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University of South Carolina School of Law
Butler, Katharine I.

Evidence Outline—Butler (Fall 2007)

Rule 606(b)—Competency of Juror as Witness
Where the validity of a verdict is under question, a juror may not testify about any matter occurring during the course of the jury deliberations. This protection extends to all the components of deliberations including arguments, statements, discussions, mental and emotional reactions, votes, and any other feature of the process.
However, a juror may testify about
1) extraneous prejudicial information improperly brought to the jury’s attention such as newspaper articles, other media reports, or statements made by the bailiff, but but such an exception does not permit the use of juror testimony to prove allegations of a juror’s inability to hear or comprehend, physical or mental incompetence, juror misconduct, or alcohol and drug abuse
2) whether outside influences were improperly brought to bear against any juror, such as threats against a juror or his family, and
3) whether there was a mistake in entering the verdict on the verdict form, but such an exception does not permit the use of juror testimony to prove that the jurors were operating under a misunderstanding about the consequences of the result they agreed upon.

Relevance and Admissibility

Rule 401—Definition of Relevant Evidence
“Relevant evidence means any evidence having any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence.” For evidence to be relevant it must be both material and probative.
Materiality requires that the evidence must be of consequence to the issue; that is, it must bear on some fact that is of consequence to the determination of the action. The fact to which the evidence is directed does not have to be disputed. The substantive law determines what is material and what is not. Many times this will be determined based upon the elements required under the action/crime or the elements requires for some defense.
Probative evidence is evidence that has a tendency to make the existence of some material fact more probable or less probable than it would be without the evidence. If an item of evidence tends to prove or disprove any proposition, it is relevant to that proposition. If the proposition itself is one provable in the case at bar , or if it in turn forms a further link in a chain of proof, then the offered evidence has probative value in the case.
If proof is viewed as a chain of inferences, then any evidence needed to prove or disprove any link in the chain should be relevant.

Rule 402—Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, with a certain exceptions, and evidence that is not relevant is not admissible. The exclusion of relevant evidence occurs where:
1) Other rules of evidence call for it to be excluded, such as under Rule 403
2) Constitutional considerations such as evidence obtained by unlawful search and seizure
3) Where congressional enactments restrict on the admissibility of relevant evidence

Rule 104(b)—Relevancy Conditioned on Fact
In some situations, the relevancy of an item of evidence depends upon the existence of a preliminary fact. For instance, when a spoken statement is relief upon to prove notice to X, it is without probative value unless X actually heard it. Or if a letter purporting to be written by Y is relied upon as an admission of Y, it has no probative value unless Y actually wrote it.
In such cases, the judge makes a preliminary determination whether the foundation of the evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted. If after all the evidence on the issue is in, pro and con, and the jury could reasonably conclude by a preponderance of the evidence that fulfillment of the condition is established, the issue is for them. However, if the evidence is not such as to allow a finding, the judge withdraws the matter from the jury’s consideration.

Rule 403—Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Relevant evidence may be excluded at the discretion of the court
1) If its probative value is substantially outweighed by the danger of unfair prejudice. Unfair prejudice within this context mean an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, and emotional one. In reaching a decision whether to exclude on grounds of unfair prejudice, consideration shoul

When, after an injury, measures are taken that would make the injury less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, defective design, etc. Conventional doctrine excludes evidence of subsequent remedial measures as proof of an admission of fault.
However, this rule does not exclude evidence of subsequent measures when offered for another purpose such as proving ownership or control, existence of a duty, feasibility of precautionary measure, if controverted, or impeachment. (The qualifier, if controverted, applies to ownership, control, existence of duty, and feasibility.) This rule also does not exclude evidence of measures taken prior to the injury, even if they occurred after the manufacture or design of the product. Additionally, evidence not barred by this rule may still be subject to exclusion under Rule 403.
Feasibility—In a medical context, feasibility includes more than mere physical possibility. The assertion that a given course would be unsafe, in the sense that it would likely cause paramount harm to the patient, necessarily constitutes an assertion that the course would not be feasible. However, judgment calls about what the best course of action might be, given potential risks of procedures, do not amount to a claim that a procedure is not feasible.
Impeachment—Subsequent remedial measure evidence is inadmissible to impeach testimony that, at the time of the event, the measure was not believed to be as practical as the one employed, or that the defendant was not using due care at the time of the accident.
Third Party Repairs—While the rule is not specific, many courts hold that evidence of subsequent repair by a third party is admissible. However, many courts have found that it may not meet the requirements of Rule 403.