In General

• Hearsay. “Hearsay” means a statement that:

(1) is not made by the declarant while testifying at the trial or hearing; and

(2) is offered in evidence to prove the truth of the matter asserted.

Evid. R. 801(c)

• Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion.

Evid. R. 801(a)

• Declarant. "Declarant" means the person who made the statement.

Evid. R. 801(b)

• Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted.

Myers v. State, 33 N.E.3d 1077, 1097 (Ind. Ct. App. 2015), reh'g denied (citing Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct. App. 2010))

See Minor v. State, 36 N.E.3d 1065, 1070 (Ind. Ct. App. 2015), trans. denied(citing Evid. R. 801(c))(“ Hearsay is an out-of-court statement used to prove the truth of the matter asserted.”)

See also Phillips v. State, 25 N.E.3d 1284, 1288 (Ind. Ct. App. 2015)(citing Evid. R. 801(c))(“Hearsay is a statement made out of court that is offered into evidence to prove the truth of the matter asserted.”)

• Hearsay is testimony or written evidence of a statement made out of court being offered in court as an assertion to show the truth of the matters asserted therein.

Isaacs v. State, 659 N.E.2d 1036, 1038 (Ind. 1995), reh’g denied, cert. denied, 519 U.S. 879 (1996)(citing Smith v. State, 490 N.E.2d 300, 302 (Ind. 1986))(emphasis added)

• For information about when nonverbal conduct is intended as an assertion, please review Acts or Conduct.

Commands, requests, and questions

• [T]he hearsay rule does not bar commands, requests, or questions.

Pierce v. State, 705 N.E.2d 173, 176 n. 3 (Ind. 1998)(citing Bustamante v. State, 557 N.E.2d 1313, 1316 (Ind. 1990))

• True requests, commands, and questions are not assertions, and evidence regarding such utterances may come in because they are not offered for the truth of the facts asserted.

Stewart v. State, 945 N.E.2d 1277, 1287 (Ind. 2011), trans. denied(citing Lampitok v. State, 817 N.E.2d 630, 640 (Ind. Ct. App. 2004), reh’g denied, trans. denied)

• While we agree with this general principle, we do not agree that an assertion can never be found in a question or command.

Lampitok v. State, 817 N.E.2d 630, 640 (Ind. Ct. App. 2004), reh’g denied, trans. denied

Stewart v. State, 945 N.E.2d 1277, 1287 (Ind. 2011), trans. denied(quoting Lampitok v. State, 817 N.E.2d 630, 640 (Ind. Ct. App. 2004), reh’g denied, trans. denied)(alteration in the original)(“This court has previously stated, ‘[w]hile we agree with this general principle, we do not agree that an assertion can never be found in a question or command.’”)

Cf. Powell v. State, 714 N.E.2d 624, 628 (Ind. 1999)(“Although it is true that most questions or inquiries are not hearsay . . . that is not always the case.”)

• “[T]he grammatical form of the utterance does not govern whether it fits the definition of hearsay.”

Lampitok v. State, 817 N.E.2d 630, 640 (Ind. Ct. App. 2004), reh’g denied, trans. denied(quoting Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002), reh’g denied)(alteration in the original)

See Stewart v. State, 945 N.E.2d 1277, 1287 (Ind. 2011), trans. denied(citing Lampitok v. State, 817 N.E.2d 630, 640 (Ind. Ct. App. 2004), reh’g denied, trans. denied)(“The grammatical form of an utterance does not govern whether it is hearsay.”)

• Indeed, “‘[a]n utterance that is in the form of a question can in substance contain an assertion of a fact.’”

Lampitok v. State, 817 N.E.2d 630, 640 (Ind. Ct. App. 2004), reh’g denied, trans. denied(quoting Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002), reh’g denied(quoting Powell v. State, 714 N.E.2d 624, 628 (Ind. 1999)))

Stewart v. State, 945 N.E.2d 1277, 1287 (Ind. Ct. App. 2011), trans. denied(citing Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002), reh’g denied)

• For instance, the question “Joe, why did you stab Bill?” contains a factual allegation, where as the question “What is your name?” has no factual content or assertion in it, nor does the command “Tell me your name!”

Lampitok v. State, 817 N.E.2d 630, 640 (Ind. Ct. App. 2004), reh’g denied, trans. denied

See Stewart v. State, 945 N.E.2d 1277, 1287-88 (Ind. Ct. App. 2011), trans. denied(quoting Powell v. State, 714 N.E.2d 624, 628 (Ind. 1999))(“‘The classic example is ‘Joe, why did you stab Bill?’’ Such an utterance ‘clearly carries a factual allegation within it, and should be subject to cross-examination unless exempt for some other reason.’”)

Testimony to facts of which a witness has personal knowledge

• Testimony to facts of which a witness has personal knowledge is not hearsay.

Willoughby v. State, 660 N.E.2d 570, 580 (Ind. 1996)(citing Buck v. State, 453 N.E.2d 993, 1000 (Ind. 1983))

See Campbell v. State, 734 N.E.2d 248, 251 (Ind. Ct. App. 2000)(citing Baker v. State, 439 N.E.2d 1346, 1350 (Ind. 1982))(“Testimony from a witness regarding his own personal knowledge is not hearsay.”)

