Section 1
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Judicial Notice: Does a court have to take judicial notice?
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Cards (219)
Section 1
(50 cards)
Judicial Notice: Does a court have to take judicial notice?
Court MUST take notice if requested and sufficient evidence provided
Examination: Compound Question
A question that requires answers to multiple questions is compound and is not permitted. **Always improper
What is the role of the judge?
Judge decides preliminary questions of competency of evidence
Type of Presumptions: Rebuttable
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
Examination: Argumentative Question
A question intended to provoke rather than elicit a factual response. **Always improper
Relevance: When is evidence admissible?
Generally, all relevant evidence is admissible unless excluded by a specific rule, law, or constitutional provision
Judicial Notice: Does a party need an opportunity to be heard for judicial notice?
Upon timely request, judge must provide an opportunity to be heard
Types of Burden of Proof
(1) Burden of Production (2) Burden of Persuasion
Examination: Is there a right to re-direct or re-cross?
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
Relevance: When is evidence material?
Evidence is material when the evidence is of consequence in determining the action
Relevance: When is evidence sufficiently relevant?
Must not prove something outright--evidence is sufficiently relevant even if it is only a brick in the wall of evidence
What is the presumption related to destruction of evidence?
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.
Relevance: Direct Evidence
Direct evidence is identical to the factual proposition it is offered to prove
Examination: Form of Questions
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
Burden of Production
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)
When can a court exclude witnesses from the courtroom?
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)
Relevance: When can evidence be excluded?
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
Burden of Persuasion
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
Relevance: Circumstantial Evidence
Circumstantial isindirect proof of a factual proposition through inference from collateral facts
Can evidence be admitted for limited purposes?
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
OHIO: When MAY relevant evidence be excluded?
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
When can there be a challenge even if there is no objection or offer of proof?
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
Type of Presumptions: Conclusive
Conclusive: cannot be challenged by contrary evidence
When is an objection required?
Objection is required if evidence is admitted
OHIO: When MUST relevant evidence be excluded?
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
Judicial Notice: When can a judge take judicial notice of a fact?
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
What is the consequence of a definitive ruling?
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
Rule of Completeness
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
When do the FRE apply?
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.
Examination: When can a motion to strike be made?
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
Judicial Notice
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
Examination: What can a witness be asked about on cross-examination?
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
Judicial Notice: When can judicial notice of a fact be taken?
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
Examination: When can a leading question be used?
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
Relevance: When is evidence relevant?
Evidence is relevant if it is probative and material
When is an offer of proof required?
Offer of proof is required if evidence is excluded
OHIO: Who can request a witness be excluded?
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
Examination: Calls for a Conclusion/Opinion Question
A question that requires a witness to draw a conclusion or state an opinion they are not qualified to make. **Always improper
Examination: Lack of Foundation Question
Failure to establish necessary predicate before asking the question.
Judicial Notice: What is the effect of a judicially noticed fact?
Civil Case: Jury MUST accept the fact is true Criminal Case: Jury MAY OR MAY NOT accept the fact as true
Examination: Leading Questions
A leading question suggests an answer within the question.
OHIO: When is an offer of proof not required?
An offer of proof is not required if the evidence is excluded during cross-examination
When can a party challenge an evidence ruling by the judge?
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
What does a judge have control over?
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
Relevance: When is evidence probative?
Evidence is probative when the evidence has a tendency to make a fact more or less probable than it would be without evidence
Examination: Repetitive Question
A question that has already been asked and answered. **Improper unless judge allows
What is the role of the jury?
Jury determines weight and credibility of the evidence
OHIO: How is admission of relevant evidence limited in Ohio?
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)
Examination: Assumes Fact Not in Evidence Question
A question that assumes as true facts that have not be established. **Always improper
Relevance: What is the effect of evidence that is dependent on the existence of another fact?
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
Section 2
(50 cards)
Witness: Can prior inconsistent statements be admissible to impeach a witness?
Yes--prior inconsistent statements can be used to impeach if inconsistent with a material part of the witness's testimony
Character: When is habit evidence admissible?
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
Witness: How can a witness be impeached?
