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156 Cards in this Set

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What arethe allocation of responsibilities for Parties, Judge, and Jury?
Parties fram the issues and assume burden of proving them.
Judges superintend the trial fairly and decide questions of law.
Jury decides questions of fact.
Procedural considerations

Burden of Proof
The party who has the burden of pleading usually has the burden of producing or going forward with evidence sufficient to make out a prima facie case.

Burden of Persuasion (proof):
1. Civil case: preponderance of the evidence
2. Criminal case: beyond a reasonable doubt
What is the threshold and limit of admissibility?
Relevant evidence is admissible if competent.

1. Relevant = evidence that has a TENDANCY to prove (probativeness) any fact of consequence to the action (materiality)
2. Competent = does not violate any exclusionary rule.
Determining Admissibility of Evidence
1. Is the evidence relevant?
2. Is there a proper foundation (e.g. has the competence of the witness, the authenticity of the evidence, or the reliability of the scienticific test been est.)?
3. Is the evidenc in proper form (e.g. questions are properly phrased, answers are within requirements for law and expert opinion, and doc.'s comply with the best evidence rule)?
4. Is the evidence beyond the application of, or within an an exception to, one of the exclusionary rules?
*Discretionary exclusion for prejudice;
* Policy base- exclusion (i.e. subsequent remedial measures);
* Privilege
* Hearsay
* Parol evidence
5. Admissible
How to approach relevance questions?
1. Determine the evidence is relevant (i.e. tends to prove or disprove a material fact).

2. If relevant, determine whether the evidence should nonetheless be excluded based on:
a. Judicial discretion (i.e. probative value is outweighed by unfair prejudice, ect), OR
b. Public Policy (e.g. insurance, subsequent repairs)
When can a judge exclude relevent evidence?
Trial judge may exclude relevant evidence if probative value is substantially outweighed by
1. Danger of Unfair prejudice
2. Confusion of issues
3.misleading the jury, or
4. undue delay
5. waste of time
6. unduly cumulative

The 1st 3 seek to promote accuracy of the fact finding.
Note-just recognize them by name

Note-unfair surprise is NOT a valid ground for exclusion
6 Recurring Evidence that's admissible

[Exceptions to the general rule of relevant (i.e. must relate to time, event, or person in controversy.)]
Previous similar occurrences may be relevant if they are probative of a material issue and that probativeness outweighs the risk of confusion or unfair prejudice.
1. P's accident history, unless cause of P's injuries is in issue.
2. Similar accidents or injuries caused by the same event or condition UNLESS to show existence of dangerous condition, causation of accident, or prior notice to D [if other accident occurred b/f P's accident]
3. Previous similar acts/conduct admissible to prove INTENT
4. Comparable Sales on the Issue of property Value
5. Habit - frequency of conduct [always, OH =never] and particularity of conduct [specific type of action]
6. Industrial Custom as Standard of Care
P's accident history
Generally inadmissible, but P's prior accidents are admissible if CAUSE of P's injuries is in issue.

E.g. P is claiming injury to same part of body in this case that was injured in prior accident. D should be allowed to show P's injuries were not CAUSED by D, but by prior accident.
Evidence of Similar accidents or injuries caused by same event or conditions
Generally, inadmissible but other accidents involving the same instrumentalities or condition, and occurring under sustantially similar circumstances may be admitted for 3 purposes
1. the existence of a dangerous condition,
2. that the defendant had knowledge of the dangerous condition, and
3. that the dangerous condition was the cause of the present injury
Evidence of Comparable sales on issue of value
A ct will let in the selling price of other property of imilar type, in same general location, and cose in time to period at issue, is some evidence of value at property at issue.
Habit Evidence
Under FRE, habit of a person [or routine of a business organization] is admissible as circumstantial evidence of how the person [or business] acted on the occassion at issue in litigation.

Distinguish- CE refers to a person's general disposition or propensity; usu. not admissible. Habit is admissible b/c it's more highly probative of conduct on a particular occassion.

2 defining characteristics - 1. Frequency of conduct, 2. particularity of the conduct must be bery specific type of action.

Key Words - always, invariably, instinctively and automatically
Chacter evidence v. Habit evidence
1. Sally is always in a hurry v. Sally always takes 2 steps at a time.

2. Bart is always drunk v. Bart stops at Charlie's tavern every night after work and has exactly 4 beers.

3. Jeff is always a careless driver v. Jeff never slows down for the Yeild sign at the end of the street.

4. Laura is very conscientious about the maintance of her car v. Laura checks the brakes on her car every Sunday before she goes to church.
Evidence indicating Industrial custom as SOC
evidence of how others in the same trade or industry have acted in the recent past may admitted as some evidence as to haw a party in the instant litigation should have acted.

Standard of care
Exclusion of evidence for public policy reasons
Certain types of evidence may be excluded because public policy favors the behavior involved:
1. Subsequent remedial measures: inadmissible to prove negligence or element of strict liability.
a. ADMISSIBLE to prove ownership/control OR that precautions were possible
2. Withdrawn guilty pleas or offers to plead guilty: inadmissible for purposes
3. Offers or actual payment of medical expenses: inadmissible to put liability
4. Settlement offers of negotiations: inadmissible to the liability or invalidity of claim
5. Liability insurance: inadmissible to prove negligence or ability to pay
Is evidence of Liability Insurance admissible
Generally, evidence that a person has, or doesn't have liability insurance is inadmissible to prove person's fault or absence of fault.

However, such evidence is admissible to prove ownership/control of instrumentality or location if disputed, or for purpose of impeachment of the W OR or for relevance to show D has motive to lie - homice case.

Key point - to use exception, D must dispute the issue
Subsequent remedial measures
policy based exclusion

Involves post-repairs, design changes, policy changes.

INADMISSIBLE for proving megligence, culpable conduct, product defect, need for warning.

ADMISSIBLE for proving ownership/control or feasibilty of safer condition if D disputes either issue.

E.g. P bought a cup of coffee at D's Coffee Inferno and scalded her tongue b/c the coffee was too hot. She sues D in geligence. D denies that he was negligent. P seeks to introduce evidence that after the accident, D intalled new thermostates on its coffee brewing equipment. P contends that this conduct is an admission by D that better safety controls were feasible.

Not admis. D's new thermostate = subsequent remedial measures. NA to prove negligence; but she's trying to prove feasibility of better safety controls - stil NA b/c D never disputed feasibility rather D merely denied negligence.

D must raise lack of feasibility b/f P will be allowed to use subsequent remedial measures.
Ohio Rule for Subsequent remedial measures
In products liability action based on strict liability, the manufacture's subsequent remedial measures are admissible to show the existence of a defect in the product at the time of th accident.
Settlement of disputed civil claims
Evidence of a Settlement [compromise] of disputed civil claim or offer to settle such a claim is INADMISSIBLE in ALL cases to prove liability or weakness of a party's case. Policy-to encourage settlement of civil disputes.

However, evidence of settlement may be ADMISSIBLE for purposes of impeachment of a W on grounds of BIAS.
Admissibility of Statement of facts made in the course of settlement discussions of disputed civil claims
Generally admissible in all cases for all purposes including W impeachment [such as showing prior inconsistent statement]. Policy = to encurage free opened discusion of possible settlements.
However, statement of fact made in the course of settlement discussions of a disputed civil action asserted by Gov't Agency in the exercise of its regulatory, investigative or enforcement authority are admissible in a related criminal cas on issue of guilt or witness impeachment.
--- Ohio - Gov't agency exception in criminal cases not adopted.

