Ohio Rules of Evidence for Beginners
For those who are newer to the practice of law, the "rules of evidence" are pretty much exactly what they sound like: the structured procedures, standards, and rules a court must follow in determining what is admissible and what is not. Now, you may know that there are both federal rules (the F.R.E.) and state rules (the O.R.E. for Ohio) of evidence, with the general exception that… drum roll please… the O.R.E. is not controlled by the F.R.E.
In the United States, if you are trying a case that falls under federal jurisdiction, then you have to pay attention to the F.R.E. to know what is or is not permissible evidence in your case. But as we all know by now, Ohio is a state, and generally speaking our cases do not fall under federal jurisdiction. So for the most part we implement the O.R.E. in our Ohio cases. (There are exceptions to this general rule.).
It is worth noting that Ohio’s General Assembly adopted the O.R.E. on April 1, 1980, and these are the rules we follow to this day. The F.R.E., however, have been revised and revised again, with the latest revisions taking effect only a couple months ago on December 1, 2011. See, e.g. FRE 803(6), Adoption of the Business Records Exception. So while we do need to be aware of these changes , we cannot rely on them for our state cases. Which leads to another important detail.
Since the F.R.E. are the "gold standard" for trial lawyers, especially in article-writing land, experienced Ohio lawyers are always looking for ways to bring our own state’s rules into line with the federal rules. This will make things easier for us, particularly as we cross state lines (see articles above about what can and cannot be used for jurors) and prepare for trial. It is also of the utmost importance that we know where the two rules agree and where they diverge in order to avoid making a mistake that could lead to the loss of evidence admissibility later on down the road.
At the end of the day, we all want to be the best attorneys we can be, and in order to do that we have to understand the Ohio Rules of Evidence, which is where the evidence, at least in Ohio, will be admitted into our cases. Recognizing the differences between the state and federal rules is also incredibly important, and finding a way to keep those differences in mind as we practice, especially when we are in a high stress environment such as trial, will come in handy in the courtroom. Which is exactly what our Cheat Sheet is here for.
Admissibility and Relevance
Evidence must be relevant to be admissible in most cases. Ohio Evid. R. 401(A) defines "Relevant Evidence" as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ohio Evid. R. 402 then states: "Except as otherwise provided by Constitution or statute or by these rules, all relevant evidence is admissible." The twin rules create a presumption in favor of admissibility of relevant evidence. As a rule of thumb, most evidence you are trying to admit will be relevant (i.e., make a fact more or less probable).
Courts are concerned with injecting undue prejudice into the proceedings. Ohio Evid. R. 403 offers a way for courts to exclude evidence that is relevant but unduly prejudicial. The rule states: "Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury."
Human nature suggests that jurors may not be able to separate their emotions from only facts. As a result, prejudicial evidence that could lead a jury to convict or exonerate based on emotion rather than reason is not admissible. Here are some common examples of prejudicial evidence that leads courts to exclude those items:
Courts also want to exclude things that open a door (for example, a defendant being in jail). But when it has that effect, it can also allow the other side to introduce evidence that might otherwise not be admissible. Finally, some items are irrelevant or inadmissible because they are based on hearsay (an out of court statement not made while testifying is offered for the truth), character, settlement, or work product.
Exceptions to Hearsay Rule
Hearsay is typically defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Evid.R. 801(C). For a statement to be hearsay, it must be both a "statement" and "offered in evidence to prove the truth of the matter asserted." As with many rules of evidence, use of the term "and" rather than "or" often makes the difference between admissibility and exclusion of evidence.
Under Ohio’s rules, a "statement" is a "person’s oral or written assertion." Evid.R. 801(A). Thus, statements that are not oral or written are not within the scope of the hearsay rule. In other words, conduct may be admissible even though it is offered for the truth of the matter asserted on the basis that it is not a statement. See id.
The rationale for the hearsay rule is that the trier of fact is denied an opportunity to judge credibility of the declarant by his or her demeanor and atmosphere for the simple reason that the declarant does not testify at all. It is therefore the responsibility of the judge to determine whether the interests of justice require the admission of the testimony. The judge determines the admissibility of the testimony, but the jury decides the facts.
In addition to the statutory exceptions provided in Evid.R. 803 (hearsay exceptions where the availability of the declarant is immaterial), there are numerous exceptions under Evid.R. 804 (hearsay exceptions where the availability of the declarant is material). We have addressed these major exceptions to the hearsay rule in various posts including posts on excited utterances and dying declarations.
Privilege and Protections
Privileges and Protections are another reason to familiarize yourself with the Ohio Rules of Evidence. Some relationships are so close that they are given full protection of privilege; that is, complete protection against being forced to disclose information. Other relationships that are confidential may not be fully protected, but generally will receive less scrutiny than a communication between those in an evidentiary privileged relationship. The types of relationships recognized as Privileged Relationships and Privileged Communications are:
A common example of an evidentiary privilege is attorney-client privilege. That simply means that if you are consulting with an attorney, your communications are confidential. Your attorney cannot be forced to testify in court about what you told him or her. However, you can waive your confidentiality by divulging that information to a third party.
A Privileged Communication is a secret or confidential communication that is recognized as protected by law. A Privileged Relationship is the legal relationship that entitles the parties to expect that their communications are really confidential. So when discussing the parent- child relationship for purposes of the Ohio Parent-Child Privilege you are protected against having to disclose information that you received from your child that was not revealed or communicated in the presence of third parties.
Ohio Witnesses and Expert Witnesses
Evidentiary rules permit one to give expert testimony provided that the judge determines that the witness is qualified as an expert and that the expert’s testimony contains reliable specialized knowledge under Rule 702: (A) The witness’s specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue; (B) The witness has substantial specialized knowledge in the subject matter of the testimony; (C) The witness’ specialized knowledge is based on reliable scientific, technical, or other specialized information. (OEC 702). Therefore a trial court must determine before the testimony of an expert witness is received that the proffered expert possesses the requisite "specialized knowledge" "to assist the trier of fact" OEC 702. Additionally, pursuant to OEC 703 if of a type reasonably relied upon by experts in the field, the expert may testify in terms of opinion or in terms of the reasons therefor, if the type of opinion or reasons is the type of information on which is customary in the field to base opinions or inferences . In deciding whether to admit evidence this type of evidence the Court also looks at burden of proof and prejudice: The relevance of lay opinion testimony is founded on two underlying concepts: necessity and reliability. Lay opinion testimony is necessary when the matter to be proved affords no opportunity for observation on the part of the trier, or when the facts observed are so numerous that the observer cannot accurately relate all the particulars to those who have not observed them. Tompkins v. Detroit T. & I.R. Co. (1942) 140 Ohio St. 521, 534, 84 A.L.R. 271, at 277. The test for admissibility is whether the circumstances of observation warrant the conclusion that the opinion is more likely a product of reliable reasoning than of mere speculation. McDonald v. Robinson (1962), 174 Ohio St. 161, paragraph two of the syllabus; Dyer v. Blume (1937), 132 Ohio St. 103, paragraph three of the syllabus.
Identification and Authentication of Evidence
All evidence must first be authenticated before it may be admitted into evidence. Authentication of a piece of evidence is akin to validating a signature; once you validate it is a real signature, it is admissible. Authentication of documents and photographs is covered under Ohio Rule of Evidence 901(a). The burden of authenticating evidence falls on the party that intends to admit it. In addition, for photographs, Ohio Rule of Evidence 10001 addresses the conditions that must be met before admissible. There are multiple ways of authenticating evidence, some of which are found in the rules.
The "basics" of authentication for all types of evidence: To satisfy the burden of authentication, the party offering the evidence will tender evidence in order to identify the proffered evidence. If the court finds enough evidence to determine authenticity, it will find the evidence numerated as "admissible". In addition to meeting the rules requirements, the authentication is also subject the evidentiary rules in section 701 and 703. The party may not only authenticate through testimonial evidence, but documentary evidence may suffice, as well as circumstantial evidence. Some of the common procedure for authentication of evidence in criminal and civil matters involves the following: For photographs specifically, the Ohio Rules allow for a few more methods of authentication. Ohio Rule of Evidence 901(b)(9) allows for photographs to be authenticated by a witness who testifies of the genuiness of the photograph per his or her own knowledge. Photographs may be authenticated on the basis of comparison (Ohio Rule of Evidence 901(b)(3)), or by fingerprint identification (Ohio Rule of Evidence 901(b)(2)). That being said, the modern trend for the courts is to accept photographs into evidence with little effort to authenticate, because photographs are considered a "mere reproduction of what is". In fact, courts have found that minimum and maximum enhancement to a photograph will not disqualify the photograph from being authenticated.
Ohio Presumptions
To create a presumption, Ohio Rule of Evidence 302 requires as a prerequisite that the presumption is created by statute or constitutional provision, or requires the underlying inference of the rule itself.
Once a presumption is created, Ohio courts have adopted the United States Supreme Court’s approach to presuming facts based on the presumption of the truth of the proposition and the availability of evidence to the contrary.
The presumption in Ohio Rule of Evidence 302 operates to shift the burden of going forward with evidence (not the burden of proof) to the party against whom the presumption is directed.
Under Rule 302, the latter party is then tasked with overcoming the presumption with evidence that otherwise contradicts the presumption, a moving-up of the burden of going forward with evidence. Ohio Rule of Evidence 302 does not affect the burden of proof itself. The party subjected to the presumption is only required to overcome same with "some" evidence.
How to Effectively Use this Cheat Sheet
Legal professionals should view this cheat sheet as a quick reference guide, not the final authority. Ohio’s Rules of Evidence represent a complex set of rules and exceptions, which cannot be fully understood in just a few paragraphs. We encourage all legal professionals who use Ohio’s Rules of Evidence to read the complete rules, available from the Supreme Court of Ohio.
So how can you apply this cheat sheet in your daily work? Start by going beyond a mere desk reference. The cheat sheet is best utilized as a tool to help you more efficiently incorporate the Ohio Rules of Evidence into your case preparation, legal strategy and courtroom machinations.
A great way to start is by searching for all potential evidentiary issues in your next case using an issue checklist , as we did when preparing our cheat sheet. Whether you prefer to organize your checklist on paper or electronically, mutually beneficial results usually arise when you compare this list with those developed by other attorneys or finds online. Look for any discrepancies between your list and that of other attorneys. If necessary, you can follow up on the differences by reviewing the rules and their corresponding advisory comments for more insight.
For the most part, the Ohio Rules of Evidence are straightforward, so the chances are low you’ll need further clarification. Even so, you should always have a current, complete copy of Ohio’s Rules of Evidence at your fingertips for further reference.