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

FLANNAGAN EVIDENCE OUTLINE – FALL 2006

Chapters 1 & 2: The Structure of the Trial
Intro: Rules of Evidence implicate Rules of Civil Procedure and Trial Advocacy. Federal and SC Rules of Evidence are similar. Yet SC rules may be more restrictive.
I. Order of Proceedings (court may alter sequence in order to accommodate witnesses)
A. Voir Dire – jury selection – FRCP 47a, FRCrimP 24a – ct conducts, atty may add questions; preemptory challenges – right of a party to excuse prospective juror or for no reason at all; Opposing counsel can voir dire to test witness’ qualifications
B. The Trial – after π and ∆’s cases in chief (where ∆ would present counterclaim), π can rebut and may present new witnesses or it may recall witnesses; admissibility is trial ct discretion, may be repetitive info; during π’s rebuttal is when he responds to ∆ counterclaim
C. Reopening a case – ct’s discretion
D. Jury Instructions – some state ct judges comment and summarize the evidence; in fed ct, usually not exercised
II. Types of Evidence –
A. Testimony
B. Documentary: (ex: police report)
C. Real: e.g., genetic swabs, bloody knife.
D. Demonstrative E: visual aids—map, computer model, etc.
E. Other: experiment; transport jury to look at property; common scheme—you can use prior bad acts to show motive, identity, existence of common scheme or plan, absence of mistake or accident, or intent.
III. Witness Examination
A. Sequence: Direct; Cross; Re-Direct; Re-Cross. As you progress down this sequence, the scope of questions gets more narrow.
B. In direct exam you can’t ask leading questions, but you can in cross.
IV. Preliminary Questions of Admissibility
A. Rule 104 – Preliminary Questions – ct determines admissibility; in determining admissibility in a crim or civil case, the ct should apply a POE standard; judge not bound by rules of ev except those w/respect to privileges (ex. can look at conversation to determine if admissible)
§ (a) Questions of Admissibility Generally – ct determines witness qualifications, privileged, and admissibility of ev
· A piece of ev does not have to be decisive; just relevant.
§ (b) Relevancy Conditioned on Fact – ct may admit ev subject to the introduction of ev that fulfills a condition of fact
· If jury can’t reas find the condition was fulfilled, ct could instruct jury to disregard the ev; motion to strike can be made if promise to connect ev doesn’t happen
· The ev is ultimately relevant only if another fact is established (ex: gun can stay in only if you show where it was found)
§ (c) Hearing of Jury – admissibility of confessions will be determined out of hearing of jury (including const issues, like Miranda); hearings on other matters are conducted as justice requires
§ (d) Testimony by Accused – when accused testifies on a prelim matter, he doesn’t become subject to cross-exam as to other issues in the case
– But testimony may be admitted to impeach ∆; similarly if statement suppressed for failure to give Miranda warnings, if statement shown to have been voluntarily made, the statement can be used to imeach
§ (e) Weight and Credibility – rule doesn’t limit ability to introduce ev relevant to weight or credibility
V. Hearing of Jury; Motions in Limine
A. Rule 103 – Rulings on Ev – *note – difficult to appeal a case based on evidence objections
§ (a) Effect of Erroneous Ruling – a ruling will not predicate error unless it affects a substantial right and either objection is made or offer of proof; once ct makes a definitive ruling on the record admitting/excluding ev, a party need not renew an objection or offer of proof to preserve a claim of error for appeal (ruling not definitive and doesn’t preserve error, requires ct to make a provisional or tentative ruling)
– (1) Objection – record of objections are stated when ev is admitted and opposing counsel has objected – preserves error; must be timely (sometimes objection not made for tactical reas b/c draws attn to it, ev may not hurt party)
· Objector must specify grounds of objection, in order to preserve it for appeal.
· S.C. Contemporaneous Rule: you must object at time ev is offered or objection is not preserved for appeal.
