Weissenberger's Ohio Evidence Treatise

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Weissenberger's Ohio Evidence Treatise provides a thorough, yet concise, analysis of the Ohio Rules of Evidence. It is intended to aid the practitioner, judge, and student alike in understanding the operation and application of the Rules in situations that recur throughout the course of litigation. This publication contains the full text of each Rule in a format that lends itself to easier examination and dissection. Analysis, with applicable case law, on each rule is also provided. A comprehensive index is also included to aid the user.

Table of Contents

I GENERAL PROVISIONS

Chapter 101 Scope of Rules: Applicability; Privileges; Exceptions


§ 101.1 General Applicability

§ 101.2 Privileges

§ 101.3 Admissibility Determinations

§ 101.4 Grand Juries and Miscellaneous Criminal Proceedings

§ 101.5 Proceedings in Contempt of Court

§ 101.6 Arbitration and Miscellaneous Proceedings

Chapter 102 Purpose and Construction

§ 102.1 In General

§ 102.2 Purpose

Chapter 103 Rulings on Evidence

§ 103.1 In General

§ 103.2 Effect of Erroneous Ruling: Timely Objection and Proffer
Requirements

§ 103.3 Record of Offer and Ruling

§ 103.4 Hearing of Jury

§ 103.5 Plain Error

Chapter 104 Preliminary Questions

§ 104.1 In General

§ 104.2 Role of Judge in Determining Admissibility

§ 104.3 Limitations on Trial Judge's Role

§ 104.4 Inapplicability of Rules of Evidence to Preliminary
Admissibility Determinations

§ 104.5 Comment by Court on its Admissibility Ruling

§ 104.6 Conditional Relevancy - Definition and Examples

§ 104.7 Jury's Role with Regard to Conditional Relevancy

§ 104.8 Role of the Judge with Regard to Evidence Admitted Subject
to Fulfillment of Condition of Fact ("Connecting Up")

§ 104.9 Standard for Conditional Evidence under Rule 104(B);
Function of the Courts

§ 104.10 Forum for Conducting Admissibility Determinations

§ 104.11 Distinction Between Federal and Ohio Rules

§ 104.12 In General

§ 104.13 Limitation on the Protection Offered to the Accused

§ 104.14 Scope of the Rule

§ 104.15 Effect of Admissibility Determinations upon Probative Value

Chapter 105 Limited Admissibility

§ 105.1 The Concept of Limited Admissibility

§ 105.2 Limiting Instructions

§ 105.3 Relationship With Rule 403

§ 105.4 Prior Law

Chapter 106 Remainder of or Related Writings or Recorded
Statements


§ 106.1 In General

II JUDICIAL NOTICE

Chapter 201 Judicial Notice of Adjudicative Facts


§ 201.1 Judicial Notice - In General

§ 201.2 "Adjudicative" Versus "Legislative Facts."

§ 201.3 Qualification of Adjudicative Facts

§ 201.4 Judicial Knowledge Versus Judicial Notice

§ 201.5 Discretionary Versus Mandatory Judicial Notice

§ 201.6 Hearing in Support or Opposition

§ 201.7 Time of Taking Judicial Notice

§ 201.8 Jury Instructions

§ 201.9 Selected Matters Judicially Noticed

III PRESUMPTIONS

Chapter 301 Presumptions in General in Civil Actions and Proceedings


§ 301.1 Presumptions in Civil Actions-In General

§ 301.2 Definitional Distinctions

§ 301.3 Particular Presumptions

§ 301.4 The Policy of Presumptions

§ 301.5 Criminal Presumptions

§ 301.6 Effect of the Rule

IV RELEVANCY AND ITS LIMITS

Chapter 401 Definition of “Relevant Evidence”


§ 401.1 Definition of Relevant Evidence - In General

§ 401.2 Analytic Process for Determining Relevance

§ 401.3 Standard of Relevance

§ 401.4 Direct and Circumstantial Evidence

§ 401.5 Conditional Relevance

§ 401.6 Relevance and Materiality

§ 401.7 Relevant Facts Need Not be Contested Facts

§ 401.8 Relevance Compared with Competency

§ 401.9 Relevance Compared with Weight and Sufficiency of the
Evidence

Chapter 402 Relevant Evidence Generally Admissible; Irrelevant
Evidence Inadmissible


§ 402.1 Admissibility - In General

§ 402.2 Conceptual Basis for Rule 402

§ 402.3 The Rules of Evidence and Constitutional Inadmissibility

§ 402.4 Bases for Inadmissibility Extrinsic to the Rules of Evidence

Chapter 403 Exclusion of Relevant Evidence on Grounds of Prejudice,
Confusion, or Undue Delay


§ 403.1 In General

§ 403.2 Mandatory Exclusion and Discretionary Exclusion;
Discretion of Trial Judge

§ 403.3 Exclusion of Relevant Evidence Based Upon Unfair
Prejudice

§ 403.4 Exclusion on the Basis of Unfair Prejudice - Capital Cases

§ 403.5 Exclusion of Relevant Evidence Based Upon Confusion of
the Issues or Misleading the Jury

§ 403.6 Exclusion of Relevant Evidence Based Upon Waste of Time
or Unfair Surprise

§ 403.7 Exclusion of Relevant Evidence Based Upon Undue Delay
and Needless Presentation of Cumulative Evidence

