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University of South Carolina School of Law
Black, Derek W.

Evidence Black – Fall 2012
Chapter 1: Evidence Law and the System
Why rules of evidence?
Why evidence law at all?
                                                              i.      Efficiency
                                                            ii.      Fairness/trusting the jury
                                                          iii.      Substantive Policies
1.      Privileges
                                                           iv.      Accurate Results
Types of Evidence:
                                                              i.      Demonstrative: something you construct based on other evidence (charts, graphs, etc.)
1.      Physical
                                                            ii.      Real Evidence: (murder weapon, drugs, etc.)
1.      Physical
2.      Someone must vouch for real evidence
                                                          iii.      Testimony
                                                           iv.      Writings
How is evidence admitted or excluded?
Getting Evidence In: Foundation and Offer
                                                              i.      Direct Examination: leading questions are prohibited
1.      Relevancy is the only limitation
                                                            ii.      Cross-Examination: leading questions are allowed
1.      Scope-of-Direct Rule: limited in some jurisdictions
a.      Rule 611(b)
2.      Problem 1A, pg. 25
a.      The credibility of a witness is always relevant
b.      Not within the scope of direct because it is dealing with the other car, OR
c.       Not relevant because it is dealing with contributory negligence, which is D’s case, not P’s
d.      Same as c; worse because not transactional
Keeping Evidence Out
                                                              i.      The Objection
1.      When should/must an objection be made?
a.      After the question & before the response
2.      Must include the “grounds” for the objection
3.      Types of Objections:
a.      Substantive: rest on particular exclusionary principles in the FRE
                                                                                                                                      i.      Hearsay, privilege, etc.
b.      Formal: focus on the manner of questioning & are standard equipment for trial lawyers
                                                                                                                                      i.      “Asked and answered,” “leading the witness,” etc.
                                                            ii.      The Motion in Limine: a lawyer may anticipate that evidence will be admitted to which he wants to object, or that an item he plans to offer will meet serious objection from his adversary à may make this motion ahead of time to obtain a ruling in advance
1.      Filed and argued in the judge’s chambers
2.      Used with important evidence that you must “get right”
The Offer of Proof: counterpart to the objection
                                                              i.      A lawyer faced with a ruling excluding evidence must make a formal offer of proof if he wants to preserve the point for later appellate review, which means demonstrating to the trial court exactly what he is prepared to introduce if permitted
                                                            ii.      The idea is to accord the offering party a fair procedural opportunity to get in his proof, but not endless chances
Judicial Mini-Hearings
Consequences of Evidential Error
4 types of judicial error:
                                                              i.      Reversible
1.      Rule 103: error is reversible when the error affects a “substantial right”
                                                            ii.      Harmless
                                                          iii.      Plain: very rare that a plain error is missed by the trial judge
                                                           iv.      Constitutional: criminal cases
3 main causes of imperfection:
                                                              i.      Some evidence rules are too slippery or complex
1.      No such thing as “automatic” reversal on account of evidence errors à reviewing court awards relief only when errors seem to have made a real difference in result
2.      Burden is on the attorneys and the judge to get it right at the time of trial
                                                            ii.      Some evidence rules are framed as vague standards, & close appellate scrutiny would make no more sense that trying to fix a computer with a wrench
                                                          iii.      Ours is an adversary system, which places the lion’s share of responsibility for the conduct of trial in the litigants themselves
Appraising such error on the merits
                                                              i.      Distinguishing errors that matter from those that do not:
1.      The evidence error must have affect what Rule 103 calls a “substantial right,” meaning essentially outcome
2.      We need some standard to deal with uncertain situations because reviewing courts often cannot tell for sure that even the most egregious error actually affected the result
                                                            ii.      Distinguishing between reversible and harmless error:
1.      Cumulative Evidence Doctrine: supports affirmance despite errors both in admitting and in excluding
a.      Bases affirmance in light of all of the evidence, even if some was improperly admitted/excluded
b.      The question is always whether evidence erroneously admitted probably affected outcome or whether evidence erroneously excluded probably would have affected outcome
2.      Curative Instruction Doctrine: a judge may be able to avoid reversal even when he committed an evidence error by means of an instruction to the jury (FRE 105)
3.      Overwhelming Evidence Doctrine: if a reviewing court concludes that evidence properly admitted supports the judgment below overwhelmingly, generally it affirms, even in the face of errors admitting or excluding evidence that might otherwise be considered serious
Appellate Deference: the discretion of the trial judge
                                                              i.      Doctrine of Judicial Discretion: leads to the practice of limiting appellate review of evidential rulings
1.      Judge can be upheld on any basis, even if not the one upon which he ruled (not true for parties)
                                                            ii.      Why so much deference to the trial court?
1.      Expediency, cost, & the good of the system
Procedural Pitfalls and Adversarial Gambits: courts often limit review or foreclose relief altogether because of the trial behavior of the appellant
                                                              i.      3 types of

ssible in criminal trials, but foes not create a “presumption of guilt” or suffice for conviction
1.      Courts often suggest that relevancy depends on the reasonableness of the assumption that D knew he was under investigation & his inference becomes weaker as lapsed time between the crime & alleged flight increases
                                                            ii.      Problem 2C, pg. 63
1.      In support of proffer: people who attempt to avoid capture are likely guilty. The D attempted to avoid capture & therefore the D is likely to be guilty of some crime.
2.      In support of exclusion: people who are not aware they are under investigation may attempt to flee. D was not aware that he was under investigation for the charges when he attempted to flee.
Relevance Reconsidered: the problem of induction
                                                              i.      Common Problems:
1.      Vague/overly broad
2.      Assuming too much
3.      Assuming that experience guides the future
4.      Jumping to a conclusion based on limited experience
5.      Leaving out important data
6.      Leaving out the hypothesis & going straight to conclusion
                                                            ii.      Problem 2D, pg. 68
1.      Should P’s have been able to ask W about his prior falls?
a.      Evidence of other accidents may prove condition of premises or device, conditional was dangerous, possible causal connection, actual cause, notice
                                                                                                                                      i.      However, they don't necessarily prove anything because people could have fallen through their own fault
                                                                                                                                    ii.      But people are reasonably careful most of the time (general premise), thus multiple accidents suggest a problem with the machinery or premise instead
b.      Conclusion: the testimony is evidence of condition, danger, possibility of causation, & notice of knowledge on D’s part
2.      Should P’s have been able to ask W about the reports?
a.      Yes: it wouldn't matter that he fell somewhere else, insofar as it proves notice & knowledge, possibility of cause, or that floor’s slick after waxing
b.      All of this works because P’s claim isn’t that wax was improperly applied in a specific place, but there was a general poor upkeep of the floor
Pragmatic Relevance
Prejudice and Confusion: FRE 403 allows the court to exclude relevant evidence if its probative value is substantially outweighed by a danger of 1 or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, needlessly presenting cumulative evidence