Article I GENERAL PROVISIONS Rule 101 102 103 104 105 106 Scope of rules: applicability; privileges; exceptions Purpose and construction; supplementary principles Rulings on evidence Preliminary questions Limited admissibility Remainder of or related writings or recorded statements Article II JUDICIAL NOTICE 201 Judicial notice of adjudicative facts Article III PRESUMPTIONS 301 302 Presumptions in general in civil actions and proceedings [Reserved] Article IV RELEVANCY AND ITS LIMITS 401 402 403 404 405 406 407 408 409 410 411 Definition of “relevant evidence”
Relevant evidence generally admissible; irrelevant evidence inadmissible Exclusion of relevant evidence on grounds of prejudice, confusion, or undue delay Character evidence not admissible to prove conduct; exceptions; other crimes Methods of proving character Habit; routine practice Subsequent remedial measures Compromise and offers to compromise Payment of medical and similar expenses Inadmissibility of pleas, offers of pleas, and related statements Liability insurance Article V PRIVILEGES 501 General rule Article VI WITNESS 601 602 603 General rule of competency Lack of personal knowledge Oath or affirmation
Rule 604 605 606 607 608 609 610 611 612 613 614 615 616
Interpreters Competency of judge as witness Competency of juror as witness Impeachment Evidence of character and conduct of witness Impeachment by evidence of conviction of crime Religious beliefs or opinions Mode and order of interrogation and presentation Writing used to refresh memory Impeachment by self-contradiction Calling and interrogation of witnesses by court Separation and exclusion of witnesses Methods of impeachment Article VII OPIONIONS AND EXPERT TESTIMONY
701 702 703 704 705
Opinion testimony by lay witnesses Testimony by experts Bases of opinion testimony by experts Opinion on ultimate issue Disclosure of facts or data underlying expert opinion Article VIII HEARSAY
801 802 803 804 805 806 807
Definitions Hearsay rule Hearsay exceptions; availability of declarant immaterial Hearsay exceptions; declarant unavailable Hearsay within hearsay Attacking and supporting credibility of declarant Hearsay exceptions; child statements in abuse cases Article IX AUTHENTICATION AND IDENTIFICATION
901 902 903
Requirement of authentication or identification Self-authentication Subscribing witness’ testimony unnecessary Article X CONTENTS OF WRITINGS, RECORDINGS AND PHOTGRAPHS
1001 1002 1003
Definitions Requirement of original Admissibility of duplicates
Rule 1004 1005 1006 1007 1008
Admissibility of other evidence of contents Public records Summaries Testimony or written admission of party Functions of court and jury Article XI MISCELLANEOUS RULES
1101 1102 1103
[Reserved] Effective date Title
ARTICLE I. GENERAL PROVISIONS RULE 101. Scope of Rules: Applicability; Privileges; Exceptions
(A) Applicability. These rules govern proceedings in the courts of this state, subject to the exceptions stated in division (C) of this rule. (B) Privileges. The rule with respect to privileges applies at all stages of all actions, cases, and proceedings conducted under these rules. (C) Exceptions. These rules (other than with respect to privileges) do not apply in the following situations: (1) Admissibility determinations. Determinations prerequisite to rulings on the admissibility of evidence when the issue is to be determined by the court under Evid.R. 104. (2) Grand jury. Proceedings before grand juries.
(3) Miscellaneous criminal proceedings. Proceedings for extradition or rendition of fugitives; sentencing; granting or revoking probation; proceedings with respect to community control sanctions; issuance of warrants for arrest, criminal summonses and search warrants; and proceedings with respect to release on bail or otherwise. (4) Contempt. Contempt proceedings in which the court may act summarily.
(5) Arbitration. Proceedings for those mandatory arbitrations of civil cases authorized by the rules of superintendence and governed by local rules of court. (6) Other rules. Proceedings in which other rules prescribed by the Supreme Court govern matters relating to evidence. (7) Special non-adversary statutory proceedings. Special statutory proceedings of a non-adversary nature in which these rules would by their nature be clearly inapplicable. (8) Small claims division. Proceedings in the small claims division of a county or municipal court. [Effective: July 1, 1980; amended effective July 1, 1990; July 1, 1996; July 1, 1999.]
Staff Note (July 1, 1999 Amendment) Rule 101 Scope of Rules; Applicability; Privileges; Exceptions Rule 101(C) Exceptions The phrase “community control sanctions” was added to division (C)(3) of the rule in accordance with changes resulting from the adoption of Senate Bill 2, effective July 1, 1996, and in order to make the rule conform to current Ohio criminal practice. Staff Note (July 1, 1996 Amendment) Rule 101 Scope of Rules; Applicability; Privileges; Exceptions Rule 101(A) Applicability The amendment deleted the rule’s reference to proceedings “before court-appointed referees and magistrates.”
