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

Evidence Outline
Professor Butler
Evidence Outline
û       Evidence is the law of fact finding dealing with the questions:
1.      What materials can be used to establish facts?
2.      How can these materials be presented to the factfinder?
û       Evidence rules derive largely from a traditional distrust of the jury. The Jury is a mysterious “black box” with information going in, the information is then processed in deliberations, and then the jury announces a verdict. To ensure that the Jury process is pure we limit what the jury can consider and instruct the jury on how to use the evidence.
Jury Deliberations
I.            Introduction
4     Offer of Evidence
–          Lay the foundation: put witness (hereinafter “W”) in a position where he demonstrates 1st hand knowledge
–          Tangible Evidence: docs, photos, murder weapon, etc.
               i.            Exhibits need to be marked for identification
             ii.            Must establish chain of custody
–          Demonstrative Evidence: skeleton, map, etc.
               i.            Not really part of the record
4     Making Objections and Preserving for Appeal
–          Motion in Limine: preliminary objection to evidence before the jury hears it so that the judge can resolve the issue beforehand
–          Three Offers of Proof (during W examination)
               i.      Tangible Offer: hand the item to the clerk
             ii.      Witness Offer: jury excluded until judge approves
            iii.      Lawyer Offer: “Let the record reflect that if the W would have been allowed to answer he would have said …”
4     To Appeal an Evidentiary Ruling
–          An error that affects a substantial right of the party by changing the outcome of the trial à reversible error
–          If outcome would be the same à harmless error
–          In criminal context, if error is obvious and significant à plain error à new trial
ü      If no plain error, new attorney can seek post-conviction relief.
II.            Chapter 1: General Principals of Relevance
A.     Probativeness and Materiality
1.      Rule 401: “Relevant evidence” is evidence having any tendency to make the existence of any fact that is of consequence to determine a case more probable or less probable than it would be without the evidence.
û       Relevant Evidence has 2 components:
(1)   The Evidence proffered must be probative of a material fact; and
(2)   The Evidence must be material. 
ü      Materiality→ “of consequence to the action;” Provable under the substantive law. 
2.      Rule 402: All relevant evidence is admissible. Irrelevant evidence is inadmissible.
û       Two types of Evidence:
(1)   Direct Evidence: requires no inference
(2)   Circumstantial Evidence: requires inference
û       Test to Determine Relevancy:
(1)   What is the proponent of the evidence trying to prove?
(2)   Is it provable in this case under the substantive law (i.e. material)?
(3)   Does the offered evidence help to establish that fact?
û       Hypo: Workers Compensation case. ∆ wants to enter into evidence that π was not wearing safety glasses. à Irrelevant because contributory negligence is not a defense to a WC claim (substantive law).
3.      Materiality:
û       U.S. v. James (1999):           
–          Rule: Documentary records are admissible to corroborate testimony to bolster credibility even when the testifying witness being corroborated & bolstered didn’t know the contents of the records.
–          Facts: The jury convicted James of aiding and abetting in the manslaughter of Ogden. Extrinsic evidence (evidence not contained within the text of a document or contract, but derived from plaintiff’s testimony) excluded from trial was that her boyfriend Ogden, bragged to James about stabbing a man in the neck w/ a ballpoint pen & about robbing an elderly man by threatening to cut out the man’s eyes w/ a knife on the basis that James would not have known about the extrinsic records at the time she gave Jaylene the gun.
–          Holding: Court reversed stating that the trial judge didn’t allow the admission of documentary records which would have corroborated James’s testimony, validated her fears of Ogden’s violent nature (her believing he was violent was at issue since her defense was self-defense), and her credibility.
B.     Conditional Relevance:
1.      Rule 104(b) →Conditional Relevance:  When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. 
û       Permits a court to consider all non-privileged matters, whether independently admissible or not, when determining preliminary issues of admissibility.
û       Cox v. State (1998):
–          Rule: Conditionally relevant evidence is admissible if a judge determines that a reasonable jury could make the requisite factual finding based on the evidence before it. Must have some uninterrupted connection.
–          Facts: Cox appealed his murder conviction of James Leonard. Patrick Cox was a close friend of Hammer, who was arrested for the molestation of Leonard’s daughter. Cox spent every day @ Hammer’s house, even after Hammer went to prison awaiting trial. At trial, the prosecution’s theory was that Cox killed Leonard in retaliation for the charges against Hammer. Witness testified @ Cox’s trial that Hammer had a bond reduction hearing 4 days before the murder, which Hammer’s mother attended & where Hammer’s bond was not reduced. Cox claims the prosecution first had to prove that he knew the outcome of Hammer’s hearing before introducing the evidence as his motive. If Cox had not known of the outcome, the evidence was irrelevant & prejudicial.
