Evidence

Question 1

relevance

Answer 1

evidence is relevant if it has any tendency to make material fact more probable or less probable than would be the case without the evidence

Question 2

all evidence is admissible unless

Answer 2

some exclusionary rule applies OR the court makes a discretionary determination that the probative value of the evidence is substantially outweighed by pragmatic considerations such as: 
danger of unfair prejudice
confusion of the issues
misleading the jury
undue delay
waste of time
unduly cumulative

Question 3

plaintiffs accident history

Answer 3

generally inadmissible because it is character evidence but it is admissible if the event that caused the plaintiff’s injury is at issue
ex. did the car accident or an earlier accident cause the injury

Question 4

defendant’s accident history

Answer 4

inadmissible because nothing more than character evidence BUT other accidents involving the same instrumentality or condition may be admitted for 3 potential purposes if the other accident occurred under substantially similar circumstances

1. existence of a dangerous condition
2. causation of the accident
3. prior notice to the defendant

Question 5

intent at issue

Answer 5

prior similar conduct of a person may be admissible to raise an inference of the persons intent
ex. can show instances of past discrimination

Question 6

comparable sales on issue of value

Answer 6

selling price of other property of similar type in a same general location and close in time period at issue is some evidence of value of the property at issue

Question 7

Habit

Answer 7

habit of a person or business is admissible as circumstantial evidence of how the person acted on the occasion at issue
a repetitve response to a particular set of circumstances with 2 defining characteristics
1. frequency of conduct
2. particularity
this is distinguished from character evidence which refers to a person’s general disposition or propensity, habit is more probative

Question 8

industrial custom as standard of care

Answer 8

evidence as to how others in the same trade or industry have acted in the recent past may be admitted as some evidence as to how a party in instant litigation should have acted (as evidence of the appropriate standard of care)

Question 9

liability insurance

Answer 9

evidence that a person has or does not have liability insurance is inadmissible for the purpose of showing fault or absence of fault.
Policy: to avoid risk that jury will base decision on availability of insurance instead of merit of case
EXCEPTION: evidence of insurance may be admissible for some other relevant purpose such as proof of ownership or control if disputed by the D or for the purpose of impeachment of a witness

Question 10

subsequent remedial measures

Answer 10

post accident repairs, design changes, policy changes are inadmissible for the purpose of proving negligence culpable conduct product defect need for warning
Policy: to encourage post accident repairs
Exception: can be admissible for some other relevant purpose such as proof of ownership/control or feasibility of safer condition if disputed by the D
OHIO: in product liability based on strict liability, the manufacturers subsequent remedial measures are admissible to show the existence of a defect in the product at the time of the accident

Question 11

settlement of disputed civil claims

Answer 11

settlement, offer to settle, and statements of fact made during settlement are inadmissible for the purpose of liability or impeaching a witness for prior inconsistent statements
policy: to encourage settlement
Exceptions: to impeach a witness for bias
statements of fact made during settlement negotiations in civil litigation with a government regulatory agency are admissible in a later criminal action.
in OHIO: government agency exception is not adopted

Question 12

plea bargaining in criminal cases

Answer 12

inadmissible:offer to plead guilty, withdrawn guilty plea, plea of nolo contendere
admissible, guilty plea not withdrawn
Ohio: a conviction based on a plea of no contest can be used in two limited situations:
1. as an enhancement factor for a crime that is made more serious by statute, the D’s prior convistion and
2. in administrative proceedings in which a prior conviction by statute can serve as the basis for revocation of a license

Question 13

offer to pay hospital or medical expenses

Answer 13

inadmissible to prove liability but the rule does not exclude other statements made in connection with an offer to pay hospital or medical expenses

Question 14

character evidence

Answer 14

3 potential purposes for the admissibility of character evidence

1. persons character is an essential element of the case, the substantive law requires proof of character
2. character evidence to prove conduct in conformity with character at the time of the litigated event aka character as circumstantial evidence of conduct
3. witness’s bad character for truthfulness to impeach credibility

