Evidence Quiz 2

Front 1

Question

Back 1

Answer

Front 2

Burden of Proof"

Back 2

"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.

Front 3

2. Criminal case: beyond a reasonable doubt"

Front 4

What is the threshold and limit of admissibility?

Back 4

"Relevant evidence is admissible if competent.

Front 5

E may be admissible against one party but not another."

Front 6

How to approach relevance questions?

Back 6

"1. Determine the evidence is relevant (i.e. tends to prove or disprove a material fact).

Front 7

2. If relevant

Back 7

determine whether the evidence should nonetheless be excluded based on:

Front 8

a. Judicial discretion (i.e. probative value is outweighed by unfair prejudice

Back 8

ect)

Front 9

b. Public Policy (e.g. insurance

Back 9

subsequent repairs)"

Front 10

"Exceptions to the general rule of relevant (i.e. must relate to time

Back 10

event

Front 11

7. Habit"

Front 12

Define Hearsay

Back 12

"Out of Ct statement of person [oral or written] AND offered to prove the truth of the matter asserted in the statement.

Front 13

If so

Back 13

statements are inadmissible unless fits w/n exceptions"

Front 14

Out of court statements *not* offered to prove truth of matter asserted

Back 14

Non-Hearsay Statements

Front 15

What are the Non-hearsay categories?

Back 15

"1. Verbal Act or Legally Operative Facts

Front 16

3. Circumstantial evidence of Speaker's State of Mind"

Front 17

Examples of Verbal Act or Legally Operative Facts

Back 17

"I.e. certain utterances as to which the law attaches legal significance.

Front 18

E.g. words of contract

Back 18

defamation

Front 19

Such evidence is not hearsay b/c the issue is simply whether the statemement was made."

Front 20

To show Effect on person who heard or read the statement

Back 20

"Such statements are admitted to show the effect they had on the reader or hearer.

Front 21

In negligence case

Back 21

where knowledge of danger is at issue

Front 22

In Criminal case

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such as Dr. Shephard where H claims wife was killed by fleeing one-armed man

Front 23

Circumstantial evidence of Speaker's State of Mind

Back 23

"Such statements are not offered to prove the truth of the matter asserted but only that the declarant believed them to be true.

Front 24

Insanity proceeding

Back 24

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

Front 25

Evidence that b/f an accident driver stated

Back 25

""My brakes are defective"" is not admissible to prove brakes wre defective

Front 26

Non-hearsay prior statements of W

Back 26

"A W's OWN PRIOR STATEMENT

Front 27

2. W's prior inconsistent statement IF oral is under oath and made during former trial

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hearing

Front 28

3. W's prior consistent statement is used to rebut a recent charge of fabrication or improper motive or influence. H-48

Back 28

p.52"

Front 29

When is an admission of party-opponent admissible?

Back 29

"Any statement made by a PARTY is admissible if it is offered AGAINST THE PARTY [offered by the other side]

Front 30

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

Back 30

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

Front 31

List of Hearsay Exceptions

Back 31

"1. Former testimony

Front 32

11. Public records"

Front 33

6th A Right of Confrontation

Back 33

"Rule - In the context of hearsay

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1. the statement is testimonal

Front 35

2. the declarant is unavailable

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and

Front 36

3. the D has had an opportunity for cross-examination"

Front 37

Statement are testimonal when the primary purpose of the questioning is..."

Back 37

"to establish past events potentially relevant to a criminal prosecution.

Front 38

Ohio's SC's definition is..."

Back 38

"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.

Front 39

Ex. Cop takes rape victim to hospital

Back 39

victim would reasonablly expect statements to medical staff eo be used primarily for medical assistance not for prosecution of D."

Front 40

Statement are not testimonal when the primary purpose of the questioning is...

Back 40

"to enable police assistance to meet an ongoing emergency - to end a threatening situation.

Front 41

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

Back 41

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

Front 42

What types of hearsay exceptions require unavailability?

Back 42

"1.former testimony

Front 43

5.statements offered against party procurring declarat's unavailability"

Front 44

What constitutes unavailability? PAILS

Back 44

"1. Privilege

Front 45

5. Stubborn refusal to testify"

Front 46

When is former testimony admissible?

Back 46

"The former testimony of a now unavailable W

Front 47

When is a statement against interest admissible?

Back 47

"When an unavailable declarant's statement is against his or her PECUNIARY [money]

Front 48

Note - statement against penal interest

Back 48

when offered to EXCULPATE defendent

Front 49

OH - In all criminal cases

Back 49

statement against interest must be corroborated by circumstances showing trustworthiness

Front 50

How does statements against interest differ from party admissions?

