Court of Appeals of Indiana Fleshes Out Familial Hearsay Exception
Similar to its federal counterpart, Indiana Rule of Evidence 803(19) provides an exception to the rule against hearsay for
A reputation among a person’s family by blood, adoption, or marriage—or among a person’s associates or in the community—concerning the person’s birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.
There is scant caselaw on this hearsay exception, but the recent opinion of the Court of Appeals of Indiana in Wilson v. State, 2019 WL 3022785 (Ind.App. 2019), does a good job of explaining how parties generally (fail to) satisfy it.
In Wilson, the home of Ronald Wesenberg and Linda Ort was burglarized while they were at the house belonging to Tina Schmidt, the girlfriend of Ort’s son. At Bruce Wilson’s trual for that burglary.
the State asked Ort whether she knew Wilson and she responded that she did not. The State then asked if she was able “to discover anything about [Wilson]?”…Defense counsel objected based on hearsay, but the trial court overruled the objection because Indiana Rule of Evidence 803(19) declares a statement of familial relationship to be an exception to hearsay. Over the defense’s continuing objection, Ort stated that she learned from her son, who was Tina’s boyfriend, and from Tina’s daughter that Wilson is Tina’s nephew.
After he was convicted, Wilson appealed, claiming that this testimony was improperly admitted. The Court of Appeals of Indiana began by “acknowledg[ing] there is limited case law interpreting Indiana’s Rule 803(19) exception to the hearsay rule.” As a result, the court looked to United States v. Brodie, 326 F.Supp.2d 83, 97-98 (D.D.C. 2004), for guidance. The Brodie court held that
Reputations “regarding relationships and other personal and family matters within a well-defined community are considered to have the circumstantial guarantee of trustworthiness that justifies a hearsay exception.” Blackburn v. United Parcel Serv., 179 F.3d 81, 98 (3d Cir. 1999). A well-grounded belief that two people are married is one such relationship, id., though it [is] less clear whether Rule 803(19) applies to statements about a “friendship” or “girlfriend” relationship. But even assuming … statements about these relationships fall within 803(19), a foundation must be established for their admissibility. Specifically, the statement must be sufficiently trustworthy.
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A proponent of reputation testimony must establish that it “arises from sufficient inquiry and discussion among persons with personal knowledge of the matter to constitute a trustworthy ‘reputation.’”…If the person heard of the relationship “from some unknown source,” it would be inadmissible, as “what is required is the laying of a foundation of knowledge grounded in inquiry, discussion, interactions, or familiarity ‘among a person’s associates, or in the community.’”
Applying this analysis to Wilson’s case, the Court of Appeals of Indiana
conclude[d] the State failed to lay an adequate foundation to establish that Ort knew of Wilson and was “truly familiar with the ‘community’ in which the reputation has been formed[.]”…At trial, Ort testified that Tina is her son’s girlfriend. She further testified that she visited Tina in Ohio twice while on vacation to drop off Christmas presents and briefly visit with Tina and Tina’s grandson. Ort next testified that she visited Tina “on the way back” from Pennsylvania, because while Ort was in Pennsylvania, she “went to a little mall and I saw some boots for [Tina’s grandson] and he didn’t have boots, so I bought him a pair. So[,] we brought them and dropped them off.”…She further testified that Tina was Wilson’s aunt – information she learned from her son, who was Tina’s boyfriend, and from Tina’s daughter. The record linking Ort to Wilson’s community is thin and thus, fails to establish that her knowledge of Wilson’s familial relationship arose “from sufficient inquiry and discussion among persons with personal knowledge of the matter to constitute a trustworthy ‘reputation.’”…Because an adequate foundation was not established, Ort’s testimony that she learned of Wilson’s familial relationship from her son and Tina’s daughter constitutes inadmissible hearsay.