Generally, a witness can be impeached with opinion or reputation testimony.
Witness: Are specific instances of conduct be used to impeached?
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
Witness: Can religious opinions or beliefs be used to impeach?
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
Witness: Two ways to refresh a witness's recollection?
(1) Present Recollection Refreshed (2) Past Recorded Recollection
Witness: What happens if a witness denies a specific act on cross-examination?
When witness denies a specific act, extrinsic evidence not admissible to prove the specific act **Exception exists for criminal convictions
Witness: Can a dead man's statute be waived?
Yes--a protected party can waive the statute's protection by failing to object to a disqualified witness or by introducing protected evidence
Witness: What is required for a non-expert witness to testify?
A non-expert witness must have personal knowledge of a matter in order to testify about it
Witness: When is a witness competent to testify?
Generally, every person is presumed to be competent to be a witness. **Mental competence go to the weight of the evidence--not the admissibility
Witness: Can contradictory evidence be admitted to impeach a witness?
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
Witness: Juvenile Convictions
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
Character: Can character evidence be used in a CIVIL trial?
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
Character: What is habit evidence?
A habit is a person's particular routine reaction to a specific set of circumstances.
Witness: Who may impeach a witness?
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
Witness: Can extrinsic evidence of prior inconsistent statements be admitted?
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
Witness: Can a criminal conviction be used to impeach a witness's character for truthfulness?
Yes--a criminal conviction (but not arrest) can be used to impeach a witness's character for truthfulness
Witness: What can a witness be impeached on?
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
Witness: Can a juror testify in a trial in which they serve?
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
Character: When are specific acts admissible as character evidence?
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
Relevance: What happens if irrelevant evidence is let in?
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
Character: Can character evidence be offered by the DEFENDANT about HIS GOOD character?
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.
Witness: What criminal convictions can be used as specific bad acts to impeach witness?
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
Character: Can a party's prior bad acts be admitted?
Generally, prior bad acts are not admissible to show defendant's criminal propensity to prove that he committed the crime in question
Character: What is character evidence?
Character evidence is generalized information about a person's behavior. **IT IS GENERALLY INADMISSIBLE
Character: Can character evidence be offered by the PROSECUTION against a defendant?
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
Character: How can character be proven?
When character evidence is admissible, it may be proven by testimony about person's REPUTATION or witness OPINION
Witness: Crimes involving dishonesty/false statement
Crimes involving dishonesty/false statement can be used to impeach ANY witness for ANY conviction if within TEN years.
Witness: What are the limitations on specific bad acts used to impeach a witness?
(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
Witness: When can a witness's character for truthfulness be questioned?
A party cannot bolster witness credibility with evidence of truthful character unless the witness's truthful character is DIRECTLY attacked.
Witness: Present Recollection Refreshed
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
Witness: What is the oath requirement?
Witness must give an oath or affirmation to testify truthfully **Interpreter must give an oath to translate faithfully
OHIO: When is a witness competent to testify?
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)
Witness: What is a Dead Man's Statute?
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
Witness: Crimes NOT involving dishonesty/false statement
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
Witness: What if a criminal conviction is pardoned?
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
Character: Can character evidence be offered by PROSECUTION about VICTIM'S character?
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.
Character: Is character evidence admissible for impeachment purposes?
Yes--character evidence of a witness's untruthfulness is admissible/relevant to impeach the witness
Witness: Past Recorded Recollection
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
Witness: Can a judge testify in a trial over which they preside?
Judge is absolutely barred from testifying as a witness--don't need to object to testimony
Witness: Can a witness be impeached for their sensory competence?
Yes--sensory competence can be impeached for deficiency in testimonial capacities to perceive, recall, or relate information
Witness: Conviction or Release more than 10 years ago
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
Witness: Can a hearsay declarant be impeached through the witness offering the statement?
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
Character: What notice must be given for prior bad acts evidence?
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
Character: Can character evidence be offered by the DEFENDANT about VICTIM'S character?
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
Witness: Can a child be a competence witness?
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**
OHIO: When can a party offer juror testimony relating to misconduct?