– (2) Offer of Proof – if ruling excludes ev, substance can be made known from an offer of proof
§ (b) Record of Offer and Ruling – ct may add further statement showing the character of ev, form it was offered, the objection, and the ruling
§ (c) Hearing of Jury – prevent inadmissible ev from being suggested to the jury
– Motions in limine use to determine admissibility prior to trial; shields trier of fact from unfair prejudice; this rule still allows ct to revisit decision when ev is actually to be offered at trial
§ (d) Plain Error – rule doesn’t preclude taking notice of plain error affecting sub rights although not brought to the attn of the ct (i.e., even though no objection made). This is not the rule in SC, though.
VI. Limited Admissibility
A. Rule 105 – Limited Admissibility – when ev which is admissible as to one party/one purpose, but not admissible as to another party/purpose, is admitted, the ct, upon request, shall restrict the ev to its proper scope and instruct the jury accordingly (entitled to get an instruction – ∆ didn’t take stand, don’t draw inferences from it, pros likes that instruction)
§ Offering party has burden of advising the ct as to the party or the limited purpose for which the ev is admissible (counsel may retrain from requesting this to avoid emphasizing potentially damaging ev)
§ Absent plain error, a failure to request a limiting instruction precludes raising the q on appeal
§ Sometimes despite a limiting instruction, the harm likely to result from jury considering the ev requires ct to look at probative and prejudicial value; Rule 403 – if probative value is substantially outweighed by dangers of unfair prejudice, confusion or issues, misleading the jury, undue delay, waste of time, of needless cumulative ev, ev will not be admitted
– Bruton v. US (1968) – improper to introduce the extrajudicial statements of a nontestifying codefendant b/c of the sub risk to implicate the accused. A redacted statement (one that does not facially incriminate the codefendant), not sub admissible against the codefendant, may be introduced.
VII. Judicial Discretion – trial ct possess discretion regarding the mode and order of proceedings; 3 FRE bear directly upon the ct’s overall exercise of discretion to ensure the ascertainment of truth
A. Rule 102 – Purpose and Construction – rules shall be construed to secure fairness to ascertain the truth
B. Rule 403 – Exclusion of Relevant Ev on Grounds of Prej, Confusion, or Waste of Time – above; Bias in favor of admissibility of ev when an appeal ct reviews; hard to overturn a case on evidentiary grounds; most cases w/ev problems are criminal cases and in those cases there’s not much discovery, so ev not anticipated
C. Rule 611(a) – Mode and Order of Interrogation and Presentation – Control by ct. The ct shall exercise reas control over the mode/order of interrogating witnesses and presenting ev so as to 1) make interrogation and presentation effective for the ascertainment of the truth 2) avoid needless consumption of time, and 3) protect witnesses from harassment or undue embarrassment

Chapters 3 & 4: Relevance and the Exclusion of Relevant Evidence
I. Relevance
A. Rule 401 – Definition of Relevant Evidence – ev that has any tendency (i.e. more than zero) 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 w/o the ev *Note – rarely are objections sustained on relevance basis
§ Any tendency.401is not a significant barrier to admitting evidence. It basically allows it in, even if reasonableness is lacking, and even if the fact it supports or tends to support isn’t material or even in dispute
1. Something is not irrelevant just b/c it tends to prove the same thing as another piece of ev; no “overkill” exclusion in 401 (but maybe in 403)
2. No “plus value” needed, either. Ev must have only a minimal amt of probative value (amt may be raised by 403)
§ “fact of consequence” (a proposition in the case) is used instead of materiality – clarifies that the breadth of admissibility of relevant ev extends to facts not in dispute
1. The relevance of a fact of consequence doesn’t mean the info has to prove the argument – the pieces of evidence may be small and may add up to the big picture. “A BRICK IS NOT A WALL.” (admissibility ≠ sufficiency)
2. fact of consequence is determined by the substantive law within the framework of the pleadings.
3. “Irrelevant” can mean either that the E doesn’t tend to prove or disprove an FOC, or that the fact the E supports/undermines is of no consequence to the claim/case.
