Section 1

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Judicial Notice: Does a court have to take judicial notice?

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Date created

Mar 14, 2020

Cards (219)

Section 1

(50 cards)

Judicial Notice: Does a court have to take judicial notice?

Front

Court MUST take notice if requested and sufficient evidence provided

Back

Examination: Compound Question

Front

A question that requires answers to multiple questions is compound and is not permitted. **Always improper

Back

What is the role of the judge?

Front

Judge decides preliminary questions of competency of evidence

Back

Type of Presumptions: Rebuttable

Front

Rebuttable: shifts the burden of production (not persuasion) to the opposing party **OHIO: for civil actions, a presumption imposes the burden going forward with evidence to rebut or meet the presumption BUT does not shift the burden of proof to such a party

Back

Examination: Argumentative Question

Front

A question intended to provoke rather than elicit a factual response. **Always improper

Back

Relevance: When is evidence admissible?

Front

Generally, all relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision

Back

Judicial Notice: Does a party need an opportunity to be heard for judicial notice?

Front

Upon timely request, judge must provide an opportunity to be heard

Back

Types of Burden of Proof

Front

(1) Burden of Production (2) Burden of Persuasion

Back

Examination: Is there a right to re-direct or re-cross?

Front

Redirect and recross may be permitted--re-direct and re-cross can ask to reply to any significant new matter brought up in the previous round **Court has discretion to permit inquiry into other matters

Back

Relevance: When is evidence material?

Front

Evidence is material when the evidence is of consequence in determining the action

Back

Relevance: When is evidence sufficiently relevant?

Front

Must not prove something outright--evidence is sufficiently relevant even if it is only a brick in the wall of evidence

Back

What is the presumption related to destruction of evidence?

Front

Generally, destruction of evidence raises a rebuttable presumption that the evidence would be unfavorable to the destroying party if the other party establishes: (1) The destruction was intentional, (2) The evidence was relevant, AND (3) The other party acted with due diligence as to the destroyed evidence.

Back

Relevance: Direct Evidence

Front

Direct evidence is identical to the factual proposition it is offered to prove

Back

Examination: Form of Questions

Front

SOMETIMES IMPROPER: (1) Leading ALWAYS IMPROPER: (2) Compound (3) Assumes a fact not in evidence (4) Argumentative (5) Calls for a conclusion or opinion (6) Repetitive (7) Lack of foundation

Back

Burden of Production

Front

The party with the burden of production must produce legally sufficient evidence for each element of a claim such that a reasonable trier of fact could infer the alleged fact has been proven (prima facie case)

Back

When can a court exclude witnesses from the courtroom?

Front

Court MUST exclude witnesses from the courtroom so that they do not hear the testimony of other witnesses at a party's request or on court's own initiative. EXCEPT: Court CANNOT exclude: (1) Natural person parties to the case, (2) Individual designated as a representative of non-natural person parties, (3) Persons essential to a party's presentation of the case, AND (4) Persons whose presence is permitted by statute (i.e., victim)

Back

Relevance: When can evidence be excluded?

Front

403 Legal Relevance: Relevant evidence MAY be excluded if the probative value is SUBSTANTIALLY OUTWEIGHED by the danger of unfair prejudice Unfair prejudice: confusing issues, misleading jury, undue delay, wasting time, needless presentation of cumulative evidence

Back

Burden of Persuasion

Front

Burden of persuasion depends on the type of case: (1) Civil Case: preponderance of the evidence (or clear and convincing for certain claims) (2) Criminal: beyond a reasonable doubt

Back

Relevance: Circumstantial Evidence

Front

Circumstantial isindirect proof of a factual proposition through inference from collateral facts

Back

Can evidence be admitted for limited purposes?

Front

Yes--evidence may be admissible for one purpose but not for another **Court must restrict evidence to its proper scope and instruct the jury accordingly

Back

OHIO: When MAY relevant evidence be excluded?

Front

Discretionary exclusion: In Ohio, relevant evidence MAY be excluded if its probative value is substantially outweighed by the danger of (1) undue delay or (2) needless presentation of duplicative or cumulative evidence

Back

When can there be a challenge even if there is no objection or offer of proof?

Front

Plain error is an error that is obvious to the court **If the error affects a substantial right, grounds for reversal exist even without a challenge

Back

Type of Presumptions: Conclusive

Front

Conclusive: cannot be challenged by contrary evidence

Back

When is an objection required?

Front

Objection is required if evidence is admitted

Back

OHIO: When MUST relevant evidence be excluded?

Front

Mandatory exclusion: In Ohio, relevant evidence MUST be excluded if its probative value is substantially outweighed by danger of (1) unfair prejudice, (2) confusion of the issues, or (3) misleading the jury

Back

Judicial Notice: When can a judge take judicial notice of a fact?

Front

A court may take judicial notice at any time during a proceeding, including on appeal, whether upon request or on court's own initiative. **Cannot take judicial notice against a criminal defendant for the first time on appeal

Back

What is the consequence of a definitive ruling?

Front

FEDERAL: Once there is a definitive ruling, the party NEED NOT renew challenge after a definitive ruling to preserve for appeal OHIO: If judge makes an evidentiary ruling BEFORE trial that overrules a party's objection, that party MUST renew that objection at trial in order to preserve the right to appeal the ruling

Back

Rule of Completeness

Front

Under the rule of completeness, the adverse party may compel the introduction of an omitted portion of a written or recorded statement if it should be considered at the same time for fairness. **Adverse party is not required to immediately introduce the evidence; it can be admitted subsequently

Back

When do the FRE apply?

Front

Everything EXCEPT: (1) Court's determination of a preliminary question of fact governing admissibility; (2) Grand jury proceedings; OR (3) Criminal proceedings for issuance of a search or arrest warrant or a criminal summons; preliminary examination in a criminal case; extradition or rendition; consideration of bail or other release; sentencing; and granting or revoking probation or supervised release.

Back

Examination: When can a motion to strike be made?

Front

If witness's answer makes testimony improper, counsel may move to strike the answer as inadmissible **Only examining counsel may move to strike unresponsive answers

Back

Judicial Notice

Front

Judicial notice is the court's acceptance of a fact as true without requiring formal proof **FRE applies to adjudicative facts--which are fact of the case at hand typically decided by the jury

Back

Examination: What can a witness be asked about on cross-examination?

Front

Scope of cross generally limited to subject matter of direct and witness credibility **OHIO: Cross is permitted on ALL relevant matters and on ALL credibility matters

Back

Judicial Notice: When can judicial notice of a fact be taken?

