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University of South Carolina School of Law
Flanagan, James F.

FLANAGAN EVIDENCE SPRING 2012- Learning Evidence 2nd Edition


Evidence- means testimony, writings, material objects, or other things presented to the senses that are offered prove the existence or nonexistence of a fact.

Types of Evidence

1. Direct Evidence- typically testimony or documents

a. Oral Testimony includes Fact, Character, and Expert Witnesses

b. Various types of documents

2. Circumstantial evidence- evidence that requires the jury to make an inference connecting the evidence with a disputed fact. No legal effect between circumstantial and direct evidence.

3. Real Evidence- physical evidence that played a direct role in the controversy such as a murder weapon. Must be authenticated.

4. Demonstrative evidence- helps trier of fact to understand other evidence

Not all evidence is admissible evidence. The rules of evidence provide guidelines to evidence’s admissibility however a judge can consider inadmissible evidence in considering admissibility of another piece evidence except for privileged matters.

Who do the Rules Apply to?

Rule 101- Scope- Rule apply to proceedings in United States courts.

Rule 1101

a. specifies that the rules of evidence apply to all US district, bankruptcy, magistrate, court of appeals, federal claims, and Guam US VI, and Northern Mariana Islands. Not SCOTUS.

b. Civil, Criminal, and contempt proceeds except where a court can act summarily

Exceptions (d)- The rules don’t apply to court’s determination under Rule 104(a) on a preliminary question of fact governing admissibility, grand jury proceedings, and misc proceedings like extradition, arrest warrants, criminal summons, or search warrants


· Pre-Trial Motions

o Motion in Limine- address evidentiary issue before trial to see if evidence is going to be admissible or not.

o Civil Cases- often evidentiary problems are often weeded out by the discovery process

o Criminal trials- raise more evidentiary issues at trial.

· Jury Selection

o Judges perform Voire Dire

§ May strike a juror for cause

§ Preemptory challenge allows party to strike a juror for any reason except for unconstitutional reasons (race, religion etc.)

· Opening Statements

o These statements are not evidence. Purpose is to allow attorneys to frame the issues

· Plaintiff’s Case in Chief

o All evidence plaintiff is going to introduce

§ Eyewitness Testimony- plaintiff will be able to directly examine. Cannot use leading questions.

· Opposing party is then able to cross-examine these witness with leading question. Cross is limited to scope of the direct.

o Party calling witness can then redirect but limited to scope of cross.

§ May continue back and forth but scope gets narrower

· Defendant’s Case

· Plaintiff’s Rebuttal Case

· Closing Arguments


Requirements for Objection

1. Timeliness- must do it when opposing party attempts to admit it into evidence. Time the lawyer should have known that evidence is objectionable.

2. Specific Grounds- must state why it is prejudicial. Don’t have to explain if judge can determine from context. Need to specify ground you are objecting so that the foundation for appeal is laid.

a. If objection is sustained- can make for an offer of proof that witness is key & need to show that record reflects the importance of your witness.

3. Judge may consider any information in deciding admissibility except privileged info

Rule 103- 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:

· If the ruling admits evidence, a party, on the record:

o Timely objects or moves to strike; and

§ This means that you must make the objection as soon as the ground for objection is known or reasonably should be known. This allows a ruling to be made before the jury hears the evidence.

o States the specific ground, unless apparent from the context

§ Have to state why you are objecting and what is your basis for objecting. Want to preserve all reasons so if you object because its hearsay but also because you believe its unfairly prejudicial under 403 you must state both.

· If the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from context.

o You have to describe what the evidence you are trying to introduce. May allow question and answer between a witness to show this.

103(b)- Once the court rules definitively on the record about the objection a party doesn’t have to renew an objection or offer prove to preserve a claim of error for appeal.

103(d)- Court has to conduct the trial in a way that inadmissible evidence is not suggested to the jury by any means.

· examining a document in camera before letting the jury see

· Motions in Limine- these determine the admissibility of evidence prior to trial. Shields trier of fact from unfair prejudice.

· Even if decided in advance court can still revisit its decision when actually to be offered at trial.

103(e)- Court may take notice of plain error that affects a substantial right even if the claim is not properly preserved.