The deleted language was redundant, since proceedings before these judicial officers are “proceedings in the courts of this state.” The amendment also harmonized the statement of the rules’ applicability with the usage in other rules of practice and procedure, none of which makes specific reference to particular classes of judicial officers before whom proceedings governed by the rules might be conducted. See Civ. R. 1(A), Crim. R. 19A), and Juv. R. 1(A). The amendment is intended only as a technical modification and no substantive change is intended.
Purpose and Construction
The purpose of these rules is to provide procedures for the adjudication of causes to the end that the truth may be ascertained and proceedings justly determined. The principles of the common law of Ohio shall supplement the provisions of these rules, and the rules shall be construed to state the principles of the common law of Ohio unless the rule clearly indicates that a change is intended. These rules shall not supersede substantive statutory provisions. [Effective: July 1, 1980; amended effectively July 1, 1996.]
Staff Note (July 1, 1996 Amendment) Rule 102 Purpose and Construction; Supplementary Principles As originally adopted, Evid. R. 102 referred to the common law of Ohio, but only as a framework for construing the particular rules within the Rules of Evidence. The original text of Rule 102 did not suggest what role, if any, the common law was to have in regard to evidentiary issues as to which the Rules of Evidence were silent. In the years since Ohio adopted the Rules of Evidence, Ohio has added rules codifying the common law on certain topics that the rules had not addressed. Thus, for example, prior to the adoption of Evid. R. 616 in 1991, the rules contained no rule governing the impeachment of a witness for bias or interest. See Staff Note (1991), Evid.
R. 616. Even after the adoption of Rule 616, other rules of impeachment remained unaddressed. See, e.g., Ramage v. Central Ohio Emergency Serv., Inc. (1992), 64 Ohio St. 3d 97, 110 (use of learned treatises for impeachment). Similarly, the rules do not expressly address questions regarding the admissibility of expert opinions on certain subjects. See, e.g., Stinson v. England (1994), 69 Ohio St. 3d 451 (expert opinion on causation is inadmissible unless the opinion is that causation is at least probable). Omissions such as these occur across the entire body of evidence law. The Rules of Evidence, that is, are not an exhaustive compilation of the rules governing evidence questions, nor are the rules preemptive as to subjects that they do not address.
The amendment makes clear in the text of the rule not only that the common law of Ohio provides a framework for construing the content of specific rules, but also that the common law provides the rules of decision as to questions not addressed by specific rules. In addition, in the portion of the rule that establishes the common law as the basis of interpretation of specific rules, the phrase “common law” was amended to read “principles of the common law.” The amendment harmonized the reference with the usage in other rules. See, e.g., Evid. R. 501. In addition, it is intended to acknowledge more clearly the character of the common law as an evolving body of principles and precedents, rather than as a static collection of tightly prescribed rules.
Rulings on Evidence
(A) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or (2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Offer of proof is not necessary if evidence is excluded during crossexamination.
(B) Record of offer and ruling. At the time of making the ruling, the court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form. (C) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. (D) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. [Effective: July 1, 1980.]
(A) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (B). In making its determination it is not bound by the rules of evidence except those with respect to privileges. (B) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(C) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall also be conducted out of the hearing of the jury when the interests of justice require. (D) Testimony by accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case. (E) Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. [Effective: July 1, 1980; amended effectively July 1, 2007.]
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request of a party, shall restrict the evidence to its proper scope and instruct the jury accordingly. [Effective: July 1, 1980.]
Remainder of or Related Writings or Recorded Statements
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which is otherwise admissible and which ought in fairness to be considered contemporaneously with it. [Effective: July 1, 1980; amended effectively July 1, 2007.]
ARTICLE II. JUDICIAL NOTICE RULE 201. Judicial Notice of Adjudicative Facts
(A) Scope of rule. This rule governs only judicial notice of adjudicative facts; i.e., the facts of the case. (B) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. (C) When discretionary. A court may take judicial notice, whether requested or not.
(D) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information. (E) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. (F) proceeding. Time of taking notice. Judicial notice may be taken at any stage of the
(G) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed. [Effective: July 1, 1980.]
ARTICLE III. PRESUMPTIONS RULE 301. Presumptions in General in Civil Actions and Proceedings
In all civil actions and proceedings not otherwise provided for by statute enacted by the General Assembly or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast. [Effective: July 1, 1980.]
ARTICLE IV. RELEVANCY AND ITS LIMITS RULE 401. Definition of "Relevant Evidence"
"Relevant evidence" means 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. [Effective: July 1, 1980.]