Front

Judicial notice may be taken of an adjudicative fact if fact is not subject to reasonable dispute because: (1) It is generally known within the community OR (2) It can be accurately and readily determined from reliable sources

Back

Examination: When can a leading question be used?

Front

Direct Examination: Generally not permitted unless: (1) Hostile witness (2) Needed to develop witness's testimony (prelim matters) OR (3) Witness struggles with communication Cross-examination: no restrictions on using leading questions

Back

Relevance: When is evidence relevant?

Front

Evidence is relevant if it is probative and material

Back

When is an offer of proof required?

Front

Offer of proof is required if evidence is excluded

Back

OHIO: Who can request a witness be excluded?

Front

An Ohio court, upon its own motion or at the request of a party, MUST exclude certain witnesses so they cannot hear another's testimony

Back

Examination: Calls for a Conclusion/Opinion Question

Front

A question that requires a witness to draw a conclusion or state an opinion they are not qualified to make. **Always improper

Back

Examination: Lack of Foundation Question

Front

Failure to establish necessary predicate before asking the question.

Back

Judicial Notice: What is the effect of a judicially noticed fact?

Front

Civil Case: Jury MUST accept the fact is true Criminal Case: Jury MAY OR MAY NOT accept the fact as true

Back

Examination: Leading Questions

Front

A leading question suggests an answer within the question.

Back

OHIO: When is an offer of proof not required?

Front

An offer of proof is not required if the evidence is excluded during cross-examination

Back

When can a party challenge an evidence ruling by the judge?

Front

A party may challenge an evidence ruling as erroneous if: (1) Ruling affects a substantial right of a party AND (2) Party notifies the judge of the error through an objection if evidence is admitted OR through an offer of proof if the evidence is excluded

Back

What does a judge have control over?

Front

Judiciary has control over order of witnesses/presentation of case to effectively determine truth and avoid wasted time or witness harassment **Court may also question or call witness

Back

Relevance: When is evidence probative?

Front

Evidence is probative when the evidence has a tendency to make a fact more or less probable than it would be without evidence

Back

Examination: Repetitive Question

Front

A question that has already been asked and answered. **Improper unless judge allows

Back

What is the role of the jury?

Front

Jury determines weight and credibility of the evidence

Back

OHIO: How is admission of relevant evidence limited in Ohio?

Front

Federal: relevant MAY be excluded under 403--always discretionary OHIO: relevant MAY or MUST be excluded under 403 depending on the type of danger (mandatory and discretionary exclusion)

Back

Examination: Assumes Fact Not in Evidence Question

Front

A question that assumes as true facts that have not be established. **Always improper

Back

Relevance: What is the effect of evidence that is dependent on the existence of another fact?

Front

If relevance is dependent on the existence of a fact, then proof must be sufficient to support a finding that the fact does exist **Evidence may be admitted on the condition that proof is later introduced

Back

Section 2

(50 cards)

Witness: Can prior inconsistent statements be admissible to impeach a witness?

Front

Yes--prior inconsistent statements can be used to impeach if inconsistent with a material part of the witness's testimony

Back

Character: When is habit evidence admissible?

Front

Evidence of a person's habit (or an organization's routine) is admissible to prove the person (or organization) acted in accordance with the habit on a particular occasion **May be admitted without corroboration and without an eyewitness

Back

Witness: How can a witness be impeached?

Front

Generally, a witness can be impeached with opinion or reputation testimony.

Back

Witness: Are specific instances of conduct be used to impeached?

Front

Generally, specific acts are not admissible as an indication of character for truthfulness! BUT on cross-examination, specific acts are admissible if probative of truthfulness or untruthfulness of (1) the witness or (2) of another witness about whose character the witness has testified

Back

Witness: Can religious opinions or beliefs be used to impeach?

Front

Religious opinions or beliefs cannot be used to impeach credibility BUT admissible to show bias/interest OHIO: Inadmissible to show that by reason of their nature, the witness's credibility is impaired or enhanced

Back

Witness: Two ways to refresh a witness's recollection?

Front

(1) Present Recollection Refreshed (2) Past Recorded Recollection

Back

Witness: What happens if a witness denies a specific act on cross-examination?

Front

When witness denies a specific act, extrinsic evidence not admissible to prove the specific act **Exception exists for criminal convictions

Back

Witness: Can a dead man's statute be waived?

Front

Yes--a protected party can waive the statute's protection by failing to object to a disqualified witness or by introducing protected evidence

Back

Witness: What is required for a non-expert witness to testify?

Front

A non-expert witness must have personal knowledge of a matter in order to testify about it

Back

Witness: When is a witness competent to testify?

Front

Generally, every person is presumed to be competent to be a witness. **Mental competence go to the weight of the evidence--not the admissibility

Back

Witness: Can contradictory evidence be admitted to impeach a witness?

Front

Contradictory evidence can be used to impeach if it contradicts witness's testimony, including contradictory material extrinsic evidence BUT generally, cannot impeach credibility of a witness by introducing extrinsic evidence of a collateral matter

Back

Witness: Juvenile Convictions

Front

Juvenile convictions are NOT admissible to impeach DEFENDANT BUT may impeach other witness's character for truthfulness in CRIMINAL case if an adult conviction for that offense would be admissible and admitting it is necessary to determine guilt or innocence

Back

Character: Can character evidence be used in a CIVIL trial?

Front

For a civil trial, character evidence is inadmissible to prove that a person acted in accordance with that character (or trait) on a particular occasion BUT admissible when character is an essential element of a claim or defense instead of proving a person's conduct

Back

Character: What is habit evidence?

Front

A habit is a person's particular routine reaction to a specific set of circumstances.

Back

Witness: Who may impeach a witness?

Front

Any party, including the party that called the witness to testify, may attack the credibility of a witness. **OHIO: Any party may attack a witnesses's testimony BUT a party may only attack the credibility of a witness they called by means of a prior inconsistent statement that is hearsay upon showing surprise and affirmative damage resulting from the testimony

Back

Witness: Can extrinsic evidence of prior inconsistent statements be admitted?

Front

Extrinsic evidence of prior inconsistent statement is admissible only if witness can explain/deny statement and opposing party can examine the witness about it (this opportunity not required for hearsay declarants or opposing party statements) OHIO: Extrinsic evidence is admissible only when (1) impeached witness is given opportunity to explain PRIOR to introduction of inconsistent AND (2) Opposing party is given opportunity to examine witness about it

Back

Witness: Can a criminal conviction be used to impeach a witness's character for truthfulness?

