Evidence

Admissibility of dosc affecting prop interest

(deed will et.) is admissible if the statement is relevant to the doc's purpose. Exception will not apply if later dealings with the property are inconsistent with the truth of the stmt asserted or the itnent of the document.

There are three requirements for silence in the face of an accusatory statement to qualify as an admission

(i) the party must have heard and understood the statement; (ii) the party must have been physically and mentally capable of denying the statement; and (iii) a reasonable person would have denied the accusation under the same circumstances.

how to authenticate a writing impermissile techniques by lay w for auth how to authenticate voice ID? How to auth stmts made during phone convo? How can anceinet docs be authenticated? reply letter doctrine- what is it?

-admission -eyewitness -handwriting proof (lay witness can onyl give opinion regarding genuinenesso f signature if lay w familair with wirting lay w cannot give opinion based on in court comparisons of the disputed signature with specimen; only expert or jury can do that; the lay w cannto become familiar with the signature for the sole purposes of testifying. (contrast with voice ID: a witness identifying a speaker's voice may have become wfamilar with the voice at any time and under any circ) expert w cam compare disgnatures and jury may cpmapyre by one of the parties to the call who testifies that 1) he recog the other party's voice, 2) speaker had the knowledge of cetain facts that only a particualr person would have 3) he called a particualr persons number and a voice answred as that person or that person's residenece. or 4) he called ab suiness and talked with teh peson answering the phone about matters relevan to the business. if the ancient docuent is at least : 1) 20 or more years old 2) regualr on its face/in such a condiion as to be free from suspicion as to authenticity 3) foudn in aplace of natural custody (newappers, periodicals, solicited reply doctirne: proofthat dispited doc came in resposen to a prior comm'n

Ohio notes on additiona hearsay exceptions Child stmts in abuse cases stms by an incomp or decesed person

-child stmts in abuse cases: stmt by a child who is under 12 at the time of trial concerning physcial or sexual absue toward the child is admissible under the exception if 1) the stmt is foung to be trustworthy based on the circ 2) the child unavailable 3) there is indep proof of abuse 4) the proponent gives 10 days advance notice of intent to intro the child's stmts -stmts by an incompetent or decesased person; after an interested witness has testified against an incompetent or decesed person's guardian, estate, etc the guardian/estate may intro pre-incomp/pre death tmts of the person if 1) the stmts rebut the interested witness's testimony and 2) the person had personal knowledge of the matter) DEAD ,MAN'S STATUTE - rebuttal against gold diggers as log as they had personal knowledge

803 exceptions to hearsay (reliable hearsay) wheere no unavailability req'd

-spontaneous stmts -present mental or ohysical stte -stmt of existing intent ot prove intended act -excited utterance -PSI -stmt for med diagnossis or tx -business records -public records -learned treatises -recorded recollection

Exceptions to admit character evidence (6)

1) Character is an element 2) criminal defense offerse character evid about def 3) Vicitim's character in a self-defense case 4) Specific acts of misconduct offered for non character purpose 5) similar acts in child molestation and sexual assault cases 6) Habit Evidence

basic reqs for expert testimony:

1) Evid must be relvant and reliable: subject matter must be one where scientific, technical, or other specialized knowledge would assist the trier of fact, based on sufficent bdacts and data, must be the product of reliable principles and methods, expert must have reliably applyied the principles and methods in the case. For scientific evidecne, daubert factsrs include: whether the thory or the techniqur has been subject ot peer review and publciatin, its know or potential error rate, existence and maintenance of stads controlling its operation, and whether it is gnerally acceptedi n teh scieentific community. 2) Witness must be qualife as an expert (possesing specialzed knowledge and skill experience tranisng , ed) 3) expert must possess reaosnable probability regarding her opinion 4) Opinion must be suported by proper factu lbasis reliable theory, application reasonably cetainty r opinion helpful to trier of fact qualified expert proper facutal basis

REhab after impeachment

1) PCS: allowed to reubutal a claim of recentmotiev or influence to fabriacte; pcs must have been made before motive or influence arose OR to rehab a witness who has been impeached on some other ground 2) Good rep or opinion evid: attach on w's general bad acharacer for trithfilness (propr bad acts, propr convictions, rep or oomopn evid of untrithfulness) Something speicific like bias senisory deficiney, etc. does nOT count as an attack on the witness's general cahracter for truthfulness.

Jurors are incompetent to testify in what situations?

1) before the jury on which they are sitting and 2) post verfict proceedins as to certain matters occurring during jury deliberations.

804 exceptions hearsay (reliable hearsay)- decl must be unavailable: list

1) former testimony 2)stmts against interest 3)dying decl

2 types of relevant evidence: list and what it is

1) logical relevance: the gatekeeper; very low, often not the best answer on the bar ecxam; evid is relevant if it has any tendency to make any fact of conseq more ore less prorobable than it would be without the evid: needs to be hlepful to prove an element or impeach a witness evid may not be logically relevant if it involves some otehr time event or person than the one directly inolved in teh litigation 2) legal relevance: even relevant evid mayb e excl if its prob value is substantially outweiged by dainger of : unfair prej, confusion of issues, misleading jury, undue delay, wasting time, cumulative evid

CAn ther be vicarious admissions for hte follwoing? 1) co-parties 2) atuhorized spokespoeson? 3) principal agent 4) partners 5) co-consp 6) privies in tile and JTs- 7) prelim determinations

1) no 2) yes 3) yes concerning any matter with the scope of her agency or eement made while the agency or eement relatonsjop exists 4) yes- once the partnership is shown to exsit 5) yes 6) in msost sate courts yes not consdered admissible under FRE but amy be admissible under one fo the bearsy exceptions (statement against interest) 7) before admissting a hearsay stmt as a vic admission, the court must make a prelim determination of the cevlarant's relationsjop with the party against whom the stmt is offered- ct must consider the contents of the stmt but the stmt alone is not suffcient to est. the required relationhip.

Considerations in determining whether stmts are testimonial:

1) otivation and intent of the decl 2) motivation and intent of interrgoator (safeguard victim or secure the scene or get evid) 3) temporal elemnet (ongoing emergency? or past events? 4) ID of person elicciting stmts (relative or PO?) 5) defree, amount, circ and location of PO interrog (preliminary on scene questions or strucutredquuestioning?

Expert Opinions permitted sources of expert's knowledge at trial: OH note on exprit's opinion

1) personal knowledge (doc, eyewitness, plaintif themelves) 2) facts presented at tirall (posed to experty by hypo, or expert can attend and listen to evid at trial) 3) facts or data not in evidecnce but reasonably relied upon by other experts in the field OH does not permit an expert's opinion to be based on facts or data not in evid the oponion must be based on 1) expert's personal observation or 2) facts admited at triall. OH also reqs the expert to disclose the basis of her opinion before testifying on direct exam

If the BER does apply, the general rile is to bring the Best evid unless there are alternatives to best evid what doesn't qualify as originals? How will they be admitted? what will the court do even where is a photocopy that qualifies as an aoriginal ad there are issues with it? Is a computer printout an original? What happends if the proponent cannot produce the original writing in court?

1) public recs (certifided copies admissible in place of orgiinals) 2) voluminous documents: if too many docs to be prodced in court, simaries charts or cals can be admissinle in place of rogiinals f 1) orignals would be admissible if pfofered and 2) orignals ar made accessible to opp part It also must be attested to as ccurate and afair rep of teh orignals by the one who prepared the summary. 3) duploicates: in place of originals admissinle to be same exten a s an original unless a genuien question raised abotu hte auth of rig or 2) the circ make it unfair to admit hte diplicate in lieu f orig handwritten copies or photographs are not orignails and will only be admitted upon a showing of good cause, such as the court lacks the jurisd to get the original, a party will not produce the doc, after a search conducted with diligence it annot be found, pr destruction without bad faith. issue of fairness; court can based on fairness keep out an original photocopy in teh event that it is not completely or is fuzzy. Good cause to admit needs to be show n and the court will perform the balancingtest to see if the prej value outweighs the prob vlaue. Yes it ism because it is from electronically stroed information. ****************************** he may offer secondary evid of its contents (handwritten copies, notes, oral testimoney) if a satsfctory explanation is given for eh loss of teh original- loss or deestruction, orig in possessio nof 3_ outsdie the jurisd and is unonbtainable, orig in the possess ion of an adversary, who, after due notice, fails to produce the orignal.