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.
Character: When can a party's prior bad acts be admitted?
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
Witness: How can a witness be rehabilitated if they are impeached?
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
Witness: Can a witness be impeached by bias or interest?
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
Section 3
(50 cards)
Tangible: When must an oral statement be authenticated?
Oral statements may need to be authenticated as to the identity of the speaker in cases in which that identity is important.
Privileges: Attorney-Client Privilege
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
Privileges: When does the confidential marital communication privilege apply?
Privilege begins with marriage and continues indefinitely
Opinion: What can a expert testimony be about?
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
Tangible: How can a telephone conversation be authenticated?
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
Tangible: Tangible Evidence
Tangible evidence is evidence that is not presented in the form of testimony by a witness Includes documentary evidence and physical evidence
Tangible: When does the parol evidence rule apply?
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
Privileges: Spousal Privileges
(1) Spousal Immunity (2) Confidential Marital Immunity
Tangible: When is an original not required?
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
Privileges: Who holds the spousal immunity privilege?
Federal Court: the witness spouse holds the privilege Same in OHIO and MAJORITY
OHIO: When can an expert witness testify about his opinion?
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
Witness: When is payment of witness permitted?
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
Tangible: Does a summary count for the best evidence rule?
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
Tangible: How can a public record be authenticated?
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.
Tangible: Is a duplicate permissible for the best evidence rule?
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
Opinion: When can a lay witness offer an opinion?
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
Privileges: Who holds the confidential marital communication privilege?
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
Privileges: When does a privilege apply?
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)
Opinion: What evidence can the expert use to make their opinion?
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
Tangible: What is the best evidence rule?
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
Opinion: When can an expert witness testify about his opinion?
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
Tangible: Can reproductions of physical objects be admissible?
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
Tangible: How can handwriting be verified?
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
Opinion: Court-appointed expert
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
Privileges: Who holds the attorney-client privilege?
The client holds the privilege
Tangible: What is the parol evidence rule?
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
Tangible: What is required for tangible evidence to be admitted?
All tangible evidence must be authenticated with sufficient evidence to support a finding that the thing is what its proponent claims it is
Privileges: When is a privilege waived?
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
Privileges
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
Tangible: Is a party required to give notice for a self-authenticated document?
Generally, no. EXCEPT for business records
Opinion: Can an expert testify as to the ultimate issue?
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
Tangible: What agreements are subject to the parol evidence rule?
Only evidence of prior or contemporaneous negotiations is subject to the rule SO negotiations after contract executed are not prohibited by the rule
Privileges: When do the spousal immunity and the confidential marital communication privilege not apply?
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
Opinion: Can the expert disclose the facts used to make the opinion if they are inadmissible generally?
May disclose the underlying facts to the jury if their probative value substantially outweighs the prejudicial effect
Tangible: When does the parol evidence rule not apply?
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
Tangible: Are handwritten copies valid as a duplicate for the best evidence rule?
Handwritten copies of original are not duplicates and are admissible under BER only when the original or a duplicate is lost
Privileges: How long does the attorney-client privilege last?
Privilege exists until waived, so it can survive the client's death
Tangible: When is a self-authenticating document?
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
Witness: When is payment of witness prohibited?
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
Privileges: What is the spousal immunity?
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
Privileges: What is the confidential marital communications privilege?
A spousal communication during marriage is privileged when made in reliance on sanctity of marriage
Tangible: When can x-ray and electrocardiograms be admitted?
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
Tangible: When can admission be used to circumvent best evidence rule?
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
Tangible: When can a document be authenticated as an ancient document?
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
Tangible: How can documentary evidence be authenticated?
Usually authenticated by stipulation, eyewitness testimony, or handwriting verification
Opinion: Interpreters
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
Tangible: How can an oral statement be authenticated?
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
Tangible: How can a physical object be authenticated?
Generally authenticated through personal knowledge, distinctive characteristics, or chain of custody (when applicable)
Privileges: When does spousal immunity apply?
Spousal immunity applies to testimony about events before/during marriage BUT privilege expires upon divorce or annulment
Tangible: How can a reply letter be authenticated?
