Evidence Ohio 2007 Essay Advantage

Front 1

When is evidence relevant

Back 1

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

Front 2

When can the prosecutor inquire into the defendant's character

Back 2

After the defendant introduces evidence of his good character

Front 3

What can the prosecutor do once the defendant introduces evidence of his good character (i.e. character witnesses)

Back 3

"(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"

Front 4

When may the D bring in evidence of the victim's character

Back 4

If conformity with the character would help prove the D's innocence

Front 5

What can the prosecution do once the D brings in evidence of the victim's character

Back 5

The prosecution can rebut the bad character evidence with evidence of the victim's good character through reputation and opinion evidence

Front 6

When are prior acts of misconduct admissible

Back 6

"Not to show conformity with, but to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake"

Front 7

What facts may a judge take judicial notice of

Back 7

Facts that can be verified by basic reference materials or are common knowledge in the community

Front 8

What facts may a judge not take judicial notice of

Back 8

He may not take judicial notice of facts just because he knows it

Front 9

What laws may a judge take judicial notice of

Back 9

State and federal laws and official regulations. He may also take judicial notice of numicipal regulations if supplied with enough information

Front 10

What is the rule regarding explanatory materials

Back 10

"Items used entirely for explanatory purposes (visual aids) are permitted to be used at trial, but are not admitted into evidence"

Front 11

What is the rule regarding compilations

Back 11

"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"

Front 12

When does the best evidence rule apply

Back 12

"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."

Front 13

When will a photocopy not be allowed to replace the original

Back 13

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.

Front 14

When are photos admissible

Back 14

"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"

Front 15

What documents are self-authenticating

Back 15

Newsaper articles; certified copies of public records; official publications; trade inscriptions; documents certified by a notary or other authorized official; commercial paper

Front 16

How can you authenticate handwriting and signatures

Back 16

"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"

Front 17

What are the basic qualifications a witness must have

Back 17

(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.

Front 18

What is the witness age requirement in Ohio

Back 18

"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"

Front 19

What is the witness age requirement in Fed Ct

Back 19

There is no specific age at which a child is competent to testify. Competency depends on the capacity and intelligence of the particular child

Front 20

When is a communication to a psychologist not privileged

Back 20

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

Front 21

What is the spousal immunity rule in Ohio

Back 21

"In a criminal case, D's spouse is presumed incompetent to testify against the D unless the D testifies"

Front 22

When is layperson opinion admissible

Back 22

"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"

Front 23

What may an expert testify to

Back 23

"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"

Front 24

When can you impeach a witness with a past criminal conviction that involved dishonesty or a false statement

Back 24

"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"

Front 25

When is a prior conviction that did not involve dishonesty or a false statement

Back 25

"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"

Front 26

How can you impeach a witness for a bad act

Back 26

"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."

Front 27

How can you impeach a witness's reputation

Back 27

"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."

Front 28

How can you show that a witness has bias

Back 28

You can question her about it or show through extrinsic evidence

Front 29

When can a party in Ohio impeach his own witness with a prior inconsistent statement

Back 29

"(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. "

Front 30

When can a prior inconsistent statement be used as substantive evidence

Back 30

"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."

Front 31

How can a witness be impeached for sensory deprivation

Back 31

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

Front 32

What is an admission

Back 32

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

Front 33

What is an admission considered

Back 33

Non-hearsay

Front 34

When are co-defendant's statements admissible

Back 34

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.

Front 35

What is a business record

Back 35

Any writing or record made in the regular course of business by a person whose duty it is to make the record

Front 36

What are allowed under the hearsay exception from hospital record

Back 36

"parts relating to the treatment and diagnosis of a patient. In Ohio, the rules exclude opinions and diagnoses as hearsay (fed does not)"

Front 37

What are police records containing observations of an officer and a witness considered

Back 37

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

Front 38

What is a business record considered authentication wise in Ohio and Fed Ct

Back 38

"Self-authenticating in Fed if the record custodian certifies in writing that the record meets the hearsay exception; OH, not self authenticating"

Front 39

What can the absence of a record prove

Back 39

That an event did not occur when it is shown that the business in question has a policy of recording the matter at issue

Front 40

When is a dying declaration admissible under the hearsay expection

Back 40

"(1) declarant made believing his death was imminent, (2) concerning the cause of his impending death, (3) declarant is unavailable"

Front 41

When is former testimoney admissible and what is it admissble for

Back 41

(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

Front 42

When is a statement against financial interest admissible

Back 42

(1) declarant is unavailable and (2) he has made an out of court statement against his financial interest

Front 43

When is a statement against penal interest admissible

Back 43

"(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"