ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Steve Carter Ellen M. O’Connor
Attorney General of Indiana Marion County Public Defender Agency
Indianapolis, Indiana
Joby Jerrells
Deputy Attorney General
Indianapolis, Indiana
_____________________________________________________________________________
In the
Indiana Supreme Court
_________________________________
No. 49S05-0501-CR-6
STATE OF INDIANA,
Appellant (Plaintiff below),
v.
DOW WILSON,
Appellee (Defendant below).
_________________________________
Appeal from the Marion Superior Court, No. 49G06-0302-FC-032946
The Honorable John Downer, Senior Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0310-CR-526
_________________________________
November 2, 2005
Boehm, Justice.
We hold that one spouse is not precluded from testifying in a criminal prosecution of the
other.
Factual and Procedural Background
In January 1999, Dow and Heidi Wilson, husband and wife, were approved for subsi-
dized Section 8 housing. After the Indianapolis Housing Authority received a tip alleging that
some of the information in the Wilsons’ Section 8 housing applications was fraudulent, an inves-
tigation revealed questionable items in the application, and both Dow and Heidi were charged
with welfare fraud and theft. The State granted Heidi use immunity in exchange for her agree-
ment to testify against Dow. When the State called Heidi at Dow’s trial, Dow objected to her
testimony on two grounds. First, he argued that the marital privilege, Indiana Code section 34-
46-3-1(4), barred Heidi’s testimony as to communications between them. He also contended that
because he was the accused in a criminal prosecution he was not required to testify, and therefore
Heidi, as his spouse, was barred from testifying by Indiana Code section 34-46-3-2. The trial
court agreed with the second contention and certified the ruling for interlocutory appeal. On ap-
peal, the Court of Appeals did not address the claim on its merits, but held that the State had
waived its challenge to the exclusion of Heidi’s testimony by failing to submit a proper offer of
proof. State v. Wilson, 816 N.E.2d 61, 63 (Ind. Ct. App. 2004). This Court granted transfer.
State v. Wilson, 831 N.E.2d 733 (Ind. 2005).
I. Offer of Proof
Dow initially argues that the State waived its objection to the exclusion of Heidi’s testi-
mony by failing to make an adequate offer of proof as required by Indiana Evidence Rule
103(a)(2). The Court of Appeals agreed.
Dow objected to Heidi’s testimony at trial on the ground of marital privilege and also on
the ground that she was barred from testifying altogether. The State responded:
I think for one this is a little premature, because they don’t know if our questions
are even going to ask about spousal communication, which I’m not sure that they
will. I think our questions are going to be more directed as to, “Ms. Wilson, on
January 19th of 1999, did you go to the office of Housing Authority and put in an
application for Section 8 rent? Who accompanied you there?” That is not spousal
communication. So, I think this is premature in that they haven’t heard the ques-
tions, yet. We haven’t asked a question that’s relating to marital privilege. We’re
going to ask Ms. Heidi Davie Wilson what she did on a certain date and who was
with her.
Dow claimed that Heidi, as Dow’s spouse, was precluded from testifying against him ir-
respective of the subject matter of her testimony. As to that claim, the only requirement of an
offer of proof is that it indicate the relevance of the offered testimony and that it would not vio-
2
late some rule of evidence such as hearsay. An offer ordinarily should explain the witness’s ex-
pected testimony, not the questions to be asked. However, in the case at hand, the only issues
were relevance and whether Heidi’s testimony would invade a privilege. It was clear from the
context that the State intended to show that Dow and Heidi applied for Section 8 housing to-
gether and that Heidi’s testimony was to establish that fact. The State’s explanation was suffi-
cient to show its relevance and that Heidi’s account of who was with her was admissible under
the Rules of Evidence.
Dow also raised an objection based on marital privilege, which protects only confidential
communications. As to that claim, in addition to relevance and competence of the witness, the
offer of proof should show that no privilege would be invaded. Whether Heidi accompanied
Dow at the time of the application and who else was present do not call for communications at
all, so the State’s explanation was enough to show that it did not seek to elicit any confidential
communications. The offer was therefore sufficient as to both objections.
The purpose of an offer of proof is to convey the point of the witness’s testimony and
provide the trial judge the opportunity to reconsider the evidentiary ruling. Baker v. State, 750
N.E.2d 781, 785-86 (Ind. 2001) (quoting 1 McCormick on Evidence § 51, at 217 (John W.