Spousla priivleges types and cexplain limits ohio note on spoisal imm priv

1) spousal immunity priv: one spouse cant be forced to testify against another in a CRIM case; reqs: valid marriage at tiem of trial and protects any and all testimony. holder of privlege is witness spoiuse, not the party. Doesnt matter when they leardned the info 2) confiedential marital commn's privielge: protects against disclosure of conifd commn's made during the marriage and applies in all cases (civil as well as criminal) reqs: married not ecess at the time of trial but during the proetcted comm'n (priv outlasts marriage, protects only confidential commn's , either spiuse holds priivelge. LIMITS: NEITHeR PRIVILEGE APPLIES IN LEGAL ACTIONS BETWEEN THE SPOUSES, in cases involving crimes against the tstifying spoise or either spouse's children, or to comm'ns in furtherance of a joint crime or fraud. doctrine in OH is called withness spouse incompetency but the witness spouse will be deemed compettent if she elects to testify, so basically same as federal law. if the witness spouse is comptent to testufy, she can also tesfiy to other charges against her spouse that arose from the same course of conduct.

Party may not bolster or accredit the testimony of his witness if he merely _____ may only bolster once___ Exceptions: who can impeach a witness?

A party may not bolster or accredit the testimony of his witness if he merely anticipates that the witness will be impeached. Rather, he may only bolster the witness's testimony once the witness has been impeached. There are exceptions to this rule. In certain cases a party may prove that the witness made a timely complaint, in order to bolster the party's credibility (e.g., a prompt complaint by a rape victim to show that she is telling the truth). Evidence of any prior statement of identification made by a witness is admissible not only to bolster the witness's testimony, but also as substantive evidence that the identification was correct under the FRE, a witness may be impeached by any party, including the party who called him.

PIS made under penality of perj at a priortrail or proceedings or in a depo is _______________and may be used as __________as long as ________ what does it show?

A prior inconsistent statement made under penalty of perjury at a prior trial or proceeding, or in a deposition, is admissible nonhearsay and thus may be used as substantive evidence as well as for impeachment as long as the witness is subject to XE. The credibility of a witness may be impeached by showing that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. Because it is made by the declarant other than while testifying at the trial or hearing, a prior inconsistent statement will usually constitute hearsay if offered to prove the truth of the matter asserted therein. Under such circumstances, the statement would be admissible only to impeach the witness. However, where the statement was made under penalty of perjury at a prior proceeding, including a grand jury proceeding, it is admissible nonhearsay (i.e., it may be considered as substantive proof of the facts stated). [Fed. R. Evid. 801(d)(1)(A)] The witness's sworn statement before the grand jury that the defendant was driving normally at the time of the accident is inconsistent with his later in-court testimony that the defendant was on the wrong side of the highway at the time of the collision. Thus, this statement can be inquired into by the defendant to cast doubt on the witness's credibility. Because the statement was made at a prior proceeding, and was made under oath, it is nonhearsay, and is also admissible as substantive proof that the defendant was in fact driving normally at the time of the accident

competency and witnesse's prior service on jury

A witness is not rendered incompetent simply by having served on a jury in a prior case involving a party to the current suit. Such prior jury service might render the witness's testimony unpersuasive, but it would not make it inadmissible.

effect of pardon and convviction admissibility?

Aconviction may not be used to impeach a witness if the w has ben pardoned. and the pardon is baed on 1) innocence or 2) the person pardined has not been convicte of a subsequent felony.

impeachemnt on coll matters?

Bars opponent from proving the stmt untrue by extr evid or by PIS.

vicarious admissions co-consp OH rule

Co-consp's stmt may not be used in determining whehe consp existed; existence of a consp must be est.by indep proof

Convictions and impeachment rules what can be used to impeach? ohio note

Crime of dishonesty or false stmt (ct no discretion to exclude)- doenst mater thwher felony or MD any othe felony: gneerally 10 years from date of cinvcition or relase from prison whiever is later. blacning test: for first ctegory, no discretion to excld for felonies not involving dishonesty or false stmt, prob value must outwiegh prej when the w is the def. on XE, or extrinsic evid like certficate of conviction OH: court has discretion to exclude convictions for crimes involving dishonesty or false stms if the prob vlaue subst outwihged by undue delay or cumulative evid; cant evxlcude because of unfair prej liek the FRE.

Exceptions to admit character evidence: Specific Acts of misconduct offered for non character purpose when can it be offered limits requirements for admissiblity

Criminal and civil cases can offerd by P or D CAnt be used for est. criminal disposition or character. Need to have some other relevant purpose to the case cant offer it if its not contested: Motive Oppotunity Intent Preparation Plan Knowledge ID absence of mistake or lack of accident, guilty conscience. MIMIC GC: motive intent mistake (to show not a coincidence) identity/modus operandi (signature or uniqueness) common plan or scheme (fif the crimes are connected or have a nexus can be offered to show common scheme) guilty conscience (when someone runsfrom scene, bribes jury, judge) MIMIC rule is still subject to ruel 403 1) there must be sufficient evid to support a jury finding that he def committed the priior act and ii) prob vlaue must not be subt outweighed by unfair prej or the judge in her discretion may exclude it.

Summary of rules for char evidence: Criminal then civil Crim case: Pros offer of character not admissible to show what can D do? what are the consequences of D doing that what is never admissible?exceptions? What if D testifies? Civil case: when is char evid not allowed when can it be let in? what are two important exceptions for the MBE? IF party testifies?

Criminal cases prosecutor cannot intro any evid of bad character if purpose is to show propensity (probaly acted the same way again) D is allowed to present evil relevant good chracter traits to est. she didn't commit crime -but can only be rep or opinion evid. no pseific If D does, she has opened the door, and the pros can rep or opinion evid to est. D's bad character. prior bad acts never admissible, but may be used for MIMIC. motive, identitiy, absences of mistake, intent. common scheme, If prior crime is offered for MIMC, rule on character evid will not keep it out, but can still be kept out because of 403. if D testifies, auto puts character trait of truthfulness in issue civil no intro of char trait of party for propensity if the litgant has some other purpose for char and it is relevant, then can't keep it out. civil case: other purposes- two that are very important: to show negl entrustment or char evid is offered to est. character in defamation case. if party testified, they place char trait of truthfulness at issue

Extrinsic EVid for PIS Exceptions?' Evidentiary effect of PIS?

Extr evid can only be introduced to prove a PIS if 1) the witness is at some pont given an opp to explain or deny the stmt, 2) the adverse party, is at somepoint given an opp to examine the witness about teh stmt. doesnt apply if :PIS is opp party stmt, and inconsistent stmt by a hearsay decl may be used to impeach regardless of foundation, foundation requirements may be disposed of in teh FRE where justice requires (wher ewitness is unvaialable when PISis doscovered. usually, PIS os hearsay admissible only for impeachent puroses. But, if the stmt was made under oath at a prior proceeding, it is admissible non hearsay and may be admitted as subtantive evid of the facts stated. IF the PIS itself qualifies under exception ot hearsay can be used to impeach and subst facts.

public ercords and reports OH v FRE

FRE does not permit either party to intriduce crmincal case police records or reports of mattes observed by law enf, the OH rule permits the accused to do so provided the evid does not lack trustowrthiness.

Specific Acts of miscondict genreally inadmissible, but admissible if independently relevant FRE rule OH discintion

FRE provide that upon request by the accused, the pros must prvde the accusd with reaosnale notice in advance of trial (or during trial if pretiral notice excused for good cause) before intrdocuting evidence of the accused prior crimes of misconduct OH: it requries both teh pros and the accuased to provide notice to the other regarding specific acts evid; and it reqs that the proponent always provide such notice, even if the other party does not request it.

REstircitions on scope of cross examination FRE v. OH what about collateral matters?

FRE: XE limited to: 1) the scope of direct exmination including alll reasonable inerences that may be drawn from it 2) testuing the cred of the witness. unlike FRE 611 b, OH rule doesnt limit the scope of cross to matters eleicited on direct or those affecting witness's cred. Ohio allows cross on all relevant matters inlcuding cred. cross examiner is generally bound by the answers of the witness toq uestions concerning collateral matters Thus, te response may not be refuted by extrinsic evidence. But, certain recog matters of impeachment, such as bias, interest, or a coonvicitions, may be develped by extr evi because they are sufficiently important. The treial court has consisderable discetion in this area.

