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

making the record
I. Contents of Record
A.     Witness Testimony
B.     Tangible evidence – eg, documents, writings, drugs, etc.
C.     Depositions – if no objection, read to jury or play out in a Q&A (good in cases of impersonal witnesses)
D.     Stipulations – generally read to jury
II. Admissibility of Tangible Evidence
A.     Mark for identification (before, ideally) the trial.
B.     Must 1st lay foundation – how complex should be depends on use and connection to case
1.      Identify item – establish chain of custody; account for item @ every stage
2.      Explain connection
3.      Item in same condition
C.     Specific offer into evidence
D.     If no objection, secure ruling on admissibility
III. Writings
A.     Show “authentic” – document is what you say it is.
B.     How to show authentic?
1.      Call witness who recognizes writing
2.      Circumstantial evidence
III. Types of Evidence
A.     “Real” evidence – eg, actual drugs, actual murder weapon
B.     “Demonstrative” evidence – substitutes; eg, models of parts of the spine, skull, etc.
C.     Still need foundation laid + relevancy
D.     Must raise timely objection to preserve
IV. Offer of Proof
A.     Get into the record what witness would have said by –
1.      letting witness answer, OR
2.      atty saying, “Let the record reflect witness would have said: ‘….’”
B.     If tangible evidence, it becomes part of record, but jury doesn’t get to see it.
V. Motion in Limine – Ask in advance of trial whether evidence admissible
• “Plain Error” Rule → In most jurisd, only available in criminal cases; If not available in criminal, can go by habeas corpus route.
• Narrow exception – no need to object
VI. Appeal
A.     Must actually have been an error.
B.     Substantial right of party must have been affected
1.      SC: Not “harmless”
2.      “Substantial right”: in context of entire trial, exclusion or admission could have affected outcome of case
C.     Narrow Exception → No need to object – “Plain Error” rule: In most jurisdictions, only available in criminal cases. If not available in criminal cases, can go by habeas corpus route.
[R. 401, 402]  
I. General
A.     Definition
• Relevant Evidence = 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.
• Not hard to make a fact an issue → “any tendency” – low threshhold
• “a brick is not a wall”
B.     Determination
• Threshold determination of relevancy must be established prior to consideration of other evidentiary principles or exclusionary rules.
C.     Types of Evidence
1. Direct Evidence → Testimony
2. Circumstantial Evidence → Where evidence seeking to prove one set of facts must be inferred from another set of facts. Make a series of inferences
a.       Probative circumstantial evidence may be used to prove such occurrences such as similar accidents, injuries, claims, or Ks (b/w same parties) provided a foundation is laid showing substantial identity of material circumstances.
b.      Absence of similar accidents or claims may be admissible to show Δ’s lack of knowledge of a dangerous condition, but is generally inadmissible to prove non-existence of the dangerous condition.
• Question: Is it raining?
•• Eyewitness to rain → Direct
•• Person carrying umbrella shakes it → Circumstantial
• Question: Was Δ in house of victim on night of murde?
•• Eyewitness → Direct
•• Δ’s car in front of house → Circum.
•• Δ’s fingerprint on doorknob → Circum.
•• Δ’s gun found in house → Circum.
II. Test for Relevancy
1.      What is proponent of evidence trying to prove?
2.      Is it provable in this case? Does law make it relevant? Is it a fact of consequence to the determination of this case?
3.      Does the offered evidence act

ny that old man died of natural causes, which Δ objected to.
•• Issue: Whether Δ heard story (pros. not offering to show whether old man killed by Marshall).
•• Far less likely to hear than an event happened if it did not, in fact, occur. False statements are unlikely to be uttered.
•• Δ could have called others that also heard of story.
•• In hearing about actual cause, jury may lose sympathy, even if Δ had valid self-defense claim.
•• Chain: old man died of natural causes → Marshall/vic didn’t kill him → If didn’t happen, Δ didn’t hear it → If Δ didn’t hear it, self-defense claim out the window
III. Limitations
     A. All relevant evidence is admissible except as excluded by some specific rule [402].
     B. When the evidence can be relevant to many issues, it may be admissible to one, but not another, for some reason.
    C. Jury instructions tell jury for which issue it is admissible and to disregard as to other issues.
IV. Exclusions
     A. Judicial Discretion: No matter how relevant, 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 [403].
1. Prejudicial Impact: Jury reaches decision for wrong reason
2. Balance →→→ Probative Value vs. Prejudicial Impact
     a. If even → Admit
     b. If highly probative AND highly prejudicial → Admit (but, ask for limiting instruction)
     c. If prejudicial impact SUBSTANTIALLY OUTWEIGHS probative value → Reject