Strong et. al., 5th ed. 1999)). Equally important, it preserves the issue for review by the appel-
late court. Id. To accomplish these two purposes, an offer of proof must be sufficiently specific
to allow the trial court to determine whether the evidence is admissible and to allow an appellate
court to review the correctness of the trial court’s ruling and whether any error was prejudicial. 1
McCormick, supra, at 218.
The Court of Appeals, applying language from this Court’s decision in Hilton v. State,
648 N.E.2d 361 (Ind. 1995), found the State’s offer insufficient. Hilton first noted that an offer
of proof should indicate the facts sought to be proved and establish the “competency, and rele-
vancy of the evidence offered.” Id. at 362 (citing Tope v. State, 266 Ind. 239, 362 N.E.2d 137,
142 (1977), cert. denied, 434 U.S. 869 (1977)). We agree with this general formulation. How-
ever, Hilton went on to find the offer of proof in that case insufficient because it “lack[ed] speci-
ficity and fail[ed] to establish such material facts as when the conversation took place, where the
conversation took place, and who was present at the time.” Id. Hilton also questioned the offer
3
in that case on the ground that “Hilton phrase[d] his offer of proof ‘I believe,’ and he fail[ed] to
adequately assure the court that the offer truly represent[ed] the substances of [the] testimony.”
Id. We think this language from Hilton must be reconsidered.
The language in Hilton that would require time and place and other details overstates the
requirements for an adequate offer of proof. An offer of proof should show the facts sought to
be proved, the relevance of that evidence, and the answer to any objection to exclusion of the
evidence. Details that are immaterial to the ultimate facts are not necessary. Where and when a
conversation took place ordinarily are irrelevant to any issue before the court. In this case the
date and other persons present were not critical to any issue before the court. To the extent Hil-
ton suggests they are generally required it is disapproved.
We also disapprove the language from Hilton suggesting that an offer of proof must
vouch for the anticipated testimony. There is nothing wrong with an offer of proof that prefaces
the proffered testimony with “We expect the witness to testify that . . .” or “I believe.” The at-
torney making an offer of proof must have a good faith and reasonable belief that the witness
will testify as the attorney states, but the attorney is not a warrantor of the witness’s reliability
and should not vouch for the witness. Indeed, many attorneys have endured witnesses who
changed their stories on the stand from the version they had given the attorney under circum-
stances where the attorney had no reason to question the original version until the witness re-
canted on the stand.
Finally, we observe that, as explained in State v. Glover, ___ N.E.2d ___ (Ind. 2005), the
privilege can be waived by either Heidi, as the testifying spouse, or by Dow. Even if the infor-
mation was potentially privileged, we assume Heidi’s plea agreement may have committed her to
waive any marital privilege issue. In any event, if that is not the case, we assume she expected to
waive the privilege by testifying without asserting it. The offer of proof was sufficient to pre-
serve these issues for appeal.
II. The Marital Privilege
Dow contends that the marital privilege prevents his wife from testifying to the events
surrounding the application. Dow’s contention relies on Indiana Code section 34-46-3-2 which
4
is grounded in statutory language first introduced in the 1998 recodification of hundreds of sec-
tions of the Indiana Code. We reject his contention, although we agree that the language of the
new statute seems to support it.
A. The Pre-1998 Statutory Provisions
In 1997 only two statutory provisions addressed husband and wife as witnesses. The
first, the marital privilege appeared along with other statutory privileges in a single section of the
chapter entitled “Witnesses” in the “Civil Code of 1881” article of the Indiana Code. This stat-
ute was couched in terms of competence, not privilege. See Indiana Code § 34-1-14-5 (Burns
Code Ed. Repl. 1997). It provided: “Except as otherwise provided by statute, the following per-
sons shall not be competent witnesses: . . . (5) Husband and wife, as to communications made to
each other.” Id. (italics supplied). Subsections (1) through (4) identified attorney/client, physi-
cian/patient, and other privileges, all prefaced by the “shall not be competent witnesses” lead-in.