§ 403.8 Relationship of Rule 403 and Rule 105

Chapter 404 Character Evidence Not Admissible to Prove Conduct;
Exceptions; Other Crimes


Rule 404(A) Character Evidence Generally

§ 404.1 Character Evidence - In General

§ 404.2 Policy Supporting Rule 404(A)

§ 404.3 Definitions

§ 404.4 Exclusionary Rule as to Character Evidence

§ 404.5 Character of the Accused, Rule 404(A)(1)

§ 404.6 Character of the Accused, Policy for Admissibility

§ 404.7 Character of the Accused, Sex Related Crimes

§ 404.8 Rape Shield Law

§ 404.9 Character of Witness, Rule 404(A)(3)

§ 404.10 Character in Issue - In General

§ 404.11 Character in Issue - Tests for Application

Rule 404(B) Other Crimes, Wrongs, or Acts

§ 404.21 Other Crimes, Wrongs, or Acts - In General

§ 404.22 Policy of Rule 404(B) in Criminal Cases

§ 404.23 Admissible Extrinsic Acts - In General

§ 404.24 Admissible Extrinsic Acts Under O.R.C. § 2945.59

§ 404.25 Extrinsic Act Evidence Offered to Show Intent, Knowledge,
or Absence of Mistake in a Criminal Case

§ 404.26 Extrinsic Act Evidence Offered to Show Motive in a
Criminal Case

§ 404.27 Extrinsic Act Evidence Offered to Show Identity in a
Criminal Case

§ 404.28 Extrinsic Act Evidence Offered to Show Scheme, Plan, or
System in a Criminal Case

§ 404.29 Construction of Rule 404(B) in Criminal Cases; Similarity of
Extrinsic Act to the Crime Charged

§ 404.29.1 Cases Where Extrinsic Act is Excluded

§ 404.29.2 Notice Requirement in Criminal Cases

§ 404.30 Extrinsic Acts in Civil Cases

§ 404.31 Issues Pertaining to the Application of Rule 404(B)

§ 404.32 Limiting Instruction

Chapter 405 Methods of Proving Character

§ 405.1 Methods of Proving Character - In General

§ 405.2 Reputation Evidence Used to Prove Character

§ 405.3 Opinion Evidence Used to Prove Character

§ 405.4 Cross-examination of a Character Witness

§ 405.5 Cross-examination of a Character Witness; Rule 105 and
Rule 403

§ 405.6 Prior Instances of Conduct to Prove Character

§ 405.7 Prior Instances of Conduct to Prove Victim Was Initial
Aggressor

Chapter 406 Habit; Routine Practice

§ 406.1 Habit Evidence - In General

§ 406.2 Definition of Habit Evidence

§ 406.3 Application of Habit Evidence

§ 406.4 Proof of the Existence of a Habit

Chapter 407 Subsequent Remedial Measures

§ 407.1 Subsequent Remedial Measures - In General

§ 407.2 Scope of Rule 407

§ 407.3 Policy of Rule 407

§ 407.4 Admissible Remedial Actions

§ 407.5 Application of Rule 407 in Products Liability Actions

Chapter 408 Compromise and Offers to Compromise

§ 408.1 Compromise and Offers to Compromise - In General

§ 408.2 Policy of Rule 408

§ 408.3 Scope of Rule 408

§ 408.4 Admissible Statements of Compromise - In General

§ 408.5 Admissible Statements of Compromise to Show Bias

§ 408.6 Applicability of Rule 408 in Multiparty Litigation and
Subsequent Actions

Chapter 409 Payment of Medical and Similar Expenses

§ 409.1 Payment of Medical Expenses - In General

§ 409.2 Policy of Rule 409

§ 409.3 Scope of Rule 409

§ 409.4 Admissible Statements Relating to the Payment of Medical
Statements

Chapter 410 Inadmissibility of Pleas, Offers of Pleas, and Related
Statements


§ 410.1 Inadmissibility of Pleas, Offers of Pleas, and Related
Statements - In General