Question 15

criminal cases: character evidence

Answer 15

evidence of the D’s character is not admissible during the prosecutions case in chief
the D during the defense may introduce evidence of a relevant character trait by reputation or opinion to prove conduct in conformity thereby opening the door to rebuttal by the prosecution

Question 16

prosecution rebuttal character in a criminal case

Answer 16

if the D has opened the door by calling character witnesses the prosecution may rebut:

1. by cross examining D’s character witnesses with “have you heard” or did you know? questions about specific acts of the D that reflect adversely on the particular character trait that the D has introduced to impeach the character witness’s knowledge and or
2. by calling its own reputation or opinion witness to contradict the D’s witness

the prosecution must have a good faith basis for the questions it asks

Question 17

Victim’s character-Self defense

Answer 17

the criminal D may introduce evidence of a victims violent character to prove the victim’s conduct in conformity
proper method: character witness may testify to vicitms reputation for violence and may give opinion
prosecution rebuttal: evidence of victims good character with reputation or opinion in FRE may prove the D’s character for violence but in OHIO rebuttal is limited to evidence of the victims good character

homicide: if the D offers evidence of any kind that the victim was the first aggressor, prosecution may introduce evidence of victims good character for peacefulness

if the D at the time of the alleged self defense was aware of the victims violent reputation or prior specific acts such awareness may prove the D’s state of mind as fear which would help to prove that he acted reasonably

Question 18

victims character: sexual misconduct case

Answer 18

under the rape shield law, evidence about the victim is ordinarily inadmissible:
1. opinion or reputation evidence about the victims sexual propensity or
2. evidence of specific sexual behaviors of the victim
exceptions in criminal cases
1. specific acts of sexual behavior of the victim to prove that someone other than the D was the source of semen of injury
2. victims sexual activity with the D if the defense of consent is asserted OR
3. where the exclusion would violate the D’s right of due process (love triangle defense to suggest that the victim has motive to falsify the claim of rape)
exceptions in civil cases:
the court may admit evidence of specific sexual behavior or sexual propensity of the victim if it is probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party

Question 19

character evidence in civil cases

Answer 19

1. character evidence generally inadmissible to prove a persons conduct on a particular occasion
2. evidence of a persons character is admissible where such character is an essential element of a claim or defense (provable by reputation, opinion, and specific acts) but only in 3 situations
3. tort action alleging negligence hiring or entrustment
4. defamation
5. child custody dispute

Question 20

defendants other crimes for non character purposes

Answer 20

Generally: other crimes or bad acts are not admissible during the prosecution's case in chief if the only purpose is to suggest that because of D's bad character he is more likely to have committed the crime currently charged
BUT defendants bas acts or other crimes may be admissible to show something specific about a charged crime such as
MIMIC
Motive
Intent
Mistake, absence of
Identity
Common plan of scheme

Question 21

method of proof of MIMIC purpose crimes

Answer 21

1. by conviction or
2. by evidence that proves the crime occurred: conditional relevancy standard, the prosecution only need produce sufficient evidence from which a reasonable juror could conclude that the D committed the other crime
   upon the D’s request prosecution must give pretrial notice of intent to introduce mimic evidence OHIO does not expressly require pretrial notice but the court indicates that the practice is preferred
   MIMIC in civil cases: if relevant to a non character purpose MIMic evidence can be used in civil cases

Question 22

other sexual misconduct to show propensity in Sex-crime prosecution or civil action

Answer 22

FRE: in a case alleging sexual assault or child molestation, prior spcific sexual misconduct of the D is admissible as part of the case in chief (civil or criminal) for any relevant purpose including the D’s propensity for sex crimes ONLY prior specific acts

Ohio: allows for evidence of the D’s prior crimes involving sexual misconduct only if the MIMC rule is satisfied or the prior sexual acts were directed toward the vicitm in the pending case

