Oklahoma Evidence Distinctions

Question 1

What is the scope of the Oklahoma Evidence Code?

Answer 1

The Oklahoma Evidence Code generally applies to all criminal and civil proceedings. Except for rules concerning privileges, the Code does not apply in the following situations:

1. prelim. rulings on the admissibility of evidence determined by a judge;
2. proceedings for extradition or rendition;
3. proceedings for sentencing, granting, or revoking probation;
4. proceedings for the advancement of deferred judgment;
5. the issuance of warrants for arrest, criminal summonses, and search warrants,
6. proceedings with respect to release on bail or otherwise; and
7. juvenile emergency show-cause hearings.

Question 2

What rules govern presumptions in the Oklahoma Evidence Code?

Answer 2

Oklahoma’s evidence code provides the following rules for when the basic fact of a presumption has been established:

1. if the basic fact has any probative value of the existence of the presumed fact, the presumed fact will be assumed to exist, and the burden of persuading the trier of fact of the nonexistence of the presumed fact rests on the party against whom the presumption operates;
2. if the basic fact does not have any probative value of the existence of the presumed fact, the presumed fact is disregarded when the party against whom the presumption operates introduces evidence which would support a finding of the nonexistence of the presumed fact, and the existence of the fact otherwise presumed is then determined from the evidence in the same manner as if no presumption had been operable in the case; and
3. if two conflicting presumptions arise, Oklahoma courts apply the presumption which is founded on the weightier considerations of policy and logic. If there is no such preponderance, both presumptions are disregarded.

Question 3

What is Oklahoma’s 403 balancing test?

Answer 3

The Oklahoma Evidence Code also includes “unfair and harmful surprise” as a basis for excluding relevant evidence.

Question 4

What is Oklahoma’s character evidence, crimes or other acts, rule?

Answer 4

In Oklahoma courts, when a D offers evidence of an alleged victim’s pertinent trait, the prosecution may not rebut with evidence of the D’s same trait, but only with evidence of the victim’s good character.

Question 5

What is Oklahoma’s rule for subsequent remedial measures?

Answer 5

Oklahoma does not permit evidence of remedial measures taken subsequent to an injury to be admitted in order to prove negligence or culpable conduct, but nothing in the Code states that such evidence cannot be admitted to prove a defect in a product or product’s design, or the need for warning or instruction.

Question 6

What is Oklahoma’s rule for attorney client privilege?

Answer 6

In Oklahoma, every person having reason to believe that a child under the age of 18 years is a victim of abuse or neglect shall report the matter promptly to the Department of Human services. The attorney-client privilege does not relieve a person from this reporting requirement.

Question 7

What is Oklahoma’s physician-patient privilege?

Answer 7

Oklahoma recognizes such a privilege. A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications made for the purpose of diagnosis or treatment of the patients physical, mental, or emotional condition.

Question 8

What is the spousal testimony privilege?

Answer 8

Oklahoma does not recognize the spousal testimony privilege.

Question 9

What is Oklahoma’s spousal communications privilege?

Answer 9

In Oklahoma, the spousal communication privilege applies only in criminal proceedings to prevent the spouse of the accused from testifying as to any confidential communication between the accused and the spouse. The privilege may be claimed by the accused or by the spouse on behalf of the accused. The privilege does not apply in a proceeding in which one spouse is charged with a crime against the person and property of:

1. the other;
2. a child of either;
3. a person residing in the household of either; or
4. a third person, when the crime is committed in the course of committing a crime against any other person named above.

Question 10

What is the newsman privilege?

Answer 10

Oklahoma’s Evidence Code provides that no journalist shall be required to disclose, in a state proceeding, either:

1. the source of any published or unpublished information obtained in the gathering, receiving, or processing of information for any medium of communication to the public; or
2. any unpublished information obtained or prepared in gathering, receiving, or processing of information for any medium of communication to the public.