§ 410.2 Withdrawn Pleas of Guilty

§ 410.3 No Contest Pleas

§ 410.4 Statements Attending Pleas and Offers to Plead

§ 410.5 Co-Offender Pleas

§ 410.6 Pertinent Criminal Procedure Rules

Chapter 411 Liability Insurance

§ 411.1 Liability Insurance Evidence - In General

§ 411.2 Policy of Rule 411

§ 411.3 Scope of Rule 411

§ 411.4 Admissible Evidence Relating to Liability Insurance

V PRIVILEGES

Chapter 501 Privileges


§ 501.1 The Rule as to Privileges - In General

§ 501.2 Other Rules of Evidence that Relate to Privilege

§ 501.3 The Theory and the Parameters of Privilege Law

§ 501.4 Ohio Substantive Privilege Law - In General

§ 501.5 Attorney-Client Privilege - In General

§ 501.6 Attorney-Client Privilege - Waiver

§ 501.7 Attorney-Client Privilege - Testimony of the Client

§ 501.8 Attorney-Client Privilege - Exceptions

§ 501.9 Attorney-Client Privilege - Corporations

§ 501.10 Attorney-Client Privilege - Government Entities

§ 501.11 Physician-Patient Privilege - In General

§ 501.12 Physician-Patient Privilege - Exceptions

§ 501.13 Physician-Patient Privilege - Limitations of the Privilege

§ 501.13.1 Breach of Confidentiality Tort

§ 501.14 Clergyman-Parishioner Privilege - In General

§ 501.15 Clergyman-Parishioner Privilege - Scope

§ 501.16 Clergyman-Parishioner Privilege - Waiver and Exceptions

§ 501.17 Husband-Wife Privilege - In General

§ 501.18 Husband-Wife Privilege - Scope

§ 501.19 Husband-Wife Privilege - Policy

§ 501.20 Mediation Privilege - In General

§ 501.21 Mediation Privilege - Scope

VI WITNESSES

Chapter 601 General Rule of Competency


§ 601.1 Competency of Witnesses - In General

§ 601.2 Effect of Rule 601 on the Dead Man's Statute

§ 601.3 Rule 601(A) - Infants and Mental Incompetents

§ 601.4 Rule 601(B) - Spouses

§ 601.5 Rule 601(C) - Traffic Officers

§ 601.6 Rule 601(D) - Expert Medical Testimony in Medical
Malpractice Cases

§ 601.7 Rule 601(E) - Other Provisions in the Rule

Chapter 602 Lack of Personal Knowledge

§ 602.1 General Requirement of Personal Knowledge

§ 602.2 Foundation as to Personal Knowledge

§ 602.3 Competency Versus Weight

§ 602.4 Rule 602 and Hearsay

Chapter 603 Oath or Affirmation

§ 603.1 Oath or Affirmation - In General

§ 603.2 Operation of the Oath or Affirmation Requirement

§ 603.3 Testimony in the Absence of Oath or Affirmation

Chapter 604 Interpreters

§ 604.1 Interpreters - In General

§ 604.2 Function of the Trial Judge

§ 604.3 Credibility of the Interpreter; Function of the Trier of Fact

Chapter 605 Competency of Judge as Witness

§ 605.1 Competency of Trial Judge - In General

§ 605.2 Presumption of Prejudice When a Judge Testifies Contrary to
Rule 605

Chapter 606 Competency of Juror as Witness

§ 606.1 Rule 606(A) - Competency of Juror at Trial as Witness - In
General

§ 606.2 Rule 606(B) - Competency of Juror to Testify at a
Subsequent Proceeding Concerning Original Verdict or
Indictment; Matters Internal to the Deliberative Process

§ 606.3 Juror Competency as to Extraneous Prejudicial Information
or Outside Influence

§ 606.4 Juror Competency in the Absence of Extrinsic
Foundation - Threats, Bribes, Attempted Threats, Attempted
Bribes, and Improprieties of Court Officers

§ 606.5 Competency of Juror as to Matters Unrelated to the Integrity
of the Verdict or Indictment

§ 606.6 Affidavits and Other Evidence of Jurors’ Statements
Competent Only to the Extent Testimony is Competent

Chapter 607 Impeachment

§ 607.1 Impeachment - In General

§ 607.2 Policy of Rule 607

§ 607.3 Surprise

§ 607.4 Affirmative Damage

§ 607.5 Inconsistency of the Prior Statements

§ 607.6 Prior Inconsistent Opinions

§ 607.7 Reasonable Basis for Inquiry

Chapter 608 Evidence of Character and Conduct of Witness

§ 608.1 Evidence of Character and Conduct of Witness - In General

§ 608.2 Rule 608(A)(1) - Impeachment Through Opinion and
Reputation Evidence of Character - In General

§ 608.3 Rule 608(A)(1) - Foundation as to Impeachment Character
Witness’s Knowledge

§ 608.4 Rule 608(A)(1)— Substance of Impeachment Character Witness’s Testimony

§ 608.5 Rule 608(A)(2) - Bolstering the Credibility of a Witness with
Reputation and Opinion Evidence - When Authorized

§ 608.6 Rule 608(A)(2) - Substance of Testimony from
Rehabilitation Character Witness

§ 608.7 Rule 608(B) - Specific Instances of Prior Conduct of the
Principal Witness - In General

§ 608.8 Rule 608(B) - Restriction on Extrinsic Evidence; Exercise of
Discretion by the Trial Judge

§ 608.9 Rule 608(B) - Types of Specific Instances of Conduct
Appropriate for Inquiry

§ 608.10 Right of Witness to Foreclose Inquiry Unrelated to
Credibility

§ 608.11 Special Procedures for Alleged False Rape Accusations

Chapter 609 Impeachment by Evidence of Conviction of Crime

§ 609.1 Rule 609(A) - Impeachment by Evidence of Conviction of
Crime - In General

§ 609.2 Evidence of Felony Grade Convictions for Witnesses Other
Than a Criminal Defendant

§ 609.3 Rule 609(A)(1) - Convictions Appropriate for Impeachment
Under Subsection (A)(1) of Rule 609

§ 609.4 Evidence of Felony Grade Convictions Offered to Impeach a
Criminal Defendant

§ 609.5 Rule 609(A)(2) - Convictions Involving Dishonesty and
False Statement

§ 609.6 What Constitutes "Conviction" Under Rule 609

§ 609.7 Introduction of the Conviction

§ 609.8 Rule 609(B) - Time Limit

§ 609.9 Rule 609(C) - Effect of Pardon, Annulment, Expungement or
Certification of Rehabilitation

§ 609.10 Rule 609(D) - Juvenile Adjudications

§ 609.11 Rule 609(E) - Effect of Pendency of Appeal

Chapter 610 Religious Beliefs or Opinions

§ 610.1 Religious Beliefs or Opinions as Affecting Credibility of
Witness - In General

