurt the other side’s case. 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 that is not relevant is not admissible. Ind. R. of Evid. 402.

QUESTION #5: Should the Evidence be Excluded?
There are a number of reasons an item could be excluded, assuming a timely and specific objection is made. The following is a checklist of such reasons:
a.Irrelevant. See I.R.E. 401 and 402 (Relevancy).
b.Violates the Best Evidence Rule. I.R.E. 1002 (Requirement of Original).
c.Privileged Evidence. I.R.E. 501, and I.C. 34-46-3-1. (Attorney-Client, Work 
 Product, Official Information, Deliberative Process/Self-Critical Analysis, 
 Husband-Wife, Minister-Penitent, Doctor-Patient, Psychologist, Accountant, 
 Insured-Insurer, News Source, Confidential Informant, Trade Secrets, Self- 
 Incrimination, Mental Health Records, etc.).
d.Improper Conclusion or Opinion. (I.R.E. 701 and 702).
e.Hearsay. (I.R.E. 801, 802, 803, 804, 805, and 806).
f.Cumulative, Repetitive, Unfairly Prejudicial, Misleading or Confusion of the 
 Issues. (I.R.E. 403).
g.Competency or Lack of Firsthand Knowledge. (I.R.E. 601, 602, 605, 606).
h.Lack of Foundation.
i.Parole Evidence Rule/Four Corners Doctrine. (Dicen v. New Sesco, Inc., 839 
 N.E.2d 684, 688 (Ind. 2005) and I.C. 26-1-2-202.)
j.Deadman’s Statute. (Ind. Code 34-45-2-4).
k.Statute of Frauds. (I.C. 26-1-2-202, IC 32-21-1-1, Requirement of written 
l.Improper Impeachment. (I.R.E. 613).
m.Subsequent Remedial Measures. (I.R.E. 407).
n.Irrelevant, Settlement Discussions. (I.R.E. 408).
o.Irrelevant, Evidence of Liability Insurance. (I.R.E. 411).
p.Irrelevant, Payment of Medical Expenses. (I.R.E.409).
q.Irrelevant, Withdrawal of Pleas or Offers. (I.R.E. 410).
r.Irrelevant, Evidence of Past Sexual Conduct. (I.R.E. 412).
s.Irrelevant, Evidence of Bad Acts. (I.R.E. 404 and 608).
t.Irrelevant, Evidence of Character. (I.R.E. 405).
u.Irrelevant, Evidence of Prior Conviction. (I.R.E. 609).
v.Irrelevant, Evidence of Religious Beliefs or Opinions. (I.R.E. 610).
w.Failure to Disclose Evidence as part of Discovery or Pretrial Conference 
 Proceedings. (Ind. T.R. 16 and 26(E)).
x.Unrecorded Statements During Custodial Interrogation. (I.R.E. 617).
y.Involuntary or Coerced Statement in Violation of Due Process. Fifth and 
 Fourteenth Amendments to U.S. Constitution; Indiana Constitution, Article 1., 
 Sec. 15.
z.Violation of Miranda and Right to Counsel. Fifth, Sixth and Fourteenth 
 Amendments to U.S. Constitution; Indiana Constitution, Article 1., Sec. 13 and 14.
aa.Product of an Improper Search and Seizure. Fourth and Fourteenth Amendments 
 to U.S. Constitution; Indiana Constitution, Article 1., Sec. 11 and 15.