Front

Yes--a criminal conviction (but not arrest) can be used to impeach a witness's character for truthfulness

Back

Witness: What can a witness be impeached on?

Front

A challenge to a witness's testimony can be based on character for truthfulness, bias, ability to perceive/testify accurately, contradictory prior statement, or another witness

Back

Witness: Can a juror testify in a trial in which they serve?

Front

A juror an testify at trial in limited circumstances, but generally may only testify AFTER trial about: (1) Extraneous prejudicial information brought to jury's attention (2) Improper outside influence OR (3) Mistakes on verdict form

Back

Character: When are specific acts admissible as character evidence?

Front

Civil Case: When character evidence is an essential element of claim/defense, can be proven by specific acts OR opinion/reputation testimony Criminal Case: Specific acts not admissible to show defendant's criminal propensity BUT when character is an essential element of a charged crime, defendant may offer specific prior acts inconsistent with the element of the crime Cross-examination: A CHARACTER witness can be asked about specific acts committed by a person about whom the witness is testifying

Back

Relevance: What happens if irrelevant evidence is let in?

Front

If irrelevant evidence is admitted, then the court may make a curative admission and allow more irrelevant evidence to rebut previously admitted irrelevant evidence and remove unfair prejudice

Back

Character: Can character evidence be offered by the DEFENDANT about HIS GOOD character?

Front

Defendant is permitted to introduce evidence of HIS good character as being inconsistent with type of crime charged BUT (1) evidence must be pertinent to crime charged AND (2) evidence must be reputation/opinion testimony.

Back

Witness: What criminal convictions can be used as specific bad acts to impeach witness?

Front

Use of extrinsic evidence for impeachment depends on both (1) whether conviction was a crime involving dishonesty (2) whether conviction was more than 10 years ago

Back

Character: Can a party's prior bad acts be admitted?

Front

Generally, prior bad acts are not admissible to show defendant's criminal propensity to prove that he committed the crime in question

Back

Character: What is character evidence?

Front

Character evidence is generalized information about a person's behavior. **IT IS GENERALLY INADMISSIBLE

Back

Character: Can character evidence be offered by the PROSECUTION against a defendant?

Front

If offered by PROSECUTION, character evidence is NOT permitted to introduce evidence of defendant's bad character to prove that defendant has a propensity to commit crimes BUT once defendant offers evidence of his good character (or the victim's bad character), the prosecution can rebut defendant's claims by attacking defendant's character

Back

Character: How can character be proven?

Front

When character evidence is admissible, it may be proven by testimony about person's REPUTATION or witness OPINION

Back

Witness: Crimes involving dishonesty/false statement

Front

Crimes involving dishonesty/false statement can be used to impeach ANY witness for ANY conviction if within TEN years.

Back

Witness: What are the limitations on specific bad acts used to impeach a witness?

Front

(1) Lawyer must have a good faith basis to believe bad act occurred (2) Can be prohibited by court under 403 (3) Arrest cannot be the sole impeachment act--BUT ask about conduct leading to arrest (4) Witness can still claim privilege against self-incrimination

Back

Witness: When can a witness's character for truthfulness be questioned?

Front

A party cannot bolster witness credibility with evidence of truthful character unless the witness's truthful character is DIRECTLY attacked.

Back

Witness: Present Recollection Refreshed

Front

A witness may examine ANY item to refresh the witness's present recollection but testimony must be based on refreshed recollection, not the item **Adverse party may inspect item and enter relevant portions into evidence **Item may be redacted by the court, and admissible for substantive purposes only if it satisfies other restrictions on admissibility

Back

Witness: What is the oath requirement?

Front

Witness must give an oath or affirmation to testify truthfully **Interpreter must give an oath to translate faithfully

Back

OHIO: When is a witness competent to testify?

Front

In OHIO, every person is competent to be a witness EXCEPT: (1) those of unsound mind (unless able to testify and understand oath) (2) Under age of 10 (unless able to perceive truth) (3) Spouses testifying against spouse (unless about a crime against spouse or their child or electing to testify) (4) Officer enforcing misdemeanor traffic violations without proper uniform or car OR (5) Experts in civil medical claims against DR/Hospital (unless (1) licensed and practices at least half of his professional time or (2) is profess in accredited school)

Back

Witness: What is a Dead Man's Statute?

Front

A party with financial interest in the outcome cannot not testify in a CIVIL case about a communication or transaction with a person whose estate was a party to the case and the testimony was adverse to the estate. *NOT ADOPTED IN OHIO OR FRE **NOT AVAILABLE IN CRIMINAL CASES

Back

Witness: Crimes NOT involving dishonesty/false statement

Front

Convictions NOT involving dishonesty/false statement are admissible to impeach witness only if crime is punishable by death or imprisonment more than one year (FELONY) and if within TEN years. *If witness is criminal defendant, a crime is admissible only if its probative value outweighs the prejudicial effect to that D (stricter than usual balancing test) *Other witnesses—generally admissible but discretion to exclude if probative value is substantially outweighed by its prejudicial effect

Back

Witness: What if a criminal conviction is pardoned?

Front

A conviction not admissible if subject of a pardon, annulment, or other action based on a finding of innocence *Pending appeal does not prevent impeachment

Back

Character: Can character evidence be offered by PROSECUTION about VICTIM'S character?

Front

Prosecution can offer rebuttal evidence of the victim's good character when defendant has introduced evidence of the victim's bad character. BUT in a homicide case, the prosecution may offer evidence of the alleged victim's trait for peacefulness to rebut evidence that victim was the first aggressor.

Back

Character: Is character evidence admissible for impeachment purposes?

Front

Yes--character evidence of a witness's untruthfulness is admissible/relevant to impeach the witness

Back

Witness: Past Recorded Recollection

Front

A memo/record about a matter the witness once had knowledge of but now has insufficient recollection of to testify about may be admissible under the recorded recollection hearsay exception **Document may be read into evidence, but received as an exhibit only if offered by an adverse party

Back

Witness: Can a judge testify in a trial over which they preside?

Front

Judge is absolutely barred from testifying as a witness--don't need to object to testimony

Back

Witness: Can a witness be impeached for their sensory competence?

Front

Yes--sensory competence can be impeached for deficiency in testimonial capacities to perceive, recall, or relate information

Back

Witness: Conviction or Release more than 10 years ago

Front

Conviction or release more than 10 years ago are admissible if probative value substantially outweighs prejudicial effect and reasonable written notice of intent to use evidence

Back

Witness: Can a hearsay declarant be impeached through the witness offering the statement?

