Evidence
Evidence tests relevance, hearsay, character, impeachment, privilege, authentication, and the best evidence rule. Ohio Evidence Rules closely track the Federal Rules, so expect federal-style analysis.
Relevance and Rule 403
- Evidence is relevant if it has any tendency to make a fact more or less probable and the fact is of consequence.
- Rule 403 excludes relevant evidence if probative value is substantially outweighed by unfair prejudice, confusion, or waste of time.
- Subsequent remedial measures, compromise offers, and liability insurance are generally excluded for limited purposes.
Hearsay
- Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
- Non-hearsay uses include effect on listener, impeachment, verbal acts, and state of mind.
- Exceptions: present sense impression, excited utterance, then-existing state of mind, medical diagnosis or treatment, recorded recollection, business records, public records, and learned treatises.
- The Confrontation Clause bars testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine.
Character and impeachment
- Character evidence is generally inadmissible to prove conduct. Exceptions include the accused's character, the victim's character, and habit.
- MIMIC evidence is admissible for motive, intent, identity, absence of mistake, or common plan.
- Impeachment includes prior inconsistent statements under oath, bias, criminal convictions, and reputation for truthfulness.
Authentication and best evidence
- Authentication requires evidence sufficient to support a finding that the item is what it purports to be.
- The best evidence rule requires the original writing, recording, or photograph to prove its content, with exceptions for lost or unavailable originals.
Worked example
After a car crash, a bystander immediately shouts, "He ran the red light!" The statement is offered to prove the light was red. It is hearsay but admissible as an excited utterance because it was made under the stress of the event. If offered only to show why the plaintiff stopped, it is non-hearsay.
Traps
- Statements for medical treatment are broader than statements for diagnosis.
- Prior consistent statements are not automatically admissible.
- Testimonial hearsay requires confrontation analysis.
- Rule 403 is not a general fairness rule.