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OHIO
EVIDENCE
JULY 2012

THREE MAJOR AREAS

Relevance
Witnesses (Form of Exam, Opinions and Experts, Credibility)
Hearsay

TWO DIGRESSIONS

Writings
Privileges

RELEVANCE (two types)*****

Logical Relevance

EV w/ any tendency to make a material fact more probable or less

probable than it would be without the EV (403 is the check)

Must involve the same time, event, and person

Exc: Similar Occurences

Same Instrumentality
P may show other accidents involving same
instrumentality identical or very similar ONLY to
show notice or defect

Intent or State of Mind

P may show intent or state of mind (*other acts of
discrim)

Pre-Existing Condition
D may show to a pre-existing condition

Prior Accidents or Claims (Character vs. Habit)

D may not show character thru prior accidents or
claims but may if it is a habit

Rebuttal of Impossibility
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D must first open the door

Comparable Sales
Admitted to show value of chattels or RP if same:
kind of prop; geo area; time frame

Habit (Specific and Recurring Behavoir)

Relevant to show accordance with habit on occasion
in question
Always, Instinctively, Invariably, Automatically
Business routine is an Org habit

Custom (Trade or Industry)

Admiss as non-conclusive EV of St of Care

Discretionary and Policy-Based Relevance

Discretionary: Relevant EV may be excluded if PV SO by danger of:

UF Prej
Confusion of issues
Misleading JY
Undue delay
Waste of time
Cumulative EV
(Univ Colo Mich Univ Won Championships)

Policy Based Relevance (3 areas of importance)

Liab Ins (Policy encourages carrying Ins)

Not admiss to show person acted negl

Not admiss to show ability to pay

Excs: admiss when relevant to:

Show ownership or control

Impeach cred of W of showing interest or bias

Subseq Remedial Measures (Policy encourages measures)

Not admiss to show negl, culp conduct, or SL

Excs: admiss to show

Ownership and control

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Impeach of D when D claims infeasibility

Settlements (Policy encourages compromise)

Not admiss to prove negl, culp conduct, or amount of

damage

Rule covers: actual compros, offers to compro, offers to

plead guilty, withdrawn pleas, pleas nolo contedere

Admissions of fact made in negotiations not admiss IF:

There is a claim AND

The claim is disputed as to either amount or liab

Offer to pay Med expenses is always not admiss BUT

admissions of fact that accompany such offers are
admiss

CHARACTER EVIDENCE*****

Four Prelim Questions

1. Purpose of offer of CE

C directly in issue
Rare – defamation; seduction of virgin
C as circum EV of conduct at time of event
Civ – almost never
Crim – if D opens the door
C to impeach or support cred of W

2. Method or technique of proving C

Specific acts of conduct

Opinion by testimony
Reputation by testimony (rare)

3. Type of case (civ of crim)

Much more likely crim

4. What trait of C is involved

Can never offer general character (e.g. she is a bad person)

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Must deal w/ a pertinent trait

C in Civ Cases

Not admiss (P or D) as circum EV to infer conduct at time of event

Admiss when C of a –person is itself a material issue (very rare – def; sed)

May show by specific acts, opinion, or reputation (wide latitude)

C in Crim Cases

Gov may not offer to infer guilt by showing criminal disposition

Specific Acts
Prior crimes / convicts
Bad opinion / reputation

Excs:
Admiss IF D opens the door by putting on good C EV
Specific acts only on cross
Opinion and reputation may be offered directly
Admiss if relevant to impeach (e.g. perjury convicts) W
(including D)
Admiss on cross to rebut D’s W testimony as to D good C

D may offer good C EV of himself to infer innocence

Trait must be pertinent to the case

May only show by opinion or reputation (not specific acts)

Victim C admiss in some criminal cases (very narrow) (**H b20 5)

Homicide and Assault/Battery (only criminal)

Admiss as circum EV if offered to show V was First Aggressor as
part of D self defense plea (only Rep or Op; not SAs)
After door opens, P may show:
Good C of V by Rep or Op; and
Bad C of D by Rep or Op

Rape Shield Rules

Crim cases alleging sexual misconduct

D EV of V sex history to prove consent limited as follows:

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Rep and Op not admiss

SAs admiss only:
To prove 3rd party was source of semen,
injury, or other physical EV;
To prove prior sex acts b/t V and D; or
If exclusion would violate D Const Rts

Civ cases alleging sexual misconduct

Admiss if PV SO danger of harm to V and UP to any party

Op, Rep, and SAs all admiss

Must first hold in camera hearing w/ notice to P

SAs of Prior Misconduct by crim D

Admiss (subj to 403) at initiative of Gov when relevant to prove

mat fact other than C (propensity or disposition), such as:

Motive
Intent (or knowledge)
Mistake (absence of mistake or accident)
Identity
Common plan or scheme
Opportunity
Preparation

Quantum of proof - Gov must show enough EV so a reas

JY could find a prepond of EV that SAs occurred

***Hs 23-25
***Look for one of these whenever Gov offers prior act of D
***Also applies in civil cases
***MIMI COP (non-exclusive list; anything other than C admiss)

Special Rule – Sex Assault and Child Molest cases (civ and crim)