Front

The credibility of hearsay declarant can be attacked by any evidence admissible if declarant had testified as witness If declarant called as a witness, he can be examined as if under cross-examination

Back

Character: What notice must be given for prior bad acts evidence?

Front

When criminal defendant requests, prosecution must provide reasonable notice of the general nature of MIMIC evidence the prosecution intends to offer at trial Party must give notice before trial unless the court excuses the lack of notice for good cause

Back

Character: Can character evidence be offered by the DEFENDANT about VICTIM'S character?

Front

Defendant may introduce reputation or opinion evidence of the victim's character when relevant to an asserted defense BUT evidence of the victim's sexual conduct very limited

Back

Witness: Can a child be a competence witness?

Front

Competence of a child depends on: (1) Intelligence (2) Ability to differentiate between truth and falsehood* AND (3) Understanding of the importance of telling the truth**

Back

OHIO: When can a party offer juror testimony relating to misconduct?

Front

Before juror testimony can be heard, a party must produce OUTSIDE evidence of the alleged misconduct UNLESS the testimony concerns a threat, bribe, an attempted threat or bribe, or impropriety of an officer of the court.

Back

Character: When can a party's prior bad acts be admitted?

Front

Subject to admissibility restrictions, may be introduced for any other purpose except to prove that defendant committed the charged crime because defendant had a propensity to commit crimes MIMIC evidence is admissible: (1) Motive (2) Intent (3) Absence of Mistake (4) Identity (5) Common plan

Back

Witness: How can a witness be rehabilitated if they are impeached?

Front

Rehabilitation of a witness: (1) Explain/clarify on redirect examination (2) Offer opinion/reputation evidence of witness's character for truthfulness (only if character was attacked on that ground) (3) Offer prior consistent statement to rebut express/implied charge that witness lied due to improper motive/influence

Back

Witness: Can a witness be impeached by bias or interest?

Front

Yes--bias or interest can be used to impeach a witness because relevant to credibility of his testimony FEDERAL: Extrinsic evidence can be used if there is a foundation laid at any time OHIO: a party does not need to lay foundation BEFORE the extrinsic evidence used to impeach based on bias

Back

Section 3

(50 cards)

Tangible: When must an oral statement be authenticated?

Front

Oral statements may need to be authenticated as to the identity of the speaker in cases in which that identity is important.

Back

Privileges: Attorney-Client Privilege

Front

The attorney-client privilege applies to confidential communications between a client and an attorney for the purpose of seeking legal advice or representation **Attorney doesn't need to give advice or agree to representation

Back

Privileges: When does the confidential marital communication privilege apply?

Front

Privilege begins with marriage and continues indefinitely

Back

Opinion: What can a expert testimony be about?

Front

The subject matter of the expert witness's testimony must: (1) Be scientific, technical, or some other specialized knowledge (2) That help the trier of fact understand the evidence or determine a fact at issue

Back

Tangible: How can a telephone conversation be authenticated?

Front

A party to a telephone conversation may authenticate statement made during that conversation if: (1) if the caller recognized the speaker's voice; (2) speaker knew facts that only a particular person would know; (3) caller dialed number believed to be speaker's, (4) speaker identified himself upon answering; OR (5) caller dialed a business and spoke about business regularly conducted over the phone

Back

Tangible: Tangible Evidence

Front

Tangible evidence is evidence that is not presented in the form of testimony by a witness Includes documentary evidence and physical evidence

Back

Tangible: When does the parol evidence rule apply?

Front

A complete integration contains all terms to which the parties agreed so, the PER in effect and no extrinsic evidence is admissible A partial integration contains some but not all agreed upon terms so, extrinsic evidence that adds to the writing is admissible BUT evidence that contradicts the writing is not admissible

Back

Privileges: Spousal Privileges

Front

(1) Spousal Immunity (2) Confidential Marital Immunity

Back

Tangible: When is an original not required?

Front

Original is not required when: (1) originals are lost or destroyed (in good faith), (2) the party against whom the original would be offered failed to produce it, OR (3) the document is not closely related to a controlling issue

Back

Privileges: Who holds the spousal immunity privilege?

Front

Federal Court: the witness spouse holds the privilege Same in OHIO and MAJORITY

Back

OHIO: When can an expert witness testify about his opinion?

Front

Ohio requirements: (1) Witness must be qualified to testify by reason of specialized knowledge, skill, experience, training, or education (2) Testimony must relate to matters beyond knowledge or experience of lay persons or dispel a common misconception of laypersons AND (3) Testimony must have a basis in reliable, scientific, technical, or otherwise specialized information

Back

Witness: When is payment of witness permitted?

Front

A witness in attendance in federal court or a deposition pursuant to a federal rule or court order is entitled to (1) appearance fee and (2) travel expenses

Back

Tangible: Does a summary count for the best evidence rule?

Front

Contents of voluminous documents may be presented as a summary if: (1) such contents cannot be conveniently examined in court; NAD (2) proponent must make originals or duplicates available for examination and copying by other parties at a reasonable time and place *Court may order proponent to produce the originals or duplicates in court

Back

Tangible: How can a public record be authenticated?

Front

A public record may be authenticated by evidence that the document was recorded or filed in a public office as authorized by law OR that the document is from an office where the items of that kind are kept.

Back

Tangible: Is a duplicate permissible for the best evidence rule?

Front

A duplicate is considered reliable unless: (1) there is a genuine question as to the authenticity of the original OR (2) the circumstances make it unfair to admit the duplicate

Back

Opinion: When can a lay witness offer an opinion?

Front

A lay witness is generally not permitted to testify as to his opinion. BUT an opinion is admissible if: (1) Based upon the perception of the witness AND (2) Helpful to a clear understanding of the witness's testimony or the determination of a fact in issue

Back

Privileges: Who holds the confidential marital communication privilege?

Front

Majority—both spouses hold the privilege in civil and criminal cases Either spouse may assert the privilege to prevent testimony or prevent the other spouse from testimony

Back

Privileges: When does a privilege apply?

Front

A privilege only applies to confidential communications. So, if a privilege is overheard by a third party it is generally destroyed unless: (1) no knowledge of third party's presence OR (2) third party is necessary to assist in the communication (e.g., a translator)

Back

Opinion: What evidence can the expert use to make their opinion?

Front

An opinion based on inadmissible facts is admissible if experts in the particular field would reasonably rely on those kinds of facts and data in forming an opinion on the subject OHIO: Expert may rely on his opinion or facts perceived by him or admitted into evidence at the hearing

Back

Tangible: What is the best evidence rule?