Although the statute referred to husbands and wives as being incompetent witnesses as to
“communications made to each other” it was long held that this section created a privilege, not a
disqualification of the witness. It protected only confidential communications between spouses,
and did not prevent a spouse from testifying as to any other matter. 1
Before the 1998 recodification, the “Witnesses” chapter of the article entitled “Civil Code
of 1881” also included a Competency Statute. Indiana Code section 34-1-14-9 (Burns 1986)
provided “[w]hen the husband or wife is a party, and not a competent witness in his or her own
behalf, the other shall also be excluded.” This language had been applied only in will disputes,
cases involving the dead man’s statute, and actions by a husband for the seduction of his wife. It
1
See, e.g., Gordon v. State, 609 N.E.2d 1085, 1087 (Ind. 1993) (State’s questioning of defendant’s wife
regarding ownership and disappearance of gun used in charged shootings did not violate the marital Privi-
lege Statute); Kindred v. State, 524 N.E.2d 279, 296 (Ind. 1988) (acts of spouses not intended to convey a
message are not covered by the statute); Perkins v. State, 483 N.E.2d 1379, 1383 (Ind. 1985) (no privilege
exists for a communication “intended to be transmitted to a third person”); Holt v. State, 481 N.E.2d
1324, 1326 (Ind. 1985) (no privilege existed due to the lack of confidentiality); Shepherd v. State, 257
Ind. 229, 232-33, 277 N.E.2d 165, 167 (1971) (an exception to the rule of privilege as to communications
between spouses is when the offense charged was committed by one against the other); Hazelwood v. Sta-
te, 609 N.E.2d 10, 15 (Ind. Ct. App. 1993), trans. denied, (information communicated a month before the
marriage was not included within the martial privilege); Gifford v. Gifford, 58 Ind. App. 665, 673, 107
N.E. 308, 311 (1914) (statement by husband relating to business transaction which was not intended to be
private did not come within the privilege).
5
was typically used to prohibit the spouse of a party from testifying as to any matter that occurred
during the lifetime of the incompetent spouse. 2 The Court of Appeals had specifically rejected
the claim that the Competency Statute prevented a wife from testifying against a husband in his
criminal trial. In Merry v. State, 166 Ind. App. 199, 335 N.E.2d 249 (1975), trans denied, the
defendant claimed he was not a competent witness for the State by reason of his self-
incrimination privilege. The court held that although Merry had the right to assert the privilege,
he was not an incompetent witness and therefore his wife was not barred by the Competency
Statute. Id. at 260. Similarly, in Gordon v. State, 609 N.E.2d 1085 (Ind. 1993), the defendant in
a criminal case argued that the trial court erred in permitting his wife to testify as to non-
confidential communications. We held that the Competency Statute “refers to the competency of
the spouse when the other is excluded from testifying” and did not apply because the defendant
was not claiming that he was incompetent. Id. at 1087.
In short, the law prior to the 1998 Recodification did not support Dow’s contention that
his wife could not testify. The offer to prove established that no privilege barred the testimony.
And, “[i]n contrast to the slow evolution of the law with regard to privilege in the federal system,
Indiana long ago abolished the rule of absolute spousal incompetence in favor of a narrow privi-
lege encompassing only confidential communications and information gained by reason of the
marital relationship.” State v. Roach, 669 N.E.2d 1009, 1011 (Ind. Ct. App. 1996) (citing Shep-
herd v. State, 257 Ind. 229, 277 N.E.2d 165 (1971); Smith v. State, 198 Ind. 156, 152 N.E. 803
(1926); Vukodonovich v. State, 197 Ind. 169, 150 N.E. 56 (1926)).
B. The 1998 Recodification
As a result of the 1998 Recodification, the Privilege Statute became section 1 of a newly
created chapter entitled “Privileges of Attorneys, Physicians, Clergymen, and Spouses” in a new
“Privileged Communications” article. As before recodification, the marital privilege was in-
cluded as a subsection of this section that addressed all forms of privileged communications. As
explained below, in recognition of the settled law that this section provided for privileges, not
disqualifications to testify, the recodified version adopted privilege language, abandoning the
pre-recodification competency terminology: “Except as otherwise provided by statute, the fol-
2
See, e.g., Taylor v. Taylor, 643 N.E.2d 893, 896 (Ind. 1994); Lee v. Schroeder, 529 N.E.2d 349, 353
(Ind. Ct. App. 1988), trans. denied; Bechert v. Lehe, 161 Ind. App. 454, 457, 316 N.E.2d 394, 397 (1974).