D prior acts of such conduct may be shown by Gov or P

May use SAs (repetitive crimes have high PV)
Door need not be opened by D
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WRITINGS

General Rule of Authentication

Writing not admiss until authenticated

Testimonial foundation needed to show writing is genuine
Threshold very low

Three Things to Address in Essay

1. Authentication
2. Hearsay
3. Best EV Rule

Methods of Authentication

Direct EV in the form of:

Admission (e.g. D admits as genuine)

EyeW testimony (e.g. saw D sign)
Handwriting proof
Lay Ws – can attest if familiar w/ handwriting; excluding
knowledge acquired once litigation has begun
Expert Ws – can attest by comparison after estab as expert
JY comparison – last resort if no other method available

Circum EV (implies authentication) (if no Direct EV) in the form of:

Ancient Doc Rule (3 reqs)

20 or more yrs
Regular on its face
Found in place of natural custody
Solicited Reply Doctrine
Proof that doc came in response to prior communication

Quantum of Proof*** (necessary for proper foundation)

Enough EV so that a reas JY could find a prepond of EV

Self Authenticating Docs

Excs to Gen Rule that docs are not self-authenticating

Certified copies of public or business records

Official Pulications (e.g. gov pamphlets)
Newspapers and Periodicals
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Trade inscriptions or labels

Acknowledged docs (notarized)
Signatures on certain commercial docs (as provided by UCC)

Authentication of Photographs

Method of Authentication

W (not just photographer) who is familiar w/ the scene and

testifies that the photo is a fair and accurate
representation of the scene at the relevant time
Camera (still or video) must be shown to be in good
operating cond

Best Evidence Rule

Gen Rule

Requires party seeking to prove content of writing (including

films, photos, X-rays and recordings) to either:

Produce the original docs; or

Account for the absence of the original

If account is reas then proper foundation is laid for secondary EV

Either a copy or oral testimony may be admitted to prove

content of the original

Application (2 situations where absence of original must be explained)

Legally operative docs

Existence creates of destroys a legal relationship in dispute
(e.g. deed, divorce decree, will, written K)
W’s soles knowledge comes from a doc
W wants to recite orally what he read

No Application**** (absence of original need not be explained)

Facts exist independent of the writing (W knowledge indepdent)

Collateral Docs (writings of minor importance to the case)

Modifications of the Rule (no need for original)

Public Records (only certified copies)

Voluminous Docs***
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Charts, summaries, or calculations admiss as long as:

They are voluminous
Other side has access to docs for comparison
Original docs are admissible
Duplicates (considered an original) (liberal rule)
Any method that accurately reproduces
Admiss to same extent as original, unless:
Genuine issue about authenticity of original; or
Circums would render it unfair to admit duplicate

WITNESSES AND TESTIMONIAL EVIDENCE

Competency

Presumed; BOP on adverse party to show otherwise

2 aspects

1. Whether W is competent to testify at all

2. Whether there has been a showing (foundation) that W has
personal knowledge of testimony

Personal Knowledge and Oath

Perception
Memory
Communication
Sincerity (Oath or affirmation)

CL DQs abandoned in Fed Cts (Jg and JY are only Ws automatically DQ)

Lack of Religious beliefs (swear on bible)

Infancy
Mental Incompetency
Prior convictions
Interest

Dead Person Act (1/2 jurisds)

Typical Statute – Interested survivor cannot testify for his interest

a/g dcd or dcd’s reps about communications w/ dcd in a
civil case unless there is a waiver
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Elements

Civil case
W is interested in the outcome
Testimony is a/g dcd or dcd’s reps
W would testify in favor of his own interest
Testimony is on subject that dcd could contradict

***State rule that could come up in diversity cases

***Do not assume unless specifically mentioned in the question

Form of Examination of Witnesses

Objectionable questions

Narrative
Too vague; e.g. tells us what happened
Leading; but permissible in certain situations, such as:
Cross
Direct in prelim issues
Direct if W is a child
Direct of adverse party
Direct of hostile W
Misleading
Assumes facts not in EV
Compound
2 questions in one
Argumentative
Closing argument in guise of a question

W use of writings in aid of testimony*** (when W memory fails)

Gen Rule: W may not read for previously prepared doc BUT may
use writing in aid of oral testimony in 2 situations:

1. Refreshing present recollection

Anything may be used to “jog” memory
Party using may not intro doc into EV
Opp party may examine the doc, use it on
cross and introduce article into EV
2. Recorded past recollection
If W unable to remember all or part of the
details of a trans about which W
once had personal knowledge
Foundation requires a showing:
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Failure of W knowledge
Knowledge was personal
Written or adopted by W
Must be made timely
Indication that accurate when made
Writing admitted by being read into EV
W may read (HSY exc)
May not show to JY

Opinion Testimony

2 types of Ws (lay and expert)

Lay Opinion (testifies on perception – senses) admiss if:

Rationally based on perception of W

Helpful to the trier of fact
Not based on scientific, technical or specialized knowledge

*Classic examples are appearances of people and speed of cars

Expert Opinion*****

Paid to testify in the form of opinion; not confined to senses

Four basic reqs (discretionary on part of Jg)