Front

The best evidence rule requires an original document (or reliable duplicate) be produced to prove contents of a writing: (1) when the contents are at issue OR (2) when a witness is relying on the contents when testifying

Back

Opinion: When can an expert witness testify about his opinion?

Front

An expert witness may testify as to his opinion if: (1) Qualified as an expert by knowledge, skill, experience, training, or education (2) Testimony is based on sufficient facts/data (3) Testimony is the product of reliable principles and methods (4) Witness applied principles/methods reliably to the facts of the case AND (5) Reasonable degree of certainty

Back

Tangible: Can reproductions of physical objects be admissible?

Front

Yes reproductions can be admissible if authenticated by the testimony of a witness with personal knowledge that the object accurately depicts what its proponent claims it does

Back

Tangible: How can handwriting be verified?

Front

A handwriting can be authenticated by (1) Comparison by an expert witness or the trier of fact to another writing that was proven to be genuine OR (2) A lay witness with personal knowledge of the claimed author's handwriting **A lay witness cannot have become family with the handwriting for the purpose of litigation

Back

Opinion: Court-appointed expert

Front

Court may appoint expert witness and must inform the expert of the expert's duties--that expert must advise both parties of any findings **Each party can depose, call or cross-examine expert **Court may allow disclosure to jury that expert was court appointed **OHIO: No specific rules

Back

Privileges: Who holds the attorney-client privilege?

Front

The client holds the privilege

Back

Tangible: What is the parol evidence rule?

Front

The parol evidence rule operates to exclude evidence of prior oral or written agreements that, if introduced, would change the terms of a written agreement

Back

Tangible: What is required for tangible evidence to be admitted?

Front

All tangible evidence must be authenticated with sufficient evidence to support a finding that the thing is what its proponent claims it is

Back

Privileges: When is a privilege waived?

Front

A privilege is waived if the privilege holder: (1) fails to timely assert it, (2) voluntarily discloses the communication, OR (3) contractually waives it in advance

Back

Privileges

Front

FRE and OHIO have no specific privilege provisions but instead defer to common-law privileges BUT in diversity cases where state rules generally apply, then state privileges apply

Back

Tangible: Is a party required to give notice for a self-authenticated document?

Front

Generally, no. EXCEPT for business records

Back

Opinion: Can an expert testify as to the ultimate issue?

Front

Generally, a expert may testify as to the ultimate issue EXCEPT expert may not state an opinion about whether a criminal defendant had the requisite mental state OHIO: Expert may testify on whether criminal defendant possessed the requisite mental state

Back

Tangible: What agreements are subject to the parol evidence rule?

Front

Only evidence of prior or contemporaneous negotiations is subject to the rule SO negotiations after contract executed are not prohibited by the rule

Back

Privileges: When do the spousal immunity and the confidential marital communication privilege not apply?

Front

Neither spousal privilege applies when one spouse sues another or a spouse is charged with a crime against the other spouse or the children of either OHIO: A spouse is prohibited from testifying about a confidential communication made to the other spouse, unless: (1) was made in presence of known third-party (2) one spouse suing the other for personal injury OR (3) one spouse is charged with a crime against the other spouse

Back

Opinion: Can the expert disclose the facts used to make the opinion if they are inadmissible generally?

Front

May disclose the underlying facts to the jury if their probative value substantially outweighs the prejudicial effect

Back

Tangible: When does the parol evidence rule not apply?

Front

Extrinsic evidence is always admissible to: (1) Clarify an ambiguity (2) Prove course of dealings (3) Show fraud/duress/mistake (4) Show presence/absence of consideration

Back

Tangible: Are handwritten copies valid as a duplicate for the best evidence rule?

Front

Handwritten copies of original are not duplicates and are admissible under BER only when the original or a duplicate is lost

Back

Privileges: How long does the attorney-client privilege last?

Front

Privilege exists until waived, so it can survive the client's death

Back

Tangible: When is a self-authenticating document?

Front

A self-authenticating document does not required extrinsic evidence of authenticity in order to be admitted. Following are self-authenticating (1) Government seal/signature (2) Certified copy of public record (3) Official publication of public authority (4) Newspaper/periodical (5) Trade inscription (6) Notarized document (7) Commercial paper (8) Records of regularly conduct activity certified by a custodian OHIO: Business records are not considered self-authenticating

Back

Witness: When is payment of witness prohibited?

Front

A lawyer may not offer to pay a witness any consideration: (1) In excess of reasonable expenses witness incurred and reasonable value of witness's time spent in providing evidence (except experts can be offered and paid a contingent fee) (2) Contingent on the content of the witness's testimony or outcome OR (3) Otherwise prohibited by law

Back

Privileges: What is the spousal immunity?

Front

A married person cannot be compelled to testify against his spouse in any CRIMINAL proceeding, regardless of who defendant is OHIO: Ohio calls this spousal incompetency

Back

Privileges: What is the confidential marital communications privilege?

Front

A spousal communication during marriage is privileged when made in reliance on sanctity of marriage

Back

Tangible: When can x-ray and electrocardiograms be admitted?

Front

Physical representations of things that cannot otherwise be seen must be authenticated to show: (1) Accurate process was used (2) Machine was working properly AND (3) Operator was qualified to operate it

Back

Tangible: When can admission be used to circumvent best evidence rule?

Front

Proponent may prove contents of original by admission of the opposing party during testimony, deposition, or written statement. **But if the admission is only an oral statement out of court, BER still applies

Back

Tangible: When can a document be authenticated as an ancient document?

Front

A document or data compilation is considered authentic if: (1) At least 20 years old (2) In a condition unlikely to create suspicion AND (3) Found in a likely place if it were authentic

Back

Tangible: How can documentary evidence be authenticated?

Front

Usually authenticated by stipulation, eyewitness testimony, or handwriting verification

Back

Opinion: Interpreters

Front

Interpreters are subject to the rules for expert witnesses OHIO: Interpreters must qualify as an expert and must be administered an oath or affirmation to make a true translation

Back

Tangible: How can an oral statement be authenticated?

Front

A voice can be identified by any person who has heard the voice at any time! **Doesn't matter if heard only for litigation or is mechanical transmission

Back

Tangible: How can a physical object be authenticated?

Front

Generally authenticated through personal knowledge, distinctive characteristics, or chain of custody (when applicable)

Back

Privileges: When does spousal immunity apply?

