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

Evidence Outline
Professor Flanagan
I. Intro

A. Rule 403—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

B. Offers to Stipulate—General rule is that you cannot force the other side to stipulate

C. Competency of a Lay Witness:
1. Rule 601: Minimal capacity to observe, remember, and relate
2. Rule 602: Requirement of Personal Knowledge—whether jury could believe that witness has personal knowledge; can look at other evidence, even inadmissible evidence to determine
3. Rule 603—Oath Requirement
4. Children’s Competency:
a. 2-4 is minimum age
b. Must show they can distinguish b/t fantasy and reality
c. Must show they understand the consequence for not telling the truth
d. 18 USC 3509—questions asked at the competency examination shall be appropriate to the age of the child and not related to issues at the trial and shall focus on the child’s ability to understand and answer simple questions
▪ Judge usually conducts the interrogation
5. Dead Man Statutes–when you have an action against the estate of a deceased, incompetent, or an insane person (an individual who can’t testify), any witness who has or had an interest in the outcome for the other side cannot testify to events or conversations with the absent person unless the estate administrator testifies about it
▪ only in state rules, not in federal rules
6. Rule 605—Judge cannot testify as a witness
7. Rule 606—Juror cannot testify as a witness
▪ Also not permitted to testify as to internal or intrinsic problems that may have prejudiced the verdict, but are permitted to testify for external influences, upon a party’s motion for post-trial relief
8. Rule 604—Interpreters—Subject to expert qualifications and administration of an oath to make a true translation

D. Direct Examination
1. Rule 611:
a. Court shall exercise reasonable control over mode and order of interrogation to avoid needless consumption of time and to protect witnesses from harassment or undue embarrassment
b. Subject of cross-exam limited to the subject matter of direct exam and matters affecting the credibility of the witness
c. No leading questions for direct exam except as necessary to develop the witness testimony, but permitted on cross or with a hostile witness, adverse party, or a witness identified with an adverse party
▪ Narrative questions not good either
▪ Also permitted as necessary to develop the witness’s testimony:
a. Introducing the witness, setting the stage, talking about uncontested matters
b. Witnesses fail to remember something—can then ask a prompting question
c. Children
2. Rule 612—Writings to Refresh Recollection
▪ Adverse party is entitled to have a copy of the writing used to refresh the memory and to cross-examine the witness on it, and to bring up other things in the document that might be inconsistent with his testimony
▪ What if other side asks for any document used to prepare the witness? Even if they are privileged—by using it in this context, you waive the privilege right
3. Rule 613—Remainder of or Related Writings or Recorded Statements
▪ Rule of completeness—When a writing or recorded statement or part thereof is introduced by a party, an adverse party may required the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it
▪Other side gets to offer the complete statement immediately thereafter
▪ Does not apply to oral statements
4. Exclusion of a witness– At the request of a party, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. The rule does not authorize exclusion of:
(1) a party who is a natural person or
(2) an officer or employee of a party which is not a natural person designated as its representative (corporation, state), or
(3) a person whose presence is shown by a party to be essential to the presentation of the party’s cause (often experts who need to hear the other side’s experts)
(4) a person authorized by statute to be present (victim’s rights statutes, parents with child witnesses)

II. Character, Habit, and Routine Practice

A. Rule 406—Habit, Routine Practice—Evidence of the habit of a person or of the routine
practice of an organization, whether corroborated or not and regardless of the presence of an
eyewitness, 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
▪When you talk about habit in terms of the rules, you are talking about automatic responses to particular situations, as distinguished from something that has less of an automatic response
▪ This rule means consistent—not 100% of the time, but the normal, usual, standard practice
▪ Not for more decisional actions—ones made on an ad hoc basis
▪Also for business organizations—the regular practice of an organization for dealing with a particular situation

A. 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, except:
(1) Character of Accused—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—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 rebut evidence that the alleged victim was the first aggressor
(3) Character of Witness—Evidence of the character of a witness, as provided in Rule 607, 608, and 609
▪ Character evidence, in civil cases, only gets in if it is an element of the offense or defense
(b) Other Crimes, Wrongs, or Acts—Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to sho

cific instances of that person’s conduct

E. Rule 412—Sex Offense Case; Relevance of Alleged Victim’s Past Sexual Behavior or Alleged
Sexual Predisposition
(a) Evidence Generally Inadmissible—the following evidence is NOT admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c)
(1) Evidence offered to prove that an alleged victim engaged in other sexual behavior; and
(2) Evidence offered to prove any alleged victim’s sexual predisposition.
▪This precludes specific instances of prior sexual conduct and excludes an propensity evidence as to sexual behavior
▪ This rule is only triggered in cases involving sexual misconduct, which includes sexual harassment
▪ This rule doesn’t just apply to witnesses or parties
▪ Observations, such as flirtations, of an event is not considered reputation of sexual predisposition evidence
(b) Exceptions:
(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:
(A) Evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;
(B) Evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and
▪If you have individuals who know each other and have a prior sexual relationship, then this is relevant and can come in
(C) Evidence the exclusion of which would violate the constitutional rights of the defendant
▪ 6th amendment–D has a right to confront and cross-examine witnesses against him, which includes the right to inquire into relevant matters; gives the court leeway beyond the two enumerated exceptions
▪Ex: Evidence that the alleged victim has been a prostitute on prior occasions, then it would create significant constitutional problems not to at least inquire into that area
▪Ex: Instances where victims have made prior false allegations— ▪ Ex: Girl had a long-term consensual relationship, and then to explain pregnancy, she claims rape
(2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victims is admissible if it is otherwise admissible and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim
▪ Elements: