Evidence. Federal Rules of Civil Procedure

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 thefollowing 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 ofjudicial 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.

RULE 102.

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.

RULE 103.

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.]

RULE 104.

Preliminary Questions

(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.]

RULE 105.

Limited Admissibility

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.]

RULE 106.

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 Actionsand 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.]

RULE 302.

[RESERVED]

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.]

RULE 405.

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.]

RULE 406.

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 orroutine practice. [Effective: July 1, 1980.]

RULE 407.

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.

RULE 408.

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.]

RULE 409.

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.]

RULE 410.

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 thecourse 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.

RULE 411.

Liability Insurance

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 Rule601(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. Rul