· This is an exception to 103(a) requiring a timely objection. However federal courts may not consider these even if they are egregious if there has not been a timely objection.

If inadmissible evidence is entered or spoken in front of jury, Remedies include:

· Motion to strike from the record.

· Request judge to give a limiting instruction. See Rule 105

· Request judge to instruct jury not to not consider.

o Problem is this may emphasize the information that was heard.

Rule 105- Limiting Evidence to Certain Uses- This rules allows for evidence to be admitted against one party or one purpose but not for another. The court must restrict the evidence to its proper scope & instruct the jury accordingly if a timely request is made.

· Court normally restricts by issuing an instruction

· Problem is that the limiting instruction will emphasize the evidence

· Offering party has burden of advising the court as to which parties or purpose the evidence is admissible towards.

How is evidence reviewed on appeal?

Courts normally apply an abuse of discretion standard to most claims of evidentiary error. The judges will also look to see if the error affected a substantial right of one of the parties. Substantial right applies even when appellate court reviews decision den novo.


Rule 402- General Admissibility of Relevant Evidence

· RELEVANT evidence is admissible unless it is provided otherwise by:

o Constitution, Fed. Statute, Rules of Evidence or other Rules of SCOTUS

· IRRELEVANT evidence is not admissible.

What is Relevance?

Rule 401- TEST for RELEVANCE

Evidence is relevant if:

a. It has any tendency to make a fact more or less probable than it would be without the evidence; and

b. The fact is of consequence in determining the action.

Any Tendency- a very lenient standard. Even if just the smallest bit can effect the outcome then it is relevant. This is why relevancy objections are rarely sustained.

Fact of Consequence- t

3. Strength of Connection between evidence and the elements of the case. More likely to admit evidence closely related to essential elements of a case.

4. Can it be proved through less prejudicial or confusing means.

5. Possible to reduce prejudice or other harm once introduced such as redact prejudicial components of the evidence or instruct the just to refrain from improper uses of the evidence.

HYPO- Guy goes to strip clubs and spends lots of $$. Try to admit pictures of him at the strip club by arguing that he stole money to support his lifestyle.

· Want to argue that there is a less prejudicial way of showing this than pictures with strippers. Could show financial statement.

· However, if he had a bad crack habit it would show motive & its hard to say that it wouldn’t be prejudicial as it is true even though people normally associate drugs with bad emotions just as they might associate strippers.

o Argue that probative connection is weak & emotional baggage of pictures would be a lot stronger than lavish lifestyle shown by pictures of an extravagant house like in Bailey; evidence in this hyp was not admitted.

HYP0 2- Guy arrested for illegal poss. of firearm and argued it was girlfriend’s gun. Govt wants to introduce evidence that they found a small amount of marijuana and drug paraphernalia in his care as well as recipe book for cooking meth.

· Argue relevance is that he carried gun for self defense & he was a drug dealer. However, wasn’t charged with drug possession. Court said no evidence of him being a drug dealer since small amounts and excluded the evidence.

HYPO 3- Woman kidnaps baby and admits to it but argues that she did it because she was temporarily deranged.

· Prosecutor tries to put mother on stand to identify which baby was kidnapped.

· Defense argues waste of time, stipulated that she took the baby. Can unfair prejudice be a reason that stipulation is enough. Would argue mother’s reaction might be unfair as it plays to emotions. Less prejudicial ways to show same evidence.

Old Chief Case

· Facts: Statute for Weapon in Possession after being convicted of a felony. The statute says any felony. Prosecutor seeks to enter evidence about the previous felony. Defense says nature of felony is irrelevant and they would stipulate to that portion.

· Holding: SCOTUS says that it would be prejudicial to admit the name of the felony. The court says here stipulation of a fact doesn’t make evidence showing that fact irrelevant. Juries expect a full case and to see the whole story and the probative value is sufficiently high. However, the court says where a ground for conviction is a prior offense the risk of unfair prejudice substantially outweighed the discounted probative value of the record of conviction & it was abuse of discretion to admit the record when an admission was available.

· Rule: Evidence can be relevant but unfairly prejudicial so that it is inadmissible.