1. Settlements and offers to settle private civil actions are not admissible in criminal cases.
2. Settlements and offers to settle gov't regulatory actions are not admissible in criminal cases.
3. Statements of fact in civil settlement discussions w/ private parties are not admissible in criminal cases
4. Statements of fact made in civil settlement discussions w/ gov't regulatory agencies are admissible in criminal cases.
Plea bargaining in criminal cases is inadmissible if it's ...
1. Offer to plea guilty - cn't be used against D in pending crim case or in subsequent civil case based on same fact.
2. Withdrawn guilty plea -
3. Plea of nolo contendere [no contest] - can't be used against D in subsequent civil litigation based on same facts.
4. Statement of fact made during any of the above plea discussions.

However, a plea of guilty [not withdrawn] is admissible in subsequent litigation based on the same facts under the rule of party admissions.
Offer to pay hospital or medical expenses
E that a party has paid or offered to pay an accident victims hospital or medical expenses is inadmissible to prove liability. Policy - to encourage charity.

However, statement of facts made in connection witj offer to pay hospital medical expenses are admissible.

E.g. Donna's car hits pedestrian P. Donna immediately ran to P and said, [a]. Don't worry about a thing. I'll pay for your hospital bills. [b] I'm sorry I ran the red light.

[a] is not admissible against Donna.
[b] is admissible against Donna b/c it's an outright admission of fact by D.
CHARACTER EVIDENCE
CE refers to a person's general propensity or disposition, e.g. honesty, fairness, peacefulness, or violence
Character evidence: List 3 Purposes for why CE is offered
1. Person's character is a MATERIAL ELEMENT in th case
2. CE to prove CONDUCT IN CONFORMITY WITH CHARACTER at the time of the litigated event, a/k/a character as circumstantial evidence of conduct on a particular occassion.
3. W's bas character for truthfulness to IMPEACH CREDIBILITY
When is evidence of Defendent's character admissible in Criminal cases?
Evidence of D's character to prove conduct in conformity is not admissible during prosecution's case-in-chief.

However, D duing the defense, may introduce a relevant trait to prove conduct in conformity; thereby opening the door to rebuttal by prosecution.

Note - A D's character trait will never be admissible on the ground that it is a material element of the crime b/c i.e. being a violent person is not an element of the crime of murder. Peaceful people kill too.
When CE is admissible through character W to prove conduct, what 2 methods must be used?
1. Reputation - W must be familar with D's conduct
2. Opinion - W must know D

Note - Character W can only testify to a character trait relevant to the type of crime at issue in the case.

Peacefullness = crime of violence
Honesty = crime of theft or deceit.

When CE is offered for purpose of proving conduct in conformity, characer may not be proven by specific acts that illustrate the character trait.
What are the 2 ways the prosecution can rebut D's character W?
If D has opened the door by calling character W, the prosecution may rebut -

1. by cross-examing D's character W with questions about specific acts of the D that reflect adversly on the particular character trait that D has introduced [prosecution must have good faith basis for the Q]; purpose is to impeach character W knowledge, and/or

2. by calling its own reputation or opinion W to contradict D's W

Key Q's to Ask W - Have you heard ...; Did you know...

Prosecution must take the answer the W gives them. i.e. they're not allowed to prove bad acts or arrests actually occured.
Can a criminal D introduce evidence of victim's violent character?
Yes. To prove victim's conduct of conformity, i.e. as circumstantial evidence that the victim was the first aggressor.

Character W may testify to victims reputation for violence and may give Opinion

In Ohio, prosecutions rebuttal is limited to evidence of victim's good faith.
How can the prosecution rebut D's Character W who testified to victim's reputation for violence?
By offering evidence of victim's good character with reputation or opinion; and

can prove D's character for violence to balance the picture of both participants in the fight.
What is the general rule regarding the Character evidence of Victim Character in Sexual Misconduct Cases?
Under fed'l rape shield law, in both criminal and civil cases, where D is alleged to have engaged in sexual misconduct, opinion and reputation evidence about the victim's sexual propensity, or evidence of specific sexual behavior of the vitim is ordinarily inadmissible.
Generally, CE is inadmissible to prove conduct in conformity in Civil Cases, but when does the exception apply?

Also list 3 situations
When character is an ESSENTIAL element of a claim of defense [provable by reputiation, opinion, AND specific acts].

Only 3 situations - 1. tort action alleging negligent hiring or entrustment; 2. Defamation [libel or slander]; 3. Child custody disputes.
List the 3 exceptions for admitting CE of victim in sexual misconduct cases?
However, there are 3 exceptions where the probative value is higher than unfair prejudice.

1. specific sexual behavior of the vitim to prove someone other than D was the source of semen or injury to the vitim,

2. vitim's sexual activity with the D if the defense of consent is asserted; Prior consenual sex with D himself increased likelihood of consent this time.

3. where exclusio would violate D's right to do process
Can the prosecution introduce into evidence D's other crimes or specific bad acts during their case-in-chief? And if so when?

Hint - MIMIC
Generally, no if PURPOSE is to suggest that b/c of D's bac character he is more likely to have committed the crime he's currently charged with.

But, yes if D's other crimes or bad acts show SOMETHING SPECIFIC ABOUT THE CRIME CHARGED - i.e. used as evidence bearing guilt.

= MIMI
MIMIC stands for...
1. Motive - not propensity
2. Intent - what was D's state of mind
3. Absence of Mistake or Accident, - tried to kill mom before
4. Identity - look at closenss in time and place
5. Common scheme or Plan - another way to prove identity
Method of proving purposeful crimes
1. by conviction, or
2. by evidence that proves the crime occurred; conditional relevany standard--prosecution need only produce sufficient evidence rom which a reasonable juror could conclued that D committed the other crime
Ct procedure for MIMIC evidence
Upon D's request, prosecution must give petrial notice of intent to introduce MIMIC evidence.

Ct must also weigh probative value v. prejudice and give limiting intructions if MIMIC evidene is admitted.

In ohio, the Ohio rules don't expressly require pretrial notice, but the cts indicate that giving notice is the perferred practice.
If MIMIC evidence is relevant, then
it can also be used in civil cases such as tort actions for fraud or assault
Can the prosecution or plaintiff introduce evidence of D's prior acts of Sexual Misconduct to Show Propensity in Sex-Crimes?
i.e. sexual assault or child molestation
Yes, but only under Fed'l law as part of the case-in-chief of the prosecution [in criminal case] or of plaintiff [in a civil action] for any relevant purpose, including D's PROPENSITY for SEX CRIMES.

Theory- sex crimes are unique in terms of D's propensity to repeat them. Don't have to show prior convictions; prosecution or P in civil case may simply prove prior acts of sexual assault or child molestation.
Ohio's law concerning the use of D's prior sexual misconduct during prosecution or P's case-in-chief?
It allows for evidence of D's prior crimes involvng sexual misconduct ONLY IF the MIMIC rule is satisfied [e.g. unique M.O. on issue of identity] or the prior sexual acts were directed toward the victim in pending case. - Shows D's fixation on a particular victim; it's like a motive to go after the same person.
Q-Tip - Whenever a writing appears on the exam, be alert to 3 potential issues aside from relevance
authentication
best evidence rule, and
hearsay
Authentication
A writing or secondary evidene of its content must be authenticated by proof that shows it is what the proponent says it is.