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.
Section 4
(50 cards)
Privileges: How does federal law extend the attorney-client privilege for a corporation employee?
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
Privileges: When does the attorney-client privilege not apply?
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
Hearsay: Statement Against Interest Exception
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
Hearsay: When is a vicarious statement an opposing party's statement?
A statement made by one person imputed to another based upon the relationship between them EX: employee/agent, authorized speaker, co- conspirators
Privileges: Work Product Doctrine
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
Hearsay: Non-Hearsay
Prior Statements: (1) Prior inconsistent statements (2) Prior consistent statements (3) Prior statement of identification (4) Opposing party's statement (5) Vicarious statements
Hearsay: Is a judicial admission an opposing party's statement?
An admission made during pleading, discovery process, or other proceeding is conclusive evidence **A withdrawn guilty plea generally not admissible in subsequent proceedings
Privileges: Privilege Against Self-Incrimination
Fifth Amendment protection allows a witness to refuse to give testimony that may tend to incriminate him **Covers only current statements
OHIO: When is the attorney-client privilege waived?
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.
Privileges: When does the psychiatrist-patient privilege not apply?
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
Hearsay: What are the hearsay exceptions that require a declarant to be unavailable?
(1) Former Testimony (2) Dying Declaration (3) Statement Against Interest (4) Statement of Personal/Family History (5) Forfeiture
Hearsay: Opposing Party's Statement
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
Hearsay: When is a declarant unavailable?
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
Policy: Sexual Conduct of the VICTIM
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
Privileges: Professional Journalist Privilege
No federal privilege regarding source **OHIO: Ohio has enacted a statute that protects a journalist's source of information
Hearsay: Prior Inconsistent Statements
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
Hearsay: Prior Statement of Identification
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
Policy: Liability Insurance
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
Hearsay: What does it mean to be asserted for the truth of the matter?
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
Hearsay: Prior Consistent Statements
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
Privileges: When does the privilege against self-incrimination apply?
Privilege does not apply to: (1) Physical characteristics or mannerisms OR (2) Corporations or other organizations
Privileges: Government Privilege
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
Privileges: Who holds the physician-patient privilege?
Patient holds privilege
Policy: Plea Negotiation
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
Hearsay: What is multiple hearsay?
Hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception
Hearsay: When is a co-conspirator's statement a vicarious statement?
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
Policy Exclusions
(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
Policy: Evidence of payment, offers, or promise to pay medical expenses
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)
Hearsay: Dying Declaration Exception
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
Hearsay: Former Testimony Exception
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
Privileges: When does the physician-patient privilege not apply?
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
OHIO: When does the physician-patient privilege not apply?
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.
Privileges: Accountant-Client Privilege
Many jurisdictions recognize a privilege for confidential communications made by a client to his accountant.
Policy: Sexual Conduct of the Defendant
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
Privileges: What is the effect of a disclosure that would violate the attorney-client privilege?
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
Privileges: Physician-Patient Privilege
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
Privileges: What is the scope of an intentional disclosure?
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.
Privileges: Psychotherapist-Patient Privilege
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
Hearsay: When is an adoptive admission an opposing party's statement?
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.
Policy: Compromise Offers and Negotiations
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
Privileges: What happens if a disclosure is made in a state proceeding?
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
Hearsay: What is a declarant
A declarant must be a person **Evidence generated by a machine or animal is not hearsay
Privileges: Clergy-Penitent Privilege
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
Hearsay: When can prior statements be non-hearsay?
Declarant MUST testify at the present trial to be admissible **Cannot apply if witness is dead or otherwise unavailable to testify
Privileges: Who holds the psychotherapist-patient privilege?
Patient holds the privilege OHIO: Waived in same manner as physician-patient
Policy: Subsequent Remedial Measures
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
Hearsay
Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted
Hearsay: Statement of Personal/Family History
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.
Privileges: Other privileges
Cleric-penitent Accountant-client Professional journalist Governmental privilege
Hearsay: What is considered a statement?
A statement can be oral, written, or assertive nonverbal conduct
Section 5
(19 cards)