Plaintiff wants to introduce a statement made in a prior case by a now-unavailable witness. For the former testimony exception to apply there must

For the former testimony exception to apply there must be a sufficient "identity of parties." The requirement of identity of parties does not mean that parties in the current case on both sides of the controversies must be the same as in the prior case. It requires only that the party against whom the testimony is offered or, in civil cases, the party's predecessor in interest was a party in the former action. The former testimony must have been given under oath or sworn affirmation. The former testimony is admissible upon any trial in the same or another action of the same subject matter. The cause of action in both proceedings need not be identical; only the "subject matter" of the testimony needs to be the same. The party against whom the former testimony is offered (or a predecessor in civil cases) must have had the opportunity to develop the testimony at the prior proceeding by direct, cross, or redirect examination of the declarant. Thus, defendant must have been able to question the declarant about the statement in the prior case.

Exceptions to admit character evidence: Habit Evidence

Habit evid: repeated response to a specific stimilus; habit evid can be used to show that on a particualr occasion a personacted in accordance with the habit; diff from general character

Remote Juvelinlem and constitutinally defetive convictions admisiibility?

If mroe than 10 years has elapsed since the date of the conviction or date of release fro mconfinement (whichever is kate. , the conviction is inadmissible. A conviction obtained in violation of the def's const rights is invalid for all purposes, inlvclduing impachemnt

803 exceptions to hearsay (reliable hearsay) wheere no unavailability req'd: recorded recollection

Like LTs, the doc can only be read into evidence not introudced as an exhibit (unless the adverse party chooses to offer it)

Ohio's version of R 403

Mandatory excl: trial judge must dxclude evid if prob value subst outweifhred by unfair prej, confusion of the issues, or misleading the jury discr excl: trial judge may exlc evid if its prob vlaue subt outweighed by undue delay or cumulative evid

stmts offered against a party procuring declarant's unavaialbility OH rule v. FRE

OH rule is similar to the FRE in that it admits stmts of an unavailable decl agaist a party whoengaed in wrongdoing for the prupose of preventing the decl from attending or testifying and that in fact resulted int eh decl unavialability. OH rule omits the FRE's reference to a party's acquiescene in wrongdoinf. OH rule iwlln ot admit the stmts of an unavialble decl against a party who merely acquiescened in wrongdooing that reuslted in the decl's unavailability.

Prior stmt of ID (OH rule)

OH rule is stricter than teh FRE: OH rule reqs the prior ID to be made soon after perceiving teh person, and the surrounding circ must demosntrate the erliability of Identification

exclusion and sequestration of witnesses OH v FRE

OH: does not athoruze exlcusions form the ctroom of a victim if statuptirizly authorized. CAn be present at any stage of the proveeding other than grnd jury proceedigng when the def is presnt unelss the ct determiens the exclusion of the victim is necess to fair trial OH rule also states that an order gnerally directing teh excl or sep of witnesses without furher speification is efective only toexcl witnesses from teh ctroom during testimono f other witnesses. sep order doesnto forbid other contact (being present during oopenign stmts or discssing cases iwth other witnesses outside ctroom) trial ct must make additonal restrictiosn explicit and privde notice to tehe parites. FREL more gneral statement prohibiting the exclusion of a person stat auth to be present.

PIS OH

OH: w's PIS is not admissible as subt evid unless it was lso subject to XE at the time it was made by the party against whom it is offered. Thus, grand jury testimony may not be admittedi n OH as nonhearsay but it may be used to impeach.

Piror inconsistent conduct OH rule v. FRE

OH: w's prior inconsitent conduct is admissible toimpeach the w if the w is fiest iven the opp to explain or deny he conduct. FRE doent have this.

Examples of "not hearsay" element is missing (3)

Operative Facts or verbal acts Effect on the listenr or reader declarant's state of mind

PSI OH rule

PSI inadmissible if the circ indicate a lack of trustworhtiness

In order for prior misconduct to be admissible for some relevant purpose (motive, intent, etc.), there must be:

Sufficient evidence to support a jury finding that the defendant committed the prior misconduct (The probative value of the evidence also must not be substantially outweighed by the danger of unfair prejudice.)

Exceptions to admit character evidence: victim's character in self defense case how can pros respond? Ohio note Rape victim's past behavior admissibility- exceptions?

The accused can aslso show the character of the victim in a self defense case a circ evid to infer that on the occasion in question, the alleged victim was the first aggressor. only PRO pros can respond by showing 1) good rep or opinion concerning the victim or 2) the bad rep or bad oponopn regarding accused Ohio: rebuttal limited to evidence of vcitim's cgood character. pros may not rebut with evidence of def's bad character. *********************************** rape victim'spast behavior generally inadmissible in any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behaivior or sexual behavor of the victim is genrally inadmissible. crim exception: to show someone other than the def is the s ource of the semen, injur,=y other ither phys ecidence. Specific instances of the sexual relationships between victim and accused are admissible by pros for any reason and by he defense to prove consent. civil exception: evidence of alleged victim;s sexual behavior is admissible if not excluded by an other rule and its probabte vaue ubst outweihs the danger of harm to the vitim and of unfair prejudice to anh other party. Evidenc of alleged cictim;s rep is admissible only if it has been placed in controversy by vuctum.

A "statement against interest" differs from an opposing party's statement in that

To qualify as an exception to the hearsay rule, a statement against interest must meet the following requirements: (i) The statement must have been against pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant's position would have made it only if she believed it to be true; (ii) The declarant must have had personal knowledge of the facts; (iii) The declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement; and (iv) The declarant must be unavailable as a witness.

803 exceptions to hearsay (reliable hearsay) wheere no unavailability req'd: learned treatises reqs- how to show? how to introduce

Treatise must be authoritative 1) testifying expert says so, 2) another test experty 3) judicial notice comes in by reading into evidence only; book itslf doesnt come to jury as an exhibit. LTs are two way evid (impeach and for the trth) contradicts expert

residual catchall hearsay exeption- FRE OH

Under FRE requrires. 1) hearsay sttmt possess circumstantial guarantees of trusworthiness 2) stmt be strictly necessary and 3) notice be given to the adversary as to the nature of the stmt. none exists in OH

In a civil case, when character is directly in issue, that character may be proved by evidence in the form of:

Under the Federal Rules, any of the types of evidence (reputation, opinion, or specific acts) may be used to prove character when character is directly in issue

Expert testimony on ultimate Iissues FRE v OH

Under theFRE, an experrt may render an opinion as to the ultimate issue in the case. OH has not adopted FRE704b which prohibts utimate issue testimony in a crim case wwhere the def's mental state constitutes an elemnt of the crim or defense. An expert in OH can give an opoinion as to wherhe the def did or did not have the metnal state in issue

Exclusion and sequestration of witnesses rule and limits

Upon a partys request a trial judge must order wtnesses to be excluded fom hr coutroom. Judge may also do this on his own motion. Judge cant exclude: 1) party or a designated officer or EE of the party 2) person whose presence is essential to the presentation of a party's claim or defens. or 3) a prson statutorily authorized to he bpresent.

judgments when admissible? When are judgments of felony convictions admissible? when are prior crimianl acquitalls judgment in former civil case

a certified copy of judgment is awlays afmissible proof that scuh judgment has been entered. under FRE: admissible in criminal and civl actions as an exceptio ntothe hearsay rule to prove any fat esential to the judgment. In a crim case, gvot may use the judgemt for this purpose only against he accused MAy nbe used only for impeachment purposes against others. excl rule still applid to records of prior acquittals cclearly inadmissible in a subeseq crimina lproceedgin an dgenerally admissibly in subsequrnt civil proceedigns.

803 exceptions to hearsay (reliable hearsay) wheere no unavailability req'd: declaration of existing intent to do an act offered to prove the intended act

a decl of exisitg intent to do something in the fuure offered to infer that the intended future act was done.

skilled lay witnesses example limits

a lay witness with knlwege of handwriting can testify. if skilled lay witness giving expert opijon, need lay foudnation witih R 702

dead man acts what does it provide? what is an interested person? who else is disqualifieed? which statute applues?

a party of person interest in the event is incp to testify to a persoan ltransaction or communication with a deceased, when such testumony is offered against the rep or successors in interest of thedecesased. interested: if he standds to gain or lose by the judgment or the judgement may be used for or against ihim in a subseq action. A predecessor in interest of the intersted party is also disualified. nno Dead man statue in the FRE buta state actw illa ply in fed cases,w here state law, under ERie doctrince privides the rule of decsision (diversity cases)

To qualify as a "statement by an opposing party,"

a party's statement must be offered against him.

statement based on suspicion for dying decl?

a statement based on mere suspicion rather than actual knowledge does not constitute a statement concerning the cause or circumstances of an "impending death" for purposes of the dying declarations exception.