1. Appropriate subj matter for expert op
J must find by prepond of EV
Jury needs assistance
EV is beyond knowledge
understanding of lay person
Methodology must be reliable
Generally accepted method
Op must be relevant (“fit” the facts)
Preponderance of EV of above to admit
2. Qualified by training, experience, education
Must know more than a lay person
3. Able to testify to reas degree of certainty
4. Proper factual basis must be either:
Based on personal knowledge; or
Based on facts in the record; or
Based on info outside the record even if info
is inadmiss (i.e. hearsay) – JY cannot
hear inadmissible data unless PV SO
the danger of UP
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Learned Treatises (HSY exc)

Applies only to Experts

Foundation needed to:

Read text into EV (HSY exception
Use to impeach contrary EV by opp expert

Methods to estab as authoritative:

Reliance by expert on direct
Admission on cross by opp expert
Judicial notice (so well known)

Limitations
Expert must testify (at trial or depo) as to
authoritativeness unless judicial notice
Treatise (not text) is admitted by being read to JY

Credibility and Impeachment

2 considerations:

1. What is the cross technique?

2. Is Extrinsic EV permitted if W denies impeachment?

Cross Examination

Party has absolute right to cross a W who testifies live

If W refuses to answer, corresponding direct stricken
Includes 5th Am situation
Possibly only part of direct stricken (that relating to refusal)

Cross should not exceed scope of direct

Any questions raised on direct (impliedly or expressly)
Scope in Fed Ct – matters discussed on direct and impeach

Collateral Matters Doctrine

Impeach by contradiction of W is limited
Cross bound by answers given by W as to coll matters
(e.g. matters not important in the case)
No extrinsic EV allowed to contradict W on coll matter
(e.g. putting on another W or doc)

Credibility and Impeachment Rules

Focus is on only one issue – the cred of W

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Accrediting your own W

No bolstering W unless there has first been an appropriate impeach

Prior consistent statement admiss if statement is one of ID*****

Anybody who say the ID can testify (HSY exc)
Comes in for its truth
E.g. police line-up
For exc to apply, identifier must be avail as W

Impeaching your own W

Party may impeach own W in Fed Ct.

Likely scenarios – surprise testimony; W recants; usually Gov W

Impeaching Adversary’s W

Two questions relevant to each technique:

1. Is extrinsic EV available if W denies?

2. If available, if there some foundation needed?

Six basic impeachment techniques:

1. Prior inconsistent statement

Amiss only to impeach; not for truth
Declarant must be available (of course)*
Limiting order needed
Excs: PIS comes in for it truth when:
Made under oath***; or
Is a party admission
Extrinsic EV admitted to prove PIS so long
as not on a coll matter
Foundation for E EV – W should be
afforded an opp to explain or deny
the making of the PIS

2. Bias (prejudice); Motive (interest, corruption)

Foundation: ask W
E EV allowed if W denies

3. Prior convictions useable to impeach

Any crime involving dishonesty or false
statement (automatic admission)
Felony admiss in discretion of the Ct
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Convictions cannot be too remote (10 yrs)

E EV of conviction admiss (no found nec)
Certified copy of convict needed

4. Acts of dishonesty (no convict needed)

GF in questioning required
Must relate to dishonesty
No right to use E EV*

5. Perception
Perception was impaired

6. Bad reputation for honesty

Has to be by E EV in form of Op or Rep
SAs not admiss

Rehabilitation after Impeachment

Cannot rehab until impeached

Good Rep for Truth

May be shown if impeach involved a C attack
Prior convict; act of deceit or lying; bad rep or op for truth
Exclusive list
Not PIS; biased; perception (does not relate to C)

Prior Consistent Statement

Admiss to rebut express/implied charge of recent
fabrication or improper influence or motive
Not admiss to rebut charge of PIS
Statement must predate motive
Admiss for its truth (HSY exc) (no oath req)
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PRIVILEGES

3 Recognized by SC

1. Attorney - Client
2. Psychotherapist – Patient
3. Spousal

Exceptions (prof privilege does not apply)

1. Future crime or fraud
2. At issue exc – where C or Pt affirmatively puts comm in issue
3. Joint C exc (only A/C) – where 2 or more comm w/ A about a matter
of common interest there is not priv b/t them (priv still exists as to
outside world)

Attorney Client

Definition – Confidential communication b/t A and C made during prof

legal consultation are privileged from disclosure UNLESS waived
by C or rep of dcd C or by A w/ C permission

Elements

1. The right parties (A + C)

2. Confidential communication
Not phys EV or pre-existing docs
No 3rd parties w/in hearing distance
3. Professional legal relationship
Intent by C to estab (includes retainer negotiations)
Predominantly legal advice sought

Psychotherapist Patient (Psychiatrist (MD); Psychologist; Social Worker)

Definition – Pt has priv a/g disclosure of CI acquired by

physician/psychiatrist in a prof relationship entered for purpose of
obtaining treatment

Elements

1. Pt must be seeking treatment

Not for exam in prep of litigation***
2. Info must be confidential and nec to facilitate treatment
Must be pertinent to treatment

Waiver
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Common especially b/c of Pt Litigant Exception.