§ 610.2 Admissible Evidence of Religious Belief

Chapter 611 Mode and Order of Interrogation and Presentation

§ 611.1 Rule 611 - Background and Purpose

§ 611.2 Rule 611(A) - Mode and Order of Proof Within Discretion of
Court

§ 611.3 Rule 611(B) - Scope of Cross-Examination

§ 611.4 Rule 611(B) - Cross-Examination Relating to the Credibility
of the Witness

§ 611.5 Rule 611(B) - Impact of Privilege Against Self-Incrimination

§ 611.6 Rule 611(C) - Leading Questions

Chapter 612 Writing Used to Refresh Memory

§ 612.1 Refreshing Recollection - In General

§ 612.2 Past Recollection Recorded Distinguished

§ 612.3 Refreshing Recollection During the Course of Testimony

§ 612.4 Production of the Writing Used to Refresh Recollection

§ 612.5 Former Limitation on the Production of Writings Used to Refresh Recollection

§ 612.6 Failure to Produce a Writing Pursuant to Court Order Under
Rule 612; Unrelated Matters in Document Used to Refresh
Recollection

Chapter 613 Impeachment by Self-Contradiction

§ 613.1 Impeachment by Self-Contradiction - In General

§ 613.2 Rule 613(A) - Interrogation on Prior Statement - In General

§ 613.3 Rule 613(B) - Extrinsic Evidence of Prior Inconsistent
Statements

§ 613.4 Opportunity to Explain or Deny

§ 613.5 Discretion to Dispense with the Foundational Requirement

§ 613.6 Subject Matter of Statement

§ 613.7 Necessity of Denial

§ 613.8 Rule 613(C) - Prior Inconsistent Conduct

§ 613.9 Admissions of a Party-Opponent

§ 613.10 The Degree of Inconsistency Required for Impeachment

Chapter 614 Calling and Interrogation of Witnesses by Court

§ 614.1 Calling and Interrogation of Witnesses by Court - In General

§ 614.2 Rule 614(A) - Calling by Court

§ 614.3 Rule 614(B) - Interrogation by Court

§ 614.4 Rule 614(C) - Objection

Chapter 615 Exclusion of Witnesses

§ 615.1 Rule 615 - Exclusion of Witnesses - In General

§ 615.2 Persons Not Subject to Exclusion

§ 615.3 Violation of a Separation Order

Chapter 616 Methods of Impeachment

§ 616.1 Impeachment Methods - In General

§ 616.2 Bias Impeachment - In General

§ 616.3 Function of Bias Impeachment

§ 616.4 Whether a Foundation is Necessary

§ 616.5 Impeachment by Demonstrating Sensory or Mental Defect

§ 616.6 Impeachment by Specific Contradiction

§ 616.7 Extrinsic Evidence of Contradiction

VII OPINIONS AND EXPERT TESTIMONY

Chapter 701 Opinion Testimony by Lay Witnesses


§ 701.1 Lay Opinion Testimony - In General

§ 701.2 History of the Rule Prohibiting Lay Opinion Testimony

§ 701.3 Standards of Admissibility - Opinions Rationally Based on
the Perception of a Witness

§ 701.4 Standards of Admissibility - Helpfulness to the Jury; Judicial
Discretion

Chapter 702 Testimony by Experts

§ 702.1 Testimony by Experts - In General

§ 702.2 Rationale and Purpose of Rule 702

§ 702.3 Subjects Regarding Which Expert Testimony is Proper

§ 702.4 Qualifications of Expert Witnesses; Function of Trial Judge

§ 702.5 Determining the Reliability of Expert Testimony

§ 702.5.1 Daubert Flexibility

§ 702.6 Forms of Expert Testimony

§ 702.7 Statutory Interpretations of "Reliability" Standard

Chapter 703 Bases of Opinion Testimony by Experts

§ 703.1 In General

§ 703.2 Scope of Rule 703

§ 703.3 Policy of Rule 703

§ 703.4 Bases of Expert Testimony - Firsthand Knowledge

§ 703.5 Bases of Expert Testimony - Evidence Admitted at the
Hearing

Chapter 704 Opinion on Ultimate Issue

§ 704.1 In General

§ 704.2 Rationale of Rule 704

§ 704.3 Admissibility of Ultimate Issue Opinions

§ 704.4 Discretion of the Trial Court

Chapter 705 Disclosure of Facts or Data Underlying Expert Opinion

§ 705.1 In General

§ 705.2 Rationale and Scope of Rule 705

§ 705.3 Use of Hypothetical Questions Under Rule 705

§ 705.4 Disclosure of Supporting Facts; Relation to Rule 703

§ 705.5 Explaining the Expert Opinion

Chapter 706 [Repealed.]

