Evidence Flashcards
(100 cards)
1
Q
relevance
A
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
2
Q
all evidence is admissible unless
A
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
3
Q
plaintiffs accident history
A
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
4
Q
defendant’s accident history
A
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
- existence of a dangerous condition
- causation of the accident
- prior notice to the defendant
5
Q
intent at issue
A
prior similar conduct of a person may be admissible to raise an inference of the persons intent
ex. can show instances of past discrimination
6
Q
comparable sales on issue of value
A
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
7
Q
Habit
A
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
8
Q
industrial custom as standard of care
A
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)
9
Q
liability insurance
A
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
10
Q
subsequent remedial measures
A
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
11
Q
settlement of disputed civil claims
A
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
12
Q
plea bargaining in criminal cases
A
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
13
Q
offer to pay hospital or medical expenses
A
inadmissible to prove liability but the rule does not exclude other statements made in connection with an offer to pay hospital or medical expenses
14
Q
character evidence
A
3 potential purposes for the admissibility of character evidence
- persons character is an essential element of the case, the substantive law requires proof of character
- character evidence to prove conduct in conformity with character at the time of the litigated event aka character as circumstantial evidence of conduct
- witness’s bad character for truthfulness to impeach credibility
15
Q
criminal cases: character evidence
A
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
16
Q
prosecution rebuttal character in a criminal case
A
if the D has opened the door by calling character witnesses the prosecution may rebut:
- 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
- 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
17
Q
Victim’s character-Self defense
A
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
18
Q
victims character: sexual misconduct case
A
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
19
Q
character evidence in civil cases
A
- character evidence generally inadmissible to prove a persons conduct on a particular occasion
- 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
- tort action alleging negligence hiring or entrustment
- defamation
- child custody dispute
20
Q
defendants other crimes for non character purposes
A
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
21
Q
method of proof of MIMIC purpose crimes
A
- by conviction or
- 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
22
Q
other sexual misconduct to show propensity in Sex-crime prosecution or civil action
A
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
23
Q
authentication of writings: methods
A
- witness’s personal knowledge
- proof of handwriting by lay opinion, expert comparison or jury comparison
- proof by circumstantial evidence
- 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
- solicited reply doctrine:can be authenticated if it was received in response to a prior communication to the alleged author
24
Q
self authenticating documents
A
burden of proof on the opponent to show lack of authenticity:
- official publication (anything by the gov.)
- certified copies of public or private records on file in a public office (deed, mortgage)
- newspapers or periodicals
- trade inscriptions and labels
- acknowledged document (certified by notary public)
- commercial paper (promissory note, signature presumed genuine)
25
authentification of photo
witness may testify on the basis of personal knowledge that the photo is a fair and accurate representation of the people or objects portrayed
26
Best evidence rule
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
27
what qualifies as an original writing?
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
28
excuses for non production of an original
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
29
escapes in best evidence rule
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
30
witness competency
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
31
dead man statute
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
32
ohio dead man statute
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
33
leading questions
```
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
```
34
refreshing recollection
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
35
past recollection recorded
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
36
opinion testimony: Lay witness
```
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
```
37
expert witness
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
38
expert testimony relevance and reliability
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
39
learned treatise in the aid of expert testimony
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
40
ultimate issues and testimony
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
41
right to cross examination
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
42
bolstering own witness
not allowed until after credibility is attacked
43
prior consistent statement
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
44
impeachment of own witness
the rule: you can impeach without limitation
| in ohio: use of prior inconsistent statement is subject to limitation
45
impeachment methods
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
7. contradiction
46
two ways to use impeachment methods
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)`
47
prior inconsistent statement
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
48
Ohio rules for prior inconsistent statement
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
49
must a witness first be confronted with her prior inconsistent statement while still on the stand?
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
50
bias, interest or motive to misrepresent
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
51
does a witness have to be confronted with alleged bias while on the stand?
MBE: Yes
Ohio: no, can offer extrinsic evidence
52
can bias be proven by extrinsic evidence?
yes
53
sensory deficiencies
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
54
bad reputation or opinion about witness's character for truthfulness
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
55
criminal convictions impeachment
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
56
Federal rule: permissible type of convictions allowed for impeachment
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
57
ohio rule for admitting criminal conviction for impeachment
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
58
inquiry about bad acts without conviction for impeachment purposes
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
59
contradiction for impeachment purposes
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
60
rehabilitation of a witness after impeachment
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
61
privileges: if the action is pending in FEDERAL court
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
62
attorney client priviledge (evidence)
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
63
confidential communications between atty and client
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
64
waiver of attorney client privilege
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
65
exceptions to the attorney client privilege
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
66
physician patient privilege
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
67
spousal privilege
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
68
exceptions to spousal immunity
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
69
hearsay definition
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
70
non hearsay statement
if not offered for the truth of the matter asserted
71
non-hearsay: verbal act
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
72
non hearsay: to show the effect on person who heard or read the statement
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
73
non-hearsay: circumstantial evidence of the speaker's state of mind
giving a false alibi implies consciousness of guilt, asking a question implies lack of knowledge
74
prior statements of trial witnesses as hearsay
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
75
party admissions (statements of an opposing party)
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
76
adoptive admission
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
77
vicarious party admission
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
78
co-conspirator statement
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
79
hearsay exceptions
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
80
criminal defendant rights of confrontation
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
81
what is testimonial for the purpose of the 6th amendment
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
82
ohio supreme court: testimonial
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
83
forfeiture hearsay exception
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
84
former testimony
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
85
grounds of unavailability
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
86
statement against interest
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
87
dying declaration
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
88
ohio tender years exception
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
89
excited utterance
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
90
factors to consider in determining whether a statement qualifies as an excited utterance
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
91
present sense impression
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
92
present state of mind
1. contemporaneous statement concerning the declarants present state of mind, feelings or emotions
2. theory: statement about which declarant has unique knowledge
93
declaration of intent
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
94
present physical condition
statement made to anyone about the declarants current physical condition
Theory: unique knowledge
95
statement made for the purpose of obtaining medical treatment or diagnosis
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
96
business record exception
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
97
proving business records foundation
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
98
public records
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
99
hearsay within hearsay
evidence is inadmissible unless each statement falls within a hearsay exception
100
impeachment of hearsay declarants
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