Question 23

authentication of writings: methods

Answer 23

1. witness’s personal knowledge
2. proof of handwriting by lay opinion, expert comparison or jury comparison
3. proof by circumstantial evidence
4. ancient document rule: authenticity is inferred if the document is at least 20 years old, facially free of suspicion, found in a place of natural custody
5. solicited reply doctrine:can be authenticated if it was received in response to a prior communication to the alleged author

Question 24

self authenticating documents

Answer 24

burden of proof on the opponent to show lack of authenticity:

1. official publication (anything by the gov.)
2. certified copies of public or private records on file in a public office (deed, mortgage)
3. newspapers or periodicals
4. trade inscriptions and labels
5. acknowledged document (certified by notary public)
6. commercial paper (promissory note, signature presumed genuine)

Question 25

authentification of photo

Answer 25

witness may testify on the basis of personal knowledge that the photo is a fair and accurate representation of the people or objects portrayed

Question 26

Best evidence rule

Answer 26

a party who seeks to prove the contents of a writing must either produce the original writing or provide an acceptable excuse for its absence
if the court finds that the excuse is acceptable, the party may use secondary evidence such as oral testimony or a copy
this rule generally applies in 2 situations:
1. the writing is legally operative document in the present case and creates the rights and obligations at issue
2. witness is testifying to facts that she learned solely from reading about them in a writing

Question 27

what qualifies as an original writing?

Answer 27

1. whatever the parties intended as the original, any counterpart intended to have the same effect and any negative of film or print from the negative, computer print out
2. duplicate: any counterpart produces by any mechanical means that accurately reproduced the original Rule on duplicates: admissible to the same extent as the original UNLESS it would be unfair or a genuine question is raised as to authenticity of the original
3. handwritten copy is neither an original or a duplicate

Question 28

excuses for non production of an original

Answer 28

1. lost or cannot be found with due diligence
2. destroyed without bad faith (flood, fire theft)
3. cannot be obtained with legal process (outside of the cts supeona power)
   the court must be persuaded by a preponderance of the evidence that excuse has been established, and secondary evidence is admissible

Question 29

escapes in best evidence rule

Answer 29

1. voluminous records can be presented through a summary or chart provided the original records would be admissible and they are available for inspection
2. certified copies of public records
3. collateral documents not important to the merits of the care

Question 30

witness competency

Answer 30

testimonial qualifications

basics:
1. personal knowledge (saw something with own eyes, heard it with own ears)
2. oath or affirmation (demonstrate willingness to tell the truth)

Ohio: court must disqualify a witness who is of unsound mind or a child under 10 if such child appears incapable of perceiving or accurately relating the facts. proponent must demonstrate that the child can give and appreciate an oath

Question 31

dead man statute

Answer 31

1. witness is not ordinarily incompetent merely becuase she has an interest in the outcome of the litigation
2. BUT some states have a dead man’s statute which provides in a civil case, an interest witness is incompetent to testify in support of her own interest against the estate of the decedent concerning communications or transactions between the interested witness and the decedent
   Ohio has abolished the dead man statute

Question 32

ohio dead man statute

Answer 32

abolished but to keep an evidentiary balance there is a unique hearsay exception which allows the decedent to speak from the grave

After an interested witness has testified against a decedent’s estate, the estate may introduce pre-death statements of the decdent if:

1. statements concern same subkect matter
2. Statements rebut interested witness testimony and
3. decdent had personal knowledge of the subject matter

Question 33

leading questions

Answer 33

form of question suggest the answer
generally not allowed on direct examination
generally allowed on Cross
BUT can be allowed on direct if:
1. for preliminary introductory matters
2. youthful or forgetful witness
3. hostile witness
4. witness is opposing party or under the control of the opposing party