Priv is waived if Pt sues or defends by putting physical or mental
cond in issue

Spousal Privileges (dual privilege)

Two types (different rationale)

1. Spousal Immunity Privilege (avoids marital discord)

Only applies in crim cases
Spouse cannot be forced to testify
Holder of priv is W (other S cannot invoke)
Must be valid marriage at time of trial
Protects a/g any and all testimony

2. Confidential Marital Communication Privilege

Applies in both crim and civ cases
S cannot be forced to disclose comm
One S cannot unilaterally waive priv
Holder of priv is either S
Marriage required at time of communication
Priv survives divorce
Protects only confidences

Exception - Neither applies to intra-family injury case

Assault of spouse or child, incest, child abuse

Applicability of State Privilege Law in Federal Court*****

Fed Ct will apply state substantive law in a diversity case*****

In civil cases with respect to an element of a claim or defense as to which

state law applies the rule of decision, state law will apply
regarding: (3 situations)

1. Presumptions and BOP

2. Competency of Ws
3. Privileges

Federal priv law in Fed questin or Fed crim cases

Governed by principle of the CL as they may be interpreted by the

Fed Cts in light of reason and experience
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HEARSAY

31 Exceptions
Infinite number of non-hearsay situations

Definition of Hearsay

Out of Ct statement offered for the purpose of establishing the truth of the
matter asserted in the statement.

Application of Definition

Three questions:

1. Is it an out of ct statement?
Oral, written or asserted conduct of a human
Not applicable to machines or animals
2. What precisely is the out of ct statement?
3. Is it being offered for the purpose of establishing its truth?
Not HSY if offered for anything else relevant

Cast of Characters

Scenario 1 – Declarant makes OOCS and W reports OOCS in court

Scenario 2 – Declarant writes OOCS and writing is produced in court by

declarant or somebody else

Rationale for General Rule Excluding Hearsay

Denies opp the opportunity to cross the person perception, memory and
sincerity are in issue

Test

Put OOCS in right hand and what it is being offered to prove in the left
If same thing is in right and left then it is HSY (exception needed)

Specific Non-Hearsay Situations (no policy concerns)

1. Verbal acts or legally operative facts

Where words spoken or written have relevant legal signif in
the case by virtue of being spoken or written
regardless of truth
Offered simply to show that the words were spoken;
sincerity is irrelevant
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E.g. words of offer, acceptance, defamation, conspiracy,

bribery, cancellation, misrep, waiver, permission

2. OOCS offered not for its truth but to show its effect on person who heard
or read the statement
E.g. to show notice to, or GF of, or reason for action or
inaction by person who heard or read OOCS
**Non-truth purpose must be relevant

3. OOCS offered not for its truth but as circum EV of dcl’s relecant state of
mind
E.g. to support defense of insanity

Prior Statements of the Witness

W’s own prior statement can be HSY

Excs: even though otherwise qualify, exluded from definition by EV rules

***Dcl must be W at the trial

1. Prior Inconsistent Statements

Given under oath
2. Prior Consistent Statements
To rebut charge of recent fabrication or improper
influence or motive
3. Prior Statement of ID made by a W

The Exceptions to the Rule against Hearsay

List of Major Exceptions / Exclusions

1. Admission of a party
2. Former testimony
3. Statement against interest
4. Dying declaration
5. States of Mind (Res Gestae)
Present State of mind in issue
Statement of existing intent to prove intended act
Excited utterance
Present sense impression
Declaration of present physical cond
Declaration of past physical cond
6. Business records
7. Past recollection recorded
8. Learned Treatieses
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Admission of a Party

Definition – Declaration of a party offered a/g the party

Written or oral
Must be a party
Rationale – Estoppel; no special reliability since:
Need not be a/g interest at time of making statement
Need not be based on personal knowledge
Can be in form of legal conclusion (“I was negligent”)
Actually is non-HSY under Fed Rules but treated like an exc due
to availability
Vicarious admission*****
Statement by party agent or servant concerning a matter
w/in SOA or SOE made during existence of the
relationship
Must be limited to scope of Ee’s employ not Er’s business
in its entirety

Former Testimony

Definition – Testimony given in earlier proceeding by person now

unavailable admiss IF:
1. Party a/g whom testimony is offered had
opportunity and motive to conduct exam
similar to the motive it has now
2. In civ case, party a/g whom testimony is
offered was in privity (predecessor in
interest) w/ party to earlier proceeding who
had opportunity and motive
Requirements
1. Meaningful opp to develop or cross in the prior
proceeding when W gave live testimony
Opp can be presumed
2. Unavailability
Dcl exempted due to priv;
Dcl refuses to testify despite Ct order;
Dcl’s memory fails;
Dcl is dead or sick; or
Proponent of statement cannot procure Dcl
presence by process or other reas
means

Statements against Interest

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Definition – Declaration of a person, now unavailable as a W a/g

that person’s pecuniary, proprietary or penal interest at the
time statement was made

Rationale - Reliability not a problem

Dcl need not be a party (but must be unavailable)

