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University of South Carolina School of Law
Anderson, Joseph Fletcher Jr.

Evidence – Judge Anderson – Spring 2012


A) Control By the Court


· Courts don’t always want the “whole” truth.

o Not everything comes in – e.g. if no probable cause for search, fruits of poisonous tree not admissible. – e.g. subsequent remedial measures not admissible b/c we want to encourage people to take remedial measures.

· Judge the acts, not the people

o E.g. no past conduct, must look only at what the person did in case at bar (a few exceptions in sex crimes)

o We should not determine guilt based on a persons character

· We don’t want a 3-ring circus

· You snooze you lose

o Must timely object at the proper time to preserve for appeal

o Don’t think in terms of admissible or inadmissible, it’s either objectionable or not.

o However, plain error doctrine may cause ct. app. to admit/deny w/ or w/out objection.

Opening Doors

· If something would otherwise be inadmissible (objectionable), it may become admissible if opponent opens the door – i.e. brings the subject matter into question. (During opening statement, testimony, etc…)

Four Types of Evidence

· Real Evidence

o The real thing – e.g. the knife that was used in a murder

o Usually a tangible item that was at the scene of an accident/crime

· Demonstrative Evidence

o Reproduced evidence (e.g. model brain, reanimation)

o Seeks to go back and reproduce what happened to demonstrate for jury.

· Documentary Evidence

o Pieces of paper

· Testimonial Evidence

o Given by witness either through direct exam or deposition

Anatomy of a trial

· Preliminary Matters – e.g. typically motions, regulation of proceedings not already ruled on during pretrial

· Jury Selection; preliminary instructions by judge; Plaintiff’s opening; Defendant’s opening

· Plaintiff’s Witnesses

o Direct; Cross-exam by ∆; Re-Direct (limited to responding to what was brought out on cross.)

· Plaintiff Rests à Motion for Judgment as a matter of law (only ∆ has motion available at this point since ∆ has not yet presented case – i.e. π has nothing to move on for J as a matter of law.

o Called Motion for Directed Verdict in state Ct.

· Defendant’s Witnesses (Case in Chief) à Defendant Rests

· Plaintiff’s Rebuttal Witnesses (usually limited to new issues brought out by ∆ during ∆’s Case in Chief)

· Motion for Judgment as a matter of law (available to both parties)

· Plaintiff’s Closing à Defendant’s Closing àPlaintiff’s final closing

· Jury Instruction àJury Deliberations àVerdict Announced

· Post Verdict Motions àAppeal

Mode & Order of Presenting Evidence

· Gray area where Judge has a lot of discretion

· Admission or Exclusion of Evidence = Abuse of Discretion

Rule 102 – Purpose

· These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

Rule 403 – Exclusion for Prejudice, Confusion, Waste of Time, or Other Reason

· The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: Unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Rule 611 – Mode and Order of Examining Witnesses and Presenting Evidence

· (a) The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

o (1) Make those procedures effective for determining the truth;

o (2) Avoid wasting time; and

o (3) Protect witnesses from harassment or undue embarrassment.

United States v. Reaves

· Judge put time limits on different aspects of trial

o Ct. held this was ok in civil/criminal trials in the exercise of reasonable discretion.

Objections Not Specifically Stated in Rules (Derived from Inherent Authority to ensure a fair trial)

· Calls for Narrative – Asking witness to tell a story

· Non-Responsive – Answering a question that wasn’t asked

· Assume a fact not in evidence

· Compound Question

· Ambiguous

· Asked & Answered

· Cumulative

· Misstatement of Evidence – Flat out wrong statement

· Argumentative

· Badgering – One step further than argumentative

· Pitting one witness against another – Asking one witness to characterize the testimony of a previous witness.

B) Form of Questions to Witnesses

Rule 611(c) – Leading Questions

· (c) Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

o (1) On cross-examination; and

o (2) When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

o There is a third exception to leading questions not stated in the rules – “For preliminary, undisputed matters that will help speed the trial along.”

