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43 Cards in this Set

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When is evidence relevant
If it tends to make the existence or nonexistence of a fact of consequence to the litigation more or less probable than it would have been without the evidence
When can the prosecutor inquire into the defendant's character
After the defendant introduces evidence of his good character
What can the prosecutor do once the defendant introduces evidence of his good character (i.e. character witnesses)
"(1) Cross-examine the witness, asking whether he has heard or does he know of specific misconduct of the D, and/or (2) bring in other witnesses to testify to the D's bad reputation"
When may the D bring in evidence of the victim's character
If conformity with the character would help prove the D's innocence
What can the prosecution do once the D brings in evidence of the victim's character
The prosecution can rebut the bad character evidence with evidence of the victim's good character through reputation and opinion evidence
When are prior acts of misconduct admissible
"Not to show conformity with, but to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake"
What facts may a judge take judicial notice of
Facts that can be verified by basic reference materials or are common knowledge in the community
What facts may a judge not take judicial notice of
He may not take judicial notice of facts just because he knows it
What laws may a judge take judicial notice of
State and federal laws and official regulations. He may also take judicial notice of numicipal regulations if supplied with enough information
What is the rule regarding explanatory materials
"Items used entirely for explanatory purposes (visual aids) are permitted to be used at trial, but are not admitted into evidence"
What is the rule regarding compilations
"Compilations are allowed in if it would be inconvenient to introduce a voluminous collection of writings, photos, etc., their contents may be rpesented in the form of a chart or summary"
When does the best evidence rule apply
"In proving the terms of a writing, photo, etc., if the terms are material, the original must be reproduced if it is available. If the original is shown to be lost, outside the jurisdiction and unavailable, or in the possession of an adversary who refuses to produce it, secondary evidence of its contents is admissible."
When will a photocopy not be allowed to replace the original
Generally a photocopy or other duplicate of an original is treated as an original unless its authenticity is challenged or it would be unfair to admit the duplicate.
When are photos admissible
"If a witness confirms that the picture represents what it is supposed to represent. The witness must be familier with the scene, but need not be the photographer"
What documents are self-authenticating
Newsaper articles; certified copies of public records; official publications; trade inscriptions; documents certified by a notary or other authorized official; commercial paper
How can you authenticate handwriting and signatures
"Writings may be authenticated by evidence of the genuineness of the handwiritng. A lay witness who has personal knowledge of the supposed writer's handwriting can testify to the genuineness, or an expert can compare other writings to the writing at issue to render an expert opinion"
What are the basic qualifications a witness must have
(1) the ability to observe; (2) the ability to remember; (3) the ability to communicate; (4) and sufficient intelligence and character to appreciate the obligation to tell the truth.
What is the witness age requirement in Ohio
"In Ohio, a child who is under the age of 10 who appears incapable of accurately perceiving or truthfully relating facts is incompetent to testify"
What is the witness age requirement in Fed Ct
There is no specific age at which a child is competent to testify. Competency depends on the capacity and intelligence of the particular child
When is a communication to a psychologist not privileged
When a court appointed psychologist assesses a D's fitness for trial. The D is not their client and they may testify to what the D said - but the D must be given Miranda warnings before the interview
What is the spousal immunity rule in Ohio
"In a criminal case, D's spouse is presumed incompetent to testify against the D unless the D testifies"
When is layperson opinion admissible
"When it is (1) based on perception (2) that will be helpful to the witness's testimony, and (3) that are not based on specialized knowledge"
What may an expert testify to
"An expert may testify as to opinion if the subject matter is scientific, technical, or otherwise one in which expert opinion would be helpful and the witness has special knowledge, skill, etc. Under Ohio law, expert opinions must be based on facts in evidence or observed personally by the expert"
When can you impeach a witness with a past criminal conviction that involved dishonesty or a false statement
"It is admissible if it is not too remote - more than 10 years since the date of conviction or, if the witness was imprisoned, more than 10 years since the witness was let out of prison or released from parole or probation"
When is a prior conviction that did not involve dishonesty or a false statement
"It is still admissible if the conviction was for a felony, the conviction's probative value is not substantially outweighed by the danger of unfair prejudice, and the conviction was too remote"
How can you impeach a witness for a bad act
"You can impeach by asking him about specific prior bad acts that are probative of truthfulness, eventhough he was never convicted. Extrinsic evidence is not allowed in if he denies the acts."
How can you impeach a witness's reputation
"You can call up other witnesses to testify to the first witness's reputation in the community for honesty, or by asking the later witness about their opinion of the first witness's honesty."
How can you show that a witness has bias
You can question her about it or show through extrinsic evidence
When can a party in Ohio impeach his own witness with a prior inconsistent statement
"(1) the impeaching party shows surprise and damage resulting from the testimoney, (2) the prior inconsistent statement was made under oath at a prior hearing or trial, is an admission, or otherwise qualifies for a hearsay exception. "
When can a prior inconsistent statement be used as substantive evidence
"Generally, prior inconsistent statements constitute hearsay and can be used only for purposes of impeachment unless the witness was subject to cross exmination at the time the statement was made and the statement was made under oath."
How can a witness be impeached for sensory deprivation
You can show that the witness had no knowledge to the facts that he testified about. Cross examination or extrinsic evidence can be used to bring out such deficiencies
What is an admission
An admission is a statement made by a party. A statement made by an employee or agent is considered an admission if it is concerning any matter within the scope of the employment or agency if made during the existence of the employment or agency
What is an admission considered
Non-hearsay
When are co-defendant's statements admissible
Co-D's statements are admissible against another co-D when they Ds were co-conspirators and the statement was made in furtherance of the conspiracy.
What is a business record
Any writing or record made in the regular course of business by a person whose duty it is to make the record
What are allowed under the hearsay exception from hospital record
"parts relating to the treatment and diagnosis of a patient. In Ohio, the rules exclude opinions and diagnoses as hearsay (fed does not)"
What are police records containing observations of an officer and a witness considered
Observation of the officer enter under the business record exception because he has a duty to investigate and record; the witness observations are hearsay because he wasn't under a duty
What is a business record considered authentication wise in Ohio and Fed Ct
"Self-authenticating in Fed if the record custodian certifies in writing that the record meets the hearsay exception; OH, not self authenticating"
What can the absence of a record prove
That an event did not occur when it is shown that the business in question has a policy of recording the matter at issue
When is a dying declaration admissible under the hearsay expection
"(1) declarant made believing his death was imminent, (2) concerning the cause of his impending death, (3) declarant is unavailable"
When is former testimoney admissible and what is it admissble for
(1) declarant is unavailable and (2) statement was made at a previous hearing or in a deposition; may be admitted if the parties and issues at the former proceeding and the present one are similar
When is a statement against financial interest admissible
(1) declarant is unavailable and (2) he has made an out of court statement against his financial interest
When is a statement against penal interest admissible
"(1) declarant is unavailable, (2) he has made an out of court statement against his penal interest, and (3 Ohio) the statement is corroborated by circumstances indicating trustworthiness"