Ever Evolving Evidence, 0920 SCBJ, SC Lawyer, September 2020, #25

• Author: By Judge Daniel Coble
• Position: Vol. 32 Issue 2 Pg. 25

Ever Evolving Evidence

Vol. 32 Issue 2 Pg. 25

South Carolina BAR Journal

September, 2020

By Judge Daniel Coble

Even though the formal rules of evidence rarely change, attorneys and litigants must still be aware of the ever-evolving evidence cases handed down from the South Carolina Supreme Court. Many new cases came out in 2019 that changed or reinforced the rules and how a trial judge should apply them. This article will survey some of the most important developments.

Prior convictions

Whenever witnesses take the stand, they put their credibility on the stand as well. One way to attack such credibility is showing they have a prior criminal record. Generally, under SCRE 609, a witness may be impeached by showing they have been convicted either of a crime that carries punishment of over one year or a crime that involves dishonesty or false statement. On its face, this rule appears straightforward, and it seems easy for a litigant to make a quick analysis of whether impeachment by conviction is proper. As interpreted by the Supreme Court, SCRE 609 contains many different standards and burdens when deciding which convictions to allow in.

In State v. Robinson¹ the Supreme Court had to again calibrate the relationship between Rule 609 and Rule 403. It explained the entire process for considering a wide range of different convictions: To summarize, Rule 609(a)(2) contemplates one impeachment scenario, that being for convictions of crimes involving dishonesty or false statement, with automatic admissibility regardless of who the witness is and regardless of punishment or resulting prejudice. Rule 609(a)(1) and Rule 609(b) contemplate three impeachment scenarios with three different admissibility standards: (1) under Rule 609(a)(1), if the witness is someone other than the accused and has a prior conviction of a crime punishable by death or imprisonment for more than one year, the trial court must balance the Colf factors and determine whether, under Rule 403, the probative value of the conviction is substantially outweighed by the danger of unfair prejudice and/or other relevant considerations set forth in Rule 403. The burden of establishing inadmissibility of the conviction is upon the opponent of the evidence; (2) under Rule 609(a)(1), if the witness is the accused and has a prior conviction of a crime punishable by death or imprisonment for more than one year, the trial court must balance the Colf factors and determine whether the probative value of the conviction outweighs its prejudicial effect to the accused. The burden of establishing admissibility is upon the State, the proponent of the evidence; (3)under Rule 609(b), if the conviction is a “remote” conviction (even a conviction of a crime involving dishonesty or false statement under Rule 609(a)(2)), the trial court must balance the Colf factors and determine whether the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect. Rule 609(b) establishes a presumption against the admissibility of a remote conviction and places the burden of establishing admissibility of the conviction upon the proponent of the evidence.²

This summary seems like a simple restatement, but it is not. The Robinson Court had to explain how to apply the factors it originally set forth in State v. Colf,³ which focused only on Rule 609(b) but which now apply both to Rule 609(a)(1) and 609(b) but not to 609(a)(2). In its discussion, it emphasized that convictions that do not involve dishonesty may still be relevant to credibility. The court of appeals had concluded that the trial court erred in finding the defendant’s prior convictions had impeachment value, reasoning that prior convictions for robbery, burglary, and theft are not probative of truthfulness. The Supreme Court not only re-canvassed the Colf factors, it made clear they were non-exclusive, giving trial courts much more leeway in balancing probativeness v. prejudice in the SCRE 609 context.

Opening the door

The “open door doctrine” is a legal term that refers to rebuttal evidence. As in all trials, there is evidence that for some reason is inadmissible. However, out of fairness, a party may be able to introduce otherwise inadmissible evidence to rebut evidence that another party has introduced. For example, normally the State cannot introduce prior bad acts of the defendant. However, if the defense puts up a witness who testifies to the great character of the defendant, then there could be an argument that the State may now get into those prior bad acts. Not surprisingly, this is called “opening the door” since the conduct of one party has allowed in evidence that would not otherwise be admitted.