If the relevancy of a writing depends upon its source or authorship, a showing must be made that the writing is authentic [genuine].

In the absence of a stipulation as to authenticity, a FOUNDATION must be made in order for the document to be admissible.
Foundation: Documentary evidence
Documentary evidence is subject to specific forms of authentication, usually through the testimony of an eyewitness to the execution of the document, or to the testimony of a witness able to identify the handwriting of the purported author. Documentary evidence is also subject to the best evidence rule, which requires that the original document be produced unless there is a good reason not to do
Methods of Authenticting Documentary Evidence
1. Witness' personal knowledge - W saw X sign the will.
2. Proof of Handwriting by lay opinion or Expert comparison opinion or by jury comparison

3. Ancient Document Rule - authenticity may be inferred IF document is at least 20 yrs old, facially free of suspicion, found in a place of natural custody [in X's desk, under his mattress.] = circumstantial evidence

4. Solicited Reply Doctrine - Doc. can be authenticated by evidence that it was received in response to a prior communication to th alleged author. [P mails K offer to X, and later receives an acceptance signed by X]
What is the proper procedure when question of fact is raised as to authenticity?
Apply the Conditional Relevany Standard - doc. is admissible if ct determines there is sufficient evidence from which a reasonable juror could conclude doc is genuine, i.e. that X is the author.

Therefore, judge doesn't need persuaded that doc. is authentic. She only has to conclude that here is some evidence by which a rational jury could find the doc. to be genuine.
Self-Authenticating Documents
Generally, presumed to be authentic thus no need for foundation testimony.

1. Official publications, e.g. book of gov't regulations
2. Certified copies of public or private records on file in public office e.g. Deed or mortgage
3. Newspaper or periodicals
4. Trade inscriptions and labels, e.g. Jolly Green Giant
5. Acknowledged doc. -notarized
6. Commercial paper - signiture is presumed genuine. BOP is shifted to opponent to prove forgery.
Authentication of Photographs
W may testify o basis of personal knowledg that the photograph is a FAIR and ACCURATE REPRESENTATION of the people or objects portrayed.

Foundation W doesn't have to be the photographer. Only need personal knowledge.
Authentication of Charts
The general rule is that a chart summarizing voluminous records is admissible if it is relevant and authentic.

If it would be inconvenient to examine voluminous records in ct, summaries of the rcords may be admitted despite the best evidence rule.
Authentiction of Oral Statements
When a statement is admissible only if said by a particular person, authentication as to identity of speaker is required.
1. Voice identification - opinion of anyone who heard the voice at ANY TIME
2. Phone Conversations - statements made during such may be authenticated by one of the parties to the call who testifies that -
a. he recognized the other parties voice.
b. the speaker had knowledge of certain facts that only he or she wouldhave known
c. he called a particular persons number and a voice answered as that person or that person's residence, or
d. he called a business and talked with the person answering the phone about matters relevant to the business.
Best Evidence Rule [BER]
A party who seeks to prove the contents of a writing, recording or photo must either produce the original or provide an acceptable excuse for its absence.

Original = writing itself or any duplicated writing intended to have the same effect as original

Duplicate = any counterpart produced by any mechanical means that accurately reproduced the orignal [e.g. photocopy, carbon copy],

Is admissible to same extent as original unless it would be unfair as to authenticity.

Writing, Recording, Photo = broadly defined

Handwrittencopy is neither an original nor duplicate
When does BER apply?
1. Where the writing is a legally operative document, i.e. writing itself creates rights and obligations. E.g. patent, deed, mortgage, divorce decree, written k. OR

2. W is testifying to facts that she learned soley from reading about them in a writing.

E.g. Agent Bower, claiming he worked a 24-hr shift, sues Boss for non-payment of wages and failure to reimburse for expenses. W/o producing any doc.'s Bpwer testifies, I worked 24 hrs and my expenses were 15 mill, Boss objects under BER. Need to produce the time sheets. Overruled! BER doesn't apply here - legally operative doc.'s. The hrs wre worked regardless. B/c Bower had personal knowledge of his hrs and expenses, he can testify w/o doc.'s
When does BER NOT apply?
1. Where the fact to be proved exists independently of the writing.
2. Where the writing is collateral [i.e. not important] to litigated issue.
3. Where the writing is a summary or voluminous record.
4. Where the writing is public record - want to keep originals safe
If BER applies, must produce original or duplicate UNLESS
1. original is lost or can't be found with due diligence
2. its destroyed w/o bad faith [flood, fire, theft]
3. it can't be obtained with legal process - e.g. in swiss bank vault.

Ct must be persuaded by preponderance of the evidene that one of the above excuses has been est.; secondary evidence is the admissible [e.g. testimony based on memory, handwritten copy].
Jury decides whether 2ndary evidence correctly reflects contents of original.
Competency of a witness
In general, only need 2 requirements to apply.
1. W must have personal knowledge - something she saw or heard, and

2. W must swear an oath or give solemn promise to testify to the truth [affirmation]. Doesn't have to swear So help me God.

In Ohio, Ct must disqualify a witness who is of unsound mind, or a child under 10 if such child appears incapable of perceiving or accurately relating facts. Proponent of child's testimony has BOP to demonstrate the child's abilities and appreciation of oath.
Theory of Dead Man Acts
When death seals lips of one of the parties to a tranaction, the law seals the lips of the survivor. = fear of perjury.

Rule - In a civil action, an intrested party is incompetent to testify in support of her own interest agaist the estat of a decedent concerning communications or transactions b/w the interested party and the decedent. Hypo- Elvis and Shania enter K. K is breached, Shania sues - Elvis dies b/f trial.
Friend of plaintiff who witnessed k may testify even though bias b/c bias inot a disqualifying interest.
Ohio's Dead Man Law
Ohio has abolished the law so interested party may freely tstify against decedent's estate
But to help achieve evidentiary balance in such cases, Ohio has enacted a special hearsay exception that has the effect of letting decedent speak from the grave.
Ohio's Special Hearsay Exception for Decedent's Statements
After intersted party has testified against decedent's estat, the estate my introdue pre-death statemnts of the decedent concerning the same matter to rebut the interested party's testimony if ecedent had personal knowledge of the matter. Decedent's statements come in as substantive evidence, i.e. to prove truth of matter in such circumstanes.

E.g. Elvis's 12 yr old daughter Lisa Marie can testify as to what her father said b/c she had personal knowlede and competent to recount what Elvis said.
Leading Q's
Form of Q suggest the answer.

1.Generally not allowed on Direct exam of W, UNLESS
[a.] preliminary, introductory matters,
[b] youthful or forgetful W,
[c] Hostile W, or
[d.] Adverse party or someone under Control of Adverse party, e.g. P calls employee to stand

2. Generally allowed on Cross-exam
Use of Writings in Aid of Oral Testimony
How do you use Present Recollection Refreshed?
[i.e.Refreshing Recollection]
Basic Rule - W may not read from prepared memorandum; must testify on basis of curent recollection.

However, if a W's memory fails him, he may be shown a memorandum [or any other tangible item e.g. a photograph] to jog memory.