803 exceptions to hearsay (reliable hearsay) wheere no unavailability req'd: Present Sense impression

a stmt describing or explainung an event or condition made while the decl was perceiving the event or condition or immediately thereafter unecess to have a starting event or ecitement but must decrive, not just relate,and have almost preceise contemporaneousness, no appreciable time lapse

A principal-agent relationship, which includes every partner with every other partner in a partnership, is a relationship that may give rise to

a vicarious admission

Exceptions to admit character evidence: criminal defenses offeres character evid about defendant when can the def take the initiative to show his good character? how? how can pros rebut?

accused is permitted to offer evid of her own good character for the pertinent trait in the form of rep and opinion to show disposition in order to infer innocence, Only then the pros can respond by showing bad character of the accused. CRIM DEF PRO if it's a trait that is at issue (peacefulness) through opinion or rep evid but not by specific acts Rebut in two ways: 1) cross iwth specific acts (can include arrests, indictment, etc. shows the W's limited knowledge of Def) but can't call another witness to testify to someone's arrest 6 times too far; they should just ask the person 2) new prosecution wintess: PRO only; pros can respond by calling pros witnesses to testify to bad opinions or bad rep in regard to the character of the accused

market reports admissibility

admissible if genrally used and relied ipon by hte public or by persons in a particualr occupation.

plaintiff's prior accidents or claims can be admitted to show

admit: -to show common plan or scheme of fraud -when releant to the question of damage to the P (here, if prior incident shows P already injured) -notice or knowledge on part of the def that instrucment was defective (if same instrument) -that the same instrucmntality was fective or dangerous

Objections, exceptions, and offers of proof when should thebe made at trial? Any other rules? General objections and appeals specific objectiosn and appeal Motion to strike- who can make? Except- is the necesary? offer of proof

after the question ,but before the ansswer; if answer emerges, it motion to strike must be made as soon as the answer emerges inadmissible.. general bjections upheld on appeal wif there was any grounf for an objection. An verruled gen objection will be upheahd on appeal unless the evid was not admissible under any circ for any purpose specific objections: upheald on appeal on y if the found states was correct or if the evid excluded was not compettent and coul not be made so. only examining counsel may move to strike an unresponsive answer. But opp counsel may not. not necessary for a party to except from a trial ruling in order to preserve the issue for appeal in most states may be made, dsicosing the naturepurpose andadmissiboity of rejected evid to persuade eh tiral court to hear the evidence and to preserve the isse on appeal. MAy be made by witness trstimonyl, lawyer's narration, or tangivble evid marked and offered.

impeachment and PIS by the same witness limits Ohio note

allowed; extrnisic evid of a w's PIS may only be used if the w is given an opp to explain or deny ay some poont during trial; can be done before or after the exrinsic evid is introduced. (req doesnt apply to opp party stmts, no need to let them explain) OH: extrnisc evid of a PIS not allowed until after he witness is given an opp to explain ro deny. Ohi rules also contain a provision allowing for impeachment with PIConduct- as with PIS extrinsic evid may not be ussed until after the w is given an opp to explain or deny.

exhibition of child in paternity suits

almost all cst permit exhibitio of the child to show whether she is the race of the putative father. The courts are fivided with respect ot the propriety of ehibition for he purpsoe of proving physcial resemblance to the putative father.

Atty's work product: limits on waiver of atty client pri and WP rule

although docs proepped by an atty fpor his own use in a case are not protected by the pribilege, they are not subject todiscovery except in cases of necessity voluntary disclsoure of prileged material is a waive of a-c priv or wpp ony with respect to the diclosed material. Undisclosed privleged material is subject to the waiver only if the waiver is intentional, the disclsoed and indscolsed material concern thesame subject matter, and the material should be considered together to avoid unfairness. No waiver if sicosure was inadvertent and the holder took resassteps to prvent disclsure and rectify the erro.

imepachment and cred

always reelvant; even throuuse cross is chained to to issues raised on direct, imepachment of cred is always relevant.

Ohio note on a qualfied exeprt witness in med mal case

an expert testfying on the issue of liab must 1) be licensed to practice in the same or substanitally simialr speciality as thedeednat and 2) devote at least hald of her professioanl time to active clinic practice or instruction. (dont want professioanl expert witnesses)

offers to pay med expenses and adimissibility what is the rule? why wont it come in? BEWARE OF SOMETHING-WHAT IS IT?

an offer to pay med expenses is not admissible even if it is not a settlement offer, but if an admission of fact accompanies a naked offer to pay med or hospital expenses, the admission may be admitted. the paying part wont come in because it's a gratuitoous offer. BEWARE of ofer to may med expenses that is also an ffer to comprimise (ill pay our med expenses if)- in that situation, the more restritive rule for comprise negottiations apppllies- any accompanying stmts or conduct would be excludd alonf with the offer.

auth of photographs What if no person could authenticate the scnee is present auth of x ray picture, electrocardiograms

any w, who is familiar wotith whaever the pic depicsts, can testify about it. no need for phtographer can be admitted upon a showing that the camera was properly oeprating at the relevanttime and tha hte photogrpah was developled form pfilm obtained from that camera. must be shown that the process is accurate, the machine was in working order, and the operator was qualified to operate it. custodial chain must be est. to asure that the x ray has not bee ntampered with.

ancient docs OH rule

applyes to docs that are at least 20 years old

impeachment means

attcking witness in trughtfulness or accuracy

Writing is not admissible until it has been

authenticcated

803 exceptions to hearsay (reliable hearsay) wheere no unavailability req'd: stmt for purposes of med diagnosis or tx

backward looking; no need to be just present stmt made for med diag or tx and describing med history or past symptoms or sensations inception or their gneeral cause insofar as reasonably pertinent to diagnosis or tx Unlike the exception ofr present physical condition this exception ocvers stms of past physical condition and stamts made about someone else's condition in order to seek med help for that person statmts that only assign failt are not pertintent to diag or tx

juror as a witness FRE v. OH what cant the witness talk about?

both FRE 606 an OH R 606 allow a jurror to testify whether the jury received extraneous or prej information and whethr an improperr outside influence may have affected the jury, or if there was a mistake on the verdidct form, whether any juror made a clear stmt that he relied on racial steretypes or anumus to convict a rim defendant. Not every comment indiciating racial bias will qualify, ct must find that racial anuimus was a ignificatnt motivating factor in the juror's vote to convvict. cant talk about what occured duting the deliverations, or about anything that may have affected the juror's vote, and the court mayn ot receve anyevidence of a juror's statement on these matters. The OH rules require that outside evidence of the act or event be presnted before the juror testifies, unelss the juror's testimony concerns a threat, bribe, or impropriety of an officer of the court.

when can simialr occurrances time place be admitted? (5)

causation plaintiff's prior accidents or claims intent or state of mind in issue rebuttal evid habit evid business routine industrial trade or custom

self-auth docs ohio note

certified copies of bus recs, public recs, certified copy of mortagge, offical publications (pamplhelt from BMV), newspapers and perododicals, trade insicirtpins or laels, acknowldges docs (separate doc attached to thsigned doc) in ohio, a certified bus rec is not self authentiicating,

Exceptions to admit character evidence: character is an element admissbility in civil cases? what types of cases forms of proof

char evidence generally not admissible in civil cases unuless character is diretly in issue Character evid is admissible when the character of a party or other person is a material elemnt in the case defamation, negl entrustment/hiring, entrapment, child custody (CEND) May be proved by any of the specific forms ROSA (rep opinion specific acts)

Character evidence as proof of conduct in the litigated event is not admissible in a civil case unless limits

character is directly in issue (e.g., in a defamation action). owever, even when character is in issue, the evidence must be relevant to the particular character trait in issue;

judicial notice conclusiveness civil v. crim

civil cases: the court must instruct the jury to accept thejudicially noticed fact as conclusive crim cases: the cout must instruc the jury that it may or may not accept the judivially noticed fact as conclusive.All we say is the prosecution's burden of producing evidence on that point is satisfied.

atty client privilege what is it? who holds the privilege? Presence of a legal secretary or spouse? What are the limits? elements how long does the priv apply

confiential commn's between atty att and lcient made during professioanl legal conslatiation are privileged from disclosure unless waived byt he lcient or the rep of the deceased client (privilege survive death of client) atty doesnt have to hired- asl ong as you reaonably beleive that that person is your atty its enough the client holds the privilege; atts auth to claim the privilege on behlaf o the client is presumedi n the absence of contrary evid. their presence does not destroy the privilege; as long as their presence is reasonably necessary for the consultation, it does not destroy the privilege. 1) the right parties (atty or rep of atty and lcient or rep of client) 2) confidential comm'n (not phys evid or pre existing docs 3) professioanal elgal relationshop (predom legal advice and intent by lcient to est. professional legal relatiosnip (retainer negotaitons covered)) business advice doesnt count indefinitely, even after client's death

