By Richard Mann, Mann Law PC
In the case of In the Matter of the Termination of the Parent-Child Relationship of K.R. 2020 WL 6065769, decided by the Supreme Court of Indiana on October 15, 2020, the issue before the court was whether the drug tests performed on Mother and Father by an outside drug-testing facility were inadmissible hearsay. Evidence Rule 802 states, “Hearsay is not admissible unless these rules or other law provides otherwise.” The court discussed if the results we admissible under Evidence Rule 803(6). The court noted that there is a division within the different panels of the Indiana Court of Appeals. The court set out to resolve the division of the panels.
Evidence Rule 803(6) provides that the following are not excluded by the rule against hearsay:
- Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
- the record was made at or near the time by — or from information transmitted by — someone with knowledge;
- the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
- making the record was a regular practice of that activity;
- (all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(9) or (10) or with a statute permitting certification; and
- (neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
The parents argued that the reports were not admissible because the records are not necessary for the laboratory to operate. Citing the Court of Appeals from In Matter of De B., 144 N.E. 3d 763 at 767, the Supreme Court found the records are necessary to the operation as the lab is certified by the Federal Department of Health and Human Services and as such they are required to maintain the test results for two years.
The parents then challenged the trustworthiness of the test results and challenged the chain of custody. The court went on to state that witnesses testified as to the collection and chain of custody of the samples. The court held that the proponent of the samples does not have to present a “perfect chain of custody”. The court went on to say that to exclude the evidence one must present more than there is a mere possibility of tampering.
The court then addressed whether the records are sufficiently reliable. The court considered whether the records are subject to 1) review, audit, or internal check; 2) the precision engendered by the repetition; and 3) the fact that the person furnishing the information has a duty to do it correctly. Citing Stahl v. State, 686 N.E. 2d 89 at 92. The court pointed out that an affidavit and the testimony of the Director of the laboratory showed a detailed, methodical and repetitive process for processing samples. She also testified that the lab follows all federal regulations in order to maintain certification and licensure.
What one should take away from this decision is what the testimony or affidavit must set out to make this evidence fit within the exception. If you are the proponent of the evidence, you should make sure there is as much detail in the affidavit or testimony to cover the requirements set forth in this case. You should also make sure you have the evidence to support a foundation for the evidence. You need to provide that the person giving the opinion is qualified to do the testing and give the opinion. See Evidence Rule 702. You should in discovery investigate the training and education of the expert who performed the testing. You should also review your business records affidavit as the generic affidavit may not have sufficient information to make the records admissible.
If you are opposing these records you should make sure that all the requirements are met otherwise you may waive the issue for any appeal.
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