Question 34

refreshing recollection

Answer 34

basic: witnesses may not read from prepared memorandum, must testify on the basis of current recollection BUT if the memory fails him, he can be shown a memo or any other tangible item to jog his memory

safeguards: the adversary has the right to
1. inspect the memory refresher
2. to use it on cross
3. to introduce it into evidence

Question 35

past recollection recorded

Answer 35

foundation for reading the contents of the writing into evidence

1. showing the writing to the witness fails to jog the memory
2. witness had personal knowledge at a former time
3. writing was either made by witness or adopted by the witness
4. making or adopting occurred while the event was still fresh in the wtiness’s memory
5. witness can vouch for the accuracy of the writing when made or adopted

Question 36

opinion testimony: Lay witness

Answer 36

admissible if:
1. rationally based on witness's perception and
2. helpful to the jury in deciding a fact (judges discretion)
examples:
drunk/sober
speed of vehicle
sane/insane
emotions of another person
odors 
handwriting
character

Question 37

expert witness

Answer 37

qualification: education and or experience
proper subject matter: scientific, technical, or other specialized knowledge that will be helpful to the jury in deciding the fact
basis of opinion:
must be based on a reasonable degree of probability or reasonable certainty
can draw upon
1. personal knowledge
2. other evidence in the trial record made known to the expert by hypothetical question
3. facts outside the record (hearsay) if of a type reasonably relied on by experts in the field when forming opinions

Ohio: must be based exclusively on personal knowledge of facts and data that have been introduced into evidence

Question 38

expert testimony relevance and reliability

Answer 38

must be relevant to the issue at hand and sufficiently reliable
the court serves as the gatekeeper and will use four principal factors to determine the reliabilty of principles and methodology used by the expert (TRAP)
Testing of principles and methodology
Rate of error
Acceptance by other experts in the same discipline
Peer review and publication

Question 39

learned treatise in the aid of expert testimony

Answer 39

1. on direct: relevant portions of treatise, periodical or pamphlet may be read into evidence as substantive evidence if est as a reliable authority
2. on cross: read into evidence to impeach and contradict opponents expert
3. BUR may not be introduced as an exhibit

Question 40

ultimate issues and testimony

Answer 40

opinion testimony is objectionable just becuase it embraces an ultimate issue in the case but all other requirements for opinions testimony must be satisfied including that the opinion is helpful

Question 41

right to cross examination

Answer 41

a party has a right to cross examine any opposing witness who testifies at the trial. Significant impairment of this right will result at minimum in striking the witness’s testimony
Subject matter of cross:
1. matters within the scope of direct examination AND
2. matters that test the witness’s credibility

in ohio can question on anything relevant to the case

Question 42

bolstering own witness

Answer 42

not allowed until after credibility is attacked

Question 43

prior consistent statement

Answer 43

usually inadmissible because there has been no attack on credibility, there is only minimal probative value and it is hearsay
exception, witness’s prior ID of a person

Question 44

impeachment of own witness

Answer 44

the rule: you can impeach without limitation

in ohio: use of prior inconsistent statement is subject to limitation

Question 45

impeachment methods

Answer 45

1. prior inconsistent statement
2. bias, interest or motive to misrepresent
3. sensory deficiencies
4. bad reputation or opinion about a witness’s character for truthfulness
   5 criminal convictions
   6 bad acts without conviction that would reflect adversely on witnesses character for truthfulness
5. contradiction

Question 46

two ways to use impeachment methods

Answer 46

1. ask the witness about the impeaching fact (confronting the witness) OR
2. prove the impeaching fact with extrinsic evidence (not available for bad acts or collateral contradictions)`

Question 47

prior inconsistent statement

Answer 47

on a prior occasion, the witness made a material statement orally or in writing that is inconsistent with trial testimony
General purpose: only admissible for the purpose of impeachment except the statement may be admitted for impeachment and into evidence if the witness is currently subject to cross examination and the prior statement was made:
1. under oath and
2.part of a formal hearing, proceeding, tiral or deposition

Question 48

Ohio rules for prior inconsistent statement

Answer 48

same as FRE except may use as substantive evidence only if the witness;s prior statement was given under oath at a hearing at which the witness was subject to cross examination by the party against whom the statement is now being offered (precludes grand jury)
2. to impeach own witness: can use prior inconsistent to impeach own witness if the witness’s current testimony catches the party by surprise and causes affirmative damage to the case OR if the prior inconsistent statement qualifies as substantive evidence

Question 49

must a witness first be confronted with her prior inconsistent statement while still on the stand?