No need for authentication -BER doesn't apply.
Is there a hearsay problem when refreshing witness's present recollection?
No b/c the writing is not being offered into evidence. It's only being used to jog her memory. W then testifies on the basis of her current memory that has just been "refreshed".
After a W looks at document to refresh her memory may she read the list into evidence?
No! After W's memory has been restored, you have to set aside the writing. It's not an exhibit.
How does the Adversary safeguard against abusing present recollection recorded?
1. He can inspect the memory-refresher [i.e. request to look at the document];
2. Use it on cross by testing whether the W's memory was really refreshed or was she just reciting the memo; and
3. He can introduce the memo into evidence [insist that jury see the memo to let jury assess W's credibility
What is Past Recollection Recorded [Hearsay exception]?
In order to get past hearsay rule, attorney must lay a foundation for admissibilty of contents of the writing - Its a subtitute for W's current lack of memory.
How does one provide a proper foundation for the hearsay exception past recollecion recorded?
The foundation must include proof that
1. the W at one time had personal knowledge of the facts in the writing;
2. The writing was either made by W, or under direction, or adopted by W ["I made this list, or I looked at cop's list and confirmed he got it right"]
3. The writing was timely made when the matter was fresh in the W's mind;
4. W can vouch for ACCURACY of writing when made or adopted "I don't remember the fact now, but at the time the list was made, I'm sure the list was accurate."; and
5. The W has insufficient recollection to testify fully and accurately
When a Lay witness's opinion admissible?
If it is (a) rationally based on the perception of the witness [i.e. personal knowledge] and (b) helpful to jury in deciding a fact.
Examples - drunk/sober, speed of vehicle, sane/insane, emotions of another person, handwriting, person's appearance,
Dan's Emotional State Is Highly Abusive
When is past recollection recorded used?
When a W states that she can't recall an event in order to testify fully and accurately, even after her memory has been refreshed by a writing while on the stand, the writing shown to her can be read into evidence.
Opinion: Expert witness
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Examples - product case, car engine, mechanic w/ 20 yrs experience may qualify.

Under Ohio law, in a medical malpractice case against physician, podiatrist or hospital, expert testimony against D on issue of liability must be: (1) licensed w/n USA as practioner or surgen in medicine, osteopathy or podiatry, and (2) devotes at least half hor his professional time to active clinical practice in his field or to teaching in accredited school. - other medical professionals e.g. nurse may testify against D regarding SOC in their particular field.
Expert witness Ultimate ssue Rule
Opinion testimony [lay or expert] is permissible even if it addresses an ultimate issue in the case, e.g. "X was drunk," "insane," "That's X's signature on the back of the check". But W can't testify that "It looked to me as though D was engaged in conduct constituting a reckless disregard for safety of others." - It is not helpful to the jury to hear legal jargon. Thus, an experts conclusion that "X had testamentary capicity" is still inadmissible b/c it is not helpful to the jury.
Expert witness Ultimate Issue EXCEPTION
No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto.
Such ultimate issues are matters for the trier of fact alone.
Expert's opinion may be based on...
1. facts that the expert knows from his own observation, i.e. personal knowledge; facts presented as evidence at trial and submitted to expert, usu. by hypo question; or
2. facts outside of record if of a type reasonably relied upon by experts in the particular field in forming opinions.

In Ohio, the law forbids expert witness's reliance on out-of-ct material in forming courtroom opinion.
Subject matter must be appropriate for Expert testimony
Under FRE, expert opinion is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact in understanding the evidence or determining a fact in issue.

Test - The opinion must be relevant, and sufficiently reliable
4 principal factors Ct uses to determine reliability of principles and methodology used by expert to reach opinion = TRAP
1.Testing of principles or methodology
2. Rate of error
3. Acceptance by other experts in same discipline
Note-General exceptance not required but reliability increases w/ level of acceptance
4. Peer review and publication
Expert witness: Admissibility of texts
An expert may be cross-examed concerning statements contained in any scientific publication, as long as the publication is est. as reliable authority
Expert witness: Admissibility of learned treatises to aid expert [hearsay exception]
1. On direct exam of party's own expert relevant portions of treatise, periodical, or pamphlet may be read into evidence as substantive evidence [ to prove truth of the matter asserted] if est. as reliable authority.
2. On cross of opponent's expert may read into evidence as substantive evidence to impeach and contradict opponent's expert.
3. But to use treatise, the expert must be on the stand when statement from treatise is read into evidence, and the relevant portion is read but not received as an exhibit, e.g. jury never sees it.
Objections to form of questioning
1. Misleading - Q not permitted if it is one that can't be answered w/o making an unintended admission. "Do you still beat your wife?"
2. Compound -Q requires a single answer to more than 1 Q.
3. Argumentive - Q's which are leading that reflect the examiner's interpretation of the facts, "why were u driving so reckless?"
4. Conclusory - Q that calls for an opinion or conclusion that the Wis not qualified or permitted to make,"what did your friend think about that?"
5. Assuming Facts not in evidence, "after D finished his 5th beer, he got up and went to his car, didn't he?" no evidence in case that D had been drinking.
Objections to form of questioning cont'd
6. Cummulative - An attorney is generally not permitted to ask a question that hs already been asked and answered. More repetition is allowed on cross than on direct, but if it's apparent that cross-xaminer isn't moving on, the judge may disallow the Q.
7. Harassing or Embarrassing - trial judge in discretion may disallow cross-exam that is unduely harassing or embarrassing.
8. Calls for narrative answer - "tell me what you did on the evening of Sept 22nd?"
9. Calls for speculation - attorney can't ask w to speculate or theorize b/c they must testify to own personal knowledge.
10. Lack of foundation - w lacks personal knowledge or real evidence isn't what it was purported to be.
11. Nonresponsive answer - "Did u leave the house on Sept. 22?" "I went to the grocery store." A is nonresponsive, b/c Q calls for yes or no answer.
Cross-examination: Scope
Party has a right to cross-exam any opposing W who testifies at the trial. Significant impairment of this right will, at minimum, in striking of w's direct testimony.

Proper subject matter of cros-exam is the atters w/n the scope of direct exam, and matters that test the W's credibility.

Ohio's Wide Open Cross Rule - not limited to scope of direct exam; may Q W on anything relevant to the case
Cross-examination & Impeachment: Collateral Matters Doctrine
General rule is that the cross-examiner is bound by the answers of witness to questions concerning collateral matters. Thus, cross-examiner may not refute the response of a W by producing extrinsic evidence.

Extrinsic evidence = documents, rebuttal W
Collateral Mattes = relevant only b/c of contradiction
Impeachment: Who may impeach?
the credibility of a W may be attacked by any party, including the party calling him.
Can a party bolster the credibility of his W?
Yes, but not until their W's credibility has been attacked. Therefore, can't bolster W's credibility during direct examination. The opposing party hasn't cross-examined W or impeached their character for truthfulness.
Is a W's prior consistent statement admissible on direct examination?
No.
1. W's credibility hasn't been attacked
2. Has minimum probative value
3. It's hearsay
When can a prior consistent statement be admissible on direct?
When it is a Prior Identification of a Person, which is an exclusion to hearsay and comes in as substantive evidence.
But identification must be close in time to event, and witness on the stand can be cross-examined.