Limitation – Statement tending to expose dcl to criminal liab and

offered to exculpate accused not admiss UNLESS
“corroborating circums clearly indicate trustworthiness of
the statement”
Two reasons for limitation:
1. Crazy people will accept credit
2. Bribes to life prisoners to accept guilt

Disting from Party admission

SAG
Must be a/g interest at time it was made
May be made by any person, not just a party
Requires personal knowledge (not suspended)
Requires unavailability (not suspended)

PA

Party may be available

Admission might have been self-serving when made

***GJ W offered a/g accused not included b/c no opp to cross

Dying Declaration or Statement Made in Belief of Impending Death

Definition – In a prosecution for homicide or in a civil case, a

statement made by dcl while believing that death was
imminent, concerning cause or circums of impending death

Requirements (4)

1. State of Mind
Made under a sense of impending death
Foundation needed to estab belief
2. Dcl need not die but must be unavailable at time of trial
Only belief of death is necessary
3. Kind of case in which admissible: homicide and civil
4. Content limitation
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Must concern cause or circums of impending death

State of Mind Exceptions (Formerly Res Gestae Group)

6 exceptions where unavailability is irrelevant

Rationale: past statement is just as reliable (if not more) than any
present in court statement that could be offered

1. Declaration of then existing state of mind if in issue

E.g. I believe; I think; etc.

2. Declarations of existing intent to do something in the future offered to

infer that intended act was done

E.g. I intent to…; I am going to…; etc.

Presumed that most people follow thru on intentions

3. Excited utterance

Definition – Statement relating to startling event or

condition is admiss when made while dcl was still
under stress of excitement caused by event or
condition are presumed reliable

Requirements
1. Startling event
2. Made under stress of excitement
Stress is a matter of degree (may be up to a
full day or more, but usually not)
3. Concerns the facts of the startling event

Considerations (things to look for)

Nature of event
Time lapse and what is going on during time lapse
Language of excitement (“Oh my God”)

4. Present sense impression

Definition – A statement describing or explaining an event

or cond made while dcl was perceiving the event or
cond or immediately thereafter

Disting UI
Unnec to have startling event or excitement
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But must have almost precise contemporaneousness

No appreciable lapse of time

5. Declaration of present pain, suffering or physical condition

Definition – Declaration of then existing physical (or

mental) cond is admiss to show the cond

E.g. “It hurts”

6. Declaration of past physical condition

Definition – Statement made ofr purposes of diag or

treatment and describing med history or past
symptoms or gen character of the cause or external
source of the symptoms insofar as reasonably
pertinent to diag

Requirement
Made to med personnel
Pertinent to either diag or treatment
Even if diag only for purpose of litigation
No treatment intent required on part of Doctor

Digression to Explore Recurring Test Issues and Hypos

Prelim questions of fact upon which admiss depends (always ask)

Rule – Prelim questions re qualify of W, existence of priv,

or admiss of EV determined by the Ct
J not bound by rules of EV (may consider
HSY)

Impeaching the HSY dcl

Rule – When a HSY statement has been admitted in EV,

the cred of dcl may be attacked by any EV
(including E EV) which would be admiss for that
purpose if dcl testified as a W

Mixing HSY and writings

Still consider authentication and Best EV rule

Business Records (most used HSY exception)

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Definition – Records made at or near time by, or from information

transmitted by, a person w/ knowledge are admiss IF kept
in the regular course of business and if it was the regular
course of that business to make the record UNLESS source
of info or circums of preparation indicate a lack of
trustworthiness

Rationale – reliable b/c Ees are under a business duty to be

accurate in observing, reporting and recording business
facts

Function of the Exception – Allows the record to sub for the in

court testimony of the Ee

Elements
1. Duty to record
2. Germane to the business

Typical problem areas

Must relate to the business (germane)
Watch out for multiple hearsay problem (HSY w/in HSY)
Both must qualify under an exception to get in
Lurks in ever business record