QUESTION #6: What is the Proper Way to Introduce the Item into Evidence?
Check with the court reporter or other attorneys to learn of any idiosyncrasies the presiding judge has concerning the presentation of exhibits and approaching a witness during the examination. When in doubt, ask for permission before approaching a witness. The following is a suggested procedure for admitting documentary evidence:
a.Have the exhibit marked (if not pre-marked) in advance of the trial.
b.Approach opposing counsel’s table and allow them to examine the exhibit prior to 
 approaching the witness if the exhibit was not disclosed in advance.
c.Seek permission from the court to approach the witness.
d.Show the witness the exhibit, and ask him to identify it for the record without 
disclosing its content.
e.Establish the document’s authenticity and any foundational prerequisites for purposes of satisfying objections under the hearsay rule or the rules governing opinions.
f.Tender the exhibit for admission into evidence and address any objections.
g.Obtain a ruling from the court on the item’s admissibility.
h.If the ruling is adverse, try to remedy the objection.
i.If the court continues to deny admission of the exhibit, then make an offer of 
 proof outside of the presence or hearing of the jury and have the exhibit made part 
 of the record as part of your offer to prove. (I.R.E 103).
j.If admitted, ask permission to have the exhibit shown or published to the jurors.
k.If the jurors are allowed to review the exhibit, wait until their review is finished 
 before asking any further questions so their attention is not divided.
You should run through these questions any time you are preparing for a trial. You should find case law or rules to support your position on admissibility and make note of them in your witness outline or exhibit list. If you are sure a matter will become contested, have extra copies of your case law, statute or rules so that they can be provided to the court and opposing counsel.
Finally, during the course of a trial have you ever had an ” unexpected” legal issues arise and say, I know there is a case or rule out there on point, but I just cannot remember it? The best way to prepare for such issues is to keep a trial notebook.
What is a trial notebook? Well, my trial notebook represents 30+ years of knowledge I have gained through legal research, review of advance sheets and hard knocks in the courtroom. It covers jury selection issues, jury instruction, motion in limine topics, trial procedure and evidentiary issues. I focus on issues that could come up unexpectedly during a trial where it is difficult to conduct legal research. For years,I kept a three-ring binder with lettered tabs from A to Z. I used re-enforced three-ring paper and made notes on matters. When I come across an issue which might arise during a trial, I make a note and file it under the subject heading and index it under the proper lettered tab. I have been slowly transferring this information to an electronic trial note book. I use Microsoft OneNote and an iPad application called “Outline” which allows me to create various tabs and alphabetize the topics. Below is an example of a note I have listed alphabetically under “P” in my trial notebook:
Privilege – Work Product – I.D. of Witness Statements
An interrogatory invades the thought processes of counsel, and tends to reveal the detailed pattern of investigation conducted by the counsel by asking for the names and addresses of all persons interviewed by counsel. It has been held that such information is protected by the work product privilege and T.R. 26. See generally, United States v. Renault,Inc. (1960), S.D.N.Y. 26 F.R.D. 23. Massachusetts v. First National Supermarkets, Inc. (1986) D. Mass., 112 F.R.D. 149, 152-153.
In my trial notebook, I concentrate on areas involving discovery issues, jury selection, evidentiary foundations, privilege, hearsay, relevancy, authentication, jury instructions, motion in limine topics, procedural issues and motions for directed verdict, as these issues can arise during the course of a trial with little or no time for research. A judge will be duly impressed with your ability to rapidly address such issues. Start today and begin keeping your trial notebook. It will make you a better advocate and attorney. Before you know it you will be able to cite actual authority for your legal position at a moment’s notice.

Running The Back Door Play – Rule 104(a) and Preliminary Questions of Fact

In basketball, a backdoor play is when a player without the ball gets behind the defense and receives a pass for an easy score. This can be executed if the defenders are unaware of the open space behind them. There is such a play available in the courtroom the defense may be unaware of as well. Federal Rule of Evidence 104 provides an attorney with backdoor means of satisfying preliminary questions of fact needed to introduce a particular items of evidence. For example, let’s say there is a document you wish to introduced into evidence that contains an expert opinion of a witness who will not be called at the time of trial to testify. Under Rule 104(a) of the Rules of Evidence you can establish the witness’s qualifications without actually calling the witness to testify at the time of trial. This portion of the Rule provides:

“(a) IN GENERAL. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.”

This means the court is free to suspend the Rules of Evidence in making this determination and could theoretically rely on a copy of the doctor’s curriculum vita or an affidavit of the doctors qualifications in allowing a copy of a hospital business record into evidence as this deals with whether a witness is qualified to testify.

A court could look at the substance of an alleged statement of a co-conspirator to determine if it was in furtherance of the conspiracy and would not be limited to solely independent evidence as this a preliminary question of fact the court is responsible for deciding.

A witness may be unavailable and you can only establish this through hearsay. Remember the Federal Rules of Evidence are suspend on preliminary questions of fact (i.e. foundational prerequisites)! Once you grasp this nuance in the Rules of Evidence there are a lot of preliminary issues and problems you can use this rule to solve. It can really save your bacon at trial.

