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University of South Carolina School of Law
Seymore, Malinda L.

Prof. Yetter — Evidence
I.       Relevance
A.     Threshold Question – What is the purpose for this offer of evidence?
1.                         The purpose of the evidence determines almost all other areas of evidence law. 
B.     There are three areas of evidence law when you are in federal court due to diversity that state substantive law will apply:
1.                         Presumptions of burdens of proof
2.                         Rule of competency of witnesses
3.                         Privileges
a.       For federal law, the privileges that apply follow federal decisional law not federal statutory law. If the Supreme Court hasn’t decided a question about a privilege in federal court, then you won’t know the answer. 
C.     Logical Relevance – Evidence that has any tendency to make a material proposition more probable or less probable than it would be without the evidence. (Federal Rule 401) “Does it help at all?” If the evidence concerns some other time/event, then relevance comes into question. 
1.                         Certain specific situations where the evidence involves some other time, event, or person, and yet the evidence is admissible. 
a.       Complicated issues of causation – To prove cause and effect.
                                                                                                         i.      Ex: Eating at McDs, wake up in hospital. How do you prove the food caused you to get sick? Seeing other people in hospital with same sickness who were eating at McDs. If you were all eating there and all got sick at same time – it will be admissible to show cause and effect.
b.      Prior accidents or claims – Generally not admissible to infer conduct, with two exceptions (may be used by P or D for same evidence):
1)      Ex: Person drives into bridge abutment. Can municipality show evidence is litigious to infer conduct at the time of litigated event? No.
                                                                                                       ii.      To show common claim or scheme of fraud
1)      If municipality can show the claim is common and fraudulent, evidence of litigiousness can be shown.
2)      P can also use evidence that other people got into accidents using the same instrumentality with the same circumstances – shows D knew of danger. Proves notice/knowledge and proves instrumentality is dangerous/defective. 
                                                                                                      iii.            When relevant on the issue of damage to the plaintiff
1)      Evidence can be used to show P hurt his back not in this incident, but in a prior incident. 
c.       Where intent or state of mind is in issue.
                                                                                                         i.            To prove intent or state of mind – look to conduct. 
1)      Ex: Showing an employer is discriminatory. 
d.      To rebut the claim or defense of impossibility.
                                                                                                         i.            General applicability in evidence law. 
                                                                                                       ii.            Opponent can open the door by asserting defense of impossibility. 
1)      Ex: You buy a coke; there is a mouse in the can. You sue Coke. Coke’s defense is impossibility – P must be lying because we have a device that screens debris. But you buy another Coke with another mouse. This is admissible

                                                      i.            Similar to habit evidence, except for a business entity. 
                                                                                                       ii.            Admissible to infer business acted in conformity with its business routine. 
h.       Industrial Custom as Evidence of the Standard of Care
                                                                                                         i.            Custom of the business or trade as non-conforming to standard of care. Focuses on what others in the same business do that this business didn’t do.
1)      Ex: Person getting off a bus, but bus takes off dragging person. P sues saying there wasn’t a safety device to save P. Bus company can use evidence that no other bus company has that safety device. This shows the possible standard of care. This is highly probative, but not conclusive, evidence. 
D.     Discretionary Relevance – Pragmatic, policy based. Stricter standard of eligibility.
1.                         Evidence may be logically relevant, and yet the judge may keep it out because its probative value is substantially outweighed by certain auxiliary considerations: (Federal Rule 403) – has generally applicability almost everywhere. 
a.       Danger of Unfair Prejudice
b.      Confusion of the Issues in the Mind of the Jury
c.       Misleading the Jury
Undue Delay