EVIDENCE SHORT OUTLINE

 Relevance: Ev is relevant if it has ANY tendency to make a material fact more or less probable
o All relevant ev ADM unless exclusionary rule applies, court makes determination that PV
is substantially outweighed by: UPR, confusion, misleading jury, undue delay, waste of
time, unduly cumulative.
o Similar Occurrences: ev. of some time/event/person other than that involved in the case
is inadm. PV generally outweighed by above factors, EXC: (1) P’s accident history if cause
of P’s injuries at issue, (2) similar accidents caused by same event/condition if other acc
happened under subs. similar circs to prove-existence of dangerous condition, cause of
accident, prior notice to D, (3) prior similar conduct adm. to prove intent on later
occasion, (4) comparable sales on issue of value, (5) habit-as circumstantial ev of how
person acted on occasion at issue (frequency, particularity), (6) industry custom to
prove SOC
o Policy Based Exclusions: (1) Liability Insurance (NO to prove fault, YES to prove O/C,
location if disputed, to impeach), (2) SRMs (NO to prove neg, culpability, product defect,
need for warning, YES to prove O/C, feasibility of safer condition if in dispute) [OH: SRMs
adm in SL case to prove defect], (3) Settlements: (disputed civ cases) [ev. of settlement,
offer to settle, SOF during settlement talks] (NO to prove liability, YES to impeach-bias,
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SOF made during civ case w/ gov’t agency OK in later crim case (not in OH)- applies if
there is a disputed claim at time of talks as to validity/amt. (4) Plea Bargains: offer to
plead G, w/d GP, plea of no contest inadm. OH: conviction based on NC plea can be used
to enhance crime made more serious by statute, and in admin proceedings where may
be basis for revoking license, SOF made during plea discussions. GP adm. in subsequent
litigation based on same facts as party admission; (5) Offer to Pay Med Expenses: NO.
to prove liability, YES other stmts made in connection w/ offer to pay.
o Character Ev: refers to person’s propensity or disposition (honesty, fairness,
peacefulness, violence
 Crim Cases:
 D’s Char inadm. to prove conduct in conformity during P’s CIC. D can
offer ev. of rel. trait (rep/op ev) to prove conduct in conformity, “opens
the door” to rebuttal by pros.
o Pros’s Rebuttal: W can be crossed on SPICS if P has GF basis,
can impeach W, or call its own W to contract D’s char W. If
asking SPICs, cannot use EE if W denies.
 V’s Char: Deft can also offer ev of V’s violent char to prove V’s conduct
in conformity, i.e., that V was 1st aggressor, D acted in S-D. Char W can
use rep/op ev.
o Pros Rebuttal: ev of V’s good char, or D’s char for violence by
rep/op. [OH: rebuttal limited to V’s good char.] If D was aware
of V’s violent rep, can be proved to show D’s state of mind
(fear) to prove he acted reas.
 V’s Char in Sex Cases: op/rep as to V’s sexual propensity, specific
incidents gen INADM. OK to prove other was source of semen, injury;
V’s prior acts with D to prove consent, where exclusion would violate
D’s right of DP, i.e., to show V had motive to falsely claim.
 Civil Cases: generally INADM to prove conduct in conformity. ADM if essential
element of claim, defense. Can use rep/op/SPICs. 3 cases: neg. entrustment,
defamation, child custody dispute.
o D’s Other Crimes for Non-Char Purpose: INADM during pros. CIC to suggest D
committed current crime. ADM for MIMIC. Can prove by conviction, ev. that proves
crime occurred. D can request PT notice of intent to use MIMIC ev. Ct weighs PV/UPR.
[OH: PT notice only preferred] Can be used in civil cases.
o Other Sexual Misconduct to Show Propensity in Sex-Crime Prosecution or Civil Action:
Prior specific sexual misconduct ADM in civil/crim CIC for any relevant purpose including
propensity. Must be by SPIC, not rep/op. OH: only adm. if MIMIC rule satisfied, or if
prior acts were directed toward V in current case.
 Authentication of Writings: Must make showing that writing is authentic-what it purports to be.
o Methods: witness w/ PK, proof of handwriting by familiar lay person, expert
comparison, or jury comparison. Ancient Docs-authenticity inferred if doc >20 years old,
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facially free of suspicion, found in place of natural custody. Solicited Reply Doctrine: doc
can be authenticated by ev that it was received in response to prior communication by
alleged author.
o Conditional Relevancy: Doc ADM if ct finds suff ev from which reas. juror could conclude
doc is genuine.
o Self-Authenticating Docs: BOP on opponent to show not auth. Official publications,
certified public records, newspapers, periodicals, trade inscriptions/labels,
acknowledged doc (notary certification), CP Photos: W with PK that photo is “fair and
accurate representation” of people/objects portrayed.
 BER: party seeking to prove contents of writing must produce original or provide acceptable
excuse. If excuse, can use secondary ev-oral testimony/copy. 2 situations: 1) legally operative
doc (contains rights, obligs) or 2) W testifying to facts she learned solely from reading the
writing. Doesn’t apply when W has PK of fact that exists independent of writing.
Original=whatever parties intended as orig, any counterpart w/ same effect, negative of
film/print from the neg, computer print-out. Duplicates-original, UNL would be unfair, issue
raised as to auth. Excuses: lost/can’t be found w/ due diligence, destroyed w/o BF, can’t be
obtained w/ legal process. Ct must find excuse by PPE for secondary ev to be ADM, Jury then
decides if secondary ev correctly reflects contents of orig. Escapes: voluminous records-OK to
present summary/chart, certified copies of public recs, collateral docs
 Witnesses: W must be competent (PK of facts & takes oath/affirms to tell the truth) OH: Ct must