Answer 49

Multistate: timing is flexible but after extrinsic evidence is admitted the witness must be given an opportunity to return to the stand to explain or deny

Ohio: prior confrontation required. no extrinsic evidence will be permitted until 1. witness is told of its contents, time and place of statement and to whom the statement was made 2. witness is given the opportunity to explain or deny and 4. adversary has the opportunity to interrogate witness about the statement
if the witness then denies or doesnt remember the statement, it may be proven with extrinsic evidence

BUT no opportunity to explain or deny need to be given to a witness who is the opposing party

Question 50

bias, interest or motive to misrepresent

Answer 50

ex. witness is party: friend, relative, employee, expert witness being paid
Purpose to prove that testimony is false or suggest that it is slanted, or mistaken in the party’s favor

Question 51

does a witness have to be confronted with alleged bias while on the stand?

Answer 51

MBE: Yes
Ohio: no, can offer extrinsic evidence

Question 52

can bias be proven by extrinsic evidence?

Answer 52

yes

Question 53

sensory deficiencies

Answer 53

anything that could affect witness’s perception or memory
ex. bad eyesight, hearing, mental retardation, consumption of alcohol ot drugs
purpose: to suggest mistake
Confrontation required: no
Extrinsic evidence allowed? yes

Question 54

bad reputation or opinion about witness’s character for truthfulness

Answer 54

call a witness to testify that Target witness has a bad reputation for truthfulness or that character has a low opinion of target witness character for truthfulness
Purpose: to suggest that witness is not telling the truth
any witness is subject to impeachment by this method
confrontation required? no
extrinsic evidence allowed: yes, the only way to do it

Question 55

criminal convictions impeachment

Answer 55

to suggest that testimony is false. relevance: person who has been convicted of a crime is more likely to lie under oath that a person with an unblemished record

Question 56

Federal rule: permissible type of convictions allowed for impeachment

Answer 56

1. conviction of any crime (felony or misdemeanor) as to which the prosecution was required to prove false statement as an element of the crime: automatic admissibility narrowly interpreted as perjury or fraud not mere theft
2. if no false statement as an element, the crime must be a felony and court may exclude is on balance the probative value on issue of witness credibility is outweighed by danger of unfair prejudice to a party

Time limitation: both categories: the conviction or release from prison whichever is later must be within 10 years of trial. if more than 10 years, the propoent must show that it is probative on the issue of credibility and is substantial

Question 57

ohio rule for admitting criminal conviction for impeachment

Answer 57

same as FRE except category 1 extended to crimes including dishonesty in general such as theft
method of proof: ask witness to admit it or introduce record of conviction, not required o confront witness

Question 58

inquiry about bad acts without conviction for impeachment purposes

Answer 58

only permissible if confronted on cross examination
NO extrinsic evidence is permitted
cross examiner must have a good faith basis for the inquiry, and inquiry is subject to the courts discretion.
limited to the act of untruthfulness not its consequences (job termination, civil judgement)
extrinsic evience may be allowed if relevant for some other purpose such as bias

Question 59

contradiction for impeachment purposes

Answer 59

concept: cross examination may try to obtain admission that she made a mistake or lied about any fact she testified to during direct examination. if the witness admits the mistake or lie, she is impeached
if she sticks to the story: can extrinsic evidence be introduced?
Rule: not allowed for the purpose of contradiction if the fact at issue is collateral. a fact is collateral when it has no significant relelvance to the case or to the witness’s credibility

