OH Bar Evidence 3 — Questions and Answers
Question 1: A witness with no memory of an accident reviews notes she made the day it happened. After reviewing them, her memory is refreshed and she testifies from present recollection. May the party who called her introduce the notes into evidence?
- No, because a writing used to refresh recollection is not admissible by the offering party (Correct answer)
- Yes, as past recollection recorded
- Yes, because the notes were made contemporaneously
- No, because the notes are privileged work product
Correct answer: No, because a writing used to refresh recollection is not admissible by the offering party
When a writing merely refreshes recollection, only the adverse party may inspect it and introduce relevant portions; the offering party testifies from refreshed memory, not the document.
Question 2: In a murder trial, the defendant offers evidence of the victim's violent character to support a self-defense claim. The prosecution then offers evidence of the defendant's violent character. Is the prosecution's evidence admissible?
- Yes, because the defendant attacked the victim's character for the same trait (Correct answer)
- No, because the defendant never introduced evidence of his own character
- No, because the prosecution can never offer character evidence first
- Yes, because character evidence is freely admissible in homicide cases
Correct answer: Yes, because the defendant attacked the victim's character for the same trait
Under Rule 404(a)(2)(B)(ii), when a defendant offers evidence of the victim's character trait, the prosecution may offer evidence of the defendant's same trait.
Question 3: A hospital record states: 'Patient reports severe back pain beginning after lifting boxes at work; patient also states his employer refused to provide a lifting belt.' Which portion is most likely inadmissible under the medical treatment hearsay exception?
- The statement blaming the employer for refusing a lifting belt (Correct answer)
- The report of severe back pain
- The statement that the pain began after lifting boxes
- The entire record is inadmissible
Correct answer: The statement blaming the employer for refusing a lifting belt
Rule 803(4) covers statements about symptoms and their general cause made for treatment, but statements assigning fault are typically not pertinent to diagnosis or treatment.
Question 4: A party calls an expert to testify that a bridge design was defective. The expert relied partly on inadmissible engineering reports prepared by others. May the expert give her opinion?
- Yes, if experts in the field reasonably rely on such reports (Correct answer)
- No, because an expert may rely only on admissible evidence
- No, because the reports are hearsay
- Yes, but only if the reports are first admitted into evidence
Correct answer: Yes, if experts in the field reasonably rely on such reports
Under Rule 703, an expert may base an opinion on inadmissible facts or data if experts in the field would reasonably rely on them.
Question 5: The prosecution offers a certified copy of a public land record. The defense objects for lack of authentication because no witness testified about the record. How should the court rule?
- Overrule the objection, because certified copies of public records are self-authenticating (Correct answer)
- Sustain the objection, because authentication requires witness testimony
- Sustain the objection, because land records are hearsay
- Overrule the objection only if the custodian is available for cross-examination
Correct answer: Overrule the objection, because certified copies of public records are self-authenticating
Rule 902(4) makes certified copies of public records self-authenticating, requiring no extrinsic evidence of authenticity.
Question 6: A witness testifies inconsistently with a statement she made in a properly sworn deposition. The opposing party offers the deposition statement both to impeach her and as substantive evidence. Is the statement admissible substantively?
- Yes, because a prior inconsistent statement given under oath at a deposition is non-hearsay (Correct answer)
- No, prior inconsistent statements may be used only to impeach
- No, because the witness is present and can be cross-examined
- Yes, but only if the witness adopts the statement
Correct answer: Yes, because a prior inconsistent statement given under oath at a deposition is non-hearsay
Under Rule 801(d)(1)(A), a prior inconsistent statement made under penalty of perjury at a deposition or other proceeding is admissible as substantive evidence.
Question 7: In a civil fraud trial, the plaintiff asks the court to take judicial notice that the defendant's office is located in Columbus, Ohio, a fact shown by undisputed public records. If the court takes judicial notice, what instruction must be given to the jury?
- The jury must accept the noticed fact as conclusive in a civil case (Correct answer)
- The jury may but need not accept the noticed fact
- The jury must disregard the fact unless independently proven
- No instruction is permitted on judicially noticed facts
Correct answer: The jury must accept the noticed fact as conclusive in a civil case
Under Rule 201(f), in a civil case the jury must be instructed to accept a judicially noticed fact as conclusive, while in criminal cases the jury may or may not accept it.
OH Bar Evidence 3
A witness with no memory of an accident reviews notes she made the day it happened.
After reviewing them, her memory is refreshed and she testifies from present recollection.
May the party who called her introduce the notes into evidence?