Front

Spousal immunity applies to testimony about events before/during marriage BUT privilege expires upon divorce or annulment

Back

Tangible: How can a reply letter be authenticated?

Front

A reply letter can be authenticated by evidence that it was written in response to a communication, so long as it is unlikely, based on the contents, that it was written by someone other than the recipient of the first communication.

Back

Section 4

(50 cards)

Privileges: How does federal law extend the attorney-client privilege for a corporation employee?

Front

Federal law extends the privilege to communications by a non-control-group employee (i) about matters within the employee's corporate duties (ii) made for the purpose of securing legal advice for corporation client

Back

Privileges: When does the attorney-client privilege not apply?

Front

The attorney-client privilege does not apply for communication: (1) Made to enable or aid commission of what the client knew or should have known was crime or fraud (2) Relevant to a dispute between the attorney and the client (e.g., a malpractice allegation) (3) Relevant to a dispute between parties who claim through the same deceased client OR (4) Between former co-clients who are now adverse to each other

Back

Hearsay: Statement Against Interest Exception

Front

If declarant is unavailable, a statement made by the declarant is not excluded as hearsay if: (1) It was against the declarant's pecuniary/proprietary interest at the time it was made AND (2) It would not have been made by a reasonable person unless he believed it was not true **OHIO: A statement of criminal liability that either exculpates or inculpates the accused is inadmissible unless corroborating circumstances clearly indicate trustworthiness

Back

Hearsay: When is a vicarious statement an opposing party's statement?

Front

A statement made by one person imputed to another based upon the relationship between them EX: employee/agent, authorized speaker, co- conspirators

Back

Privileges: Work Product Doctrine

Front

Work product is not a "communication," but protected unless the party seeking disclosure: (1) demonstrates substantial need AND (2) cannot obtain the information by any other means without undue hardship

Back

Hearsay: Non-Hearsay

Front

Prior Statements: (1) Prior inconsistent statements (2) Prior consistent statements (3) Prior statement of identification (4) Opposing party's statement (5) Vicarious statements

Back

Hearsay: Is a judicial admission an opposing party's statement?

Front

An admission made during pleading, discovery process, or other proceeding is conclusive evidence **A withdrawn guilty plea generally not admissible in subsequent proceedings

Back

Privileges: Privilege Against Self-Incrimination

Front

Fifth Amendment protection allows a witness to refuse to give testimony that may tend to incriminate him **Covers only current statements

Back

OHIO: When is the attorney-client privilege waived?

Front

The attorney-client privilege is waived in Ohio: i) By the client's express consent; ii) By the client's surviving spouse's, executor's, or estate administrator's express consent, if the client is deceased; iii) If the client voluntarily testifies or is deemed to have waived such privilege by the obligation to report child abuse; iv) If the client is deceased and the privileged communication is relevant to a will dispute; or v) If the client is an insurance company that has made a prima facie showing that the attorney furthered or aided in the commission of bad faith by the client, the privilege is waived during an in camera inspection regarding the attorney's conduct.

Back

Privileges: When does the psychiatrist-patient privilege not apply?

Front

No privilege if: (1) patient's mental condition is at issue (2) the statement was the result of a state-ordered examination OR (3) if the case is a commitment proceeding against the patient

Back

Hearsay: What are the hearsay exceptions that require a declarant to be unavailable?

Front

(1) Former Testimony (2) Dying Declaration (3) Statement Against Interest (4) Statement of Personal/Family History (5) Forfeiture

Back

Hearsay: Opposing Party's Statement

Front

A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party. **Admissible without personal knowledge and can be in the form of an opinion **Need not have been against the party's interest at the time that it was made

Back

Hearsay: When is a declarant unavailable?

Front

An unavailable declarant is a person who: (1) Is exempt on the grounds of privilege (2) Refuses to testify despite a court order to do so (3) Lacks memory (4) Is unable to testify due to death, infirmity, or disability (5) Is absent and cannot be subpoenaed

Back

Policy: Sexual Conduct of the VICTIM

Front

Rape Shield: Evidence of sexual behavior/predisposition is generally not admissible in any proceeding involving sexual misconduct BUT specific acts are admissible to prove defendant was not the source of physical evidence in a criminal case **Sexual behavior/predisposition of the victim is admissible in a civil case if the probative value substantially outweighs the danger of unfair prejudice **Reputation evidence is admissible only if reputation is placed in controversy by the victim

Back

Privileges: Professional Journalist Privilege

Front

No federal privilege regarding source **OHIO: Ohio has enacted a statute that protects a journalist's source of information

Back

Hearsay: Prior Inconsistent Statements

Front

If the declarant is testifying, a prior inconsistent statement: (1) made under penalty of perjury (2) in a deposition, trial, hearing, or other proceeding is NOT hearsay and therefore, admissible to impeach the declarant's credibility and as substantive evidence. OHIO: Prior statement must have been made under oath and subject to cross-examination by the party against whom the statement is being offered

Back

Hearsay: Prior Statement of Identification

Front

If a declarant is testifying, a prior statement of identification of a person after perceiving that person is admissible as non-hearsay substantive evidence even if the witness has no memory of the identification OHIO: Must have been made soon after the declarant perceived the person and can only be admitted as substantive evidence if prior identification was reliable

Back

Policy: Liability Insurance

Front

Liability insurance is not admissible to prove whether a person acted negligently or wrongfully BUT admissible to prove agency, ownership/control, or witness's bias/prejudice

Back

Hearsay: What does it mean to be asserted for the truth of the matter?

Front

A statement is not hearsay if it is offered to prove something other than the truth of the matter asserted Examples: (1) Legally operative facts (2) Effect on recipient (3) State of mind OR (4) Impeachment

Back

Hearsay: Prior Consistent Statements

Front

If a declarant is testifying, a prior consistent statement is admissible to: (1) rebut an express/implied charge that the declarant recently fabricated it or acted with improper motive OR (2) rehabilitate the witness's credibility when attacked on other grounds SO LONG AS it is made declarant had reason to fabricate

Back

Privileges: When does the privilege against self-incrimination apply?

Front

Privilege does not apply to: (1) Physical characteristics or mannerisms OR (2) Corporations or other organizations

Back

Privileges: Government Privilege

Front

Government is privileged from disclosing: (1) Identity of informant in criminal case (2) Communication of official information--which is related to internal affairs and not public--by or to public officials

Back

Privileges: Who holds the physician-patient privilege?