4. fact of consequence includes 3 general categories of FOCs (you want to fit your ev into one, as you’ve got to say why it’s relevant when you offer it)
a. 1) facts that comprise direct evidence of an element of a claim or defense,
b. 2) intermediate facts that are circumstantial ev of elements of claims or defenses,
c. 3) facts bearing circumstantially upon the evaluation of the probative value to be given to other ev in the case, including demonstrative ev and the credibility of witnesses (personal knowledge, demeanor, impeachment, rehabilitation, and background info)
B. Rule 402 – Relevant Ev Generally Admissible; Irrelevant Ev Inadmissible: All relevant evidence is admissible, except as otherwise provided by the constitution of the US, by Act of Congress, by these rules or by other rules p

custom of an organization is admissible as tending to prove that it was followed on the occasion in q. Strictly applied corroboration isn’t needed b/c that goes to suff of ev, not admissibility – its OK if there’s ev of routine practice standing alone (don’t need corroboration that the routine was then followed) à ex – mail clerk posts letters, but witness doesn’t actually have to see the ltr was in fact posted.
II. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes – Rule 404 – CAN’T USE PROPENSITY EVIDENCE TO PROVE CHARACTER IN CONFORMITY THEREWITH IN CIVIL CASES (exception – if character is an essential element – this is rare – only examples are libel and negligent entrustment)
(a) – Character Evidence Generally – it’s not admissible for the purpose of providing action in conformity therewith on a particular occasion. [in conformity is circumstantial use]. More generalized.
EXCEPTIONS FOR CRIM CASES ONLY – HENCE ACCUSED AND ALLEGED VICTIM. In criminal cases the defendant introduces character evidence.
(1) Character of Accused – it is admissible to prove conformity if accused offers it, or the prosecution offers it to rebut, OR if the accused offers ev. of a trait of character of the alleged victim and its admitted under rule 404a2, then the prosecution may offer evidence of the same trait of character of the accused [pros. can’t bring character evidence in its case-in –chief à may use in rebuttal] *rationale: accused is not permitted to attack the alleged victim’s character and yet remain shielded from the disclosure of equally relevant ev concerning the same character train of the accused. Ex: if accused offers ev in self-defense case of alleged victim’s violent disposition, prosecution can offer ev the accused has a violent disposition in rebuttal. PROOF MADE BY REPUTATION OR OPINION, NO SPECIFIC INSTANCES ALLOWED
(2) Character of Alleged Victim – ev of a pertinent trait of character of alleged victim of the crime the accused offers, or by the prosecution to rebut the same, OR ev of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut ev that the alleged victim was the first aggressor. [usually happens in self-defense; self-defense can be raised by character ev and by testimony of the victim; when homicide case, accused can introduce ev that the deceased was reputed to be a violent and dangerous person. If trait was known to the accused, the knowledge is a factor to consider when determining whether he reas apprehended bodily harm; trigger can be any ev, then prosecution can respond. Even another witness canoffer testimony to show the character of the deceased toshow the latter was the aggressor.] PROOF MADE BY REPUTATION OR OPINION, NO SPECIFIC INSTANCES ALLOWED
F’s Summary:
1. D opens the door; otherwise character evidence is unavailable to the prosecution
a. D can open the door by introducing his good character which leads to the ability of the prosecution to respond with bad character.
b. D can introduce appropriate evidence of the victim of the crime, in which the prosecution can rebut by either the good character of the victim or the bad character of the defendant.
2. In the instance of a homicide case where D introduces evidence that the victim was the initiator then the government can respond with evidence of peacefulness of the victim.
(3) Character of Witness – evidence of character of a witness provided in rules 607, 608, and 609.
A. Character – nature of a person, his disposition generally, or his disposition in respect to a particular trait, such as honesty, temperance, or peacefulness, credibility; generalized pattern of behavior. Reputation is the community estimate of him.
Inferences: build up from specific instances. Under 403 consideration, it takes valuable time to do this and susceptible to prejudice