Question 60

rehabilitation of a witness after impeachment

Answer 60

1. show a witness’s good character for truthfulness when the impeachment clearly suggests that the witness is lying and not just mistaken and bring in a character witness for opinion or reputation of truthfulness
2. prior consistent statement to rebut a charge of recent fabrication or improper influence. admissible if the statement was made before the motive to fabricate arose

Question 61

privileges: if the action is pending in FEDERAL court

Answer 61

1. arising under Federal substantive law: privileges are governed by common law
2. based on diversity jurisdiction federal court applies the privilege of the law of the state whose substantive law is applicable
3. in diversity action fed court also applies the state law on competency and burden or proof and presumptions

Question 62

attorney client priviledge (evidence)

Answer 62

rationale: to encourage client to speak openly to counsel
elements: privilege applies to
1. confidential communications
2. between the atty and client or representative of either
3. during professional or legal consultation
4. unless the privilege is waived by the CLIENT
5. or exception is applicable

Question 63

confidential communications between atty and client

Answer 63

client must intent confidentiality
Joint client rule: if two or more clients with common interest consult the same attorney, their communications with counsel concerning common interest are privileged as to third parties but is there is a later dispute concerning the common interest, the privilege does not apply
does not apply to underlying information or pre-existing documents or physical evidence

Question 64

waiver of attorney client privilege

Answer 64

1. voluntary waiver: only the client has the power to waive the privilege and it continues after the death of the client
   in ohio the decedents spouse can waive the privilege even if not the estates representative
2. subject matter waiver: waiver as to some communications will also waive the privilege to other communications is the partial disclosure is intentional and the disclosed and undisclosed concern the same subject matter and fairness requires that they be considered together
3. inadvertent waiver: will not waive the privilege so long as the privilege holder took reasonable steps to prevent the disclosure and takes reasonable steps to correct the error

Question 65

exceptions to the attorney client privilege

Answer 65

1. future crime or fraud:
2. client puts legal advice at issue (client says she relied on atty advice in a tax fraud trial)
3. dispute between atty and client such as unpaid fees or malpractice cases

Question 66

physician patient privilege

Answer 66

purely a state statute: to encourage the candor by patient and to protect privacy
elements:
1. confidential communications or information acquired by physician from patient
2. for the purpose of diagnosis or treatment of a medical condition
3. also applicable to psychotherapists
4. Federal law: privilege only for pshychotherapists including social workers

Question 67

spousal privilege

Answer 67

1. spousal immunity: in criminal cases only a spouse cannot be compelled to testify about anything against the defendant spouse
   rationale: to protect harmony of existing marriage at time of trial
   Ohio called witness spouse incompetency
2. confidential communications between spouses: in any type of case a spouse is not required and is not allowed in the absence of consent by the other spouse to disclose confidential communications (statements or acts) made by one to the other during marriage. both spouses hold the privilege

Question 68

exceptions to spousal immunity

Answer 68

1. communications or acts in furtherance of future crime or fraud
2. communications or acts destructive to the family unit (abuse)
3. in litigation between the spouses themselves- breach of K

Question 69

hearsay definition

Answer 69

1. out of court statement of a person oral or written AND
2. offered to prove the truth of the matter asserted in the statement

it is inadmissible unless an exception or exclusion applies

rationale: the credibility of the declarant at the time the statement was made was not tested through cross examination in the presence of the current fact finder

Question 70

non hearsay statement

Answer 70

if not offered for the truth of the matter asserted

Question 71

non-hearsay: verbal act

Answer 71

or legally operative language
a situation where the substantive law attaches rights and obligations to certain words simply because they were spoken
ex. I accept your offer to sell

Question 72

non hearsay: to show the effect on person who heard or read the statement

Answer 72

if a person hears someone make certain statements this may be relevant to put the listener on notice of something or to create fear or to give the listener a motive or probable cause to do something without regard to whether the statement is true
ex. overhearing a customer tell the manager there was a jar of salsa broken on the floor-admissible to show prior notice