Statements made by a person providing a translation

• Our Supreme Court has noted that although we are not bound by a federal court's interpretation of the Federal Rules of Evidence, there is a similarity between the Indiana Rules of Evidence and the Federal Rules of Evidence; therefore, federal case law interpreting the Federal Rules of Evidence may be of “some utility.”

Truax v. State, 856 N.E.2d 116, 125 (Ind. Ct. App. 2006)(quoting Doe v. Shults-Lewis Child and Family Servs., Inc., 718 N.E.2d 738, 751 (Ind. 1999))

• We also note that under certain circumstances a number of federal courts have held that statements made by a person providing a translation do not constitute hearsay because the person translating is only a “language conduit.”

Palacios v. State, 926 N.E.2d 1026, 1033 n. 4 (Ind. Ct. App. 2010)

E.g., United States v. Vidacak, 553 F.3d 344, 352 (4th Cir. 2009)(“[The] translations did not create double hearsay because [the translator] was merely a ‘language conduit’ and not a declarant under the hearsay rule.”)

E.g., United States v. Martinez-Gaytan, 213 F.3d 890, 892 (5th Cir. 2000)(quoting United States v. Cordero, 18 F.3d 1248, 1252 (5th Cir. 1994))(“We have held that except ‘in unusual circumstances, an interpreter is no more than a language conduit and therefore his translation does not create an additional level of hearsay.’”)

Mechanical hearsay: In general

• It is well-settled that “[b]ecause a declarant must be a ‘person,’ a statement automatically generated by a computer cannot be hearsay.”

Cranston v. State, 936 N.E.2d 342, 344 (Ind. Ct. App. 2010)(quoting 13 Robert Lowell Miller, Jr., Indiana Practice: Indiana Evidence § 801.201 (3d ed. 2007))(alteration in the original)

Cf. Evid. R. 801(b)(emphasis added)(“‘Declarant’ means the person who made the statement.”)

• So-called “‘[m]echanical hearsay’ is not ‘hearsay’ because the problem is one of relevance—was the machine operating properly when it spoke[—]not a problem of perception, recollection, narration, or sincerity on the part of the machine.”

Cranston v. State, 936 N.E.2d 342, 344 (Ind. Ct. App. 2010)(quoting 30A Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure §§ 6371.2, n. 292 (Supp. 2010))(alteration in the original)

• Mechanically-generated or computerized information may constitute hearsay when incorporating a certain degree of human input and/or interpretation.

Cranston v. State, 936 N.E.2d 342, 344 (Ind. Ct. App. 2010)

Mechanical hearsay: Evidence tickets produced by chemical breath test machines are non-hearsay

• [T]he B.A.C. Datamaster . . . , while requiring administrative input from the test operator and a breath sample from the test subject, calculates and prints a subject's blood alcohol concentration through a mechanical process involving no material human intervention.

Cranston v. State, 936 N.E.2d 342, 344 (Ind. Ct. App. 2010)

• We . . . conclude that Datamaster evidence tickets are non-testimonial non-hearsay. As such, the tickets do not implicate Crawford v. Washington, 541 U.S. 36 (2004), and the Sixth Amendment right to confrontation.

Cranston v. State, 936 N.E.2d 342, 345 (Ind. Ct. App. 2010)(emphasis added)

Mechanical hearsay: Evidence tickets produced by chemical breath test machines are hearsay admissible through a statutory exception

• Breath-test results as shown by a printout are hearsay—an out-of-court statement offered to prove the truth of the matter asserted by the statement.

Mullins v. State, 646 N.E.2d 40, 48 (Ind. 1995)

See Storrjohann v. State, 651 N.E.2d 294, 295 (Ind. Ct. App. 1995)(citing Mullins v. State, 646 N.E.2d 40, 48 (Ind. 1995))(“Machine breath-test results are hearsay.”)

See also Curley v. State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002), reh’g denied, trans. denied(citing Mullins v. State, 646 N.E.2d 40, 48 (Ind. 1995))(“[M]achine breath test results are hearsay.”)

See also Smith v. State, 751 N.E.2d 280, 283 (Ind. Ct. App. 2001), adhered to on reh'g, trans.denied(citing Mullins v. State, 646 N.E.2d 40, 48 (Ind. 1995))(“Machine breath test results are hearsay.”)

• But not until the defense objects to the admission of breath-test results on this ground, as it did in this case, does the responsibility shift to the prosecution to fit the breath-test results into a judicially or statutorily created exception to the general prohibition against the admission of hearsay.

Mullins v. State, 646 N.E.2d 40, 48 (Ind. 1995)(citing Banks v. State, 567 N.E.2d 1126, 1129 (Ind. 1991))

• IC 9-30-6-15(a) creates, in fact, just such an exception, making breath-test results admissible in prosecutions under IC 9-30-5.

Mullins v. State, 646 N.E.2d 40, 48 (Ind. 1995)

See Storrjohann v. State, 651 N.E.2d 294, 295 (Ind. Ct. App. 1995)(citations omitted)(“Hearsay is inadmissible absent a judicially or statutorily created exception, but an exception exists for BAC analysis.”)

• At any proceeding concerning an offense under IC 9-30-5 or a violation under IC 9-30-15, evidence of the alcohol concentration that was in the blood of the person charged with the offense:

(1) at the time of the alleged violation; or

(2) within the time allowed for testing under section 2 of this chapter;

as shown by an analysis of the person's breath, blood, urine, or other bodily substance is admissible.

IC 9-30-6-15(a)