RULE 402. Inadmissible
Relevant Evidence Generally Admissible; Irrelevant Evidence
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio. Evidence which is not relevant is not admissible. [Effective: July 1, 1980.]
RULE 403. or Undue Delay
Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion,
(A) Exclusion mandatory. 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. (B) Exclusion discretionary. Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, or needless presentation of cumulative evidence. [Effective: July 1, 1980; amended effective July 1, 1996.]
Staff Note (July 1, 1996 Amendment) Rule 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Undue Delay The amendment modifies the title of the rule to reflect its content. As originally adopted, Evid. R. 403 varied from its federal counterpart by excluding “waste of time” as a separate or independent ground for excluding otherwise relevant and admissible evidence. The title of the Ohio rule, however, was not modified to reflect this difference between the Ohio and federal texts. The amendment substitutes “undue delay” in place of the original title’s reference to “waste of time” as a ground of exclusion, so that the title will more accurately reflect the content of the Ohio text. The amendment is intended only as a technical correction; no substantive change is intended.
RULE 404. Other Crimes
Character Evidence not Admissible to Prove Conduct; Exceptions;
(A) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, subject to the following exceptions: (1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same is admissible; however, in prosecutions for rape, gross sexual imposition, and prostitution, the exceptions provided by statute enacted by the General Assembly are applicable. (2) Character of victim.
Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor is admissible; however, in prosecutions for rape, gross sexual imposition, and prostitution, the exceptions provided by statute enacted by the General Assembly are applicable. (3) Character of witness.
Evidence of the character of a witness on the issue of credibility is admissible as provided in Rules 607, 608, and 609. (B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. [Effective: July 1, 1980; amended effectively July 1, 2007.]
Methods of Proving Character
(A) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. (B) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct. [Effective: July 1, 1980.]
Habit; Routine Practice
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. [Effective: July 1, 1980.]
Subsequent Remedial Measures
When, after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. [Effective: July 1, 1980; amended effective July 1, 2000.] Staff Note (July 1, 2000 Amendment) Rule 407 Subsequent remedial measures In 1997, Federal Rule of Evidence 407 was amended in two respects.
The Ohio amendment is based on the first change in the federal rule: the phrase “injury or harm allegedly caused by an” was added to clarify that a repair or remedial measure must take effect after the accident or incident being litigated in order for the rule to apply.
A measure that takes effect after purchase but before the accident th or incident being litigated is not a subsequent measure. See Traylor v. Husqvarna Motor (7 Cir. 1993, 988 F.2d 729, 733 (“The problem with applying Rule 407 was not lack of culpable conduct but the fact that the remedial measures were taken before rather than after the ‘event,’ which in an accident case the courts have invariably and we think correctly understood to mean the accident.”); Cates v. Sears, Roebuck th & Co. (5 Cir. 1991), 928 F.2d 679, (“The ‘event’ to which Rule 407 speaks is the accident, not the sale.”); th Chase v. General Motors Corp. (4 Cir. 1988), 856 F.2d 17, 21-22. The second change to the federal rule, which involves strict liability cases, has not been adopted.
Compromise and Offers to Compromise
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.
This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. [Effective: July 1, 1980.]
Payment of Medical and Similar Expenses
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. [Effective: July 1, 1980.]
Inadmissibility of Pleas, Offers of Pleas, and Related Statements
(A) Except as provided in division (B) of this rule, evidence of the following is not admissible in any civil or criminal proceeding against the defendant who made the plea or who was a participant personally or through counsel in the plea discussions: (1) (2) (3) a plea of guilty that later was withdrawn; a plea of no contest or the equivalent plea from another jurisdiction; a plea of guilty in a violations bureau;
(4) any statement made in the course of any proceedings under Rule 11 of the Rules of Criminal Procedure or equivalent procedure from another jurisdiction regarding the foregoing pleas; (5) any statement made in the course of plea discussions in which counsel for the prosecuting authority or for the defendant was a participant and that do not result in a plea of guilty or that result in a plea of guilty later withdrawn. (B) following: A statement otherwise inadmissible under this rule is admissible in either of the
(1) any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement should, in fairness, be considered contemporaneously with it; (2) a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel. [Effective: July 1, 1980; amended effective July 1, 1991.]
Staff Note (July 1, 1991 Amendment) Rule 410 Inadmissibility of Pleas, Offers of Pleas, and Related Statements At the time Evid. R. 410 became effective in July 1980, there was “no substantive variation between the Ohio rule and the Federal Rule.” Ohio Staff Note (1980). The term “no contest” had replaced the phrase “nolo contendere” used in the federal rule and the phrases “or the equivalent plea from another jurisdiction” and “or a plea of guilty in a violations bureau” had been added to the Ohio rule.