Motion in Limine: An Effective Pretrial Tool and Weapon (Part 2)

Here are some additional topics to consider:              

Unnecessary Medical Treatment.

You should preclude or prohibit the defense counsel from alleging or arguing that plaintiff’s accident-related medical expenses are unnecessary or unreasonable.  All damages directly attributable to the wrong are recoverable by the victim.  The law also typically allows an injured plaintiff to recover reasonable costs of necessary medical treatment.  Dee v. Becker, 636 N.E. 2d 176, 178 (Ind. App. 1994).  The Indiana Supreme Court has held that the phrase “reasonable and necessary,” as a qualification for the damages recoverable by an injured party, means (1) that the amount of medical expense claimed must be reasonable, (2) that the nature and extent of the treatment claimed must be necessary in the sense that it proximately resulted from the wrongful conduct of another… . The Indiana Supreme Court observed and found that a defendant may not dispute the medical judgment of the plaintiff’s medical providers in choosing to administer the questioned studies and treatment. Sibbing v. Cave, 922 N.E.2d 594, 599-600 (Ind. 2010) Rule 413 of Evidence as adopted in Indiana eliminated the confusion regarding the evidence that is required to satisfy the “reasonableness” requirement.  The very first sentence of IRE 413 asserts flatly that medical statements occasioned by an injury are admissible.  Rule 413 provides that the bills shall constitute prima facie evidence that the charges are reasonable and medical bills come into evidence without any proof of reasonableness or necessity.  In Indiana, personal injury plaintiffs no longer have to prove that they personally paid the medical bills or produce an expert as to the reasonableness of the charge, just necessity when it is contested. Normally , competent medical testimony is necessary to enable the jury to determine which of a plaintiff’s damages and medical expenses are related to a trauma and which are not.  Sikora v. Fromm, 887, N.E.2d 499 (Ind. App. 2002).  In Sikora, the Court of Appeals stated that expenditures for various medical treatments, drugs, and tests, like MRI’s, cannot be properly evaluated by the jury without a medical explanation that they were causally connected to the fall.      

Seat Belts.

Depending on the state of the law in your jurisdiction, a defense counsel may be precluded from mentioning or offering any evidence concerning the plaintiff’s seat belt use or lack of seat belt use.      

Relation of Propert Damage to Injuries.

Any argument or suggestion by defense counsel that there is a causal connection or correlation between the amount or degree of property damage to the vehicles and the severity or degree of injury to the plaintiff. Because the facts of the collision and the damage to the vehicles involved are not at issue in this case, photographs or the vehicles, property damage invoices, or other evidence regarding the extent or amount of property damage is not relevant.  Rule of Evidence 401 defines relevant evidence as that which makes the existence of any fact of consequence more or less probably to be relevant.  RE 401.  Evidence that fails to meet that definition is irrelevant and is inadmissible.  RE 402.  Defense lawyers routinely introduce property damage estimates and property damage photographs to the jury and argue that minimal damage means little or no damage to the occupants.  There is no reliable scientific basis for the argument that there is a direct and reliable correlation between the degree of property damage to a vehicle and the type/severity of injury to the occupants.  Such photographs, if used for the purpose of disproving causation, are inadmissible because they are not relevant, may confuse or be misused and invite the jury to speculate on the issue of causation.    There is a lot out there on this topic.       

Settlement Discussions and Mediation

Any mention or suggestion to the jury that the plaintiff or defendant attempted to negotiate a settlement of this case or that the case is in trial because of greed or some other improper motive by plaintiff for not accepting an offer of settlement violate Rule 408. Any mention or suggestion to the jury that the case was submitted to mediation is normally proper except in case where the cause of action arises out of the settlement itself such as a claim of bad faith settlement practices, fraud or breach of the settlement agreement.  Rule of Evidence 408 specifically states that evidence of conduct or statements made in compromise negotiations are not admissible and that compromise negotiations “encompass alternative dispute resolution”.  Alternative Dispute Resolution Rules likewise limit the use of matter discussed during a settlement conference or mediation. Additional areas will be discussed in my next post. Registered & Protected

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