Rules Of Evidence

Judicial Notice

Judicial Notice of Law, 12 O.S. §2201.

Judicial Notice of Adjudicative Facts, 12 O.S. §2202.

Determining Propriety of Taking Judicial Notice, 12 O.S. §2203.

Judicial notice of the rising cost of movie tickets since 1910 in relation to abstract costs was discussed, and the Supreme Court held:

Appellant argues the trial court improperly took judicial notice of the economic status of the cost of doing business for the abstracting industry under 12 O.S. 1981 §2202 . The trial court judicially noticed that since 1910 the cost to enter a movie has risen by a multiple factor of 40 and then applied that factor to the abstracting industry. Meurer admits in its answer brief the trial judge may have selected "a poor indicator when he compared the price of the nickelodeon one-reeler with today's multi-million dollar feature film." However, Meurer goes on to argue "there can be no doubt that the purchasing power of the dollar has plummeted in the seven decades since the schedule was adopted."

The decline of the purchasing power of the dollar is judicially noticeable. Holland v. Dolese Co., 643 P.2d 317, 323 (Okla. 1982); Sample v. Campbell, 305 P.2d 1033, 1037 (Okla. 1957). Similarly, the trial court may take judicial notice of economic trends over a period of years. Skirvin v. Mesta, 141 F.2d 668, 674 (10th Cir. 1944). We realize that the costs of the admission to a movie and the abstracting business are hardly similar and find the trial court's comparison inappropriate. However, it is a matter of common knowledge that the purchasing price of the dollar has declined and economic conditions have changed since 1910 and; therefore, judicial notice of such could be taken. Judicial notice is a substitute for proof by evidence. Cf. McGee v. Urschel, 177 Okl. 337, 58 P.2d 1228 (1936). Appellant did not properly question the propriety of the trial court taking judicial notice as provided under 12 O.S. 1981 §2203.
Woods Development Co. v. Meurer Abstract & Title Co., 1985 OK 106, 712 P.2d 30.

Presumptions

12 O.S. §2301, et seq.

A presumption causes a fact to be assumed unless the party against whom the presumption operates persuades the trier of fact otherwise. 12 O.S. §2303; Hawkins v. Oklahoma County Court Clerks Office, 2001 OK CIV APP 83, 26 P.3d 124.

Presumptions arising in workers' compensation cases are discussed under Presumptions and Burden of Proof.

Relevance

12 O.S. §2401, et seq.

"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. 85 O.S. §2401.

Habit or Routine Practice.

Evidence of a person's habit or of an organization's routine practice, 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." 12 O.S. §2406.

Videotape that showed alcohol being served to bar patrons after they were intoxicated had some relevance to show it was common business practice of [bar] to serve alcohol to intoxicated patrons. However, another portion of the videotape showing [bar's] semi-nude dancer rubbing provocatively against another patron was properly excluded. Copeland v. Tela Corporation, 2003 OK CIV APP 98, 79 P.3d 1128.

Privilege

Witnesses

Offering Testimony

Evidence may be presented through witnesses. Justice Opala discussed this method of proof in a case involving the use of an attorney's unsworn statements to support an issue on appeal.

Plaintiffs rely for evidence of good cause upon the recitation of counsel in a nisi prius brief that the failure to effect timely service was caused by a clerical error in the lawyer's office. These references to proof contained in the paperwork of the case do not constitute evidence of good cause. 14 This is so because none comes in a form that can be tendered for admission in a forensic proceeding. The insertion of facts or statements in a court-filed paper is not cast in probative form unless it refers to something that is already in evidence or is reflected by the record to have been presented below in a form that is acceptable for admission as probative material. 15 The record for this appeal is devoid of any supportive proof tendered in the form of testimony, affidavit, or through some acceptable evidentiary substitute.


14 Proof consists of matters tendered in probative form for admission as evidence. There are four different forms of acceptable proof. Three of the forms are authorized by statute: (1) evidence from oral proceedings by living (viva voce) testimony, (2) by deposition and (3) by affidavit (12 O.S.2001 §421). The fourth was developed by the common law. That form permits in some proceedings the use of acceptable evidentiary substitutes.

Viva voce proof. At common law evidence is used as a universal term for (1) oral examination viva voce in open court and (2) documentary or physical evidence properly admitted or rejected and then re-offered for the record. Viva voce testimony means "[w]ith the living voice; by word of mouth." Black's Law Dictionary 1410 (5th ed.1979). It is used in contradistinction to evidence in the form of a written record. In 12 O.S.2001 §421 the term "oral examination" means testimony viva voice (or living testimony) in open court. See State ex rel. Oklahoma Bar Ass'n v. Dobbs, 2004 OK 46, ¶38, n.44, 94 P.3d 31, 51 n.44; State v. Torres, 2004 OK 12, ¶14 n.32, 87 P.3d 572, 581 n.32; Estate of Whitlock, 1988 OK 10, ¶1, 754 P.2d 862, 862-63; Nicholas A. Kronfeld, The Preservation And Discovery of Evidence Under Federal Rule of Civil Procedure 27, 78 Geo. L.J. 593, 623 (1990).