6
lowing persons shall not be required to testify regarding the following communications: . . . (4)
Husband and wife, as to communications made to each other.” I.C. § 34-46-3-1(4) (italics sup-
plied).
The recodification placed the Competency Statute, without any change of language, in
the chapter entitled “Competent and Incompetent Witnesses.” I.C. § 34-45-2-9. Recodification
also mysteriously generated a second version of the Competency Statute translated into privilege
terminology. The recodification thus retained both of the former sections and also introduced a
new third provision. This third provision is similar to the former Competency Statute, but
adopted the same language change that was properly done in the Privilege Statute, i.e. substitut-
ing “not required to testify” for “not a competent witness.” This new provision appeared as sec-
tion 2 in the “Privileges of Attorneys, Physicians, Clergymen, and Spouses” chapter. Indiana
Code section 34-46-3-2 thus now provides: “When the husband or wife is a party, and not re-
quired to testify in his or her own behalf, the person’s spouse shall also be excluded.” The trial
court held that, pursuant to this third provision, because Dow is not required to testify in his
criminal trial, Heidi was also excluded.
The State argues that this new statute, Indiana Code section 34-46-3-2, is merely a re-
codification of the Competency Statute, former Indiana Code section 34-1-14-9 (Burns 1986).
Dow responds that current Indiana Code section 34-45-2-9 is a verbatim recodification of the
former Competency Statute. There is therefore logic to Dow’s claim that the new section 2 of
the Privilege chapter must be something other than a restatement of the old Competency Statute.
And Dow argues persuasively that the language of this third provision is clear and susceptible to
only one interpretation: if a party in a lawsuit is not required to testify, that person’s spouse is
not allowed to testify.
On its face this new statute does just what Dow claims. As a defendant in a criminal
case, Dow is “not required to testify in his own behalf.” And it is hard to give any meaning to
the term “shall be excluded” other than a declaration that Dow’s wife cannot testify. Ordinarily
the clear meaning of the language of a statutory provision is the end of the analysis. Bolin v.
Wingert, 764 N.E.2d 201, 204 (Ind. 2002). We nevertheless conclude that this new section ef-
fected a substantial change in the law and is in conflict with other provisions of the 1998 Recodi-
7
fication Act. Dow’s interpretation of section 34-46-3-2 would permit the defendant in many
domestic abuse cases to prevent the only witness—his wife, the victim in the case—from testify-
ing. We think it highly unlikely the legislature would have intended such a result. But we do not
rely on our supposition as to the aim of the legislature. This provision popped up for the first
time in a recodification and would effect a substantial and irrational change in the law. This new
section 2 is not simply a recodification of the old Competency Statute. As already explained, the
language now appearing in 34-46-3-2 was newly minted in the recodification process, and the
Competency Statute was recodified elsewhere. Before 1998 there were two statutes addressing
the role of a spouse as a witness, and now we have three. Thus, the question is whether recodifi-
cation created a new separate privilege which would grant defendant spouses the ability to keep
their spouses from testifying as to anything if the defendant spouse was not required to testify in
his or her own behalf. The history of this provision confirms that it was, to put it simply, a mis-
take in recodification. At least under these unusual circumstances, the new section must be re-
jected as in conflict with provisions in the 1998 Recodification Act that no new law was created.
Cf. Burd Mgmt., LLC v. State, 831 N.E.2d 104, 108 (Ind. 2005).