However, this privilege does not apply:

1. if the court finds that the party seeking the information or identity has established clear and convincing evidence that such information or identity is relevant to a significant issue in the action and could not, with due diligence, be obtained by alternate means; or
2. in a civil action for defamation wherein the defendant asserts a defense based on the content or source of such information.

Question 11

What is Oklahoma’s accountant-client privilege?

Answer 11

Unlike some states, Oklahoma does not recognize a privilege for confidential information communicated between an accountant and a client.

Question 12

What is the peer counseling privilege?

Answer 12

Oklahoma provides a privilege for confidential communication made by a participant or counselor in a peer support counseling session conducted by a law enforcement agency or by an emergency services provider. Such communication may not be disclosed by any counselor or participant in the peer support counseling session.

Question 13

What is the crime stoppers organization privilege?

Answer 13

Records of a certified crime stoppers organization concerning a privileged communication of criminal activity may not be compelled to be produced before a court or other tribunal except upon the motion of a criminal D to the court that the record or report contains evidence that is exculpatory to the D.

Question 14

What is Oklahoma’s dead man statute?

Answer 14

Oklahoma has repealed its Dead Man’s Statute. Every person in Oklahoma is competent to be a witness except as otherwise provided by law.

Question 15

What rights do D have to a witness list?

Answer 15

The Oklahoma Constitution gives capital Ds the right to be furnished with a list of witnesses that will be called during the prosecution’s case-in-chief to prove the allegations of the indictment or information.

Question 16

What is Oklahoma’s prior statement rule?

Answer 16

Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the wintes is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it.

No “or if justice requires.”

Question 17

What is Oklahoma’s sequestration rule?

Answer 17

At a party’s request or on its own, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. This rule does not authorize excluding:

1. a party who is a natural person;
2. an officer or employee of a paryt that is not a natural person, after being designated as the party’s representative by its attorney;
3. a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
4. a person authorized by state to be present.

Oklahoma includes:

5. a parent, relative, or next friend of a child 12 years of age or under who is called to testify when the court deems it to be in the best interests of the child and the interests of justice; and
6. the victim of an alleged criminal offense or a representative, parent, or other relative of the victim, in any criminal prosecution, upon the motion of the state to bar such exclusion, unless the court finds such exclusion to be in the interest of justice.

Question 18

What is Oklahoma’s rule governing the admissibility of an expert’s opinion?

Answer 18

Oklahoma courts apply the Daubert test when determining the admissibility of an expert’s opinion.

Question 19

What additional hearsay exception regardless of availability does Oklahoma have?

Answer 19

Statements by Certain Children Regarding Physical or Sexual Abuse

A statement made by a child 13 years of age or less or by an incapacitated person, which describes any act of physical abuse against the child or incapacitated person or any act of sexual contact performed with or on the child or incapacitated person by another , is admissible if:

1. the court finds that the time, content, and totality of circumstances surrounding the taking of the statement provide sufficient indicia of reliability so as to tender it inherently trustworthy; and
2. the child or incapacitated person either: a. testifies, or is available to testify, at the proceedings in open court or through an approved alternative method; or b. is unavailable as a witness, in which case such statement may be admitted only if there is corroborative evidence of the act.

A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at least 10 days in advance of the proceedings to provide the the adverse party with an opportunity to prepare to answer the statement.

Question 20

What is Oklahoma’s rule on self-authenticating records?

Answer 20

In Oklahoma, certified domestic records of a regularly conducted activity are not self-authenticating.

Question 21

What is Oklahoma’s rule on the contents of medical bills?

Answer 21

Authentication of medical bills may be made by a member of the patient’s family or by any person responsible for the care of the patient upon a showing by the witness that such bills were received from a licensed practicing physician, hospital, ambulance service, pharmacy, drug store, or supplier of therapeutic or orthopedic devices, and that such expenses were incurred in connection with the treatment of the injury, disease, or disability involved in the subject of litigation at trial.

The actual amounts paid for medical bills are admissible at trial, not the amounts billed for expenses incurred in the treatment of the party.