So what is the standard for opening such doors? In State v. Heyward, ⁴ the Court described the standard succinctly: A party may introduce otherwise inadmissible evidence in rebuttal when an opponent introduces evidence as to a particular fact or transaction. . . . . However, we are wary of a “thinly-veiled attempt to show propensity” by way of the open-door doctrine. . . . Testimony in response must be “proportional and confined to the topics to which counsel had opened the door.”⁵

The Court also recently held that any rebuttal evidence in a prosecution case must be proportional and not unfairly prejudice the defendant: Further, “[o]nce the defendant opens the door, the solicitor’s invited response is appropriate so long as it . . . does not unfairly prejudice the defendant;” accordingly, the solicitor’s response must be proportional. . . . However, we will not condone “a thinly-veiled attempt to show propensity by way of the open-door doctrine.”⁶

At least in criminal cases, Heyward now makes clear that there are degrees to which a party can open the door, it is not a binary calculation.

Demonstrative v. substantive

What is the difference between demonstrative evidence and substantive evidence, and why does it matter? The South Carolina Supreme Court has explained this distinction previously in Clark v. Cantrell:

Demonstrative evidence includes items such as a photograph, chart, diagram, or video animation that explains or summarizes other evidence and testimony. Such evidence has secondary relevance to the issues at hand; it is not directly relevant, but must rely on other material testimony for relevance. Demonstrative evidence is distinguishable from exhibits that comprise “real” or substantive evidence, such as the actual murder weapon or a written document containing allegedly defamatory statements . . . Demonstrative evidence often is admitted only for use in the courtroom to explain and illustrate a witness’s testimony, but it also may be admissible as an exhibit for the jury to examine and consider during deliberations.⁷

In Hamrick v. State, ⁸ Justice John Few explained a real-life scenario how demonstrative and substantive evidence may vary in their application. In this DUI case, an expert testified for the defense on accident reconstruction. He created a video of the accident to explain that the defendant did not do what the State claimed that he did.⁹ The trial judge allowed the testimony but excluded the video from being admitted as evidence using a demonstrative evidence analysis.¹⁰ Justice Few held that the video was not demonstrative evidence, but rather it was substantive. And because it was substantive evidence, then the judge must follow the rules of evidence when deciding if it should be excluded (SCRE 401, 402, 403, etc.): It was substantiveevidence— not demonstrative—offered to prove Hamrick’s car could not have struck Garland inside the construction zone—as Officer Harris testified it had—with-out also knocking over the cones or striking the paving machine. . . . (“The results of experiments are substantiveevidence. . . . Sometimes the purpose of the experiment is to determine how a particular event . . . did not occur.”). . . . As substantive, relevantevidence, the trial court did not have the discretion toexclude the video except in reliance upon a specific, applicable rule or other provision of law.¹¹

If the evidence is demonstrative, then the trial judge will likely start with either SCRE 1006 or 611. A good rule of thumb that also comes out of this case is that, typically, results of experiments are substantive evidence. Put another way, if the proffered evidence is part of an expert’s testimony, it is substantive; if it simply assists in explaining that testimony, it is more likely to be demonstrative

Basic definitions – relevance, prejudice, credibility

Because the rules of evidence are precise in the words that they use, it is helpful to have those words defined as much as possible. In the Matter of Campbell,^[12] the Supreme Court defined some of the most commonly used words in the rules of evidence.

Relevant evidence: Relevant evidence is that evidence having any tendency to make the existence of any fact of consequence to the ultimate determination of the action more or less probable than it would otherwise be without the evidence. As a result, anything having a legitimate tendency to throw light on the accuracy, truthfulness, and sincerity of a witness may be shown and considered in determining the credit to be accorded his testimony.¹³

Credibility: Emphasizing that a witness may be cross-examined as to any matter related to any relevant issue, including credibility even if the underlying evidence is not relevant to one of the substantive issues in the case.¹⁴

Prejudice: The determination of prejudice must be based on the entire record and will generally turn on the facts of each case.¹⁵

Prior conviction as an element of the crime

There are some criminal offenses that require the State to prove that the defendant committed a similar previous offense. For example, a defendant can be charged with Burglary 1^st because they have prior Burglary convictions, thus the State must prove to the jury that the defendant committed those previous Burglaries. But what about SCRE 404 and the general rule against propensity evidence? The propensity evidence rule generally forbids the State from showing that the defendant did something bad in his past, thus that means he likely committed this crime today.