DQ W of unsound mind, child under 10 if child appears incapable of perceiving or accurately
relating facts. Presumed INC.
o Dead Man Statute: W not ordinarily INC merely because has interest in the outcome,
but DMS makes interested W INC to testify in support of her own interest against the
estate of a decedent concerning communications or transactions b/w the interested Ws
and the decedent. – NO DMS in FRE. OH RULE: no DMS, But OH has unique hearsay
exception that has effect of allowing decedent to “speak from the grave” – after
interested W testifies against D’s estate, estate may introduce pre-death stmts of D if:
(1) concern same SM, (2) rebut interested W’s testimony, (3) D had PK of the matter.
o Leading Qs: not allowed on direct, unless preliminary matter, hostile W,
youthful/forgetful W, W is adverse party or under control of AP. Allowed on cross.
o Refreshing Recollection: W may not erad from prepared memorandum, must testify on
basis of current recollection, BUT if W doesn’t remember, can be shown memorandum
to jog his memory. Can be ANY doc. Adversary has right to inspect the refresher, use it
on cross, introduce it into ev.
o Past Recollection Recorded: The writing may be introduced into ev if: (1) it fails to jog
W’s memory, (2) W had PK at former time, (3) doc was made/adopted by W, (4) made
while event fresh in W’s memory, (5) W can vouch for accuracy of doc when
made/adopted.
o Opinion Testimony: Lay opinion OK if rationally based on W’s perception, and helpful to
jury (i.e., drunk, speed, sane/insane, emotions of other person, handwriting. Experts:
Qualified by education or experience, SM is scientific, technical, specialized that will be
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helpful to jury, opinion based on reas. degree of probability or certainty. Can form
opinion based on PK, other ev in trial record (hypo Q), facts outside the record. [OH:
expert opinion must be based exclusively on PK and/or facts data that have been
introduced into ev. Data upon which opinion is based must be presented prior to giving
opinion.] Expert op must be relevant to issue at hand and sufficiently reliable. 4 Factors
(“TRAP”): testing of principles or methodology, rate of error, acceptance by other exps
in field, peer review and publication.
 Learned Treatise: On direct exam of own expert relevant portions of LT can be
read into ev as substantive ev if established as reliable authority. On cross of
opponent’s expert, can be read to impeach and contradict, comes in as
substantive ev. BUT may not be introduced as exhibit.
 Ultimate Issue: op testimony on UI OK if all other elements satisfied BUT not
adm as to whether D had requisite mental state.
o Cross: party has right to cross any opposing W who testifies at trial as to matters w/in
the scope of direct, matters that test W’s credibility. OH: not limited to scope of direct,
can be on anything relevant
o Impeachment: Cannot bolster own W until after credibility has been attacked. Can
impeach any W. 2 ways: ask W about impeaching fact, prove with extrinsic ev (except
cannot use EE to prove prior bad acts or contradictory collateral facts). To use EE to
prove bias, must ask W about impeaching fact first.
 PICSs: ADM as subs. ev. if made orally, UO at prior hearing/proceeding/etc. [OH:
PICS can subs. ev. only if W’s prior stmt was UO at hearing, and W was subj. to
cross by party against whom stmt being offered. Can use PICS to impeach own
W only if W’s trial testimony catches party by surprise AND causes affirmative
damage to the party’s case, or PIC qualifies as subs. ev.]
 FRE: W must be given opp to explain/deny stmt (not necc. B4) OH:
confrontation req’d b4 introduction. No EE until W told contents of
prior stmt, time/place made, to whom made, W given opp to E/D,
adversary has opp to interrogate W about stmt. If W denies making
stmt/doesn’t remember, can use EE. Both: no opp to e/d if W is
opposing party
 Bias/Motive/Interest: Under MBE, W must be confronted with alleged bias
while on stand, in OH no. Can be proven by EE, have to confront W first.
 Sensory Deficits: anything affecting W’s perception/memory. No confrontation
Req’d. EE OK.
 Bad Rep/Op of W’s Char for Truthfulness: any W subject. No confrontation
required. EE allowed.
 Criminal Convictions: Fed Rule: Crimen falsi-automatically admissible, Felony,
may exclude if PV outweighed by UPR. If more than 10 years old, cannot be
used UNL, PV is substantial – Ct decides. OH Rule: Same except crimen falsi
includes crimes of dishonesty in general – i.e., theft.
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 Bad Acts that reflect adversely on W’s char for truthfulness: Only permissible as
confrontation on cross. EE allowed if bad act rel for purpose other than bad char
for truthfulness, i.e., bias
 Contradiction: Cross examiner can try to obtain admission that W made mistake
or lied during direct. If W does not admit, EE not allowed for purpose of
contradiction if fact is collateral.
 Rehabilitation: If impeachment showed W lying/not mistaken, can bring W who
show W’s char for truthfulness using rep/op. Can use PCS to rebut charge of
recent fabrication – if stmt made prior to motive to fabricate arose. PCS is ADM
to rehab credibility and as subs ev that stmt true.
o Privileges: In Fed court action arising under fed law, privileges are governed by common
law. In fed court action based on diversity, privilege of law of the state applies. In
diversity actions, fed courts also apply state law on competency, and state law on BOP
and presumptions.
 A-C Priv: CCs b/w A-C during professional, legal consultation, unless waived by C,
or exc. applies. C must intend stmt be confidential. Doesn’t apply to underlying
info, preexisting docs, phys. ev. C must reas believe person is A. Applies to A’s
agents. C: anyone seeking to be C. Voluntary W: C’s power. [OH allows