In 1997 the Indiana Code Revision Commission was considering a proposal to consoli-
date and update statutory provisions relating to witnesses. The Commission focused on the point
we have already noted that the Privilege Statute in Indiana was couched, incorrectly in modern
usage, in terms of the competence of the witness. The Commission correctly concluded, that
substitution of the term “required to testify” for “competent” would not change the law under the
Privilege Statute. The change would simply reflect the doctrine the courts had long embraced:
communications between attorney/client, physician/patient, clergyman/penitent and hus-
band/wife were privileged. So far, so good. The Commission’s staff was then directed to con-
solidate the provisions from the “Witness” chapter in a new article to be entitled “Privileged
Communications.” At that point, for reasons not visible to the naked eye, the Competency Stat-
ute was retained in its original form in the “Competent and Incompetent Witnesses” chapter, and
not only the 1881 Privilege Statute (now I.C. § 34-46-3-1), but also a revised version of the
Competency Statute (now I.C. § 34-46-3-2) appeared in the new “Privileged Communications”
article. The entire debate of the issue by the Commission, and the “Discussion” memo of the
Indiana privilege law furnished to the Commission, seem to have focused solely on the Privilege
Statute and its incorrect usage of competency terminology. The Commission was apparently un-
8
aware that translating the Competency Statute into “privilege” language would effect a substan-
tial change in the law. It thus appears that the insertion of a new statute, highly unusual in a re-
codification act, was the result of an overly enthusiastic adoption of the principle that the marital
Privilege Statute should be rephrased in terms of privilege rather than competency.
The legislature has told us how to handle this apparently bizarre result. Indiana Code
section 34-7-1-1 sets out the “Purpose” of the 1998 Recodification Act. It provides that the Act
is intended to recodify existing law, not to change it. Specifically, with an exception not relevant
here, 3 this section provides that “the substantive operation and effect of prior civil law and pro-
cedure continue uninterrupted.” 4 Dow argues that this “Purpose” provision in the 1998 Recodi-
fication Act should be of no effect in this case because it conflicts with the language of the stat-
ute. Dow contends that when there is an irreconcilable conflict between the body of an act and a
Purpose provision, the Purpose provision should be rejected. In this case we think the reverse is
3
The complete language of this section is:
The purpose of the recodification act of the 1998 regular session of the general assembly
is to recodify prior civil law and procedure in a style that is clear, concise, and easy to in-
terpret and apply. Except to the extent that:
(1) the recodification act of the 1998 regular session of the general assembly is
amended to reflect the changes made in a provision of another bill that adds to,
amends, or repeals a provision in the recodification act of the 1998 regular session
of the general assembly; or
(2) the minutes of meetings of the code revision commission during 1997 expressly in-
dicate a different purpose;
the substantive operation and effect of the prior civil law and procedure continue uninter-
rupted as if the recodification act of the 1998 regular session of the general assembly had
not been enacted.
4
Shortly before oral argument in this case, the State submitted the minutes of the Code Revision Com-
mission as additional authority. In submitting this additional authority, the State pointed out that the 1998
Recodification Act should be construed to effect no changes unless the minutes make that intention clear.
The State points out that no such change was intended. Dow moved to strike the State’s submission of
additional authority, arguing that the additional authority was in fact an attempt to raise a new issue not
presented to the trial court or Court of Appeals. Dow argues that although the State has previously al-
leged that the statute at issue was not a “new” statute “it had never previously argued, before the trial
court or to the Court of Appeals, that any ‘Savings Clause’ [referring to the “Purpose” section] explicitly
prevented legislative creation of a heretofor[e], nonexistent statutory privilege.” While it is true, as Dow
seems to argue, that grounds of error must first be raised in an appellate brief and cannot be raised ini-
tially in a reply brief or later, we do not think the State has raised a new argument. As Dow admits, the
State argued in its appellate brief that the statute is not a new statute, but merely a recodification of an
older statute. The State’s submission of additional authority merely bolsters the contention that because
the statute is not new, but part of a recodification, it should not be interpreted any differently than the
former statute. In any event, this Court is familiar with the recodification process and can, and did, do its
own legal research.
9
true—the aberration is ineffective because it conflicts with the “Purpose” provision of the Re-
codification Act. The Recodification Bill, P.L. 1-1998, was 534 pages long and included hun-
dreds of provisions on a wide variety of subjects. Recodifications are passed by the legislature in
reliance on the technical skills of the Commission on Recodification and its staff, and on the
provision in the first section of the Recodification that it will do no harm. The legislature was
explicit in providing that no change in substantive or procedural law was intended, and we think
this provision should be honored. Because the preexisting law was accurately preserved in other
provisions, Indiana Code section 34-46-3-2 is an invalid extension of pre-recodification law and
is of no effect.
Conclusion
The ruling of the trial court precluding Heidi from testifying is reversed. This case is re-
manded for proceedings consistent with this opinion.
Shepard, C.J., and Dickson, Sullivan, and Rucker, JJ. concur.
10