E.g. W testifies that she recognizes D, sitting in the ct as the perp. In addition, she tells the ct, ''I picked D out of a line up 2 weeks after the robbery.''
Can you impeach your own witness?
M/S - Yes, w/o limit
Ohio - Generally NO, you can't impeach your own w/ prior inconsistent statement UNLESS,
1. W's trial testimony catches party by surprise and causes affirmative damage to party's case, or
2. if the prior inconsistent statement qualifies as substantive evidence [i.e. was made under oath at a prior hearing at which the W was subject to cross by the party against whom the statement was made]
Impeachment: Prior inconsistent statements
Any W may be impeached by showing that on a prior occassion, she made a material statement [orally or written] that is inconsistent w/ her trial testimony.

But certain PIS may be admitted for both impeachment and as substantive evidence [to prove truth of the matter asserted] as long as PIS was given - 1. orally under oath and 2. as part of a formal hearing, proceeding, trial or deposition. = Hearsay Exclusion
Ohio = same as FRE except that W must must have been subject to X-exam by party against who statement is now being offered - No Grand Jury
With respect to the impeachment method, what are the procedural issue you have to consider?
1. Can impeaching fact be proven by extrinsic evidence [documentary evidence or testimony from other W], or is party bound by W's answers to impeaching question?

2. Assuming extrinsic evidence is permissible, must W first be confronted with impeaching fact as a prerequisite to introduction of extrinsic evidence?

I.e. Do I 1st have to cross examine W-1 about the bribe, or can I skip questioning W-1 and go ahead and bring W-2 to the stand to prove the bribe occurred?
Must W be confronted with her prior inconsistent statement whie still on the stand, or may it be proven later by extrinsic evidence w/o confrontation?
M/S - NO. Under FRE confrontation timing is flexible. So no immediacy to confront W. BUT AFTER EXTRINSIC evidence, W MUST BE GIVEN an OPPORTUNITY at some point TO RETURN to STAND to explain or deny PIS.

OH - YES. prior confrontation is required. No extrinsic evidence until
1. W is told the contents of the prior statement, time, and place statement was made, and person to whom made;
2. W is given opportunity to explain or deny; and
3. adversary has opportunity to interrogate W about the statement. If W then denies making the statement or says, "I don't remember," the statement may be proven by extrinsic evidence.

But under both rules, no opportunity to explain or deny need be given if W is OPPOSING PARTY.
Impeachment: Bias, interest, hostility,
Evidence that W is biased or has a interest in the outcome of the case tends to show that W has a motive to lie.

Means of proof - Cross-examination and Extrinsic evidence. However, b/f W can be impeached by extrinsic evidence a proper foundation must be made by confronting W on cross about facts showing bias or interest.
If such facts are admitted on cross, admissibility of extrinsic evidence is w/n Ct's discretion.

1. W is being paid to testify, W is financing the case, or has financial interest in the outcome.
2. W is family or has other relationship - business or friendship.
3. Whether prosecution W is being paid or has been promised immunity, has an indictment pending against him or on parole.
4. W shows hostility by adverse statements against party, or W had a fight or quarrel w/ him or has law suit pending against him.
M/S Confrontation - cts discretion
OH - NO
Impeachment: sensory defects
Anything that could affect W's perception or memory.

ad eyesight, bad thoughts, mental retardation, cosumption of alcohol or drugs at time of event or while on the W stand.

Purpose = to suggest mistake
Contfrontation reguired - no
Extrinsic evidence - yes; note b/f W can be impeached by extrinsic evidence he must 1st be asked Q's regarding their sensory on cross. If W admits on cross she has an eyesight problem, it's w/n ct discretion to decide whether extrinsic evidence may be introduce as further proof. E.g. My cousin vinny
How may a W be Impeached by Conviction of a crime?
A W may be impeached by a Conviction of any crime [felony or misdemeanor] requiring an act of dishonesty or false statement. Ct no discretion = admissibility is automatic.

A W may also be impeached by a felony not involving dishonesty, but Ct has discretion to exclude if
1. W being impeached is a criminal D and ADA hasn't shown that the conviction's probative value outweighs its prejudicial effect; or
2. for all other Ws, the Ct determines that the conviction's probative value is substantially outweighed by its prejudicial effect.

OH - Same as FRE except extends crimes of false statements to include crimes of dishonest such as theft.
What is the time limitation for impeaching a W by proof of conviction?
Generally, if more than 10 years have elapsed since the date of conviction or the date of release from confinement [whichever is later], the conviction is inadmissible.
What 2 methods of proof is used to impeach W based on conviction of a crime?
1. Ask W to admit prior convictions [e.g. Isn't it true Mr. X that you were convicted of forgery 2 years ago? = crime of dishonesty]; or

2. Introduce record of conviction [extrinsic]. -- Confrontation is not required prior to introduction of record of conviction - i.e. foundation not required
How to impeach using Bad reputation or Opinion about W's Character for Truthfulness?
Extrinsic evidence is allowed by calling a character W to testify that Target W has a bad reputation for telling the truth or that character W has low opinion of Target W's charcter for truthfulness.

Purpose - to suggest that Target W isn't telling the truth on the W stand.
Charater W can't use specific facts.

No need to lay foundation
Method of proof used to impeach for criminal convictions
1. Ask W to admit prior conviction, or
2. Introduce record of conviction by extrinsic evidence. no need to lay foundation 1st.
Impeachment: Can attorney inquire about Unconvicted bad acts (specific instances of conduct)?
Yes, but confrontation on cross is the only permissible way, and cross-examiner must have good faith basis, and ability to inquire lies in ct's discretion.

the prior bad act must be the type of bad act that reflects adversly on W's character for truthfulness, i.e. bad act involving lying or deceit. E.g. falsified application for food stamps.

Can't ask W if he was arrested for bad acts. Can, however, ask about the bad act underlying the arrest. Can ask about arrests for acts something other than character for truthfulness, i.e. bias. And since its for bias, if W denies the arrest, its ok to prove w/ extrinsic evidence.

See pg 50 for Hypos

No extrinsic evidence is permitted.
Impeachment by Contradiction
Concept - Cross-examiner, through confrontation of W, may try to obtain admission that she made a mistake or lied about any fact she testified to during direct, If the W admits the mistake or lie, she has been impeached by contradiction. However, if she sticks to her story, the issue becomes whether extrinsic evidence may be introduced to prove the contradictory fact.

RULE - EXTRINSIC EVIDENCE NOT ALLOWE for the purpose of contradiction IF the fact at issue is COLLATERL. A fact is collateral if it has no significant relevance to the case or to the witness's credibility.
When your witness's credibility has been attacked how do you REHABILITATE his or credibility?
2 Methods for Bar exam -
1. by showing W's Good Reputation for Truthfulness - Use only if opponent used method of bad reputation, convictions, or bad acts. Can do so by bringing out a character W to testify that impeached W has good character for truthfulness via reputation or opinion evidence.

2. by Prior Consistent Statements to rebut a charge of recent fabrication. RULE - If the W's trial testimony is charged as a recent fabrication, or as a prouct of improper influence, a prior statement by the W that is consistent w/ her testimony will be admissible to rebut the charge IF the statement was MADE BEFORE the motive to fabrication arose. IF W said same thing b/f the motive to fabricate arose, this has natural tendence to rebut charge of recent fabrication.
Privileges: Controlling Law
On M/S if exam specifically indicates the action is pending in Fed'l Ct, apply the following procedures:
In Fed'l Q cases and Fed'l criminal cases, privileges are governed by common law principles as interpreted by the courts. Fed'l cts currently recognizes the A/C privilege, privilege for spousal communication, and the psychotherapist/social worker-client privilege.
In Diversity cases, the state law of privilege applies.
Note: in diversity actions, fed'l cts also apply STATE LAW ON COMPETENCY (e.g. dead man's statute) and STATE LAW ON BOP and PRESUMPTIONS.
How is privilege waived?
1. failure to claim the privilege;
2. voluntary disclosure of the privileged matter by the privilege holder; or
3. a contractual provision waiving in advance the right to claim the privilege.