decedent’s spouse to waive], SM waiver-VW to some comms also waives priv to
others if: partial disclosure intentional + disclosed & undisclosed comms
concern same SM, + fairness reqs the disclosed and undisclosed comms be
considered together. Inadvertent W: Does not waive priv. as long as priv-holder
took reas. steps to prevent disclosure, and correct the error. No priv: future
crime or fraud, C puts legal advice in issue, A-C dispute (fees, etc.)
 Physician-Patient Priv: usually by statute. Applies to confidential communication
for the purpose of diagnosis or treatment. Applies to psychotherapists. In fed
court actions based solely on fed law, no priv. Only psychotherapy priv.
Exception: if Pt puts phys/mental condition in issue
 Marital Priv: Spousal Immunity: Crim cases, spouse can’t be made to testify
against Deft spouse. Confidential Comms: Any case, spouse not Req’d or
allowed if no consent by other spouse, to disclose CCs (incl. acts) made during
marriage. Both Ss hold. Exc: comms in furtherance of future crime/fraud,
comms destructive to family unit, in litigation b/w spouses themselves.
 Hearsay: OOC stmt by a person offered to prove the truth of the matter asserted. INADM unless
exc. applies
o Non-Hearsay: Verbal acts (legally operative words-have legal consequences) Effect on
Listener (create fear, give notice, indicate motive). Speaker’s State of Mind. Prior Stmts
of Trial Ws: W’s own prior stmt if offered for truth is hearsay-INADM unl exclusion
applies.3 excs: prior ID of a person, prior ICS if oral, UO at prior proceeding, etc, or PCS
used to rebut charge of recent fabrication, improp motive, influence. Admissions: stmt
made by party ADM if offered against the party. (adoptive: party expressly/impliedly
adopts stmt by other. Silence OK if party silent where RP would protest if stmt was false.
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Vicarious: stmt by agent/e-ee ADM against principal if concerns matter w/in SOE, made
during employment. Co-conspirator stmt: ADM against member of conspiracy if made
during/in furtherance of the conspiracy.
o Confrontation Clause: 6A reqs Deft to be confronted with Ws against him. Can’t use
hearsay against Deft if stmt testimonial, decl. unavail., Deft had no opp to cross.
Testimonial: GJ testimony stmts in response to police interr. if primary purp to
establish/prove past events potentially rel to crim prosecution. Non-T: made to enable
police to meet ongoing emerg. Testimonial Docs: forensic lab/police reports, prepared
for prosecutorial purposes. OH def of testimonial: stmt made under circs which would
lead objective observer to believe stmt would be avail for use at crim trial
o Unavailable(PRMIA): priv/refusal/incapable(mental ill, incapacity, death)/no
memory/absent from J
o Exceptions that Req Unavail: “SFFFD”: SAI, FT, family/personal history, forfeiture by
wrongdoing, death
 Stmt Against Interest: Unavail Decl’s stmt against pecuniary, proprietary, penal
interest. Diff from admission: must be AI when made, any person can make SAI,
PK required, decl. must be unavail. Stmt against penal interest must be
corroborated by circs showing trustworthiness.
 Former Test: ADM if W unavail, made at former proceeding/depo. ADM against
party who on prior occasion had opp and motive to cross/develop the test. Issue
same in both proceedings.
 Forfeiture Exception: Stmt ADM against Deft if Deft made W unavail, if ct finds
by PPE that D’s conduct was designed to prevent W from testifying.
 Dying Declaration: Made under belief of impeding death by unavail decl.
concerning cause of Decl’s death. Adm in civil or homicide case. Oh Tender
Years Exception: H exc for child < 12 at time of trial concerning phys/sex abuse
toward child if: stmt found trustworthy based on circs, child unavail,
independent proof of abuse, proponent gives 10 days notice. Confrontation: if
stmts made during non-emergency police interrogation-testimonial- D entitled
to cross the child. Probably not testimonial if made to friend, relative, health
care professional.
o Excs Unavail not Req: PPESTRR: public records, PSI, EU, stmt made for medical diagnosis
or treatment, then-existing physical/emotional mental state, recorded recollection, biz
recs
 Public Recs: recs setting forth: activities of office/agency, matters observed
pursuant to a duty imposed by law, findings of fact or opinion resulting from an
investigation authorized by law. EXC: police reports prepared for prosecutorial
purposes INADM against D in criminal case.
 PSI: stmt of event while it occurs/immed after OH: inadm if circs indicate lack of
trustworthiness
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 EU: stmt about startling event while still under stress of the event. Factors:
Nature of the event, passage of time, visual clues (exclamatory phrase,
excitement-oriented verb, exclamation point)
 Stmt Made for Purpose of Med Treatment/Diagnosis: concerning decl’s present
symptoms, past symptoms, general cause of condition – not incl. stmts/details
re: fault/identity of wrongdoer.
 Present State of Mind: contemporaneous stmt concerning decl’s SOM, feelings,
emotions
 Declaration of Intent: Decl’s intent to do something, incl. intent to act with
another person.
 Present Physical Condition: Stmt made to anyone about decl’s current phys
condition
 Biz Recs: recs of biz of any time, made in regular course of biz, biz regularly
keeps recs, made contemporaneous w/ event recorded. Contents consist of info
observed by e-ees, or stmt w/in independent H exc. Foundation: call W to
testify to those 5 elements, need not be author of report, can be custodian or
other knowledgeable person, or written certification under oath attesting to
elements. OH: written certification method can only be used for hospital
records.
o Impeachment of Hearsay Declarant: any impeachment method may be used.