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Charleston School of Law
Shealy, Miller W.

Spring 2009
Chapter I: Relevancy
Article IV
Section 1. General Principles
Rule 401-403
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.
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence
All relevant evidence is admissible, except as otherwise provided
by the Constitution of the United States, by Act of Congress, by
these rules, or by other rules prescribed by the Supreme Court
pursuant to statutory authority. Evidence which is not relevant is not admissible.
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice,
Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence.
State v. Kotsimpulos                  
Stolen Pork tenderloin case. His Attorney wanted to introduce evidence . . . He claimed he was framed, which was his only defense (he wasn’t insane). Was this evidence relevant?
Court says no, not relevant. The threat was not specific enough. No evidence existed to show this.
* “Common sense suggests that one measures relevance in a continuum, and that at some stage evidence becomes so remote that its probative impact upon ‘the existence of any fact that is of consequence’ is reduced to zero.”
*Standard of Review: Abuse of discretion (not easy to overturn lower court’s ruling)
            -Judges have very wide discretion at trial level
            -Has to only be wrong, but really, really wrong.
Generally : error of law = De Novo / error of fact = clear error
*But rules of evidence are different – they are not treated as either error of law or fact.
*Instead, its abuse of discretion and this is harder to show.
**This is important to understand because at trial level there is lots of discretion and the tuff standard of review can explain some of these case that do not seem exactly correct.
    *Relevancy is all about the connection (like your cell phone)
Evidence >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>Issue
                                           very probative
Evidence   >   >    >    >    >    >    >   >   >    >    >     >     >   >    Issue
                                        moderately probative
Evidence       >                  >                   >                   >                Issue
                                         slightly probative
Evidence                                                                                        Issue
                                           not at all probative
      ***Only has to be slightly probative and the judge has to allow         it. Then it’s up to the jury.
State v. Nichols
Burglary and Rape Case. Prosecution used the “secretor test” to show the defendant was within the 60% of the population that could have committed this crime. (this was the old way before DNA – Shealy argued the first DNA case in SC!!) Defendant argued that it was irrelevant that he was in the 60% of the population that could have done it (had he not been a secretor it would have ruled him out). Was this relevant?
Court says yes, it s relevant, and upholds the conviction.
**Only has to be slightly relevant to be admitted.
*The main issue here was relevance, but there was also a dog issue as well (we will discuss later).
United States v. Johnson
Defendant charge with tax evasion and making false claims. But the Prosecution dropped the tax evasion claim so that the evidence of him actually paying too much to the IRS would not be relevant and could therefore not be admitted.
It worked! Prosecution can control what the jury hears simply by carefully choosing what charges to bring.
*Relevance is a connection. (Relevant to what?)
*Without the evasion charge, the defense of “overpayment” was no longer relevant.
**Rule 403 rears its head! –allows judge to balance.
                *Even if it was slightly relevant, it was still too prejudicial. (would have confused the                            issue)
                ****Always remember rule 403!!
**Because relevancy means tendency to prove a proposition properly provable in the case, evidence can be excluded as “irrelevant” for 2 reasons:
1.      Not probative of the proposition at which it is directed
2.      Proposition is not provable in the case
**Stated another way, there are two distinct requirements:
1) The evidence must be probative of the proposition it is offered to prove, and 2) the proposition to be proved must be one that is of consequence to the determination of the action.
United States v Hall
United States v. Cassidy (in a prosecution for throwing blood and ashes on the pentagon, evidence that US nuclear weapons policies violated international law was properly excluded).
Timberlake Construction v. US (since issue in an insurance bad faith claim is whether company reasonably refused to deny the claim, the companies subsequent litigation tactics and strategy are seldom relevant).
*Evidence offered to prove a conceded point may be excluded, but under Rule 403 and not Rule 401.
United States v. McRae
Dude killed his wife with a rifle at point blank range! Said it was not intentional. Trial Court allowed pictures of the body (rated R and very disturbing). Courts notes in beginning of opinion how trial court gets major discretion. Should the photos have been excluded?