–          Holding: The trial court doesn’t have to weigh the credibility of the evidence or make a finding, but rather determine if a reasonable jury could make the finding. Here, the jury was told that Cox spent all his time @ Hammer’s house w/ Hammer’s mother before & after the bond reduction hearing. A reasonable jury could find that Cox knew of the hearing’s outcome.
C.     Probativeness Versus the Risk of Unfair Prejudice:
4     Rule 403—Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time:
û       “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
–          Every piece of evidence must meet this test.
–          Permits exclusion of otherwise relevant evidence, but is at judge’s discretion and is reviewable on appeal only for abuse of discretion.
–          Very liberal rule—favors admission of evidence because probative value must be substantially outweighed by unfair prejudice.
–          There is a bias in favor of admitting the relevant evidence; to keep such evidence out the opponent must show that its evils substantially outweigh its probative value.
–          Unfair Prejudice: when evidence created an undue tendency to suggest decisions on an improper basis, commonly, though not necessarily, an emotional one. 
1.       Photos and Other Inflammatory Evidence:
û       State v. Bocharski (2001):
–          Rule: While gruesome photographs of victims & manner of death may certainly be relevant in a murder trial, not every photo is admissible if its purpose is merely to inflame or outrage the jury & prejudice the defense.
–          Facts: Bocharski appealedburglary & murder convictions & a capital sentence of Freeda Brown (elderly woman) due to the photographs of the 16 stab wounds to Brown’s head because their prejudicial value substantially outweighed their probative value. Brown was found dead in her trailer after Bocharski made comments about how he wished God would end her suffering. Police couldn’t locate Bocharski’s knife that Suski had given him as a present & never found the murder weapon, but arrested Bocharski.
–          Holding: Court affirmed, but would have reversed and remanded for new trial if the photos had inflamed the

overnment has the opportunity to offer evidence identifying the previous offense.
–          Issue: Whether the Δ could keep the Prosecution from introducing the name of his previous felony conviction (possession of a firearm) by Stipulating that he had previously been convicted of a felony.
–          General Rule:The prosecution is entitled to prove its case free from any Δ’s offer to stipulate the evidence away.
–          Under Rule 403, evidence of prior convictions would be inadmissible if Δ made stipulation that he has been convicted of felony because there is a danger of unfair prejudice. Judge at trial didn’t allow stipulation and admitted prior conviction evidence.\
–          The risk that a jury will convict Δ’s for crimes other than those charged— or that when uncertain of guilt, will convict anyways b/c the person deserves punishment— creates a prejudicial effect that outweighs ordinary relevance.
–          Holding: Court held that it is abuse of discretion for a court to set aside a Δ’s offered concession/stipulation to prior felony convictions and instead admit Δ’s full record when nature of prior offense raises risk of tainted verdict (due to improper considerations), and when purpose of evidence is solely to prove element of prior conviction. 
–          Dissent: did not feel that evidence was unfairly prejudicial because it was used as specific evidence that Δ committed a crime that falls under the statute (thus proving an essential element of the crime).
û       Unfair Prejudice, defined: when relevant evidence lures the factfinder into declaring guilt on a ground different from proof specific to the offense charged
III.            Ch. 2: The Specialized Relevance Rules:
A.      Subsequent Remedial Measures:
1.      Rule 407—Subsequent Remedial Measures: Correcting Something that Caused the Problem
–          Applies only to charges/repairs made after the occurrence that produced the damages giving rise to the action. 
–          Not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction.
–          Can’t bring in b/c we don’t want companies to choose not to change production when it finds flaws based on a lawsuit. (Public Policy)
û       Daniels Parents v. Poos → Rule 407 doesn’t apply here because the changes were not subsequent.
–          The evidence here is admissible because the repairs by the Δ were made prior to the Π’s injury.
–          But this evidence isn’t automatically admissible; it must then meet the requirements of Rule 403.
û       Tuer v. McDonald (1997) → Rule: Evidence of remedial measures taken after an allegedly negligent act is not admissible to prove negligence.
–          Facts: Medical malpractice action by surviving spouse and personal representative of deceased against cardiac surgeons. Tuer was given Heparin to stabilize angina, but then it was discontinued; patient had heart attack and hospital changed protocol as to discontinuing Heparin in patients with unstable angina. Question at trial arose as to admissibility of protocol under Rule 407. 
–          Holding: Court held that there was no error because evidence of subsequent remedial measures is inadmissible to prove negligence or culpable conduct (Rule 407). Affirmed.