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



§ Burden of Proof – A party’s duty to prove a disputed assertion or charge; includes two elements:
o Burden of Persuasion – a party’s duty to convince the fact-finder to view the facts in a way that favors that party; in civil cases, the plaintiff’s burden is usually “by a preponderance of the evidence,” while in criminal cases the prosecution’s burden is “beyond a reasonable doubt”

o Burden of Production (going forward) – a party’s duty to introduce enough evidence on an issue to have the issue decided by the fact-finder, rather than decided against the party in a peremptory ruling such as a summary judgment or a directed verdict

§ Types of Evidence
o Direct – evidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption

o Circumstantial– evidence requiring an inference or presumption to establish a fact; not based on personal knowledge or observation

o Expert testimony– evidence about a scientific, technical, professional, or other specialized issue given by a person qualified to testify because of familiarity with the subject or special training in the field

Chapter 3 & 4 – RELEVANCE

I. Relevance – FRE 401 & 402
A. FRE 402 – requires that all evidence be relevant to be admitted and that irrelevant evidence be excluded.

B. FRE 401 – “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Very Broad

1. Relevance is easy to establish because the extreme breadth of the 401 definition. Very few objections are sustained on the basis of lack of relevance.

2. Judge must believe that a rational fact finder could be influenced by the material in deciding the existence of a fact. “Any tendency” – very liberal rule.

3. “Fact of consequence” includes direct evidence, circumstantial evidence, and facts bearing circumstantially upon the evaluation of the probative value to be given to other evidence in the case, including demonstrative evidence and the credibility of witnesses.

4. Relevant evidence is evidence that goes to proving one of the legal issues in the case – evidence does NOT have to be conclusive to be relevant. Just has to have “any tendency to make of fact of consequence to the determination of the case more or less probable.”

II. Exclusion of Relevant Evidence – Rule 403
A. Probative Value versus Trial Concerns
1. FRE 403 – Balancing Test – Relevant evidence is subject to exclusion if the risk of unfair prejudice, confusion of the issues, or misleading the jury substantially outweighs its probative value. It may also be excluded by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

a) Unfair Prejudice – only when a factfinder might react to aspects of evidence in a way that is not supposed to be part of the evaluative process – influenced by emotion, revulsion, desire to punish.

(1) Prejudice which calls for exclusion is given a specialized meaning: an undue tendency to suggest decision on an improper basis, commonly but not necessarily an emotional one, such as bias, sympathy, hatred, contempt, retribution, or horror.

b) Prejudice resulting in Undue Influence – Ex – in a case where a defendant admitted that the plaintiff’s tort theory was possible, admitting evidence about a single incident of the type claimed by the plaintiff would subject the defendant to a risk that the jury would give it too much weight.

B. Offer to Stipulate – A party may not “

past event could help the juror decide what really happened in the event being litigated. Even where the proof of the closeness of circumstances is weak, the conditional analysis leads to the idea that the judge should give the opportunity to evaluate the evidence.

b) 403 Considerations – Evidence of past injuries may be highly prejudicial, as jurors may be persuaded to make the D pay $ even if there was really no negligence – so even thought the evidence of past occurrences could be treated as an instance of conditional relevance, with most of the decision making left up to juries, judges may properly exclude this evidence on 403 grounds unless they are persuaded that the showing of similarity of conditions is strong.

3. Statistical Proof – judges scrutinize the relevancy of probability evidence more closely than the relevancy of other types of evidence b/c jurors have a hard time adopting a critical stance towards it. Some courts will exclude the evidence if they think it is overly technical or too hard for jurors to refute with their own common sense.


I. Introduction – At common law and under the FRE, evidence meeting the definition of relevancy is sometimes excluded at trial to encourage socially desirable conduct which would be discouraged if evidence of such conduct was admissible.

II. Subsequent Remedial Measures – FRE 407 – applies to both Negligence & Strict liability