The federal rule, however, was thereafter amended. Several federal cases had read the federal rule broadly to cover some statements made during “plea bargain” discussions between defendants and th law enforcement officers. See United States v. Harman, 544 F. 2d 791, 795-799 (5 Cir. 1977); United th States v. Brooks, 536 F. 2d 1137, 1138-39 (6 Cir. 1976); United States v. Smith, 525 F. 2d 1017, 1020th 22 (10 Cir. 1975). Accordingly, the federal drafters became concerned “that an otherwise voluntary admission to law enforcement officials [might be] rendered inadmissible merely because it was made in the hope of obtaining leniency by a plea.” Fed. R. Evid. 410, Advisory Committee Note (1980). Federal Rule 410 now specifies that only plea discussions with the “attorney for the prosecuting authority” are covered by the rule. The amendment incorporates the same limitation into the Ohio rule. It is intended to clarify an area of ambiguity.
The amended rule is designed to protect plea bargaining statements involving attorneys in order to promote the disposition of criminal cases by compromise. Statements made by an accused to the police are not covered by this rationale. Improper inducements by the police may be challenged under the constitutional standards governing the voluntariness of confessions, but may not be excluded under this rule. Unlike the federal rule, the amendment specifically covers plea bargaining statements made by defense counsel. Such statements are excluded from evidence when made either to the prosecutor or the police. Two additional changes are effected by the amendment. First, the amendment recognizes an exception in addition to the exception for perjury and false statement prosecutions.
This exception applies in “any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement should, in fairness, be considered contemporaneously with it.” This provision is a restatement of the “rule of completeness” found in Evid. R. 106. Second, the amendment specifically excludes “any statement made in the course of any proceedings under Rule 11 of the Rules of Criminal Procedure or equivalent procedure from another jurisdiction.” This provision was added for clarification; the same result would have been reached under the old rule.
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership or control, if controverted, or bias or prejudice of a witness. [Effective: July 1, 1980; amended effectively July 1, 2007.]
ARTICLE V. PRIVILEGES RULE 501. General Rule
The privilege of a witness, person, state or political subdivision thereof shall be governed by statute enacted by the General Assembly or by principles of common law as interpreted by the courts of this state in the light of reason and experience. [Effective: July 1, 1980.]
ARTICLE VI. WITNESSES RULE 601. General Rule of Competency
Every person is competent to be a witness except: (A) Those of unsound mind, and children under ten years of age, who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly. (B) A spouse testifying against the other spouse charged with a crime except when either of the following applies: (1) (2) a crime against the testifying spouse or a child of either spouse is charged; the testifying spouse elects to testify.
(C) An officer, while on duty for the exclusive or main purpose of enforcing traffic laws, arresting or assisting in the arrest of a person charged with a traffic violation punishable as a misdemeanor where the officer at the time of the arrest was not using a properly marked motor vehicle as defined by statute or was not wearing a legally distinctive uniform as defined by statute.
(D) A person giving expert testimony on the issue of liability in any claim asserted in any civil action against a physician, podiatrist, or hospital arising out of the diagnosis, care, or treatment of any person by a physician or podiatrist, unless the person testifying is licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state, and unless the person devotes at least one-half of his or her professional time to the active clinical practice in his or her field of licensure, or to its instruction in an accredited school.
This division shall not prohibit other medical professionals who otherwise are competent to testify under these rules from giving expert testimony on the appropriate standard of care in their own profession in any claim asserted in any civil action against a physician, podiatrist, medical professional, or hospital arising out of the diagnosis, care, or treatment of any person. (E) As otherwise provided in these rules.
[Effective: July 1, 1980; amended effective July 1, 1991.]
Staff Note (July 1, 1991 Amendment) Rule 601 General Rule of Competency Rule 601(A) Children and mental incompetents Evid. R. 601(A) was amended by deleting “and;”from the end of the rule. This is a technical change only. Rule 601(B) Spouse testifying As adopted in 1980, Evid. R. 601(B) provided that a witness was incompetent to testify against his or her spouse in a criminal case unless the charged offense involved a crime against the testifying spouse or the children of either spouse. The rule was based on the policy of protecting the marital relationship from “dissension” and the “natural repugnance” for convicting a defendant upon the testimony of his or her “intimate life partner.” 8 J. Wigmore, Evidence 216-17 (McNaughton rev. 1961).
The important issue is who can waive the rule – the defendant or the witness. Under the old rule, the defendant could prevent his or spouse from testifying. In some situations the policy underlying the rule simply does not apply, but the rule does. For example, if a husband kills his mother-in-law and his wife is a witness, she could be prevented from testifying. This would be true even if they were separated and she desired to testify. Cf. Locke v. State (1929), 33 Ohio App. 445, 169 N.E. 833. The amendment changes this result, by permitting the wife to elect to testify.
The approach is supported by a number of commentators. As McCormick has pointed out: “The privilege has sometimes been defended on the ground that it protects family harmony. But family harmony is nearly always past saving when the spouse is willing to aid the prosecution. The privilege is an archaic survival of a mystical religious dogma and of a way of thinking about the marital relation that is today outmoded.” C. McCormick, Evidence 162 (3d ed. 1984). See also 8 J. Wigmore, Evidence 221 (McNaughton rev. 1961)
(“This marital privilege is the merest anachronism in legal theory and an indefensible obstruction to truth in practice.”); Huhn, “Sacred Seal of Secrecy”; The Rules of Spousal Incompetency and Marital Privilege in Criminal Cases (1987), 20 Akron L. Rev. 433. The 1991 amendment does not abolish the spousal incompetency rule. The spouse could not be compelled to testify if he or she did not want to testify. In January 1981, the Supreme Court proposed an amendment that would have deleted Evid. R. 601(B). 54 Ohio Bar 175 (1981). This amendment subsequently was withdrawn. 54 Ohio Bar 972 (1981).
The 1991 amendment differs from the 1981 proposal. The 1981 proposal would have abolished the spousal incompetency rule in its entirety, thereby permitting the prosecution to force the spouse to testify. The 1991 amendment does not permit the prosecutor to force testimony from an unwilling spouse. Moreover, the amendment still leaves the defendant with the protection of the confidential communication privilege, which is recognized in R.C. 2317.02(C) and R.C. 2945.42 and governed by Evid. R. 501.
This privilege is not affected by Evid. R. 601(B). Rule 601(D) Medical experts Evid. R. 601(D) was amended to prevent the application of the rule in cases in which a physician, podiatrist, hospital, or medical professional is sued as a result of alleged negligence on the part of a nurse or other medical professional. Some cases have held that a nurse is not competent under Evid. R. 601(D) to testify about the standard of nursing care in such a case. See Harter v. Wadsworth-Rittman (August 30, 1989), Medina App. No. 1790, unreported, motion to certify record overruled (December 20, 1989), 47 Ohio St.3d 715, 549 N.E.2d 170. The amendment limits the rule to claims involving care by a physician or podiatrist, and does not prohibit other medical professionals, including nurses, from testifying as to the appropriate standards of professional care in their field.
Also, the requirement that an expert medical witness devote three-fourths of his or her time to active clinical practice or instruction was reduced to at least one-half. The phrase “accredited university” was changed to “accredited school” because some accredited medical schools are not associated with a university.
Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. [Effective: July 1, 1980; amended effectively July 1, 2007.]
Oath or Affirmation
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so. [Effective: July 1, 1980; amended effectively July 1, 2007.]
An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation. [Effective: July 1, 1980; amended effectively July 1, 2007.]
Competency of Judge as Witness
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point. [Effective: July 1, 1980.]
Competency of Juror as Witness
(A) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. (B) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.
A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear on any juror, only after some outside evidence of that act or event has been presented. However a juror may testify without the presentation of any outside evidence concerning any threat, any bribe, any attempted threat or bribe, or any improprieties of any officer of the court. A juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying will not be received for these purposes. [Effective: July 1, 1980; amended effectively July 1, 2007.]
(A) Who may impeach. The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to Evid.R. 801(D)(1)(A), 801(D)(2), or 803. (B) Impeachment: reasonable basis. A questioner must have a reasonable basis for asking any question pertaining to impeachment that implies the existence of an impeaching fact. [Effective: July 1, 1980; amended July 1, 1998.]