Front

Patient holds privilege

Back

Policy: Plea Negotiation

Front

Plea negotiations including withdrawn guilty pleas, pleas of no contest, and statements made while negotiating a plea bargain or during plea proceeding are not admissible BUT if another statement made during the same plea or negotiation has already been admitted, fairness may require that the statement in question also be admitted ALSO admissible in a subsequent perjury prosecution if they were false statements made under oath, on the record, and with counsel present

Back

Hearsay: What is multiple hearsay?

Front

Hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception

Back

Hearsay: When is a co-conspirator's statement a vicarious statement?

Front

A statement made by a co-conspirator during and in furtherance of the conspiracy is admissible as an opposing party's statement against other co-conspirators. OHIO: To admit co-conspirators statement, Ohio requires proof of the conspiracy as well as the defendant and declarant's participation in the conspiracy

Back

Policy Exclusions

Front

(1) Subsequent Remedial Measures (2) Compromise Offers and Negotiations (3) Payment, offers, or promise to pay medical expenses (4) Plea negotiations (5) Liability insurance (6) Sexual conduct

Back

Policy: Evidence of payment, offers, or promise to pay medical expenses

Front

Evidence of payment, offers, or promise to pay medical expenses are not admissible to prove liability for the injury BUT statements that accompany the payment, offer, or promise to pay are admissible OHIO: No exclusion for any evidence that is otherwise discoverable just because it was included in an offer; No exclusion when evidence if offered for purpose other than liability (bias, prejudice)

Back

Hearsay: Dying Declaration Exception

Front

If declarant is unavailable, statement is not excluded as hearsay if: (1) Declarant believes her death is imminent AND (2) Statement pertains to the cause/circumstances of her death (need not actually die) EXCEPTION ONLY applies in homicide prosecutions and civil cases

Back

Hearsay: Former Testimony Exception

Front

Statement is not excluded as hearsay if: (1) Former testimony was given as witness at a trial, hearing, or other proceeding (2) Party against whom the testimony is offered had an opportunity and similar motive to develop the testimony AND (3) Declarant is unavailable

Back

Privileges: When does the physician-patient privilege not apply?

Front

Privilege doesn't exist if: (1) Information acquired for reasons other than treatment (2) Patient's physical condition is at issue (3) Statement is part of crime (4) Dispute exists between patient and physician (5) Patient contractually waives privilege (6) Federal question case

Back

OHIO: When does the physician-patient privilege not apply?

Front

The privilege does not apply and a physician or dentist in a civil action: i) If the patient, guardian, or legal representative of the patient gives express consent; ii) If a deceased patient's spouse, executor, or estate administrator gives express consent; iii) In an action against the physician or dentist brought by the patient, guardian, estate, or legal representative of the patient (i.e., medical malpractice); iv) Concerning court-ordered treatment received by a patient (applies to physicians, dentists, and those covered under the psychotherapist privilege); or v) If the client is deceased and the privileged communication is relevant to a will dispute. The privilege is waived in a criminal action: i) Concerning alcohol, drug, or a combination of both test results relevant to the offense (applies to physicians, dentists, and registered or licensed nurses); or ii) In a criminal action against a physician or dentist. The privilege is waived in both civil and criminal actions if the communication concerns the statutorily imposed obligation to report child abuse.

Back

Privileges: Accountant-Client Privilege

Front

Many jurisdictions recognize a privilege for confidential communications made by a client to his accountant.

Back

Policy: Sexual Conduct of the Defendant

Front

Evidence of sexual assault in criminal/civil case is admissible to prove any relevant matter (not limited to convictions) OHIO: Prior instances, opinion, and reputation of a defendant's sexual activity is inadmissible unless it involves relevant evidence about a disputed fact

Back

Privileges: What is the effect of a disclosure that would violate the attorney-client privilege?

Front

Inadvertent disclosure of privileged communication does not waive the privilege if the holder: (1) Took reasonable steps to prevent disclosure AND (2) Promptly took reasonable steps to rectify the error

Back

Privileges: Physician-Patient Privilege

Front

A confidential communication between a physician and patient is privileged so long as it was made for the purpose of obtaining medical treatment **OHIO: Also applies to dentists, chiropractors, and pharmacists

Back

Privileges: What is the scope of an intentional disclosure?

Front

Intentional disclosure of privileged material operates as a waiver of the attorney-client privilege. The waiver extends to undisclosed information only in those unusual situations in which (i) the disclosed and undisclosed material concern the same subject matter AND (ii) fairness requires the disclosure of related information because a party has disclosed information in a selective, misleading, and unfair manner.

Back

Privileges: Psychotherapist-Patient Privilege

Front

A confidential communication between a psychiatrist, psychologist, or licensed social worker and a patient is privileged if in the course of diagnosis or treatment. OHIO: Also applies to professional counselors, marriage and family therapists, and school guidance counselors

Back

Hearsay: When is an adoptive admission an opposing party's statement?

Front

An adoptive admission is a statement of another person that a party expressly or impliedly adopts as his own Silence in response to a statement is considered an adoptive admission if: (1) The person was present and heard and understood the statement; (2) The person had the ability and opportunity to deny the statement; AND (3) A reasonable person similarly situated would have denied the statement.

Back

Policy: Compromise Offers and Negotiations

Front

Compromise offers are not admissible by either party to prove/disprove validity or amount of disputed claim, or for impeachment by prior inconsistent statement or contradiction BUT admissible: (1) to prove bias or prejudice of witness, negate claim of undue delay, or prove obstruction of criminal investigation/prosecution OR (2) in a subsequent criminal case if made during compromise negotiations with governmental agency during its regulatory, investigative, or enforcement authority

Back

Privileges: What happens if a disclosure is made in a state proceeding?

Front

When privileged material is disclosed in a state proceeding and the state and federal laws are in conflict as to the effect of the disclosure, the disclosure does not operate as a waiver in a subsequent federal proceeding if the disclosure: (1) Would not be a waiver in a federal proceeding OR (2) Is not a disclosure under the law of the state where it was made

Back

Hearsay: What is a declarant

Front

A declarant must be a person **Evidence generated by a machine or animal is not hearsay

Back

Privileges: Clergy-Penitent Privilege

Front

OHIO: A confidential communication made by a penitent to a cleric for religious counseling purposes **Penitent holds the privilege. **May be waived by penitent's express consent or by cleric's statutory obligation to report child abuse

Back

Hearsay: When can prior statements be non-hearsay?

Front

Declarant MUST testify at the present trial to be admissible **Cannot apply if witness is dead or otherwise unavailable to testify

Back

Privileges: Who holds the psychotherapist-patient privilege?