· A leading question is one that points the witness in the direction of how the lawyer wants him to answer

· A hostile witness is one who doesn’t agree w/ your theory of the case (hostility must arise from their testimony)

Judge Anderson’s Chart on Leading Questions

· No leading questions should be used on Direct unless to:

o Develop a witness’s testimony (children, disabled, communication problems) & (difficulty recalling inconsequential matters)

o Hostile or adverse parties, or identified w/ adverse party.

o Preliminary or undisputed info about collateral matters (to save time)

Scope of Cross Examination

· American Rule

o Limited in cross-exam to matters discussed in direct exam but may always question the witness’s credibility (Rule 611(b))

o The ct. may also allow additional questions as if the matter was discussed on direct.

o Judge has discretion to permit a broader scope of cross-exam.

· Cross

o Ordinarily permissible to lead on cross, but not so if witness was subjected to leading questions by the person who conducted direct (b/c witness was hostile, adverse party, indentified w/ adverse party)

· U.S. v. McKenna – Ct. said you can’t lead on cross until you establish that witness is hostile/adverse and that you’ll have latitude to establish hostility. ∆ chose not to cross at all. Ct. app said Trial Ct. had proper authority

o Ardoin – “A trial ct. therefore has power to require a party who is cross-examining a friendly witness to employ non-leading questions. The decision whether to do so, however, lies w/in the district court’s discretion.”

· U.S. v. Williams – ∆ wanted to demonstrate that he couldn’t have been wearing fanny pack b/c of his size. Ct. said, “If you want to demonstrate, you will be subjected to cross-exam.” ∆ took stand. Ct. App said, “We conclude that a physical demonstration performed before the jury is not, w/out more, “testimony” that subjects the demonstrator to cross-examination under Rule 611(b).” However, this was harmless error b/c ∆ nevertheless opened the door on direct when he could have said nothing.


Rule 103 – Rulings on Evidence

(a) A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) If the ruling admits evidence, a party, on the record:

(A) Timely objects or moves to strike; and

(B) States the Specific ground, unless it was apparent from the context; or

(2) If the ruling excludes evidence, a party informs the court of its substance by an offer of p

ecific objection.

C) The Rationale for Requiring Specific and Timely Objections

Owen v. Patton

· Owen (patron) sues Patton (bar owner) claiming that employee committed a battery against him. After Defendant begin asking Plaintiff about his incarcerated friends, Counsel approached and the judge instructed Defendant’s counsel to end this line of questioning and defendant agreed; Owen’s Counsel made no formal objection. Defendant continued with this line of questioning twice and the judge instructed to stop. However, Owen’s counsel still did not object.

· RULE: Objections must be made to improper questions or any improper evidence put before the jury.

· HOLDING: Without an objection and a proper request for relief, the matter is waived.


o w/out a timely objection a reviewing ct cannot know whether the appellant knew of the error at the time it was made, but decided nevertheless to accept the ruling in the hope that it would not harm his case. Thus the reviewing ct cannot be sure that the appellant did not consent to the error

o In most cases it is simply unfair to reverse a trial court on the basis of an issue that it has not had an opportunity to consider. As long as proceeding is conducted w/in the bounds of fundamental fairness, it is not the duty of the trial ct. to anticipate and evaluate every possible error that might be alleged. Rather, it is the role of counsel to bring such matters to the court’s attention.

Harmless & Plain Error Doctrines

· Harmless error allows an appellate court to disregard technical errors in the proceedings that do not affect substantial rights of the parties.

· Plain Error allows an appellate court to consider errors affecting substantial rights of a party even if that party failed to make a timely objection.

o Plain Error should only be used when a miscarriage of justice would otherwise result.

· United States v. Olano – Three requirements for Plain Error

o 1) must be an error

o 2) the error must be plain –i.e. clear or obvious.

o 3) must affect substantial rights – i.e. must have been prejudicial in the sense of affecting the outcome of the case.

o Even still, the Plain error rule is permissive, not mandatory.

D) Offer of Proof

United States v. Winkle

· Defendant claimed the exclusion of his testimony of conversations he had with various people as hearsay was improper because it was being offered to impeach testimony of those he had the conversations with. Defendant’s counsel merely stated that Winkle would testify as to his version of the conversations.

· RULE: The proponent of excluded evidence must show in some fashion the substance of his proposed testimony in an offer of proof.

· HOLDING: Merely stating that Winkle would testify as to his version was not sufficient to make known to the court the substance of the evidence.

Is Offer of Proof Always Necessary?

o Multiple cts have found all that is required is a sufficient indication that the trial court “has been informed as to what counsel intends to show by the evidence and why it should be admitted.”