Depositions. The admission of depositions is governed by statute. See e.g. 12 O.S.Supp.2004 §3227, 12 O.S.2001 §§3228-3229, 12 O.S.Supp.2005 §3230, 12 O.S.2001 §3231, 12 O.S.Supp.2004 §3232. Witnesses may be examined and their testimony preserved by deposition. Any deposition taken in a case may be used at trial subject to the provisions of the Oklahoma Evidence Code. Herman v. Robertson, 2006 OK 64, 145 P.3d 1039, 1040.

Affidavits. An affidavit is a written evidentiary statement given under oath. 12 O.S.2001 §422. The terms of 12 O.S.2001 §431 regulate the permissible use of affidavits as proof in judicial proceedings and limit their use to certain enumerated instances. Affidavits are a statutory form of acceptable evidentiary substitutes, but they are not evidence in the common-law sense.

Acceptable evidentiary substitutes. The term "acceptable evidentiary substitutes" is applied to proof that may be used as evidentiary material in summary proceedings. Shamblin v. Beasley, 1998 OK 88, 967 P.2d 1200, 1208, n. 22. The term is not reserved solely for proof in the summary process of adjudication. It could be applied to proof produced in other proceedings. See e.g. Patel v. OMH Medical Center, Inc., 1999 OK 33, ¶18, 987 P.2d 1185, 1193 (acceptable evidentiary substitutes can be used in postjudgment vacation proceedings). The admission of evidentiary substitutes is governed partly by statute and partly by the common law. See in this connection Rule 13, Rules for District Courts of Oklahoma, 12 O.S.Supp.2002, App; Shamblin v. Beasley and Patel v. OMH Medical Center, Inc., supra. Stipulations of fact and admissions may serve as evidentiary substitutes that dispense with the necessity of submitting formal proof. Crest Infiniti, II, LP v. Swinton, 2007 OK 77, ¶10, 174 P.3d 996, 1002; State v. Torres, supra, at ¶29, 87 P.3d at 585; State ex rel. Oklahoma Bar Ass'n v. Dobbs, supra, at ¶3 n.5, 94 P.3d at 41 n.5.

15 Probative evidence is that which "tends to prove or disprove a point in issue." Black's Law Dictionary 1203 (6th ed. 1990).

16 Crest Infiniti II, LP v. Swinton, supra note 14, at ¶10, 174 P.3d at 1002 (unsworn statements, whether made by a forensic advocate or by the trial judge, do not constitute evidence) (citing State v. Torres, supra note 14, at ¶29, 87 P.3d at 585); Norman v. Trison Development Corp., 1992 OK 67, ¶12, n.26, 832 P.2d 6, 11, n.26 (an unsworn in-court statement of a forensic advocate does not rise to the level of evidence or to a stipulated fact); State ex rel. Oklahoma Bar Ass'n v. Lacoste, 1991 OK 51, ¶11, 813 P.2d 501, 506 (Opala, C.J. dissenting) (review "may never hinge … on a lawyer's 'mouthings'"- i.e. unsworn statements of a forensic advocate on a material fact); Hedges v. Hedges, 2002 OK 92, ¶17, 66 P.3d 364, 371 (a "trial judge's statements in announcing the post-decree order do not constitute her "findings of fact" and will not be considered to vary the order whose terms are to be measured solely by the recorded journal entry").
Willis v. Sequoyah House, Inc., 2008 OK 87, ¶12, 194 P.3d 1285, (see also, fn 14-16).

Impeachment

Rehabilitation

Hearsay

"Hearsay" means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. 12 O.S. §2801.

Hearsay is not admissible except as otherwise provided by an act of the Legislature. 12 O.S. §2802.

Statements Which Are Not Hearsay

Prior statement by witness

A prior statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:

  1. inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition, or
  2. consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive and was made before the supposed fabrication, influence, or motive arose, or
  3. one of identification of a person made after perceiving the person.

12 O.S. §2801(B)(1)

Admission by Party-Opponent

A prior statement is not hearsay if the statement is offered against a party and is:

  1. the party's own statement, in either an individual or a representative capacity, or
  2. a statement of which the party has manifested an adoption or belief in its truth, or
  3. a statement by a person authorized by the party to make a statement concerning the subject, or
  4. a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or
  5. a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

12 O.S. §2801(B)(2)

Admissions against interest of an injured or deceased worker are admissible. Terry Motor Company v. Mixon, 1960 OK 79, 350 P.2d 953. Admissions may be read from a deposition into the record even though the entire deposition is not admissible due to the presence of the worker at the hearing. St. Louis-San Francisco Railway Co. v. Fox, 1961 OK 5, 359 P.2d 710.

Exceptions

Contents of Writings, Recordings and Photographs

Objections to Evidence

For discussion of objections to medical reports, click here.

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