Staff Note (July 1, 1998 Amendment) Rule 607 Impeachment Rule 607(A) Who may impeach. This paragraph was labeled division (A), a title was added, and the style used for rule references was changed. There was no substantive amendment to this division. Rule 607(B) Impeachment: reasonable basis. The 1998 amendment added division (B) to the rule. A party inquiring into specific instances of conduct must have a good faith basis in fact for
asking the question. E.g., State v. Gillard (1988), 40 Ohio St.3d 226, 231, 533 N.E.2d 272 ("[A] cross-examiner may ask a question if the examiner has a good-faith belief that a factual predicate for the question exists."), cert. denied, 492 U.S. 925, 109 S.Ct. 3263, 106 L.Ed.2d 608 (1989); Kornreich v. Indus. Fire Ins. Co. (1936), 132 Ohio St. 78, 88 ("These collateral attacks must be made in good faith . . . ."). This is especially true in criminal cases where the unfair prejudice may be great. See also 1 McCormick, Evidence § 41, at 140 (4th ed. 1992) ("A good faith basis for the inquiry is required."). Professor Graham explains the requirement as follows:
Note that the requirement of a good faith basis applies only when the cross-examiner is effectively asserting in the form of a question the truth of a factual statement included within the question. If the cross-examiner is merely inquiring whether something is or is not true, a good faith basis is not required. Thus the question, "Your glasses were being repaired at the time of the accident, weren't they?" requires a good faith basis, while the question, "Were you wearing your glasses at the time of the accident?" does not. 1 Graham, Handbook of Federal Evidence § 607.2, at 679-80 (4th ed. 1996). Using the term "reasonable basis," the amendment codifies the good-faith basis-in-fact requirement as recognized at common law. In addition to the Rules of Evidence, the Code of Professional Responsibility imposes requirements on questioning witnesses. See DR 7-106(C).
Evidence of Character and Conduct of Witness
(A) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (B) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness, other than conviction of crime as provided in Evid. R. 609, may not be proved by extrinsic evidence.
They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness's character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony by any witness, including an accused, does not operate as a waiver of the witness's privilege against self-incrimination when examined with respect to matters that relate only to the witness's character for truthfulness. [Effective: July 1, 1980; July 1, 1992.]
Staff Note (July 1, 1992 Amendment) Rule 608 Evidence of Character and Conduct of Witness Rule 608(B) Specific instances of conduct The amendment substitutes the phrase “character for truthfulness” for the term “credibility.” The latter term is too broad and, therefore, may cause confusion. Evid. R 608, along with Evid. R. 609 (prior convictions), concerns impeachment by means of character evidence. The rule does not deal with other methods of impeachment, such as bias, which is governed by Evid. R. 616, or prior inconsistent statements, which are governed by Evid. R. 613. Thus, the limitation on the admissibility of extrinsic evidence in Evid. R. 608(B) concerns only specific acts of conduct reflecting upon untruthful character, and not on “credibility” in general. Extrinsic evidence may be admissible under some other theory of impeachment. Indeed, Evid. R. 616 explicitly provides for the admissibility of extrinsic evidence of bias. Extrinsic evidence of a prior inconsistent statement is admissible under Evid. R. 613(B), provided a foundation is laid on cross-examination. In addition, extrinsic evidence offered to show contradiction, an impeachment method not specifically covered by any rule, may be admissible under certain circumstances. State v. Williams (1984), 16 Ohio App.3d 484, 477 N.E. 2d 221 (testimony that rape complainant had engaged in sex with males in the course of prostitution admitted after complainant voluntarily testified that she had not consented to intercourse with defendant because she was a lesbian); G. Joseph & S. Saltzburg, Evidence in America:
The Federal Rules in the States. ch. 42, at 9-10 (1987). Commentators on the Federal Rules have recognized this problem. See A.B.A. Criminal Justice Section, Federal Rules of Evidence: A Fresh Review and Evaluation, 120 F.R.D. 299, 355 (1987) (“The root of the trouble seems to be the Rule’s obscure wording. Perhaps foremost of the troubles …. is confusion concerning whether wrongdoing offered to show bias …… rather than to show credibilitycharacter, is covered by Rule 608(B).”)
The Federal Rules do not contain a rule on impeachment by bias. Nevertheless, the Supreme Court resolved the issue in United States v. Abel (1984), 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed. 2d 450, holding extrinsic evidence of bias admissible notwithstanding Fed. R. Evid. 608(b). See also La.Code Evid. art. 608(B) (phrase “character for truthfulness” used in lieu of “credibility”). In addition, masculine references are replaced by gender-neutral language, the style used for rule references is revised, and grammatical changes are made. No substantive change is intended.
RULE 609. (A)
Impeachment by Evidence of Conviction of Crime
General rule. For the purpose of attacking the credibility of a witness:
(1) subject to Evid.R. 403, evidence that a witness other than the accused has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted. (2) notwithstanding Evid.R.
403(A), but subject to Evid.R. 403(B), evidence that the accused has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the accused was convicted and if the court determines that the probative value of the evidence outweighs the danger of unfair prejudice, of confusion of the issues, or of misleading the jury. (3) notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence that any witness, including an accused, has been convicted of a crime is admissible if the crime involved dishonesty or false statement, regardless of the punishment and whether based upon state or federal statute or local ordinance. (B)
Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of community control sanctions, post-release control, or probation, shock probation, parole, or shock parole imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. (C) Effect of pardon, annulment, expungement, or certificate of rehabilitation.
Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, expungement, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, expungement, or other equivalent procedure based on a finding of innocence. (D) Juvenile adjudications.
Evidence of juvenile adjudications is not admissible except as provided by statute enacted by the General Assembly. (E) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
(F) Methods of proof. When evidence of a witness's conviction of a crime is admissible under this rule, the fact of the conviction may be proved only by the testimony of the witness on direct or cross-examination, or by public record shown to the witness during his or her examination. If the witness denies that he or she is the person to whom the public record refers, the court may permit the introduction of additional evidence tending to establish that the witness is or is not the person to whom the public record refers. [Effective: July 1, 1980; amended effective July 1, 1991; July 1, 2003.] Staff Note (July 1, 2003 amendment) Rule 609 Rule 609(B) Impeachment by Evidence of Conviction of Crime Time limit
The amendment added references to “community control sanctions” and “post-release control” in division (B) to reflect the availability of those forms of sanction along with the traditional devices of probation and parole already referred to in the rule. Under the rule as amended, the termination of community control sanctions and post-release control become additional events from which to date the staleness of a conviction under the rule’s presumptive exclusion of convictions that are remote in time.
Staff Note (July 1, 1991 Amendment) Rule 609 Impeachment by Evidence of Conviction of Crime The amendment makes several changes. One change concerns the trial court’s discretion to exclude evidence of prior convictions, and the other change concerns permissible methods of proving prior convictions. Rule 609(A) Discretion to exclude The amended rule clarifies the issue of the trial court’s discretion in excluding prior convictions. As adopted in 1980, the Ohio rule differed from its federal counterpart.
A clause in Federal Rule 609(a)(1) explicitly authorized the trial court to exclude “felony” convictions; these convictions were admissible only if the “court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant.” This clause was deleted from the Ohio rule. It could have been argued that this deletion meant that Ohio courts did not have the authority to exclude prior felony convictions. In other words, any felony conviction was automatically admissible. Indeed, the rule specified that these convictions “shall be admitted.” The Ohio Staff Note (1980), however, suggested otherwise.
The Staff Note reads: In limiting that discretionary grant, Rule 609(A) is directed to greater uniformity in application subject only to the provisions of Rule 403. The removal of the reference to the defendant insures that the application of the rule is not limited to criminal prosecutions. The Supreme Court addressed the issue in State v. Wright (1990), 48 Ohio St.3d 5, 548 N.E.2d 923. The Court wrote: “Evid. R. 609 must be considered in conjunction with Evid. R. 403. The trial judge therefore has broad discretion in determining the extent to which testimony will be admitted under Evid. R. 609.” The amended rule makes clear that Ohio trial judges have discretion to exclude prior convictions. It also specifies how this discretion is to be exercised. Evid. R. 609(A) is divided into three divisions.
Division (1) concerns “felony” convictions of witnesses other than the accused (prosecution and defense witnesses in criminal cases and all witnesses in civil cases). The admissibility of these convictions is subject to Evid. R. 403. Division (A)(2) concerns “felony” convictions of an accused in a criminal case. The risk that a jury would misuse evidence of a prior conviction as evidence of propensity or general character, a use which is prohibited by Evid. R. 404, is far greater when a criminal accused is impeached. See C. McCormick, Evidence 99 (3d ed. 1984)
(“The sharpest and most prejudicial impact of the practice of impeachment by conviction …. is upon …. the accused in a criminal case who elects to take the stand.”) Accordingly, admissibility of prior convictions is more readily achieved for witnesses other than the accused. Evid. R. 403 requires that the probative value of the evidence be “substantially” outweighed by unfair prejudice before exclusion is warranted. In other words, Evid. R. 403 is biased in favor of admissibility.
This is not the case when the accused is impeached by a prior conviction under Evid. R. 609(A)(2); the unfair prejudice need only outweigh probative value, rather than “substantially” outweigh probative value. In making this determination the court would consider a number of factors: “(1) the nature of the crime, (1) recency of the prior conviction, (3) similarity between the crime for which there was prior conviction and the crime charged, (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.” C. McCormick, Evidence 94 n. 9 (3d ed. 1984). Division (A)(3) concerns dishonesty and false statement convictions. Because of the high probative value of these convictions in assessing credibility, they are not subject to exclusion because of unfair prejudice. This rule applies to the accused as well as other witnesses.
The issue raised by Ohio Evid. R. 609 also is raised by the Federal Rule, even though the federal provision explicitly recognized trial judge discretion to exclude evidence of prior convictions. Because the discretionary language in the federal rule referred to balancing the prejudicial effect to the “defendant,” the applicability of this clause to civil cases and prosecution witnesses had been questioned.