VIII HEARSAY

Chapter 801 Definitions


Rule 801 (A) Statement; (B) Declarant; (C) Hearsay

§ 801.1 The Hearsay System - An Overview

§ 801.2 Hearsay and the Constitutional Rights of Confrontation

§ 801.3 Definition of a Statement

§ 801.4 Definition of Declarant

§ 801.5 Definition of Hearsay

§ 801.6 Implied Assertions and the Assertion-Oriented Approach of
Defining Hearsay

§ 801.7 Non-Hearsay, Out-of-Court Statements; Statements Offered
for Effect on a Particular Listener or Reader

§ 801.8 Non-Hearsay, Out-of-Court Statements; Verbal Acts or
Operative Facts

§ 801.9 Non-Hearsay, Out-of-Court Statements; State of Mind

§ 801.10 Non-Hearsay, Out-of-Court Statements; Prior Inconsistent
Statements Used for Impeachment Purposes

§ 801.11 Hearsay and Relevancy

Rule 801(D)(1) Statements Which Are Not Hearsay - Prior Statement by
Witness

§ 801.19 Statements Identified in Rule 801(D) - In General

§ 801.20 Prior Inconsistent Statements

§ 801.21 Prior Consistent Statements

§ 801.22 Statements of Identification

Rule 801(D)(2) Statements Which Are Not Hearsay - Admission by Party-
Opponent

§ 801.32 Party Admissions - In General

§ 801.33 Party’s Own Statement

§ 801.34 Adoptive Admissions

§ 801.35 Vicarious Admissions

§ 801.36 Co-Conspirators' Statements - In General

§ 801.37 Co-Conspirators' Statements - Foundation - Degree of Proof

§ 801.38 Co-Conspirators' Statements - When Statement is Made

§ 801.39 Co-Conspirators' Statements - In Furtherance Requirement

§ 801.40 Co-Conspirators’' Statements - Other Considerations

§ 801.41 Unique Doctrines Applicable to Admissions

§ 801.42 Admissions and Statements Against Interest Distinguished

Chapter 802 Hearsay Rule

§ 802.1 Hearsay Rule - Function

Chapter 803 Hearsay Exceptions; Availability of Declarant Immaterial

Rule 803(1) Present Sense Impression

§ 803.1 Present Sense Impression - In General

§ 803.2 Policy Supporting Rule 803(1)

§ 803.3 Requirement of Temporal Proximity

§ 803.4 Requirement of "Perception" by Declarant

§ 803.5 Subject Matter Requirement

Rule 803(2) Excited Utterance

§ 803.15 Excited Utterances - In General

§ 803.16 Excited Utterances and the Constitutional Rights of
Confrontation

§ 803.17 Theory Supporting Rule 803(2)

§ 803.18 Elements for Application of Rule 803(2)

§ 803.19 Nature of the Stimulus - Requirement that Event or
Condition be Startling

§ 803.20 Requirement that Declarant Be Under Stress of Excitement
Caused by Startling Event When Statement is Uttered

§ 803.21 Subject Matter of Excited Utterance - Requirement that
Statement “Relate” to the Startling Event

Rule 803(3) Then Existing, Mental, Emotional, or Physical Condition

§ 803.30 Then Existing, Mental, Emotional, or Physical Condition - In
General

§ 803.31 Declarations of Bodily Feelings, Symptoms, Condition

§ 803.32 State of Mind in Issue

§ 803.33 State of Mind to Demonstrate Subsequent Acts

§ 803.34 State of Mind to Demonstrate Previous Conduct

§ 803.35 State of Body or Mind to Demonstrate Past Conduct
Concerning Declarant’s Last Will and Testament

Rule 803(4) Statements for Purposes of Medical Diagnosis or Treatment

§ 803.45 Statements for Purposes of Medical Diagnosis or
Treatment - In General

§ 803.46 Statements for Medical Diagnosis or Treatment and the
Constitutional Rights of Confrontation

§ 803.47 "Reasonably Pertinent" Requirement

§ 803.48 Statements by Children in Abuse Cases

§ 803.49 By and To Whom

§ 803.49A Psychiatrists

Rule 803(5) Recorded Recollection

§ 803.58 Recollection Recorded - In General

§ 803.59 Requirement that Witness Lack a Present Recollection of
Matter Contained in Memorandum

§ 803.60 Requirement that Memorandum Correctly Reflect Prior
Knowledge of Matter Contained Therein

§ 803.61 Requirement that Memorandum be Made or Adopted by
Witness

§ 803.62 Requirement that Memorandum be Prepared or Adopted
When "Fresh" in Declarant’s Memory

§ 803.63 Procedure for Admission

Rule 803(6) Records of Regularly Conducted Activity

§ 803.73 Records of Regularly Conducted Activity - In General

§ 803.74 Rationale

§ 803.75 Medical Opinions and Diagnoses

§ 803.76 Necessity that Record Be Regularly Prepared and Maintained
in Course of Regularly Conducted Business Activity - Scope
of Business

§ 803.77 Necessity of Personal Knowledge - Multiple Hearsay
Problems

§ 803.78 Necessity that Record be Made Contemporaneously with Act,
Event, or Condition

§ 803.79 Foundational Requirements: Custodian or Some Other
Qualified Person - Rule 901(B)(10)

§ 803.80 Exclusion Where Lack of Trustworthiness is Indicated

§ 803.81 Exclusion in Criminal Cases under the Constitutional
Guarantee of Confrontation

Rule 803(7) Absence of Entry in Record Kept in Accordance with the
Provisions of Paragraph (6)

§ 803.91 Absence of Entry in Records of Regularly Conducted
Activity - In General

§ 803.92 Foundational Requirements

Rule 803(8) Public Records and Reports

§ 803.102 Public Records and Reports - In General

§ 803.103 Rationale

§ 803.104 Foundational Requirements - In General

§ 803.105 Activities of Office or Agency, Rule 803(8)(a)