Types of permissible intrinsic impeachment

contradiction, bias, convictions, bad untrtuhful acts, testimonial capacities, stmts (PIS) CBC bats

Business recs-hosp records FRE v OH

contrary o the federal bsiness recs eception. the OH busines recs exceptin does not provde that opinions or disgnoses in med or hosital recs are admssible under the exception

Remote Convictions OH rules

conviction is inadmissible if more than 10 years haveelapsed since the date of the conviction or thedate of the relase from confinement, probation or parole imposed for the conviction, whichever is the later date.

witnesses examined or called by the ct OH rule

ct must interrgoate a witness in an impartial manner. not in the FRE

Under the Federal Rules, a prior conviction may be used to impeach even if the witness is

currently appealing the conviction. Where a prior felony conviction was obtained in violation of the defendant's Sixth Amendment rights (e.g., to have counsel, to confront witness, etc.), the conviction is generally invalid for all purposes—including impeachment. Juvenile offenses are generally not admissible for impeachment purposes, and are never admissible against a criminal accused. Under the Federal Rules, a judge has the discretion in a criminal case to admit evidence of a juvenile offense committed by a witness other than the accused if the evidence would be admissible to attack the credibility of an adult and if the evidence is necessary to a determination of the accused's guilt or innocence.

804 exceptions hearsay (reliable hearsay)- decl must be unavailable: stmt against interest when allowed limits? stmt against interest c. party opposing stmt

decl of ap erson now unavailable as a w, against that person's pcuniary, proprietary, or penal interest (stmt which owuld expose decl to civil liab or which would tend to defeat a civil claim by decl) a the time the statmt was made limitation: a stmt that 1) tends to expose the decl to crim liab and 2) is offered in crim case must be supported by corroborating cric that clearly indicate its trustworthiness distinguishing: stmt against interstm ust be against interest a tt the time its made, admissions dont need to be aginst interst at all stmt against interest made me made by any person, not just party stmt against interest reqs person knowledge and unavailability

other privileges recog by OH in addition to multistte privs

dentist pat, pharm pt (to the edtent the common is mafe in furthereance of phy pt rel), psychologist pt, professional counselor pt, social owrker patient, school guidance counselor pt

The spousal immunity privilege lasts only

during the marriage and terminates upon divorce or annulment.

A prior criminal conviction may usually be shown by

either an admission on direct or cross-examination of the witness or by introducing a record of the judgment (i.e., extrinsic evidence). No foundation need be laid.

Rule for multistate on crimes of violence and honesty

evid of honesty not relevant to show the D didnt commit a crime of violence. (only peacefulness, etc.)

formal judiciacl admission, infroaml judisical addmissi=ons and extrajudicial admissions what are they?

formal judicial admissions (pleadings, stipulatins), are conclusive. iinf jud admissions made during testimony and extrjusicial (evidentiary admissions aren ot conclusive and can be explained.

Where does att client priv not apply? crime, prof relationship, consulting together

future crime or fraud, when the comm'n is at issue as apart of a laim or defense dspute between the parites to the professional relatiosnjop (actions for ee or malpratice) atty client priv doesnt apply in suits between two parties represented by the same atty.

When are FRE applicable?

generally in all civl and crim federal proceedings. Except for rules relating to privilege,the FRE do not apply in: i) cts determination on a prelimanry queston of fact govenring admissibility ii) grand jury proceedings iii0 other misc proceedings includeing those involing sentnecning, extrdition, bail, and probation.

plea bargaining and admissibility

generally inadmissible including: offers to plead guilty in crim case stmts made during plea bargaining withdrawn pleas of guilty pleas of nolo contendre but an actual plea of guilty (not withdrawn) is admissible in subseq litigation based on the same facts under te rule of opp party stmts

OH apology statute in medical malpractice actions

health care provider's sympathetic stmt to a patient or member of the patieny's family exressing an apolgy ot words of comfort or consolation about an unanticipated medout come is inadmissile as evid of med mal OH Supreme Court has held that the stautte also bars accompanying stmts of fault

reliability factso for expert testimony under daubert:

i the technique or theory subject to thesting, subject to peer review? what is theknown or ptential eerror rate? do the standard and controls exist has the technique or theiry been generally accceptedi nthe scientific community

when are record of vital stats admissible?

if reported to a public office in accorance with al egal duty.

recorded recollection what is it reqs/foudnation how admitted Is it hearsay?

if w is unable to remember all or part of the details of the transaction about which she once had personal knoweldge, her own writing shown to be reliable may be admittedi npalce of her tesitmony. foudnation 1) witness t one time had personal knowledge and cant remember 2)writing was made by the w or made under w's direction or was adopted by the w 3) made in a timely manner 4) content of writing is accurate 5) witness has insufficeient recollection to testify fully an accurately. the writing is admitted by being read into evidence it is not received by the jury unless the afverse party chooses to offer it It is, but it is within an exception to hearsay.

OH note on subseq remedial measures?

in a products liab action based on SL, the manufacturer's subseq remedial measures are admissible to show the existence of a defect in the product at the time of the accident

Exceptions to admit character evidence: Similar ats in child molestation and sexual assault cases How to offer it? Ohio note

in criminal or civil cases, based on acts of sexual assault or child mol, a def's other similar acts are admissible against him for any relevant pirpose, including propensity. Def need to be convicted of other acts. Party intending to offer this evidene my discose it to teh def 15 days before trial or later iwth good cause. OH has not adotped the FRE; Ohio law generally allows for evid of the def's prior crimes invilving sexual mscondict only if the MIMIC rule is satisfied

felony not involving dishonesty- accusedi n a crim case

inadmissible if the ct determines tht the prob cvalue of teh evid utwighs the danger of nfair prej misleading jury, or confusing isuses. ,ay if subst outwfhed by undue delay or cum evid

When too much evi of an issue exists, the ct can take judicial notice- what is it? procedure? on appeal? the FRE govern only judical notice of judicial notice of law-mandatory oor permissive?

indisputalbel facts that are gnerally known (NYC is in teh state of NY)/ common knwlege OR facts that can be acruately and readily determined by consulting sources (the almanac) can be taken at any tiem, whether or not requested. Can be taken for the first time on appeal/ adjudicative facts (those that relate to the particular case)/ Legilsative fact (those relating to legal reasoning and lawmking) such as the rationale behind the spousal privielge neeed not be of common knowledge nor capable of indisputable verification to be judicially noticed. courts must take judicial notice of federal and state law and teh official regulations of the forum state and the federal government. Courts may take judical notice of municiapl ordinances and private acts or resolutions of Congress or of the local state legislature. laws of foreign countries may also be judicially noticed.

kinds of impeachment:

intrincisc impeachment (ask the witness) extrniciv impeachment

803 exceptions to hearsay (reliable hearsay) wheere no unavailability req'd: declaration of present mental or phuscial condition

inward looking; PSI is outward looking a decl of then exisitng mental or phusical condition is admissible to show thecondition

Statemtn agsint interest- what does stmt mean?

it means a single remark. The exeption covers only those remarks that inculpated he declarant, not the entires extended declaration.

Contradictory facts: exteinsice evidence Extr evid of contr facts to impeach permitted where

itn eeds to contradict on a major poont in the testimony; not a minor point extr evid of facts that contradict a witness's testimony may sometime be admitted to suggest that a w's mistake or lie on one point indicates erroneous or false testimony as to the whole. Extr evid of contr facts to impeach permitted where: 1) witness's testimony on a particualr fact is a material issue in teh case 2) the testimony on a partiuclar fact os significatn on the issue of credibility or 3) the witness colunteers testimony abotu a subject as to which teh opposing part would otherwise be precluding from offering evid. Not permited to prove contr facts that ar coll.