Back 50

"1. interest must be against interest when made

Front 51

4. declarant must be unavailable"

Front 52

When are dying declarations admissible?

Back 52

"Under a belief of IMPENDING AND CERTIAN DEATH by a NOW-UNAVAILABLE declarant concerning the CAUSE or SURROUNDING CIRCUMSTANCES of DECLARANT'S DEATH.

Front 53

Type of cases?"

Back 53

"Criminal cases = Homicide only

Front 54

What is Ohio's exception for Child's Statements Concerning Abuse?

Back 54

"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

Front 55

Confronation issue arises if child's statements are made during police interrogation

Back 55

as compared to statements made to friend or relative."

Front 56

When are statements of personal or family history admissible?

Back 56

"Statements made concerning birth

Front 57

Ex. most people rely on hearsay statements of others for knowledge of where they were born."

Front 58

When are statements offered against party procurring declarant's unavailabilty admissible?

Back 58

"The statements of a person

Front 59

In effect

Back 59

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."

Front 60

"What is the ""excited utterance"" exception?"

Back 60

"A statement concerning a startling event AND made while declarant is still under the stress of excitement caused by the event.

Front 61

Theory - excitement suspends one's capacity to fabricate."

Front 62

Factors to consider in determining a statement qualifies for an excited utterance

Back 62

"1. Nature of the event -traumatic accident or gufight

Front 63

2. Passage of time - no bright-line rule

Back 63

a person can still be excited an hour later

Front 64

b. excitement - oriented verbs ""shouted

Back 64

"" or ""screamed

Front 65

c. exclamation point."

Front 66

"What is the ""present sense impression"" exception?"

Back 66

"A description of an event made WHILE the event is OCCURING or IMMEDIATELY thereafter.

Front 67

OH- present sense impression is inadmissible if circumstances indicate lack of trustworthiness"

Back 67

"E.g. Vic is on the phone w/ mom

Front 68

"What is the ""present state of mind"" exception?"

Back 68

"A statement of a declarant's existing state of mind

Front 69

Theory - contemporaneous statement about matters as to which declarant has unique knowledge"

Front 70

"What is the ""declaration of intent"" exception?"

Back 70

"statement of declarant's intent to do something in the future

Front 71

e.g. D life insurance co. uses note found in P's dead daughter's apartment in her hand writing in which she said

Back 71

""I'm going to end it all next week."""

Front 72

When are declarations of physical condition admissible?

Back 72

"When statement is made to anyone about declarant's CURRENT physical condition.

Front 73

In tort action

Back 73

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

Front 74

When are statements for purpose of medical treatment or diagnosis admissible?

Back 74

"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.

Front 75

Theory - motive to be honest and accurate to get medical assessment."

Front 76

When are business records admissible?

Back 76

"1. Records of any type of business

Front 77

5. contents consists of - information including qualified opinion and diagnosis

Back 77

observed by employees of the business

Front 78

In Ohio

Back 78

the Ohio rule does not explicitly provide for the admissibility of opinions or diagnosis in medical ofice and hospital records."

Front 79

a. entry was made as part of systematice

Back 79

routine and regular medical practice;

Front 80

b. diagnosis was result of well-accepted

Back 80

objective procedure that is not of such technical ntue as to require cross-examination; and

Front 81

How to establish business records foundation.

Back 81

"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

Front 82

Ohio - Written certification method recognized only in case of hospital records."

Front 83

When are public records admissible?

Back 83

"Records

Front 84

In OH

Back 84

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

Front 85

Requirements for public records admissibilty

Back 85

"1. the writing must have been made by

Front 86

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

Back 86

condition or event.

Front 87

3.the sources of information and other circumstances must be such as to indicate its trustworthiness."

Front 88

What other misc. records can be admitted?

Back 88

"1. Records of vital statistics [e.g. records of birth

Front 89

5. reputation concerning: a person's character

Back 89

someone's personal or family history

Front 90

6. statements of fact concerning personal or family history contained in family Bibles

Back 90

genealogies

Front 91

7. market reports and other compilations if generally used and relied upon by the public or by persons of particular occupation"

Front 92

How to impeach the hearsay declarant

Back 92

Can use any impeachment method to attack credibility of a hearsay declarant whos statement was admitted into evidence. See pg 78 for Hypo

Front 93

Who has and what is the burden of production or going forth with the evidence?

Back 93

"Usually the burden is cast on the party who has pleaded the xistence of the fact

Front 94

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

Back 94

P moves for Directed verdict in her favor claiming D was negligent as a matter of law. If granted

Front 95

Who has and what is the burden of persuasion [proof]?

Back 95

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.

Front 96

Who decides preliminary questions of fact upon which admissibility depends?

Back 96

The judge. Other questions of fact are for the jury