§ 803.106 Matters Observable Under Legal Duty, Rule 803(8)(b)

§ 803.107 Use Restrictions on Public Records and Reports in Criminal
Cases, Rule 803(8)(b)

§ 803.108 Special Problem: Admissibility of Investigative Reports

§ 803.109 Trustworthiness

Rule 803(9) Records of Vital Statistics

§ 803.119 Records of Vital Statistics In Conjunction with Statute and
Other Rules

§ 803.120 Pre-Rule Ohio Law

Rule 803(10) Absence of Public Record or Entry

§ 803.130 Absence of Public Record or Entry - In General

§ 803.131 Foundation and Authentication Requirements

Rule 803(11) Records of Religious Organizations

§ 803.141 Records of Religious Organizations - In General

§ 803.142 Rationale for the Exception

§ 803.143 Practical Considerations

Rule 803(12) Marriage, Baptismal, and Similar Certificates

§ 803.153 Ceremonial Certificates - In General

§ 803.154 Methodology

Rule 803(13) Family Records

§ 803.164 Family Records - In General

Rule 803(14) Records of Documents Affecting an Interest in Property

§ 803.174 Records of Documents Affecting an Interest in Property - In
General

§ 803.175 Rationale

§ 803.176 Relation to Other Rules and Statutes

Rule 803(15) Statements in Documents Affecting an Interest in Property

§ 803.186 Statements in Documents Affecting an Interest in
Property - In General

§ 803.187 Conditions and Rationale

Rule 803(16) Statements in Ancient Documents

§ 803.197 Statements in Ancient Documents - Relationship to Common
Law

§ 803.198 Application

§ 803.199 Rationale

Rule 803(17) Market Reports, Commercial Publications

§ 803.209 Market Reports and Commercial Publications—In General

§ 803.210 Scope and Rationale of the Exception

§ 803.211 Utilization of the Exception

Rule 803(18) Learned Treatises

§ 803.221 Learned Treatises - History and Common Law Rule

§ 803.222 Rationale

§ 803.223 Foundation and Use

§ 803.224 Scope

Rule 803(19) Reputation Concerning Personal or Family History

§ 803.231 Reputation Concerning Personal or Family History - In
General

§ 803.232 Application of the Rule

Rule 803(20) Reputation Concerning Boundaries or General History

§ 803.241 Reputation Concerning Boundaries or Customs

§ 803.242 Reputation Concerning General History

Rule 803(21) Reputation as to Character

§ 803.251 Reputation as to Character - In General

§ 803.252 Purpose and Extent of the Exception

Rule 803(22) Judgment of Previous Conviction

§ 803.261 Judgment of Previous Conviction - In General

§ 803.262 Modification of Prior Law

§ 803.263 Rationale of the Rule

§ 803.264 Scope of the Rule

§ 803.265 Application of the Rule

Rule 803(23) Judgment as to Personal, Family, or General History, or
Boundaries

§ 803.271 Judgment as to Personal, Family, or General History, or
Boundaries - In General

§ 803.272 Modification of Prior Law

§ 803.273 Res Judicata and Collateral Estoppel Distinguished

§ 803.274 Scope of the Exception

§ 803.275 Application of the Exception

Chapter 804 Hearsay Exceptions; Declarant Unavailable

Rule 804(A) Definition of Unavailability

§ 804.1 Admissible Hearsay When Declarant Unavailable

§ 804.2 Unavailability - An Overview

§ 804.3 Privilege

§ 804.4 Refusal to Testify

§ 804.5 Lack of Memory

§ 804.6 Death and Infirmity

§ 804.7 Absence

§ 804.8 Hearsay Proponent Procurement of Unavailability of
Declarant

Rule 804(B)(1) Hearsay Exceptions - Former Testimony

§ 804.11 Former Testimony - In General

§ 804.12 Rationale

§ 804.13 "Testimony" Adduced in a "Proceeding."

§ 804.14 Opportunity to Develop Testimony - Cross-Examination

§ 804.15 Direct or Redirect Examination

§ 804.16 "Identity of Issues" "Identity of Parties" - Successor in
Interest in Civil Cases

§ 804.17 Similar Motive Requirement

§ 804.18 Similar Motive - Criminal Proceedings - Constitutional
Considerations

Rule 804(B)(2) Hearsay Exceptions - Statement Under Belief of Impending
Death

§ 804.21 Statement Under Belief of Impending Death - In
General - Rationale

§ 804.22 Requirement that Declarant Possess Subjective Belief in
Certainty of Death - Spontaneity

§ 804.23 Requirement that Subject Pertain to “Cause or
Circumstances” of Death

Rule 804(B)(3) Hearsay Exceptions - Statement Against Interest

§ 804.31 Statement Against Interest - In General - Foundational
Requirements

§ 804.32 Admissions of a Party-Opponent Distinguished

§ 804.33 Rationale

§ 804.34 Admission of "Statement" or "Fact Asserted"

Therein - "Reasonable Person Test."