Tip - privilege is not waived when someone wrongfully discloses info w/o privilege holder's consent.
An waiver by joint holder does not affect the right of the other holder to assert the privilege.
Privilege: Attorney-Client
Privilege applies to-
1. Confidential communications
2. between attorney and client [or representative of either]
3. made during professional, legal consultation
4. unless privilege is waived by the client
5. or an exception is applicable
Privilege: Attorney-Client confidential communications
The client must intend confidentiality [e.g., no privilege if client reasonably should know that a 3rd person is listening in; or if client asks attornery to disclose the communication to a 3rd party.]

Joint client rule - if 2 or more clients w/ common interst consult the same attorny, their communications w/ counsel concerning the common interest are privileged to 3rd parties.

But if the joint clients later have dispute with each other concerning the common interest, privilege does not apply as between them.

Note - privilege does not apply to underlying information, pre-existing documents, or physical evidence (e.g.cell phone). i.e. "Describe what you were doing at the time of the ccident."
Who qualifies for attorney-client privilege?
Attny = member of bar or person that client believes is a membr of the bar.

Rep of attny = any agent reasonablly necessary to facilitate the provision of legal services [e.g. accountant working w/ attny to translate clients financial matters]

Client = includes persons seeking to become client [e.g. privilege attaches at outset of formal consultation w/ attny even if client doesn't retain attny.
Rep of Client = same def as rep of attny. [e.g. for corp. client, any Eee who communicates w/ corp's attny to enable attny to provide legal services to corp.]
Privilege: Attorney-Client - Define professional legal consultation
primay purpose of communication must be to obtain or render legal services not business or social advice
3 types of Attny/Client Privilege Waiver
1. Voluntary Waiver = Only C [or c's attny] has power to waiver the privilege. Note - after c's death, the privilege cont's and only c's estate can waive it.
OH- also allows the decedent's spouse to waive it even if the spouse is not the estate rep.

2. Subject Matter Waiver
3. Inadvertent Waiver
A/C Subject Matter Waiver
A voluntary waiver of the privilege as to some communications will also waive the privilege as to other communications if -
a. the partial disclosure is INTENTIONAL;
b. the disclosed and undisclosed communications concern the SAME SUBJECT MATTER; and
c. FAIRNESS requires the the disclosed and undisclosed of a privilege communications be considered together.
A/C Inadvertent Waiver
An inadvertent disclosure of privileged communication will not waive the privileges so long s the privilege holder -
a. took REASONABLE STEPS TO PREVENT the disclosure, and
b. takes reasonable steps to CORRECT the error.
Exceptions to A/C Privilege
1. Policy = Future crime or fraud [e.g. Cleint tells attny, Help me disguise the bribes made so that they look like legitimate business expenses.]

2. Opens the door = Client puts legal advice in issue [e.g. in tax fraud prosecution, D defends on ground that sh relied on advice o her attny in reporting income]

3. Attny Client dispute [e.g. attny sues C for unpaid fee, or C sues attny for legal malpractice] - need to know what wa said to evaluate scope and quality of service
Privilege: Doctor-patient Elements
Dr./P privilege applies to -
1. confiential communication or info acuired by Dr. from patient
2. for purposes of DIAGNOSIS or TREATMENT OF MEDICAL condition.

Applies also to psychotherapists [M.D.-e.g. psychiatris or other professional certified to diagnosis or treat mental/emotional illnesses].

Note-in Fed'l ct actions based solely on Fed law, privilege exists only for PSYCHOTHERAPY. No privilege for confidential communications w/ Dr.s regarding physical conditios b/c fed'l ct doubts the need for routine Dr./P privilege. P's are usu candid w/ Dr. regardless of privilege to get medical treatment nut P's are reluctant to reveal mental/emotional issues.
Privilege: Doctor-patient
Exception
If P expressly or impliedly puts physical or mental condition in issue. [e.g. P is plaintiff suing for damages for personal injury, or D asserts insanity defense. Adversary must be able to test issue.]

Patient signs waiver agreement
Privilege: Spousal Immunity privilege
In CRIMINAL CASES ONLY W-S can't be compelled to testify to any public or private matters against D S = to protect harmony of existing marriage AT TIME OF TRIAL.
W-Spouse holds the privilege; thus W-S can testify against D-S if she chooses, if she does then no there's no marital harmony worth preserving.
OH-it's called "witness spouse imcompetency," which W-S may waive, thus producing same effect as fed'l law.
Privilege: Confidential marital communications
2. Confidential Communications b/w Spouses = ANY TYPE OF CASE and BOTH SPOUSES hold this privilege.
RULE - A spouse is not required, and is not allowed in the absence of consent by the other spouse, to disclose a CONFIDENTIAL COMMUNICATION [statement or acts] made by one to the other DURING marriage.
Privilege: Husband/Wife Exceptions
Applicable to both privileges

1. communications or acts infurtherance of future crime or fraud, and
2. communications or acts destructive of family unit, e.g. spousl or child abuse
H&W divorce – which privilege still applies?
Confidential marital communications - but only protects the communications that were made during marriage. Communications after divorce are not privileged.
Privilege against self-incrimination
Under 5th A, a W can't be compelled to testify against himself. Thus, W can refuse to answer any Q that might incriminate him, and a criminal D can use privilege to refuse to take the witness stand.
Define Hearsay
Out of Ct statement of person [oral or written] offered to prove the truth of the matter asserted in the statement.

If so, statements are inadmissible unless fits w/n exceptions
Out of court statements *not* offered to prove truth of matter asserted
Non-Hearsay Statements
What are the Non-hearsay categories?
1. Verbal Act or Legally Operative Facts
2.To show Effect on person who heard or read the statement
3. Circumstantial evidence of Speaker's State of Mind
Examples of Verbal Act or Legally Operative Facts
I.e. certain utterances as to which the law attaches legal significance regardless of credibility.

E.g. words of contract, terms of a patent, defamation, bribery, cancellations, permission.

Such evidence is not hearsay b/c the issue is simply whether the statemement was made.
To show Effect on person who heard or read the statement
Such statements are admitted to show the effect they had on the reader or hearer.

In negligence case, where knowledge of danger is at issue, a 3rd person's statement of warning is admissible for limited purpose of showing KNOWLEDGE OR NOTICE on the part of the listener.

In Criminal case, such as Dr. Shephard where H claims wife was killed by fleeing one-armed man, but the DA wants to admit a letter that was found in H's pocket the night of the murder which said his wife was having an afair for 5 yrs. The letter is an ou-of-ct statement signed by friend but the letter is relevant to the issue of MOTIVE. Thus, not seeking to prove whether wife was faithful, but offerd to show probable effect on H when he read it.
Circumstantial evidence of Speaker's State of Mind
Such statements are not offered to prove the truth of the matter asserted but only that the declarant believed them to be true.

Most common examples are evidence of insanity and knowledge.

Insanity proceeding, declarant stated o-o-ct "I am John the Baptist."