Lay opinions reqs limits situations wher opinions of lay witnesses are admissible: (8) when are opinions of lay witnesses not admissible?

lay witnesses can give opinions so long as they are 1) rationally based on the perception of the W 2) helpful to the tirer of fact 3) not based on scientific or otherwise specialized knowledge no legal conclusions 1) General Appearance or condition of ap erson, 2) state of emotion of a person 3) matters involving sense recognition 4) voice or handwriting identification 5) the speed of a moving obhect, 6) the valur of his own services (worth about $50 per hour), 7) The rational or irrational nature of another's conduct and 8) intoxication of another with regard to wther one acted as an agent or whether an agreement was made.

learned treatises OH

learned treatise exception to hearsay applies to stmts contained in pusblished treatsises, periodicals, or pampletes regarding history, medicine, science, or art

when can a court admit liab insurance?

look for a dispute of ownership or control impeach credo f witness by showing interest or bias

Phys patient privielege- waiver of decessed patient's rpvilege in Will COntst- OH rule

may be waived by any party to a will provided that thpatient is deceased and the party shows that 1) he would be an heir if the patient dies intestate, a benficiary of teh cnontested willl or ba benficiary of some other testamentary doc allegedly executed by the patient ii) testimony is necessary to est. the partys rights

Under the Federal Rules, a conviction is usually too remote and inadmissible if . Exceptions?

more than 10 years have elapsed since the date of conviction or the date of release from the confinement imposed for the conviction, whichever is the later date in extraordinary circumstances, such convictions can be admitted, but only if the trial judge determines that the probative value of the conviction substantially outweighs its prejudicial effect, and the adverse party is given notice that the conviction is to be used as impeachment.

Felony not inbvlving dishonesty (witness other than accused in crim case)- OH rule

must be exlcuded if tis prob value is substantially outwighed by the danger of undair prej, confusion of issues or misleading jury may be exluded if prob value subst outwirfhed by undue delay or cumulative presentation of evid

Objectionable questions to witness

narrative, argumentative, compound, asked and answered, assuming facts not in evid (witness needs to bringo ut the facts) non responive leading excepti in cross, prelim questions, W needs help (old, feeble, immature, mentally weak. forgetful), adverse party or under control of adverse party or hostile witnes. laying foundation to auth

General rule for simialr occurrances time place

need to see if other occurrences are subst similar to the case at hand

commoent n privilege wiave of privilege: what is needed? limits? Eavesdroppers

nether counsel, nor the parties, not the judge may comment on a claim of privilege 1) daulure to claim the privlege, 2) voluntary disclosure of the privleged matter by the privlegeholder, 3) contractual provision waiving in advance the right to claim a provielge. nt waiived when someone worngfully discloses info without the prvielgee holder's consentl waiver by one joint hodler does not affet the ight of the other holder to asert privle. A priv based on confidential comm'ns is not abrogated bevausr it was overheard b someone whose preseve is unknwon to the parties.

professional journalist privilege

no const right for a prof jounralist to rprotect his source of information so any provlege in thisarea is imilted to indic state statuteus on teh subject

Exceptions to general rule for simialr occurrances time place: industrial trade or custom conclusive on liability issue?

no just admissible

Physcial patient privlege limits? who does it belng to? wat are the reqs? wehn does the privielege not apply?

no such priivlege under federal common law nelongs to the pt and he may decide to claim or waive it 1) prof reltaitonsho exsits 2) info is cquired while attending the patient in the courtse of tx 3) the info is necessary for tx (non medical information is not priveleged) doesnt apply or impleidly waived if 1) patient puts his phys condition at issue (personal injury suit) 2) physcian's assitance was south to add wrongdoing 3) communciation si relevant to an issue of breach of duty in a dispute between the phys and pt 4) phys agreed by K (insurance policy) to waive the privielge or 5) it is a federal case applying a fed law of privlege.

General rule for character evidence

not admissibe when offered as circ evid to infer conduct at the time of the litigated event ( if it's offered as propensity to show the person acted in conformity with their trait or disposition, generally not admissible.

Subsequent remedial meausres and admissibility

not admissible in FRE to show negl, culpabble conduct, a defect in product, a defct in products design or a neeed for warning or instructions in a negl or SL action

liab insurance and admissibility

not admissible to show person acted negl or wrongfully or to show ability to pay

settlement offers and discussions and admissibility what must be there for the rule of excl to operate? limited exception

not admissible to: prove fault, liab, amount of damage impeach a witness with a PIS or contradiction applies t settlements, offers and accompanying stmts there must be a disputed claim as to liability or amount. Under FRE, conduct or statements mafe during compromise neogtations egarding a civil dispute with a governmental regulatory, investigatory, or enorcement athority are not excluded when offered in a criminal case.

Preemptive strikes and impeachment

not allowed have to wait until w testifies to imepeach

Offers of proof OH rule

offer of proof not req'd i the evid is exlcuded during cross examination

A witness's prior consistent statement is not hearsay if

offered to rebut a charge that the witness is lying for a particular motive. This is regardless of whether it was made under penalty of perjury. The prior statement must be made before the alleged motive to lie came into being

governmental privileges?

official information ot otherwise open to the public or the identity of the iformer may be protected by a privilege for he Govt. No privlege exsits if the ID of the indormer is coluntarity disclosed by a hlder of the privilege.

ohio not on atty client priv

ohio allows the decedent's souse to waive the privlege evn if they are not hte estate rep

limtations on waivr of att client priv and worl product rule

ohio cts apply a five factor test to determine wheter an inadvertent disclosure of prov material constitutes a waiver 1) reasonableness of precautions take to prvent discl 2) time taken to rectify the rror 3) sscope of discvoery 4) extent of disclosure 5) fairness.

Extrinic impeachment and the coll issue doctrine OH note on extrinsic evidence of bias

only non-coll impeachment issues bias, at issue (what the w saw is at issue), test capacities, convictions (offering a certified copy of the conviction in evid), repo or op evid (BATCR) OH: no need to lay a foundation before introdcuing extrinsic evid of bias

Privilege for confidetnial marital commn's OH rule"

only prevents a spouse from having to tesify about her commn'; tape recordings of a def's convo aren ot privielged

hearsay basic definition

out of court statment (written, oral non verbal conuct) , offered for its truth, decl must be human

hilman doctrine

out of ct stmts of intention for future are admissible to help est. that that person carried out that intention. (state of mind hearsay exception) (DOESNT MATTER HOW LONG, OR THE WORDS USED (INTEND, PLAN, GONNA)

When can a court admist subseq remeidal meausres?

ownership or control if disputed feasibility of precautionary measures if disputed

psychotherapsit patient privilege fed cts reuriements

patient has a priivlege against disclosure of confidetnial information acquired by the psychotherapist or social worker in a professional relationsjop entered into for the purpose of obtaining tx. generally, a psychotehrapst cannot be forced to testify. most fed cts recog only a psychotherapist pat priv and not the prindary doc pt privilege when applyingfederal law 1) pt must be seeking tx 2) info acquired must be confidential and necessary to facilitiate professional tx

Wtiness competency defined: CL and witness competency ohio note Contrast FRE: the FRE do not specifiy any mental or moral wualigications beyonf these two limits What if the witness requires an interpreter? Modern modifications of the CL disqualifications: most jurisd and the FRE have removed the CL withness diqualifications for lack of relgiisou beelief, conviction of a crime, and interest in the lawsuit. What are the rules for the following: infancy, insnaity, judge and jurors

personal knowldge and oath perception, memory, narration, sincerity (oath or affirmation) (observe recollect, communciate an speak truthfully) CL disqualifications abandoned: lack of rel beleif inancy, metnal incomp, prior convictions, bias/interest are not a basis for disq witness because it foes to the weight of thevid not its admissibility ct must diqaligiy a w who is of unsound minf or a child under 10 if such chld appears incapable of perceving or accurately relating fats. If you want the child to testify, need to show that they knwo what it means to tell the truth. 1) evid must be sufficient to support a finding that the W has personal knwoledge of the matter about which he is totestify and 2) itess must decalre he will testify truthfully must declre that he will testifytruthfully competency of an infanct depends on the capacity and intelligence of the particular child as determiend by the trial jduge inasane person may testify, proced he understands the oblgation to speak truthfully and has the cpaacity o testify accurately.

uneven balancing test in R 403

prejudice etc. must subst outweight prob value, no mention of unfair surprise if its equal let the jury fight it out unfair prej, confusion of the issues, or misleading the jury, undue delay or cumulative evid

when there is not enough evid civil and cirm cases

presumptions ad inferences civil: a presumption is destroyed when the adversary produces evid to rebut the presumption crim case: def in a crim case does not need to produce evid to rebut prsumption (no mandatory presumptions against crim defs)

Three situtaitons where state evid law will apply in fed ct if state substantive law applies (diversity cases): fenreal privlege law in fed question r in fed crim cases:

presumptions and burdens of proof, comeptency of witnesses, and privielges governed by the prinicples of CL as they may be interpreted by the cts of the US in the lgiht of reason and exerpeince.

Federal Rule of Evidence 608 permits inquiry into a witness's act of misconduct, in the discretion of the court, only if the act is

probative of truthfulness (i.e., is an act of deceit or lying).

how much evidence is necessary to lay the proper foundation for auth?

quantum of proof: sufficient evid to judstify to a jury a funding of genuineness.

803 exceptions to hearsay (reliable hearsay) where no unavailability req'd: Publci records when can they be admitted? limits absence of a public record

records of a govt agency that concern 1) the activiries of teh agency 2) any matter observed by a pubic official with a duty to observe and report (but not law enf reports against a def in a crim case) 3) invesitgative reportsin civil cases, and against the government in criminal cases incuding factual findings and opinions (again NOT ADMISSIBLE against a crim def) no polce reports against crim defs public records can be excluded if the opp shows that the sources of info or circ appear untrustowrthy. absence of a pub record is admissible to prove that a matter did not occur or exist, if the agency regularly recorded such matters. In a crim case, this sort of info is admissible in the form of acertiication only if the prosecutionnotifies the defense at least 14 days before trial and the defense does not object in writing within seven days of neceiving the notice unles the court sets a different timeline.

803 exceptions to hearsay (reliable hearsay) wheere no unavailability req'd: business records how to auth? how to know whether the exception applies Ohio note absence of a busines records

records of regularly conducted activity made at or near the time by, or information transmitted by a person with knlwedge are admissible if kept in the regular course of buiness and if it was in teh reg course of that business to make the reord, unless the opp est. that the osource of ino or circumstances of prep indicate lack of trustworthiness. lay the foundation: PARRT person with knowledge, at or near the time, reg business activity, regularly made, trustowrhtines can auth by: 1) calling records cusotdianor other qualified person to testify that the elemnts of the business records exception have been met or 2) writen cert under oat attesting to elemeents of bsiness recs exception with advance notice to opp party wheether the exception applies usually turns on whether hteentry is germane to the buisiness. except for when the stmt is made by someone outside the bsuiness (outsider, not under a duty to report- double hearsay) In OH a live witness is generally req'd to auth a business record; written cert method not available excot by statute, hosp records may be auth by written cert absences of a a bus rec admissible to rpove that a matter did not occur, if the business regularly kept records of such matters.

Exceptions to general rule for simialr occurrances time place: habit evidence what is it? requirements? language of habit- how to recognize it?

regular response to a repearted specific stimulus HAbit: The act must be specific not gneralized like character/disposition evid repeition: the act must have occurred often enoguh so that we can say it was habitual always, instinctivley, invariably, automatically

Once the defendant has introduced evidence of a bad character trait of the alleged victim, the prosecution may counter with

reputation or opinion evidence of (i) the victim's good character for any pertinent trait, or (ii) the defendant's bad character for the same trait. It is not permissible for the prosecution to introduce evidence regarding any trait; it must be on a trait that counters the defendant's evidence.

when is routine practice admissibile? example? when are similar accidents or injuries caused by same evvent or condition admissible? when can absence of similar acciednets be admitted? when is it not admissible? Previous similar acts admissible to show_________ sales of similar prooperty admissible to show__________; what about prices quoted in offers? unaccepted offers?

routine practice of an org is admissible just like habit; evid of an org's routinepractice is admissible to prove that on a partocular occasion the org acted in accordace with the routine practice. EX: store always gives receipt ********************************** admissible to prove 1) ecistence of a danerous condition 2) that the def had knowledge od the dangerous condition 3) fangerous condition was the cuase of the present injury ******************** many cts relucttnt to admit evid of this to show absence of negl or absence f a defect. But, evidenc of the absence of complaints is admissible to show the def's lack of knowledge of the danger. ********** admissible to prove intent or ppresent motive sales of personal or real prop that are not too remote in time admissible to prove value. Prices quoted in mere offers to prusrchase are not admissible. Evidence og unacepted offers by a party to the action to buy or sell the prpp may be used against him as an admission.

Generally, before a witness can be impeached by extrinsic evidence of bias or interest,

she must first be asked about the facts that show bias or interest on cross-examination. Prior acts of misconduct may never be proved by extrinsic evidence. This is true even if the witness denies the act during cross-examination.

sixth amdt and hearsay crawford v washington

sixt amdt right to confrontation may be violated when it is oferd aginst the cccused in a crim case SCOTUS in crawford held that out of court stms even if they fit a hearsay exception will not be admitted if: 1) the out of court stmt is offerd by the pros against he accusedin a crim case, and the decl is unaibaile at trial, and the out of court stmt is testimonial and the accused had no prev opp to XE the decl's testimonial stmtUNLESS the pros demonstrates that the def has forfeited his confrontation clause objection by wrongdoing that prevented the decl from testifying at trial . the def has to have made the decl unavailable for the purpose to prevent them from testifying.

limited admissibiity

some evidence is admissible for some purposes bt not others. and against some parties but not to others. judges can give limiting instructions if evid has been admitted for al imtied purpose against some but not all of the parties.

Examples of "not hearsay" type #2 extra reqs for Ohio PIS Ohio note for PCS

special prior stmts of a w or party 1) prior stmts of a testifying witnesst hat are not hearsay: decl needs to testify at trial and be subject to XE about the priior stmt a) PIS under oath (trial, haring, depo, other proceeding) A party may show by XE or extr evid that the wintess has on another occasion made stmts inconsistent with present teimony. To prve the stmt by extr evidence, a proper foundation must be laid and teh stmt must be relevnt to some issue in teh case for PIS in OH to be nonhearsay, the party gainst whom the sworn PIS is now offeredmust have had the opp to XE the witness at the time the stamt was made (not that an accused has no right to XE witnesses in a grand jury proceeding) b) PCS: 1) that rebut a charge of recent fabriacation or improper influence or motive (consiset stmt must have been made more the motive arpe or 2) rehab w who has been impeachedo n some other groud (ie PIS or memory defect. PCS that is admissible to rehab witness's cred is also admissible as subst evid of the truth of its contents. for PCS in OH to be nonhearsay, can only be offered to rebut a charge of recent fabrication, inflence, or motive c) Prior stmt of ID: opposong pparty stts (not hearsay) stmt by or attributable to a party offered against that party are traditionally admissions by a party opponent (oppsing party stmts) need not be agaisnt interest at the time of making stmt, need not be based on personal knowledge, can be in form of legal conclusion 5 tpes of party opp stmts: 2 personal (made or adopted by the party) three vicarious (AAC)- stmt made by a celebrity;s authoried spokesperson, party's agent or EE concerning a matter iwthin the scope of the agency or Eement made during the existence of the relationsip and co-conspirator stmt made during and in furtherance of the conspiracy.

804 exceptions hearsay (reliable hearsay)- decl must be unavailable: dying decl

stamt made under the bleief of immindent death in a pros for homice or in a civil case: 1) decl mist be unavailable, need not die 2) homicide or civil case 3) made by the decl while believing that death was imminent 4) stm concerning the cause or circ of apparently impending death.

stmts offered aginst a party procuring decl's unaivalabiity

stamt of a person no ununavailabel as a witness is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procurd the decl's unavailability.

In diversity cases, what law of privilege applieas?

state law

Clergy or accoutnant priv what is it?

statms made to a member of clergy or acctant protected; very similar to atty client

Examples of "not hearsay":effect on listener or reader

statms offerted to show their effect on teh person who read or heard the stmt (show notice, or good faith of, or reason for ation or inaction by theperson

stmts of deceased or incomp persons OH rule

stms of deceassed or mentally incomp eroson admissible if: 1) the estate or personal rep fo the deceased or the guardian of the incomp person is a party 2) the stmt was amde before the decl's death or incomp 3) stmt is offered to rebut test by an adv party on am atter within the knwlede of the deceased or incomp person

803 exceptions to hearsay (reliable hearsay) wheere no unavailability req'd:excited utterance

stmt relating to a startlign event or condition made wihile the decl was still under the stress of excitement cause by the event or condition that converns the startling event look for words of excitement(my god, shouted scremed)

Examples of "not hearsay": declarant's state of mind

stmts not offered for their truth but as circ evid of declrant's state of minf

admissibility of family records?

stmts of fact concenring personal family history contained in family bibles, jewlery, engagevings, genealogies, tomstone gravings ec. admissible

Extrinsic evidence of the defendant's other crimes or misconduct is inadmissible if

such evidence is offered solely to show that the defendant is violent and therefore has a criminal disposition.