The U.S. Supreme Court in Green v. Bock Laundry (1989), 490 U.S. 504, 109 S.Ct. 1981, 104 L.Ed. 2d 557, ruled that the discretion to exclude convictions under Federal Rule 609(a) did not apply to civil cases or to prosecution witnesses. Moreover, the court ruled that Rule 403 did not apply in this context. An amendment to the federal rule was adopted to change this result. Rule 609(F) Methods of proof The rule as adopted in 1980 specified that convictions admissible under the rule could be “elicited from him [the witness] or established by public record during cross-examination …”
The use of the term “cross-examination” was unfortunate. Custom permits counsel to bring out evidence of prior convictions on direct examination “for the purpose of lessening the import of these convictions upon the jury.” State v. Peoples (1971), 28 Ohio Ap.2d 162, 168, 275 N.E.2d 626. Moreover, impeachment of a witness by proof of a prior conviction during direct examination is permitted under Evid. R. 607, which allows a party to impeach its own witnesses. The traditional methods of proof are through examination of the witness or by public record. These methods are permissible under division (F).
Religious Beliefs or Opinions
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced. [Effective: July 1, 1980; amended effectively July 1, 2007.]
Mode and Order of Interrogation and Presentation
(A) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. (B) Scope of cross-examination.
Cross-examination shall be permitted on all relevant matters and matters affecting credibility. (C) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. [Effective: July 1, 1980; amended effectively July 1, 2007.]
Writing Used to Refresh Memory
If a witness uses a writing to refresh memory for the purpose of testifying, either: (1) while testifying; or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing. The adverse party is also entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto.
Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. [Effective: July 1, 1980; amended effectively July 1, 2007; July 1, 2011.]
Impeachment by self-contradiction
(A) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. (B) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is admissible if both of the following apply: (1) If the statement is offered solely for the purpose of impeaching the witness, the witness is afforded a prior opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness on the statement or the interests of justice otherwise require; (2) The subject matter of the statement is one of the following:
(a) A fact that is of consequence to the determination of the action other than the credibility of a witness; (b) A fact that may be shown by extrinsic evidence under Evid.R. 608(A), 609, 616(A), 616(B) or 706; (c) A fact that may be shown by extrinsic evidence under the common law of impeachment if not in conflict with the Rules of Evidence. (C) Prior inconsistent conduct.
During examination of a witness, conduct of the witness inconsistent with the witness’s testimony may be shown to impeach. If offered for the sole purpose of impeaching the witness’s testimony, extrinsic evidence of the prior inconsistent conduct is admissible under the same circumstances as provided for prior inconsistent statements by Evid.R. 613(B)(2). [Effective: July 1, 1980; amended July 1, 1998.]
Staff Note (July 1, 1998 Amendment) Rule 613 Impeachment by Self-Contradiction The amendments codify aspects of the Ohio common law of impeachment concerning prior inconsistent statements and conduct. The title of the rule was changed from “Prior Statements of Witness” to “Impeachment by Self-Contradiction” to more accurately reflect the content of the rule, which deals with prior inconsistent conduct as well as prior inconsistent statements. Rule 613(A) Examining witness concerning prior statement division. Masculine references were made gender-neutral. There was no substantive amendment to this
Rule 613(B) Extrinsic evidence of prior inconsistent statement of witness As adopted in 1980, Rule 613 did not fully specify the circumstances under which extrinsic evidence of a prior inconsistent statement is admissible. Division (B)(1) sets forth the foundational requirement for the admissibility of extrinsic evidence of prior inconsistent statements. There is no substantive change from the 1980 version of the rule.
The introductory clause limits the rule to impeachment. Thus, statements that are admissible substantively, such as party admissions or excited utterances, are not governed by this rule, even though they may also have an impeaching effect. Division (B)(2) sets forth three instances in which extrinsic evidence of a prior inconsistent statement is admissible. Division (B)(2)(a) permits extrinsic evidence if the subject matter of the prior statement is a consequential fact under the substantive law. See Evid.R. 401. Extrinsic evidence is also admitted if the statement encompasses another method of impeachment that permits the introduction of extrinsic evidence, i.e., bias under Evid.R. 616(A), or the common law.
These circumstances track those of impeachment by evidence of specific contradiction as provided in Rule 616(C). See Staff Note, Evid.R. 616(C) (1998). Rule 613(C) Prior inconsistent conduct. The 1998 amendment added division (C) to this rule. As adopted in 1980, Rule 613 did not provide for impeachment by evidence of prior inconsistent conduct. See Advisory Committee's Note, Fed. Evid.R. 613 ("Under principles of expres