Evidence that b/f an accident driver stated, "My brakes are defective" is not admissible to prove brakes wre defective, but is admissible to show declarant KNEW brakes were defective and drove anyway.
Non-hearsay prior statements of W
A W's OWN PRIOR STATEMENT, if offered to prove the truth of the matter asserted in the statement, is hearsay and is INADMISSIBLE UNLESS
1. W's prior statement of indentification of a person. H-37, p.41
2. W's prior inconsistent statement IF oral is under oath and made during former trial, hearing, proceeding or deposition. H-38, p.43
3. W's prior consistent statement is used to rebut a recent charge of fabrication or improper motive or influence. H-48, p.52
When is an admission of party-opponent admissible?
Any statement made by a PARTY is admissible if it is offered AGAINST THE PARTY [offered by the other side]

= nonhearsay
Theory - party ought to bear the consequence of what he says

Vicarious Admissions= statements made by agent/employee is admissible against principle/employer if statement concerns matter w/n scope of agency/employment AND is made during agency/employment relationship. See pg. 64
List of Hearsay Exceptions = Phil Is Eating a Pastrami Bacon Melt Sub
4. Excited utterances
5. Present sense impression
6. Present state of mind
7. Declaration of intent
8. Present physical condition
9. Statements for purpose of medical treatment or diagnosis
10. Business records
11. Public records
6th A Right of Confrontation
Rule - In the context of hearsay, the prosecution may not use a hearsay statement against criminal D [even if it fails w/n hearsay exception] if

1. the statement is testimonal,
2. the declarant is unavailable, and
3. the D has had an opportunity for cross-examination
6th A Right of Confrontation
Statement are testimonal when the primary purpose of the questioning is...
to establish past events potentially relevant to a criminal prosecution.
At a minimum it means -
1. Grand jury testimony
2. Responses to police interrogation

Ohio's SC's definition is...
A statememt is testimonial if made under circumstances which would lead an objective W reasonablly to believe that the statement would be available for use at a criminal trial.

Ex. Cop takes rape victim to hospital, victim would reasonablly expect statements to medical staff eo be used primarily for medical assistance not for prosecution of D.
Statement are not testimonal when the primary purpose of the questioning is...
to enable police assistance to meet an ongoing emergency - to end a threatening situation.

A given situation may start out as an emergency and evolv into "proof of past facts." Cts must redact the testimonial portions.

Statements made during police questioning in the context of 911 telephone calls nd crime scene interviews [e.g. declarant makes statements that fall w/n hearsay exceptions for excited utterances or present sense impressions.
What types of hearsay exceptions require unavailability? = Fred Hacked Into Pam's Database
1.former testimony
2.statements against interest
3.dying declarations
4.statements of personal or family history
5.statements offered against party procurring declarat's unavailability
What constitutes unavailability? PAILS
1. Privilege
2. Absence from the jurisdiction
3. Illnes or death
4. Lack f memory
5. Stubborn refusal to testify
When is former testimony admissible?
The former testimony of a now unavailable W, if given at former hearing or in a deposition, is admissible against a party in a subsequent trial who, on the prior occasion, had an opportunity and motive to cross-examine or develop the testimony of the W as long as the issue in both proceedings are essentially the same.

Theory of reliability is assured by cross-examination on prior occasion, but we prefer live testimony, so W must now be unavailable.
When is a statement against interest admissible?
When an unavailable declarant's statement is against his or her PECUNIARY [money], PROPRIETARY [property], or PENAL [exposure to criminal liability]interest.

Note - statement against penal interest, when offered to EXCULPATE defendent, must be corroborated by circumstances showing trustworthiness of statement.

OH - In all criminal cases, statement against interest must be corroborated by circumstances showing trustworthiness, regardless of whether statement is used to exculpate or incriminate D.

Theory - declarants not lkely to lie when making a personally damaging statement as to such issues.
How does statements against interest differ from party admissions?
1. interest must be against interest when made
2. any person [not merely a party] can make statement against interest
3. personal knowledge is required
4. declarant must be unavailable
When are dying declarations admissible?
Under a belief of IMPENDING AND CERTIAN DEATH by a NOW-UNAVAILABLE declarant concerning the CAUSE or SURROUNDING CIRCUMSTANCES of DECLARANT'S DEATH.

Theory- expectation of imminent death is a solemn occassion

Type of cases?
Criminal cases = Homicide only

Civil = All types of cases
What is Ohio's exception for Child's Statements Concerning Abuse?
OH recognizes a unique hearsay exception for statements by a child who is UNDER 12 at the time of trial concerning physical or sexual abuse toward child IF
a. statement is found to be trustworthy based on circumstances;
b. child is unavailable;
c. there is independent proof of abuse; and
d. proponent gives 10 days notice of intent to introduce child's statements.

Confronation issue arises if child's statements are made during police interrogation, as compared to statements made to friend or relative.
When are statements of personal or family history admissible?
Statements made concerning birth, marriage, divorce, death, relationship, etc., are admissible if they are necessary to prove the facts of people's everyday lives; declarant's statement is based on her own personal knowledge of the facts or on her knowledge of the family's reputation, and usu. declarant must be family by blood or by marriage, or itimately associated w/ the family [e.g. family doctor].

Ex. most people rely on hearsay statements of others for knowledge of where they were born.
When are statements offered against party procurring declarant's unavailabilty admissible?
The statements of a person, now-unavailaible are admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procurred the declarant's unavailability.

In effect, a partforfiets his right to object on hearsay grounds to admissions of an unavailable declarant's statements when the party's delibrate wrongdoing procured the unavailablity of the declarant as a witness.
What is the "excited utterance" exception?
A statement concerning a startling event AND made while declarant is still under the stress of excitement caused by the event.

Theory - excitement suspends one's capacity to fabricate.
Factors to consider in determining a statement qualifies for an excited utterance
1. Nature of the event -traumatic accident or gufight

2. Passage of time - no bright-line rule, a person can still be excited an hour later

3. Visual clues
a. exclamatory phrase - "good heavens!"
b. excitement - oriented verbs "shouted," or "screamed," or "exclaimed"
c. exclamation point.
What is the "present sense impression" exception?
A description of an event made WHILE the event is OCCURING or IMMEDIATELY thereafter.

NO NEED FOR STARTLING EVENT.

Theory - declarant has no time to fabricate.

OH- present sense impression is inadmissible if circumstances indicate lack of trustworthiness
E.g. Vic is on the phone w/ mom, says hold on someone is at the door. Vic gets back on the phone and tels mom he'll have to call her back b/c Hannibal is here for dinner. Next day vic is found dead and Hannibal is on trial. Mom can testify that Hannibal was vic's dinner guest b/c Vic was dscribing event while it happened.
What is the "present state of mind" exception?
A statement of a declarant's existing state of mind, emotions, sensations, or physical condition is admissible when declarant's state of mind -
is directly in issue and material to the controvery.

Theory - contemporaneous statement about matters as to which declarant has unique knowledge
What is the "declaration of intent" exception?
statement of declarant's intent to do something in the future, including the intent to engage in conduct / another person

e.g. D life insurance co. uses note found in P's dead daughter's apartment in her hand writing in which she said, "I'm going to end it all next week."
When are declarations of physical condition admissible?
When statement is made to anyone about declarant's CURRENT physical condition.

