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

Flanagan Fall 2010
Introduction: Rules of Evidence implicate Rules of Civil Procedure and Trial Advocacy. 
Federal and SC Rules of Evidence are similar. Yet SC rules may be more restrictive
I.                   Chapter 1: The Structure of a Trial:
a.      Order of Proceedings:
                                                              i.      P makes his case in chief
                                                            ii.      D presents his case
                                                          iii.      P rebuttal and
                                                          iv.      D makes response
1.      Note: same sequence to interrogate a witness. First, you make a direct exam, then cross examine, redirect and re-cross. 
a.      On direct examination you cannot use leading questions. 
b.      On Cross you can use leading questions.
2.      In a direct exam there are no leading questions but can use in cross exam
3.      As progress down the sequence then narrows the scope of questions allowed.
4.      We need evidence b/c we have jury trials. Note: court can alter the sequence of case, especially based on a witness & his availability
b.      Type of Evidence:
                                                              i.      Direct: if believed then establishes the point.
1.        E.g. Eye witness testimony
                                                            ii.      Circumstantial: if believe evidence then can draw inference & make a conclusion. 
1.      E.g. Intro prior criminal conduct, drug activity
                                                          iii.      Real: physical object introduced.
1.        E.g. swabs, murder weapon
                                                          iv.      Demonstrative: visual aids.
1.        E.g. maps, computer graphics, model,
2.      Common scheme: a, b, c happens then infer drug dealing at time m, n, & o. Since happened then, must happen now. 
3.      In evidence law, there is no distinction drawn between admissibility of direct and circumstantial. 
4.      Admissible b/c allows jury to understand the layout/scene and other evidence
a.      But there are foundation requirements to meet in order to get this evidence into trail
c.       Preliminary Questions of Admissibility (judge’s decision)
                                                              i.      Rule 104 (a): Judge determines admissibility of evidence. Note usually just small bits of evidence such as answer to a question, documents or 1 fact.
1.      Judge just deciding whether evidence is sufficiency reliable and relevant. The jury decides if X is or is not the murder weapon based on the case P and D present.
2.      Standard – More Probable than Not (preponderance of the evidence)
3.      Evidence does not have to be decisive. It does not have to be clear what it infers only has to be relevant. 
4.      Relevant evidence: any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable then it would be without the evidence.
a.      Note: if you know why you are introducing the evidence then you are in pretty good shape. Can be admissible for 1 reason & inadmissible for another.
b.      E.g. Prior Criminal Record: inadmissible unless trying to show a common scheme. (Such as proving a particular way in which a crime is committed. 
                                                            ii.      Judge handles ALL admissibility questions. 
1.      Can consider ANY evidence, whether a/I or hearsay
2.      Doesn’t have to adhere to the rules of evidence, except in regard to privilege
                                                          iii.      Rule 104 (b): can be relevant only if another fact is established. E.g. murder weapon- must have link to crime.
1.      Ex. pathologist says X died from gunshot. But need a witness to say that X was shot was D.
                                                          iv.      Rule 104(c): hearings of admissibility of confessions happen w/out jury
                                                            v.      Rule 104(d): defendant can testify but doesn’t waive his right to self incrimination
                                                          vi.      Rule 104(e): judge cant exclude evidence b/c it goes towards weight and credibility
                                                        vii.      Rules on Evidence Rule 103 (pg 9):
1.      (a) – Erroneous evidence: must substantially affect one of the parties’ rights
a.      (1) – Must object to the evidence: must specify the grounds before an appeal
b.      (2) – Offer of proof: if evidence gets excluded, have to make a proffer to get it on the record and then when appeal can bring up (jury will never hear anything about it)
2.      (b) Record of Offer and Ruling shows the evidence offered, the ruling of admissibility, and any objections.
3.      (c) – Hearing of Jury: won’t hear the inadmissible evidence
4.      (d) – Plain error: althouth no objection at trial level, appellate level may consider a ruling of plain error on part of trial judge (fed court not SC)
5.      SC Contemporaneous Rule: must object at time of offering, no plain error
d.      Hearing of Jury; Motion in Limine:
                                                              i.      Motion in Limine: a pretrial ruling (limine- means “threshold)
                                                            ii.      Rule 103 (d): plain error (differs in SC) Federal court will take note even though there is no objection so if substantial error can be corrected
e.       Limited Admissibility, Rule 105 (pg 11)
                                                              i.      When evidence is admissible to one party for X purpose but could hurt other party for Y purpose, then the ct limits the scope of which the jury can apply the evidence
                                                            ii.      Problem – can draw jury’s attention to the inference not wanting to draw
                                                          iii.      Can impeach a witness (e.g. if commit a felony)
f.       Rule 403: Exclusion of relevant evidence. Relevancy is easy to establish but so many things may mislead a jury or cause undue delay. (Relevance Must substantially outweigh prejudice)
                                                              i.      Admissibility is conservative
g.      Rule 611
                                                              i.      Judge has control over how examinations are conducted.
II.                Chapter 2: Relevance and the Exclusion of Relevant Evidence:
Evidence must pass thru a series of hurdles:
1- Relevance: Rule

o relevant
2.      $1M coverage for auto insurance: relevant may show unsafe driver or very safe. It may be unfair b/c shows funds available
3.      Testimony that Smith is married w 2 kids: relevant b/c shows he is a family man. You want your client to be shown to be a likable guy
4.      Child has red hair-?? Probably not relevant
5.      Member of rival gang- evidence comes in b/c relevant & shows motive
6.      Pedophile magazines: evidence that a D is a bad guy usually DOES NOT come in. Here does not come in b/c we want the jury to decide the case based on the facts and not just 1 issue. It is too prejudicial
7.      A autopsy photo of a person lying next to organs: probably gone too far, inadmissible, may get a close up to the spleen
8.      Accident occurred at 3:30 at 1pm he had 3 beers at lunch: it is relevant but may be unfairly prejudicial, probative value low, may treat as cause
9.      Late for an appointment with secretary in motel at 3pm- It is prejudicial and relevant. Probably come in
a.      No need to stipulate – just late to meeting b/c may raise the curiosity level of the jury and they may start to infer how they would act if late for meeting (rush or not rush)
b.      Party is entitled to full emotional evidence and does not have to agree to the stipulation
10. Multiple color photos: if prosecution need photos yet may limit the number & use black & white
III.             Chapter 3: Competency of Lay Witnesses
a.      General Rule of Competency: An Overview:
                                                              i.      Example Problem on page 28: The witness is still competent. He is not excluded for defaults. The evidence is brought in but his limits are exposed and go into the jury’s determination about the weight & credibility of the testimony. 
1.      Poor eyesight, limited lighting, memory loss, medication, no oath, prior conviction
                                                            ii.      Rule 601: Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings with respect to an element of a claim or a defense in which the State law applies the rule of decision, the competency of a witness shall be determined in accordance with State law.
                                                          iii.      Almost everyone is competent to testify.
1.      Must have minimal ability to perceive, remember & relate (be in position to see & understand)
2.      Must have personal knowledge- something directly perceived- no hearsay
3.      Declare to tell the truth. Oath (so help you God) or I affirm to tell the truth (subject to perjury)