§ 804.35 Foundational Requirements - Unavailability and Personal
Knowledge

§ 804.36 Contrary to Interest - "Pecuniary or Proprietary"
Interest - "Penal" Interest

§ 804.37 Statements Against Penal Interest - Requirement of
"Corroborating Circumstances" - In General

§ 804.38 Standards Applicable to Declarations Tending to Exculpate
the Accused

§ 804.39 Standards Applicable to Declarations Tending to Inculpate
the Accused

§ 804.41 Statements Against Interest and the Constitutional Rights of
Confrontation

Rule 804(B)(4) Hearsay Exceptions - Statement of Personal or Family History

§ 804.42 Statement of Personal or Family History - In
General - Rationale

§ 804.43 Foundational Requirements

§ 804.44 Rationale

Rule 804(B)(5) Hearsay Exceptions - Statement by Deceased or Incompetent
Person

§ 804.51 Statement by a Deceased or Incompetent Person - In
General - Rationale

Rule 804(B)(6) Hearsay Exceptions - Forfeiture by Wrongdoing

§ 804.61 Forfeiture by Wrongdoing - In General

§ 804.62 Forfeiture by Wrongdoing - Confrontation Clause

Chapter 805 Hearsay Within Hearsay

§ 805.1 Hearsay within Hearsay

§ 805.2 Multiple Hearsay Exceeding Two Levels

Chapter 806 Attacking and Supporting Credibility of Declarant

§ 806.1 Attacking and Supporting the Credibility of Hearsay
Declarants - An Overview

§ 806.2 The Procedure

§ 806.3 Inconsistent Statements Attacking the Hearsay Declarant’s
Credibility

§ 806.4 Use of Prior Conviction to Attack a Hearsay Declarant’s
Credibility

§ 806.5 Cross-Examination of a Hearsay Declarant

Chapter 807 Hearsay Exception; Child Statements in Abuse Cases

§ 807.1 Hearsay Exception for Child’s Statements in Abuse
Cases - In General

§ 807.2 Constitutionality of Rule 807 Under Crawford v. Washington

§ 807.3 Subject Matter of Statements Admitted Pursuant to Rule 807

§ 807.4 Unavailability of Testimony Requirement

§ 807.5 Independent Proof

§ 807.6 Procedural Requirements

IX AUTHENTICATION AND IDENTIFICATION

Chapter 901 Requirement of Authentication or Identification


Rule 901(A) General Provision

§ 901.1 Authentication or Identification - In General

§ 901.2 Threshold Standard of Authentication Evidence

§ 901.3 Function of the Court and the Jury in Authentication

Rule 901(B)(1) Illustrations - Testimony of Witness with Knowledge

§ 901.13 Testimony of a Witness with Knowledge - In General

§ 901.14 Authentication of Documentary Evidence

§ 901.15 Identification of Real Proof

§ 901.16 Authentication of Other Types of Demonstrative Evidence

§ 901.26 Nonexpert Opinion on Handwriting - In General

§ 901.27 Bases of Familiarity

§ 901.28 Admissibility Versus Weight of Nonexpert Opinion

§ 901.29 Utility of Nonexpert Testimony

Rule 901(B)(3) Illustrations - Comparison by Trier or Expert Witness

§ 901.39 Authentication by Comparison - In General

§ 901.40 Authentication of the Specimen

§ 901.41 Comparison by Expert or by Trier of Fact

§ 901.42 Comparison with Specimen - Application

§ 901.43 Role of Judge, Witness, and Jury

Rule 901(B)(4) Illustrations - Distinctive Characteristics and the Like

§ 901.53 Distinctive Characteristics - In General

§ 901.54 Authentication by Proof of Contents or Substance - In
General

§ 901.55 Authentication by Proof of Contents - Reply Technique

§ 901.56 Authentication by Proof of Distinctive Characteristics of
Appearance

§ 901.57 Authentication by Proof of Internal Patterns

§ 901.58 Authentication by Proof of External Circumstances

Rule 901(B)(5) Illustrations - Voice Identification

§ 901.68 Voice Identification - In General

§ 901.69 Subject Matter of the Identification

§ 901.70 Voice Identification by Lay or Expert Witness

§ 901.71 Foundational Requirements for Voice Identification
Testimony

§ 901.72 Evidence Establishing Voice Identification

Rule 901(B)(6) Illustrations - Telephone Conversations

§ 901.82 Telephone Conversations - In General

§ 901.83 Authenticating Telephone Calls to an Individual

§ 901.84 Authenticating Telephone Calls to a Business

§ 901.85 Witnesses Who May Testify as to Telephone Conversations

Rule 901(B)(7) Illustrations - Public Records or Reports

§ 901.95 Public Records or Reports - In General

§ 901.96 Types of Evidence Admissible as Public Records or Reports

§ 901.97 Foundation as to Custody of Public Records and Reports

Rule 901(B)(8) Illustrations - Ancient Documents or Data Compilation

§ 901.107 Authentication of Ancient Documents or Data

Compilations - In General

§ 901.108 Types of Evidence to Which the Ancient Document Rule
Applies

§ 901.109 Requisite Foundation for Authenticating Ancient Documents

Rule 901(B)(9) Illustrations - Process or System

§ 901.119 Process or System - In General

§ 901.120 Illustrative Applications of Authentication of a Process or
System

§ 901.121 Establishing Admissibility of Evidence as to Process or
System Results - Foundation

§ 901.122 Presentation at Trial of Evidence as to Results

Rule 901(B)(10) Illustrations - Methods Provided by Statute or Rule

§ 901.132 Authentication Pursuant to Statute or Rule - In General

§ 901.133 Illustrative Authentication Statutes and Rules

Chapter 902 Self-Authentication

§ 902.1 Self-Authentication - In General

§ 902.2 Theory of Self-Authentication

§ 902.3 Practical Significance of Self-Authentication

Rule 902(1) Domestic Public Documents Under Seal

§ 902.13 Domestic Public Documents Under Seal - In General

§ 902.14 Documents Cognizable Under the Rule

Rule 902(2) Domestic Public Documents Not Under Seal

§ 902.24 Domestic Public Documents Not Under Seal - In General

Rule 902(3) Foreign Public Documents

§ 902.34 Foreign Public Documents - In General

§ 902.35 Scope and Effect of Rule 902(3)

Rule 902(4) Certified Copies of Public Records

§ 902.45 Certified Copies of Public Records - In General

§ 902.46 Certification Requirements

Rule 902(5) Official Publications

§ 902.56 Official Publications that are Self-Authenticating

Rule 902(6) Newpapers and Periodicals

§ 902.66 Newspapers and Periodicals - In General

§ 902.67 Scope and Utility of Rule 902(6)

Rule 902(7) Trade Inscriptions and the Like

§ 902.77 Trade Inscriptions and the Like - In General

Rule 902(8) Acknowledged Documents

§ 902.87 Acknowledged Documents - In General

Rule 902(9) Commercial Paper and Related Documents

§ 902.97 Commercial Paper and Related Documents - In General

§ 902.98 Rationale of Rule 902(9)

Rule 902(10) Presumptions Created by Law

§ 902.108 Presumptions Created by Law - In General

§ 902.109 Judicial Precedent Regarding Self-authentication

Chapter 903 Subscribing Witness' Testimony Unnecessary

§ 903.1 Subscribing Witness' Testimony - In General

§ 903.2 Common Law Practice as to Testimony of Subscribing
Witnesses

§ 903.3 Scope and Application of Rule 903

X CONTENTS OF WRITINGS, RECORDINGS, AND
PHOTOGRAPHS

Chapter 1001 Definitions


Rule 1001(1) Writings and Recordings

§ 1001.1 The Best Evidence Rule - An Overview

§ 1001.2 Scope of Application of Best Evidence Rule

§ 1001.3 Definition of Writings and Recordings

§ 1001.4 Application of Rule 1001(1)

Rule 1001(2) Photographs

§ 1001.14 Definition of Photographs - In General

§ 1001.15 Still Photographs

§ 1001.16 Videotapes and Motion Pictures

§ 1001.17 X-Rays

Rule 1001(3) Original

§ 1001.27 Originals - An Overview

§ 1001.28 Original Writings or Recordings

§ 1001.29 Original Photographs

§ 1001.30 Original Computer Data

Rule 1001(4) Duplicate

§ 1001.40 Duplicates - In General

§ 1001.41 Carbon Copies

§ 1001.42 Duplicates from the Same Matrix by Means of Photography

§ 1001.43 Electronic or Mechanical Rerecording

Chapter 1002 Requirement of Original

§ 1002.1 The Best Evidence Rule Defined

§ 1002.2 Purpose of the Best Evidence Rule

§ 1002.3 Application of the Best Evidence Rule; Proving the Contents

of Writings, Recordings, and Photographs

§ 1002.4 Exceptions to Rule 1002 in Statutes and Rules

Chapter 1003 Admissibility of Duplicates

§ 1003.1 Duplicates - Admissible as Originals

§ 1003.2 Duplicates and Questions of Authenticity

§ 1003.3 Duplicates and Questions of Unfairness

Chapter 1004 Admissibility of Other Evidence of Contents

§ 1004.1 Exceptions to Production of the Original - An Overview

§ 1004.2 Originals Lost or Destroyed - An Overview

§ 1004.3 Proof of Loss or Destruction

§ 1004.4 Bad Faith Loss or Destruction

§ 1004.5 Unobtainability of an Original

§ 1004.6 Unobtainability and Use of Subpoenas

§ 1004.7 Original Possessed by Opponent

§ 1004.8 Possession or Control

§ 1004.9 Notice to Opponent

§ 1004.10 Failure to Produce the Original

§ 1004.11 Secondary Evidence and Collateral Matters

§ 1004.12 When Originals Are Collateral

Chapter 1005 Public Records

§ 1005.1 Public Records - In General

§ 1005.2 Official Records and Filed or Recorded Documents

§ 1005.3 Certification of Copies

§ 1005.4 Reasonable Diligence and Other Evidence of Contents

Chapter 1006 Summaries

§ 1006.1 Summaries, Charts, and Calculations - In General

§ 1006.2 Conceptual Basis for Rule 1006

§ 1006.3 Requirement of Availability of Originals or Duplicates

§ 1006.4 Laying the Proper Foundation

Chapter 1007 Testimony or Written Admission of a Party

§ 1007.1 Testimony or Written Admission of Party - An Overview

§ 1007.2 Theory of Rule 1007

§ 1007.3 Admissions by Party's Representatives

Chapter 1008 Functions of Court and Jury

§ 1008.1 Functions of the Court and the Jury - In General

§ 1008.2 Questions for the Trier of Fact

§ 1008.3 Preliminary Decisions for the Court

XI MISCELLANEOUS RULES

Chapter 1101 [Reserved.]

Chapter 1102 Effective Date


§ 1102.1 Effective Date - In General

Chapter 1103 Title

§ 1103.1 Title - In General