Question 73

non-hearsay: circumstantial evidence of the speaker’s state of mind

Answer 73

giving a false alibi implies consciousness of guilt, asking a question implies lack of knowledge

Question 74

prior statements of trial witnesses as hearsay

Answer 74

a witnesses own prior statement if offered to prove the truth of the matter is hearsay and inadmissible unless an exception:

1. witness’s prior statement of identification of a person or
2. prior inconsistent statement IF oral, under oath and made during a formal trial, hearing, proceeding or deposition or
3. consistent statement used to rebut a charge of recent fabrication or improper motive or influence

Question 75

party admissions (statements of an opposing party)

Answer 75

any statement made by a party is admissible if it is offered against the party by the other side
called exclusion
the party ought to bear the consequences of what she says

Question 76

adoptive admission

Answer 76

if a party expressly of impliedly adopts the statements made by another person it is as though the party herself made the statement. adoption by silence occurs when a party who hears another party;s statement remains silent under the circumstances in which a reasonable person would protest if the statement were false

Question 77

vicarious party admission

Answer 77

statement by agent or employee is admissable against the principal or employer if the statement concerns matter within the scope of agency or employment and is made during the existence of the agency employment relationship

Question 78

co-conspirator statement

Answer 78

the statement of a co-conspirator is admissible against a party who was a member of the conspiracy if the statements was made during and in furtherance of hte conspiracy

Question 79

hearsay exceptions

Answer 79

1. forfeiture by wrongdoing
2. former testimony
3. statement against interest
4. dying declaration
5. excited utterance
6. present sense impression
7. present state of mind
8. declaration of intent
9. present physical condition
10. statement for the purpose of medical treatment or diagnosis
11. business record
12. public record

Question 80

criminal defendant rights of confrontation

Answer 80

6th amendment requires that the criminal defendant be confronted with the witnesses against him
in the context of hearsay: the prosecution must not use a hearsay statement against the criminal defendant even if within an exception if:
1. the statement is testimonial
2. the declarant is unavailable and
3. the defendant had no opportunity for cross examination

Question 81

what is testimonial for the purpose of the 6th amendment

Answer 81

1 grand jury testimony
2. statements made in response to police interrogation if the primary purpose if to establish or prove past events potentially relevant to later criminal prosecutions
non-testimonial: if the primary purpose of the questioning is to enable police assistance to meet an ongoing emergency (perpetrator sill at large and danger to public or victim)
3. business records are not testimonial
4. sworn affidavit is testimonial
5. a forensic laboratory report is testimonial if the promary purpose is to accuse a targeted individual but not testimonial is it analyses a sample of dna from a crime scene for the purpose of developing a dna profile and no one in particular is suspected at the time

Question 82

ohio supreme court: testimonial

Answer 82

if made under the circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a criminal trial

Question 83

forfeiture hearsay exception

Answer 83

declarant unavailable due to defendants wrongdoing
the court must find:
1. by a preponderance of the evidence
2. that D’s conduct was designed to prevent the witness from testifying

Question 84

former testimony

Answer 84

1. the former testimony of a now unavailable witness if given at a former proceeding or deposition is admissible against a party who on prior occasion had an opportunity and motive to cross or develop witness testimony and the issue in both proceedings was essentially the same

Question 85

grounds of unavailability

Answer 85

1. privilege
2. absent from jurisdiction (cannot be found with due diligence or beyond the courts supoena power)
3. illness or death
4. lack of memory
5. stubborn refusal to testify

Question 86

statement against interest

Answer 86

an unavailable declarants statement against his or her pecuniary proprietary or penal inerest (money property or criminal liability)
theory: not likely to lie when making a personally damaging statement
different from party admission: must be against interest when made, any person can make it, personal knowledge is required and declarant is unavailable
* in a criminal case statement against penal interest must be corroborated by circumstances showing trustworthiness of statement

