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University of South Carolina School of Law
Anderson, Joseph Fletcher Jr.

Evidence – Judge Anderson

I. Overview of Evidence
A. General Information
1. Evidence Rules are bright line rules
2. Ex) Evidence of Insurance Coverage is never admissible
a. Not like torts or Con law balancing tests
b. Not many reversals on evidentiary issues because appellate judges were rarely trial judges and are not as comfortable with evidence as trial judges.
3. Good trial lawyer has to have working knowledge of evidence.
4. Not necessarily common sense rules
B. Source of Evidence Law – Federal Rules of Evidence
C. Basic Rules of Evidence Law
1. Rule 1: Truth, the “Whole Truth” – this is often not correct. Evidence rules prevent the whole truth from being heard because of some overriding policy concern.
2. Rule 2: Judge the acts and not the person. For example) Character evidence is generally not admissible. Don’t want juries to give too much weight to the character of a person.
3. Rule 3: Don’t want a three-ring circus. Focus on the controversy at hand.
4. Rule 4: If you snooze you lose, if you don’t object at trial, you are going to lose your right to challenge on appeal. A more accurate statement is that evidence is objectionable as opposed to inadmissible
a. Presumably, the judge will never “object” himself.
D. Four Categories of Evidence
1. Real Evidence – the real thing. E.g.: O.J. Simpson’s glove. General rule, real evidence always comes in. There are exceptions: Won’t come in if it will make the jury throw up to see it. Unfair prejudice outweighs probative value.
2. Documentary Evidence – documents and papers. E.g. contracts, leases, medical bills. Recent trend: bring in as many documents as possible. Don’t do this.
3. Demonstrative Evidence – recreation of the real thing. E.g. reenactment; scale model. Reproduction of reality.
4. Testimonial Evidence – testimony from the lips of a witness. Viva boca. This is where a lot of the rules of evidence come into play.
E. Anatomy of a Trial
1. Preliminary Matters (Motions)
2. Jury Selection
3. Preliminary Jury Instructions
4. Plaintiff’s Opening Statement
5. Defendant’s Opening Statement
6. Plaintiff’s Witnesses
a. Direct
b. Cross
c. Re-direct
d. Etc. (until the judge has had enough)
7. Motion (by defendant) for judgment as a matter of law
8. Defendant’s witnesses
a. Direct
b. Cross
c. Re-direct
9. Defendant Rests
10. Plaintiff’s rebuttal
11. More Motions
12. Plaintiff’s closing argument
13. Jury instructions
14. Jury deliberations
15. Verdict
16. More motions
17. Appeal
II. Chapter 1 – Mode and Order of Presentation of Evidence
A. Control by the Court
1. Federal Rules of Evidence 102, 403, and 611(a)
a. Rule 102 – Purpose and Construction – rules construed to ensure fairness . . .
b. Rule 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time – relevant evidence may be excluded if probative value is substantially outweighed by prejudice, confusion of jury, undue delay, cumulative, etc.
c. Rule 611 – Mode and Order of Interrogation and Presentation – (a) Control by Court – Court shall exercise control over interrogation so as to (1) ascertain truth; (2) avoid wasting time; (3) protect witness from harassment.
d. The above rules basically give the trial judge a lot of discretion to control

h. Misstatement of the Evidence – lawyers twists evidence already presented to their advantage.
i. Argumentative – question should not be argumentative; Lawyer is arguing with the witness.
j. Badgering the Witness – harassing or threatening the witness.
k. South Carolina Objection: Pitting One Witness Against Another – the witness should not be asked to deal with another witness’s testimony.
B. Form of Questions to Witnesses
1. Leading Question: suggests the answer that you want
2. Rule 611(c) – Mode and Order of Interrogation and Presentation – Leading Questions – Leading questions not allowed on direct testimony, but allowed on cross-examination or on interrogation of a hostile witness.
3. Direct Examination
a. Rule 611(c) – leading question should (Judge discretion) not be used on direct except:
i. Necessary to develop witness’ testimony – witness having trouble communicating (child), or a witness having difficulty recalling what happened.
ii. Hostile witness – combative and resistant witness.
iii. Adverse party – e.g. plaintiff calls defendant in case in chief
iv. Identified with an adverse party – sue ABC trucking, call the truck driver, you can ask leading questions.
v. Preliminary or Undisputed Matters can be introduced with leading questions – it helps move the trial along.