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University of South Carolina School of Law
Butler, Katharine I.

Evidence Outline
Professor Butler

Table of Contents

Chapter 1: Making the Record; Trial Objections. 1
Chapter 2: An Introduction to Relevance. 2
Relevance to What?.. 2
Relevance and Inference. 2
Probative Value v. Prejudicial Effect3
Chapter 4: A Return to Relevance. 3
Probabilistic Evidence. 3
Character and Habit4
Character in Issue. 4
Character as Circumstantial Evidence. 4
Character of Victim… 5
Rape Shield.. 6
Prior Bad Acts. 7
Similar Happenings. 9
Subsequent Precautions. 10
Offers in Compromise. 10
Chapter 3: The Hearsay Rule. 11
Rationale and Meaning: Definitions. 11
Exceptions and Exemptions. 14
Dying Declarations—804(b)(2)14
Spontaneous and Contemporaneous Exclamations. 15
Excited Utterance—803(2)15
Present Sense Impression—803(1)15
Adoptive Admission.. 16
Admissions by Agent—801(d)(2)(D)17
Co-Conspirator Admissions—801(d)(2)(E)18
Former Testimony—804(b)(1)18
Declarations against Interest—804(b)(3)19
State of Mind—803(3)20
Medical Diagnosis or Treatment—803(4)22
Prior Identification—801(d)(1)22
Past Recollection Recorded—803(5)22
Business Records—803(6)23
Public Records—803(8)24
Miscellaneous Exceptions. 25
The Future of Hearsay. 25
Hearsay and the Confrontation Clause. 25
Chapter 5: Impeachment and Rehabilitation; Cross-Examination.. 26
The Rule against impeaching own witness and other forensic problems. 26
Methods of Impeachment27
Impeachment by Contradiction.. 27
Character of the Witness. 27
Prior Bad Acts. 27
Prior Convictions. 28
Psychiatric Condition.. 28
Prior Statements to Impeach or Rehabilitate. 29
Bias. 29
Chapter 8: Writings. 29
The Best Evidence Rule—1001-1008. 29
Authentication.. 31
Chapter 12: Opinion, Expertise and Experts; Scientific and Demonstrative Evidence 31
Lay Witness Opinion Testimony. 31
Expert Testimony. 31
Demonstrative Evidence. 33
Scientific Evidence. 33
Additional Exam Topics. 34
Privilege. 34
Attorney-Client Privilege. 34
Marital Privilege. 34
Witness Competency. 34
Dead Man’s Statute. 34
Impact of Hypnosis on Witness Competence. 34
Rock v. Arkansas (p. 719)34
Competency Rules: FRE 601, 602, 603, 605, 606. 34

Exam Particulars:

o 120-135 multiple choice and T/F questions

o Bring your own annotated version of FRE

o Bring your own outline of “own study” topics and of Expert Testimony (Daubert, Kumho, and the 2000 Amendments)

o Need to answer 50% of the questions correctly in order to pass. Can give explanation to five questions—follow procedure on the exam.

Evidence Outline

Evidence is the law of fact finding dealing with the questions:

What materials can be used to establish facts?
How can these materials be presented to the factfinder?

Evidence rules derive largely from a traditional distrust of the jury. The Jury is a mysterious “black box” with information going in, the information is then processed in deliberations, and then the jury announces a verdict. To ensure that the Jury process is pure we limit what the jury can consider and instruct the jury on how to use the evidence.

Jury Deliberations

o Problem: Can 1 is not relevant or logically probative as to Can 2.

Test to Determine Relevancy:

What are you trying to prove?
Is it provable in this case?
Does the offered evidence help to establish that fact?

401: “of consequence” determination requires researching substantive law.

Hypo: WC case. ∆ wants to enter into evidence that π was not wearing safety glasses. à Irrelevant because contributory negligence is not a defense to a WC claim (substantive law).

B. Relevance and Inference

Establish an inference chain but remember that an inference chain is only as strong as its weakest link.

Knapp v. State (appeal from murder conviction; ∆ pleads self-defense)
o Facts: ∆ says he had heard that the police officer had killed an old man upon arrest.
o ∆ arg: the truth of ∆’s story is not what matters; the fact that he believed the story is relevant to his state of mind which is relevant to self-defense
o π arg: ∆ story is unverifiable because ∆ does not know who told him the story
o Inference chain: heard story à state of mind à self-defense

Sherrod v. Berry (civil rights action; cop kills robbery suspect)
Facts: TC allows π to admit evidence that the suspect was unarmed. AC reverses b/c “improper, irrelevant, and prejudicial.”