Question 87

dying declaration

Answer 87

statement made under the belief of impending and certain death by a now unavailable declarant concerning the cause or surrounding circumstances of the declarants death

Theory: death is a solemn occasion

type of case: homicide or any civil case

Question 88

ohio tender years exception

Answer 88

hearsay exception
1. for child statements concerning abuse
2. a child under 12 at the time of trial concerning physical or sexual abuse if:
the statement is found to be trustworthy based on circumstances, child is unavailable, there is independant proof of abuse and proponent gives 10 days advance notice of intent to introduce statements

confrontation warning: is made during nonemergency police interrogation, they are testimonial and the D is entitled to cross examine the child
not testimonial is made to a friend, relative or health care professional

Question 89

excited utterance

Answer 89

statement concerning a startling event and made while the declarant is still under the stress of excitement caused by event
Theory: excitement suspends one’s capacity to fabricate

Question 90

factors to consider in determining whether a statement qualifies as an excited utterance

Answer 90

1. nature of the event (traumatic accident, fight)
2. the passage of time
3. visual clues such as an exclamatory phrase, excitement oriented verb, exclamation point

Question 91

present sense impression

Answer 91

description of an event made while the event is occurring or immediately thereafter
theory: the declarant has no time to fabricate
in ohio: inadmissable if the circumstances indicate a lack of trustworthiness

Question 92

present state of mind

Answer 92

1. contemporaneous statement concerning the declarants present state of mind, feelings or emotions
2. theory: statement about which declarant has unique knowledge

Question 93

declaration of intent

Answer 93

statement of declarants intent to do something in the future including the intent to engage in conduct with another person
theory: declarant has unique knowledge

Question 94

present physical condition

Answer 94

statement made to anyone about the declarants current physical condition
Theory: unique knowledge

Question 95

statement made for the purpose of obtaining medical treatment or diagnosis

Answer 95

1. statement made to anyone (but usually medical personnel) for the purpose of obtaining medical treatment or diagnosis (including diagnosis for expert testimony) if it concerns the declarants

present symptoms
past symptoms or
general cause of condition

BUT not including statements describing the details of liability or the identity of a tortfeasor unless it is the identity of the abuser in a domestic abuse or child abuse case

Theory: motive to be honest to get proper medical assistance

Question 96

business record exception

Answer 96

1. records of a business
2. made in the regular course of business
3. the business regularly keeps such records
4. made contemporaneously at or about the time of the event recorded
5. content consists of information observed by ees of the business OR a statement that falls within an independent hearsay exception
   Theory: businesses depend on accurate and up to date record keeping

Question 97

proving business records foundation

Answer 97

1. call sponsoring witness to testify to the 5 elements of the hearsay exception, does not have to be the author or the report can be the records custodian or any knowledgeable person within the business OR
2. written certification under oath attesting to elements of business records exception with advance notice to opposing party
3. OHIO: written certification method only for hospital records

Question 98

public records

Answer 98

records of a public office (government) or agency setting forth:
1. the activities of the office or agency (eg payroll records) OR
2. matters observed pursuant to a duty imposed by law (weather bureau records) OR
3. findins of fact or opinion resulting from investigation authorized by law (osha inspection report)
EXCLUSION: police reports made for prosecutorial purposes are not admissible against the defendant in a criminal case not is the prosecution in such cases allowed to introduce such reports against the defendant under the alternative theory of business records

Question 99

hearsay within hearsay

Answer 99

evidence is inadmissible unless each statement falls within a hearsay exception

Question 100

impeachment of hearsay declarants

Answer 100

any impeachment method may be used to attack the credibility of a hearsay declarant whose statement was admitted into evidence.
if the impeachment consists of prior inconsistent statement, the usual requirement that the declarant be given an opportunity to explain or deny is waived