In tort action, plaintiff may of course testify about the pain she exprienced when her arm was broken in an accident w/ D. But P also calls her neighbor to testify, "I was with P last July when she said 'I'm feeling a lot of pain in my arm.'" This statement is admissible. Neighbor can't testify to P's statement "I sure did feel a lot of pain in my arm last July." = a backward lookng statement.
When are statements for purpose of medical treatment or diagnosis admissible?
When statement is made to anyone [but usually to medical personel] concerning PAST or PRESENT SYMPTOMS of GENERAL CAUSE OF CONDITION for purpose of TREATMENT or DIAGNOSIS.

Note - issue of fault and identity of wrongdoer is not germane to treatment or diagnosis unless case of domestic child abuse- can identify attacker.

Theory - motive to be honest and accurate to get medical assessment.
When are business records admissible?
1. Records of any type of business
2. made in the regular course of business [germane to the business]
3. the business regularly keeps such records
4. made at or about the time the event occured
5. contents consists of - information including qualified opinion and diagnosis, observed by employees of the business, or a statement that falls w/n an independent hearsay exception.

In Ohio, the Ohio rule does not explicitly provide for the admissibility of opinions or diagnosis in medical ofice and hospital records.
Ohio's lower cts tend to allow admissiblity if -
a. entry was made as part of systematice, routine and regular medical practice;
b. diagnosis was result of well-accepted, objective procedure that is not of such technical ntue as to require cross-examination; and
c. diagnosis did not result solely from subjective complaints of patient.
How to establish business records foundation.
1. call sponsoring W to testity to 5 elements of business records hearsay exception; W need not be author of report--can be records custodian or any other knowledgeable person w/n the business, or

2. written certification under oath attesting to elements of business records hearsay exception [with advance notice to opposing party].

Ohio - Written certification method recognized only in case of hospital records.
When are public records admissible?
Records, reports, statements, or data compilations, in any form, of a public office or agency are admissible to the extent they set forth -
1. the activities of the office or agency [e.g. payroll records]; or
2. mtters observed pursuant to a duty imposed by law [e.g. weather bureau records of temperature] excluding police observations in criminal cases; or
3. findings of fact or opinion resulting from an investigation authorized by law [e.g. OSHA inspection report on safety conditions of factory.]

Exception - police reports prepared for prosecutorial purposes are not admissible against D in a criminal case. -Want live testimony from police b/c of their prosecutorial bias. Also can't introduce police report against D under theory of business records.

In OH, forensic crime lab report analyzing chemical DNA content of bodily fluids found at crime scene is not prohibited by police report exclusion. They're neutral, describing raw data that can exonerate as well as implicate him; thus not prepared for prosecution.
Requirements for public records admissibilty
1. the writing must have been made by, and w/n the scope of duty of, the public employee

2. the writing must have been made at or near the time of act, condition or event.

3.the sources of information and other circumstances must be such as to indicate its trustworthiness.
What other misc. records can be admitted?
1. Records of vital statistics [e.g. records of birth, deaths and marriages]
2. Certified copy of a judgment
3. statements in any authenticated document 20 years old or more
4. Learned treatises
5. reputation concerning: a person's character, someone's personal or family history, or land boundaries or the community's general history.
6. statements of fact concerning personal or family history contained in family Bibles, genealogies, jewelery engravings, engravings on urns, crypts, or tompstones or the like.
7. market reports and other compilations if generally used and relied upon by the public or by persons of particular occupation
What is the residual hearsay exception?
The catch-all exception for hearsay statements not covered by specific exceptions.

What are the 3 requirements for a tatement to be admitted under the residual exception?
1. TRUSTWORTHINESS -statements must have circumstantial guarantees of trustworiness that are equivalent to those of statements admitted under other hearsay exceptions.
2. NECESSITY - statement must be offered on a material fact, and must be more probative as to that fact than any other evidence which the proponent can reasonably produce so that the interests of justice will be served by its admission.
3. NOTICE TO ADVERSARY - proponent must give notice in advance before trial to the adverse party as to the nature of the statement [including the name and address of the declarant] so the adversay has an opportunity to prepare to meet him.
How to impeach the hearsay declarant
Can use any impeachment method to attack credibility of a hearsay declarant whos statement was admitted into evidence. See pg 78 for Hypo
Who has and what is the burden of production or going forth with the evidence?
Usually the burden is cast on the party who has pleaded the xistence of the fact, the burden may shift to the adversay when pleader has discharged their initial duty.

Prima fcie case may shift burden of production. P's case-in-chief is done. D's motion for nonsuit is denied made at conclusion of P's case; thus P made out her pfc of D's negligence. If D doesn't immediately rebut w/ evidence, P moves for Directed verdict in her favor claiming D was negligent as a matter of law. If granted, it means P's evidence was sufficiently persuasive, BOP shifted to D, and D failed to meet newly burden of producing evidence of no negligence. If P's mtion was denied, it would mean that P met her intial burden but it did not shift to D; and, thus the burden of production having dropped out of the case, the matter is now for the jury to decide whether P has met her brurden of persuasion.
Who has and what is the burden of persuasion [proof]?
The attorneys. It does not shift from party to party during the course of the trial b/c it's not allocated until it is time for a decision of the trier of fact. Jury will be told who has the burden what the quantum of proof should be.
Who decides preliminary questions of fact upon which admissibility depends?
The judge. Other questions of fact are for the jury
When the prosecution allowed to admit evidence of defendant's bad character.
1. If defendant introduces character evidence
2. If used to show MIMIC (motive, intent, mistake, (lack of) identity, or common plan/scheme) so long as the probative value outweighs unfair prejudice.
3. Prior act of sexual assault or molestation admissible where defendant is accused of committing such an act (must disclose intention to use such evidence 15 days before trial)
4. Specific instances of sexual behavior of the victim with the accused are admissible for any reason
5. Can introduce reputation/ opinion evidence of vic's good character OR defendant's bad character if D impeaches vic.
Character evidence in criminal cases - Defendant
Defense is allowed to introduce relevant traits of good character to show he acted in conformity therewith and consequently is not guilty of the crime. (REPUTATION or OPINION only-no specific good acts) Note: honesty is not relevant when the defendant is charged with violent crime.
Can the defense introduce reputation or pending evidence of bad character of alleged victim when it is relevant to show the defendant's innocence?
Yes but not permissible in rape cases.
Evidence of sexual behavior or disposition of a victim is generally inadmissible. Except?
1. To prove someone other than the D is source of semen, injury, etc.
2. Specific instances with accused are admissible to prove consent.
Define Judicial Notice
Judicial notice operates as a substitute for proof as to the facts that are matters of common knowledge in the community or of capable of certain verification through easily accessible well-established sources.

When a court takes judicial notice of a fact under the Federal rules in a criminal case, the jury may, but doesn't have to, except the fact that a prosecutor is relieved of her burden of producing evidence of the effect
Judicial notice of Law
Courts MUST take judicial notice of federal and state law and the official regulation of the forum stateand the federal government.

Courts May take judicial notice of municipal ordinances and private acts of resolutions of Congress and local state legislature.
Judicial notice of fact
Definition: The recognition of the facts as true without formal presentation of evidence (appropriate facts are the facts that are indisputable or verifiable through specific principles.

Criminal effect: Jury may accept it as fact and proponent didn't have to present evidence on it.
Civil effect: fact is conclusively established.

Procedure: if ct doesn't take judicial notice on its own, party must formally request it be taken, judge then intructs jury as to its effect and it may be requested for first time on appeal.