Front

Patient holds the privilege OHIO: Waived in same manner as physician-patient

Back

Policy: Subsequent Remedial Measures

Front

Subsequent remedial measures are not admissible to prove negligence, culpable conduct, defective product/design, need for warning/instruction, or feasibility of precautionary measures BUT admissible for other purposes such as impeachment, or ownership/control OHIO: does not apply in strict liability actions and evidence of repairs that is presented to prove a defective product, design, or need for warning

Back

Hearsay

Front

Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted

Back

Hearsay: Statement of Personal/Family History

Front

A statement concerning the unavailable declarant's own birth, adoption, marriage, divorce, or other similar fact of personal or family history is not excluded as hearsay.

Back

Privileges: Other privileges

Front

Cleric-penitent Accountant-client Professional journalist Governmental privilege

Back

Hearsay: What is considered a statement?

Front

A statement can be oral, written, or assertive nonverbal conduct

Back

Section 5

(19 cards)

Hearsay: Is absence of a record admissible as a business record exception?

Front

Evidence that a matter is NOT included in a record of a regularly conducted activity may be admissible to prove that the matter did not occur or exist, provided that a record was regularly kept for a matter of that kind. OHIO: Proof of absence of a public record or entry is admissible as long as: (1) Diligent search failed to disclose Additional requirements for criminal case: (2) Prosecutor gave written notice of intent to offer such evidence at least 14 days before trial AND (3) Defendant doesn't object within 7 days

Back

Hearsay: Due Process of 14th Amendment

Front

DP Clause of the 14th Amendment may prevent application of a hearsay rule when such rule unduly restricts a defendant's ability to mount a defense.

Back

Hearsay: What hearsay exceptions do not depend on unavailability of a witness?

Front

(1) Present Sense Impression (2) Excited Utterance (3) Statement of mental, emotional, or physical condition (4) Statement made for medical diagnosis/treatment (5) Recorded Recollection (6) Business records (7) Public records (8) Learned treatises (9) Judgment of previous conviction

Back

OHIO: How is the public record exception different from Federal?

Front

Criminal Cases: Admission of police reports are allowed in criminal cases if they are admitted by defendant UNLESS circumstances indicate a lack of trustworthiness

Back

Hearsay: Statement of Mental, Emotional, or Physical Condition Exception

Front

A statement of present intent, motive, or plan can be used to prove conduct in conformity with that state of mind. A statement of emotional, sensory, or physical condition made at the time can be used to prove the existence of that condition BUT not its cause.

Back

Hearsay: Learned Treatise Exception

Front

A statement in a treatise, periodical, or pamphlet is not excluded if: (1) an expert witness relied on the statement during direct or cross-examination AND (2) the publication is a reliable authority **If admissible, the statement is read into evidence but the publication itself may not be received as an exhibit.

Back

Hearsay: Business Records Exception

Front

A record of an act/event/condition/diagnosis is not excluded as hearsay if: (1) the record must be kept in the course of a regularly conducted business activity, (2) the making of the record was a regular practice, AND (3) the record was made at or near the time by someone with knowledge Must be authenticated!!! OHIO: Business records are not self-authenticating

Back

Hearsay: Judgment of Previous Conviction Exception

Front

Evidence of a final judgment of conviction is not excluded as hearsay if: (1) Final judgment must be entered after trial or a guilty plea (2) Conviction was for a crime punishable by death or imprisonment for more than one year AND (3) Evidence offered to prove any fact essential to sustain judgment

Back

Hearsay: How can hearsay evidence be challenged?

Front

(1) Confrontation Clause of 6th Amendment (2) Due Process of 14th Amendment

Back

Hearsay: Recorded Recollection Exception

Front

A record is not excluded if: (1) it is about a matter that the witness once knew, (2) made when the matter was fresh in the witness's memory, (3) accurately reflects the witness's knowledge, AND (4) the witness states that he cannot recall the matter even after consulting the record on the witness stand **Record may be read into evidence BUT it may only be admitted as an exhibit by an adverse party

Back

Hearsay: Public Record Exception

Front

A statement of a public office/agency is not excluded as hearsay if it sets out: (1) the activities of the office, (2) the observation of a person under a duty to report (but not police in a criminal case), OR (3) the factual findings of a legal investigation

Back

Hearsay: Present Sense Impression Exception

Front

A statement explaining or describing an event or condition made while or immediately after the declarant perceived it. OHIO: Admissible unless the circumstances indicate a lack of trustworthiness

Back

Hearsay: Face-to-Face Confrontation

Front

The Confrontation Clause reflects a preference for face-to-face confrontation of a defendant and a witness in court. BUT it may be denied if there is an important public interest at stake. OHIO: For good cause and with appropriate safeguards, the court may allow testimony in open court by contemporaneous transmission from a different location

Back

Hearsay: Confrontation Clause

Front

A testimonial statement is admissible against a criminal defendant only if: (1) Declarant is unavailable AND (2) Defendant had an opportunity to cross-examination the declarant prior to trial

Back

Hearsay: Residual Exception

Front

A hearsay statement may be admissible under this exception if: (1) Guarantees of trustworthiness (2) Offered as evidence of a material fact (3) More probative on the point than any other evidence that proponent can reasonably obtain AND (4) Admission will best purposes of the FRE and justice OHIO: No residual exception in OH

Back

Hearsay: Forfeiture

Front

A statement offered against a party that wrongfully caused the declarant's unavailability is not excluded. **Must intend to prevent the witness from testifying **Act can be done by the party or by acquiescing to another's act OHIO: Forfeiture must be caused by party (no acquiescence); Proponent must give adverse party written notice of the intent to use the statement

Back

Hearsay: Excited Utterance Exception

Front

A statement about a startling event/condition made while the declarant is under the stress of excitement that it caused.

Back

Hearsay: What is a testimonial statement for the confrontation clause?

Front

A statement made to police during the course of questioning with the primary purpose of enabling police to provide assistance to someone is NOT testimonial and would probably be admissible. BUT a statement is testimonial if it is made during a police interrogation with the primary purpose of using the statement in a criminal prosecution (e.g. ascertaining past criminal conduct). **Objective standard

Back

Hearsay: Statement Made for Medical Treatment/Diagnosis Exception

Front

A statement describing medical history or past/present symptoms is not excluded as hearsay if it is made for purpose of medical diagnosis or treatment. A statement of the cause or source of the condition is admissible if it is reasonably pertinent to diagnosis or treatment. **Can be made to physicians, other medical personnel, or even family members; Need not necessarily be made by the patient

Back