To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is not enough that

t is not enough that the prior inconsistent statement cast doubt on the witness's credibility. Instead, the statement must be relevant to the case; i.e., it cannot be a collateral matter. Furthermore, the witness generally must be given an opportunity to explain or deny her statement at some point during trial, and the adverse party must be given an opportunity to examine the witness about the statement. There are certain exceptions to this foundational requirement. For instance, if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation. Furthermore, the foundation is not required when the inconsistent statement qualifies as an opposing party's statement.

804 exceptions hearsay (reliable hearsay)- decl must be unavailable: former testimony reqs

testimony given in an earlier proceeding by person now unavailable is admissible if the testimony is now offered against a party who had (or in a civl case whose predecessor in interest had) an opp to and similar motive to develop the testimony by direct, XE, or redirect exam meainigful opp to decelop or coess exam in the pror proceeding when the witness gave live testimony, similar issue and motive, party against whom the testimony is now offered must have been the party in the first proceeding (or in a civil case some sort of privity with the party in teh first proceeding), unavailability of decl grand jury testimony of an unavaialble decl that is offered against the accused in a crim case would not qualify because the accused does not have an oop to XE the gradn jury witnesses. ask these questions with former testimony: 1) is decl unavailable 2) w testigited in first and def opp to cross?

What does unavailable mean?

testimony unavailabel (privilege, memory fails, cant procure attendance by resonable provess)

Best Evidence rule reqs BER doesnt apply to

that a party seeking to prove the contents of a wtiting must either 1) produce the orig doc or 2) account for the absence of the orig. If the explanation for the abense of the orig is reaosnable, then a foudnation has been leaif for ssecondary evid Then, a copy or oral testimony may be admitted to prove the content of the orig. BER applies to: 1) legally operative docs (docs that by their exsitence create or detroy a legal relationsjop that is in dispute (will, deed,divorce devree writen K) 2) witness's sole source of knwoelge comes from the document. (we dont want a dramatic rendition, ust have the writing directly. doesnt appl to facts indep of writing, collateral documents (not ecentral to case)

Although a party is permitted to show a witness's bias or interest, another party may not subsequently show

that the witness's bias is justified. A witness may always be impeached by extrinsic evidence of bias or interest, provided a proper foundation is laid. Even evidence that is substantively inadmissible may be admitted for impeachment purposes if relevant to show bias or interest. Extrinsic evidence of a witness's bias prior to the witness's testimony would not be allowed because of foundational requirements. The party must ask the witness about the facts that show bias or interest on cross-examination. If the witness admits those facts, the court then decides whether to allow extrinsic evidence of bias.

prelim questions of admissibility detemriend by

the court

witnesses called or examined by the court

the court may examine a party's witness or call its own witness. Eachp arty is entitled toXE a witness called by he court. A party may object to the courts exaiming or calling a witness either at the time or at the next available opportunity when the jury is not present.

A witness's prior inconsistent statement made at a deposition is not hearsay because .

the statement was made under oath

what are testimonal stmts ongoing emergencies testimonial stmts and admissibility

those that the decl reasonably knows will be used in teh pros or investigation of a crime (include witness stmts to police or other law enf officials in respone to police questioning, amy testimony at a formal proceeding, prelim hearing, grand jury, or MTS. guilty plea allocutions of co-conspirators to prove that a conspiracy existed, foreeensice lab reporrts revealing drigs, fingerpritns, firearms vid, blood, DNA, etc. ongoing emergencies help the cop resolve not testimonial with testimonial , there is no ongoing emergency and the prpose is to est or prove event s potentiall revant to later crim pros. cannot be offered against a crimina ldefendant unless preparer is unavalable and had an opp to XE.

Subsequent remedial measures are admissible for certain purposes, such as not admissible for

to rebut a claim that the repair or precautionary measure was not feasible . Because the public policy behind the federal rule is to encourage people to make repairs, subsequent remedial measures are inadmissible to prove: (i) negligence or other culpable conduct, (ii) a defect in a product or its design, or (iii) the need for a warning or instruction.

Exceptions to general rule for simialr occurrances time place: rebuttal evid can be admitted to________

to rebut evid of impossibility; other party can rebut if they reaise it

statements of personal or familay history require______ what are the reqs?

unavaialbility- stmts converning births arriages cdivorces, relationship, genealogical status, are admissible provded that: 1_ decalrant is a member of the family in question or intitmately assoc. with i and 2) the statms are based on teh decl's personal knoeledge of teh facts or her knowledge of fam reputation.

foundations for extrinsic evid

under OH R 613, a witness must be provided with the ppp to explain or deny a PIS before extrinsic evid can be introduced. the FRE only reqiuires that the w be given, at some point, an opp to explain or deny the stmt.

Competency FRE v. OH

unlike FRE 601 whcih states that every person who possesses personal knowledge of am tter and who will tesify truthfully is competent to be a wtiness, OH R 601 specifically states that the follwing persons are incompetent to testify: 1) person of unsound mind, or child under the age of 10 who appears incapacble of accurately perceiving or truthfully relating facts 2) spouse testifying aginst the other other spouse charged with a crime, unless the spouse elects to tesifyor the crime is against the testifyin spouse or the child of either spouse. 3) an offier on duty fo rthe main or eclusive prupose of enforcing traffics laws who arrested or assited in teh arrest of a person charged iwth aMD ttrafficoffense i the officer was not in a marked vehicle or if the offiver was not wearing a unfofrm 4) an expert witness testfying o nteh isue of liab against a doc or hospital inless theyre licensed to practice ed, deote at least 50% of practice to active clinic practiceo r instruction at an accreited school and practices int eh smae or substantiallysme speciality at the def.

cross examining experts: how? rules under FRE

voir dire: on the w's qualifications only genreal impeachement: may use learned treatises to contractict expery under FRE texts and treatsises may be used to impeach and as subst evid if the expert is on the stand whe nan excerpt is read from the treatise and the relevant portion is read into evid but not received as an exhibit.

Witness use of writings to aid testimony basic rule exceptions

w cannot read testimon from previously prepared document 1) refreshing recolelction 2) recorded recollection

refreshing recollection what can be used/when? limits what are the rules for opposing party inspection and use on Xe?

when a witness testimony fails, anythign can be used to referch, (doc, leading questions); if you use a document to referesh recollection, you must make that document must make doc available to opp party make sure to show oppo party so they can use it on cross and admit it into evid. generally not admissible by the refeshing party. no need to auth the refershing doc when a witness has used a writing to refresh her memory while on the stand, a adverse party is entitled to have the writing produced at trial. XE the witness thereon, and introuce portions relating to the witnesses's testimony into evidence. If the witness refreshed her memory before taking the stand, and adverse party is entitled to such production and inspection only if the court decides that justice requires it.

Examples of "not hearsay": Operative Facts or Verbal acts

where the words spoken or written have relevant legal significance in teh case by virtue of being spoken or written (words of offer, acceptance, defamation, conspiracy, bribery.cancellation, misrep, waiver permission

A prior consistent statement cannot be used to rehabilitate a witness

whose general character for truthfulness has been impeached, such as by prior criminal convictions or acts of misconduct. On the other hand, prior consistent statements are admissible when the opposing counsel has impeached the credibility of a witness by making an express or an implied charge that the witness is lying or exaggerating because of some motive (e.g., bias), if the prior consistent statement was made by the witness before the time of the alleged motive to lie or exaggerate. Also, when opposing counsel has impeached the credibility of a witness on some non-character ground, such as an alleged inconsistency or sensory deficiency, counsel may introduce a prior consistent statement if, under the circumstances, it has a special tendency to rehabilitate the witness's credibility.

use of memoranda as a witness

witness cannot read her testumony from a prepared memorandum. However,r a memorandum may be used in certain circ: refresh recollecton etc.

impeaching own witness? ohio note

yes OH: party may not impeach own witness with a PIS unless it can shpw surprise and daage resulting from the W's testimony. But this is not reqiuires if the PIS is admissible aas subtantive evid under hearsay exception or exclusion (opppsing party stmt or PIS under oath)

Bad untruthful acts and impeachent what is not included when asking about specific instances of miscoduct?

yes, only on XEof witness youre trying to impeach. esxtr evid is not allowed. tril court is given the discretion to allow counsel to inquire during X about specific instances of bad conduct on the part of the W which show a lack of credibility. examinig atty must accept the wi's answer; extrinsic evid is never allowed. specific instance of misconduct allowed as long as they relate to truthfulness. inquiring about arrests. Arrest itself is not bad act. CAnt ask about being arrested.