Notes on Rule 403
Notes on photographic evidence
Simmon v. Kennebunkport
Woman fell and broke her hip while walking on side walk. Claimed injury was caused be faulty design and defect in side walk. Court excluded evidence establishing over two years prior, other people had fallen.
Court reversed and allowed evidence.
*In a negligence action, evidence of other similar accidents or occurrences may be relevant circumstantially to show defective or dangerous condition, notice thereof or causation on the occasion in question.
*Substantial discretion to trial judge, but here, judge clearly abused this discretion.
Fusco v. General Motors
Video tapes used to prove faulty design in the car. (reenactment video).
Court upheld the admission of the tapes.
*these videos are ok. (expert testimony).
*Scientific principles vs. reenactment. (different standard of proof)
            *For Scientific principles –its relevance.
            *For reenactment – Standard is higher, and has to be relevant BUT also substantially           similar
*They were arguing this was scientific principle and not reenactment. \
**You would want it to be scientific principle so you have lower standard.
Section 2. Character
Rule 404; 405; 412-415
            i. The General Prohibition Against Character Attack in the Case in Chief
                (Rule 404)
Rule 404.Character Evidence Not Admissible to Prove Conduct;
Exceptions; Other Crimes
(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,
(1) Character of accused.—In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution; (2) Character of alleged victim.—In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged 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 alleged victim offered by the prosecution in a homicide case to r

evant to intent. “a not-guilty plea outs ones intent at issue.”
***Spoliation Evidence – can show evidence that defendant tried to destroy evidence because it shows guilt. This is how the court dealt with trying to have her killed.
*Burden of proof for uncharged crimes and acts offered under 404(b) is preponderance of the evidence.
United States v. Mills
D charged with various false statements and fraud in a Medicare fraud scheme. Govt sought to introduce evidence that D concealed jewelry from customs when returning from Europe in 1993. The incident for which she was on trial occurred in 1992.
The Court held the two robberies were not sufficiently similar under these facts.
Modus operandi evidence is admissible for ID, but great caution must be used.
Whitty v. State
The rabbit case. Prosecution tried to admit prior evidence of use if rabbit.
*Court allowed it.
*this is very damning evidence. Can use 403 to keep it out.
People v. Howard
            iv. Sex Offenses
                 Rule 413-415 (see rule book for rule)
United States v. Lecompte
D on trial for sex abuse of child. Govt. tried to show he abused a niece of his first wife as well. Evidence offered under 404(b). This is the second trial. At first trial, this evidence was excluded due to failure to give notice under 414. At this trial, the judge granted the D’s motion in limine and excluded the prior conduct under 403. Govt. filed an interlocutory appeal as provided by statute.
Holding: reversed.
–        Rule 403 does apply to 414, as well as rules 413 & 415.
But, rule 403 must be applied to give rule 414 its intended effect.
*The two sex offenses were “substantially similar.”
United states v. Mound
D convicted of sexually abusing his 10-year-old daughter. Evidence of previous conviction admitted under 413. D challenge the constitutionality of the rule under EP and DP. 
Holding: No const. violation
*413 is subject to constraints of 403 (p. 59) (403 keeps it constitutional)
•          Two offenses: one charged, one uncharged
•          Charged admitted, uncharged not admitted.
•          Lower ct did not abuse its discretion under 403.
State v. Burns
State law similar to 414 struck down as unconstitutional under state constitution.
Holding: Ct. found statutory language to be mandatory and violated provisions of state constitution that required D to only be tried on the offense charged.
*Legislature change law to permit 403 style balancing by trial judge
*New law has not been tested
            i. Homicide and Assault
                Rule 404(a)(2); 404(b); 405(a)
Government of Virgin Islands v. Carino
•          D was convicted of assault on his girlfriend (Richardson). D said it was Self Defense. Trial judge excluded D’s offer to show that girlfriend had been convicted of manslaughter of previous boyfriend.
•          Holding: Lower court erred by not allowing the evidence under 404(b), but error was Harmless Error.
•          Rule 404(a)(2) is circumscribed by Rule 405(a), allowing reputation or opinion but not acts. But, acts of which D had knowledge before the assault have non-character relevancy to show reasonable fear and are admissible under 404(b). So, 404(b) can be used by the govt. and the D.