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

Evidence Outline
Evidence is the law of fact finding dealing with the questions:
What materials can be used to establish facts?
How can these materials be presented to the factfinder?
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
Chapter 1: Making the Record; Trial Objections
Offer of Evidence
o       Lay the foundation: put witness (hereinafter “W”) in a position where he demonstrates 1st hand knowledge (see example on p. 23)
o       Tangible Evidence: docs, photos, murder weapon, etc.
­       Exhibits need to be marked for identification
­       Must establish chain of custody
o       Demonstrative Evidence: skeleton, map, etc.
­       Not really part of the record
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)
o       Tangible Offer: hand the item to the clerk
o       Witness Offer: jury excluded until judge approves
o       Lawyer Offer: “Let the record reflect that if the W would have been allowed to answer he would have said …”
To Appeal an Evidentiary Ruling
o       An error that affects a substantial right of the party by changing the outcome of the trial à reversible error
o       If outcome would be the same à harmless error
o       In criminal context, if error is obvious and significant à plain error à new trial
­       If no plain error, new attorney can seek post-conviction relief.
Chapter 2: An Introduction to Relevance
Relevance to What?
Rule 401: “Relevant evidence” is evidence having a tendency to make a fact needed to determine a case more probable or less probable than it would be without it.
Rule 402: All relevant evidence is admissible. Irrelevant evidence is inadmissible.
Two types of Evidence:
Direct Evidence: requires no inference
Circumstantial Evidence: requires inference
Union Paint v. Dean (∆ doesn’t pay for Can 2 b/c Can 1 defective)
o       ∆ inferential chain: Can 1 defective. Therefore, Can 2 defective.
o       Problem: Can 1 is not relevant or logically probative as to Can 2.
Test to Determine Relevancy:
What are you trying to prove?
Is it provable in this case?
Does the offered evidence help to establish that fact?
401: “of consequence” determination requires researching substantive law.
Hypo: WC 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).
B.    Relevance and Inference
Establish an inference chain but remember that an inference chain is only as strong as its weakest link.
Knapp v. State (appeal from murder conviction; ∆ pleads self-defense)
o       Facts: ∆ says he had heard that the police officer had killed an old man upon arrest.
o       ∆ arg: the truth of ∆’s story is not what matters; the fact that he believed the story is relevant to his state of mind which is relevant to self-defense
o       π arg: ∆ story is unverifiable because ∆ does not know who told him the story
o       Inference chain: heard story à state of mind à self-defense
Sherrod v. Berry (civil rights action; cop kills robbery suspect)
o       Facts: TC allows π to admit evidence that the suspect was unarmed. AC reverses b/c “improper, irrelevant, and prejudicial.”
o       Inference chain: unarmed à wouldn’t reach into pocket à suspect was innocent à cop lied
Rule 403: relevant evidence is excluded if probative value substantially outweighed by unfair prejudice, confusion, undue delay
Probative Value v. Prejudicial Effect
Ballou v. Henri Studios (wrongful death action)
o       TC: motion in limine to prevent evidence that π was intoxicated
o       ∆ arg: blood test à intoxication à contributory negligence
o       π arg: blood test is relevant but prejudicial (bad character)
o       Holding: Relevant evidence is admissible even if highly prejudicial and highly probative.
Old Chief v. United States (appeal from conviction for §922 possession of firearm by convicted felon)
o       Facts: ∆ wants to concede the fact of his prior conviction to avoid prejudice, but prosecutor says he has a right to fully prove the fact and DC agreed.
o       Issue: Is it abuse of discretion for DC to spurn concession, when the info is prejudicious, and when the purpose of the evidence is solely to prove the element of prior conviction?
o       Holding: Yes.
o       Limited Rule: Too prejudicial in light of the alternative.
o       Unfair Prejudice, defined: when relevant evidence lures the factfinder into declaring guilt on a ground different from proof specific to the offense charged
Chapter 4: A Return to Relevance
Probabilistic Evidence
People v. Collins (purse snatching by white woman w/ pony tail, get away driver was bearded black man)
o       Prosecutor has a problem: the victim could not identify the snatcher, and other W testimony is shaky
o       Prosecutor’s Solution: call in statistician to testify as to the probability of white pony-tailed woman and a bearded black man being together at the date and place in time
o       Ct. rejects this because the probability report is not based on data but on odds and is not independent.
People v. Mountain (rape murder trial. Blood type A found on body. ∆ has blood type A.)
o       Is blood type probative? Yes but of limited value b/c 40% have blood type A.
o       Is blood type prejudicial? Probably not. Mitigate by use of jury instructions.
o       Rule: Blood tests are generally admissible.

o       Holding: Yes b/c circumstantial evidence must come in the form of reputation or opinion.
o       Rationale:
­       Specific instances evidence is the most convincing and most likely danger of prejudice.
­       Rule 405 allows specific instances evidence when character is in issue in the strict sense. This occurs when character is a material fact that under substantive law determines the rights and liabilities of the parties. [discuss] o       Result: ct. gets around by allowing the specific instances evidence under Rule 406 Habit.
4.      Habit
Distinguishing Habit from Character:
o       Habit is more concrete.
o       Habit is semi-automatic.
o       Habit is a regular response to a repeated specific situation.
o       Character is a role of choice.
o       Character has moral overtures while habit is morally neutral.
Rule 406: Habit; Routine Practice
o       Provides for admission of habit evidence of persons and routine practice of corporations
Halloran v. Virginia Chemicals (products liability case)
o       Facts: Mechanic injured when can of refrigerant explodes. ∆ contends that π used an immersion coil, which was cautioned against. ∆ wants to admit evidence of habit of using immersion coils.
o       Issue: is prior modus operandi admissible to show negligence on particular occasion?
o       Holding: Yes.
o       Rationale: Habit evidence should be admissible when the issue involves proof of deliberate and repetitive practice à highly probative.
o       Rule: to demonstrate habit need more than 1 or 2 instances.
5.      Rape Shield
At common law, women’s promiscuity came in b/c promiscuous women were thought to be more likely to consent and more likely to lie. The problem with this is that victims were deterred from reporting rape b/c they feared abuse and degradation in the courtroom. This attitude changed with the Women’s Liberation Movement and the Sexual Revolution. Women’s Lib and law enforcement formed an unlikely alliance that brought about the Rape Shield Statutes.
Typical Rape Shield Statute
o       General Rule: prohibit introduction of evidence of victim’s prior sexual propensities or behavior
o       Exceptions:
­       Sexual behavior w/ ∆
­       Evidence to show other reason for injuries
­       When constitutionally required
State v. Cassidy
[1] This case is the basis for Rules 404 and 405.