In a lengthy and highly analytical case dealing with Criminal Sexual Conduct, the Supreme Court explained how a trial court should properly conduct a trial and a sentencing hearing to avoid prejudicing a defendant.

In State v. Cross, ¹⁶ the defendant was charged with first-degree Criminal Sexual Conduct With a Minor (first-degree CSC). This offense is based on the underlying allegations of intercourse plus a prior conviction of CSC (a prior conviction of CSC is an element of first-degree CSC), which the State must prove at trial. Justice George James, writing for the majority, points out that this can have a negative effect on the jury and the prior conviction might inadvertently be used as ‘propensity’ evidence. The question becomes: how does a trial court balance the two?

The Court first held that the evidence of a prior conviction as an element still falls under SCRE 403. This means that the trial court still must “determine whether and when that evidence should be admitted.”¹⁷

The Court acknowledges the conundrum of prior conviction evidence when it is an element of the crime: the prior conviction has “insurmountable probative value” but the conviction is extremely prejudicial (particularly in CSC cases).¹⁸ Because the prior conviction is both very probative and very prejudicial, the Court focused not on whether it can be introduced, but on when the conviction can be introduced. This means using SCRE 611(a). The Court held that the trial court, using SCRE 611(a), needed to bifurcate the trial—the first trial would consist of the State proving the underlying facts of the incident. Then, and only if convicted of those facts, the State would have to prove at a second phase of the trial the prior conviction.

State v. Cross distinguishes CSC cases because of the “inherently prejudicial stigma a prior sex-related offense undoubtedly carries.”¹⁹ But what about other criminal offenses that require proving previous convictions such as first-degree Burglary, third-degree Shoplifting, etc.? The Court addressed this issue in regard to burglary and reiterated a prior holding of theirs. It held that “a trial court should (1) limit evidence solely to the prior burglary convictions without admitting particular facts about the burglaries that form the basis for the prior convictions and (2)on request, instruct the jury on the limited purpose for which the prior convictions can be considered.”²⁰

Justice Few dissented from the majority because he disagreed with the interpretation of SCRE 611 and 403. Particularly, he would have held that the trial court did not commit an error of law because “there is no provision of law that requires the court to do so.”²¹ (Referring to bifurcating a non-capital case).

Lay opinion vs. expert opinion

It is said that there is a fine line between an expert opinion and a lay opinion.²² Under SCRE 701, a lay witness may testify to things they actually perceived and does not require special knowledge or skill. Conversely, SCRE 702 allows an expert witness to testify about their opinion on a matter as long as they have the proper training and skills in that area.

In Huffman v. Sunshine Recycling, ²³ the Supreme Court gave a straightforward analysis in determining if a witness’s opinion crossed the threshold into SCRE 702: We find Officer Aldridge’s and Officer Ethridge’s testimony was based on their perceptions of their interactions with Goss; did not require special knowledge, skill, experience, or training; and did not stray into the realm of expert testimony. See Rule 701, SCRE (noting lay witness testimony is limited to the witness’s opinions or inferences which are rationally based on the witness’s perception, and that do not require “special knowledge, skill, experience or training”). Accordingly, we find the court of appeals did not err in relying on or basing a portion of its ruling on the two officers’ testimony.²⁴

If the trial court determines that the testimony by the witness requires expert knowledge, then the court will apply SCRE 702 and the proper standard. While South Carolina has not adopted the Daubert²⁵ standard, the South Carolina Supreme Court has held a similar analysis.²⁶

The trial court will also need to determine whether the expert testimony is scientific or non-scientific in nature. The Supreme Court recently held in State v. Prather that “before admitting non-scientific expert witness testimony, a trial court must determine whether: (1) the qualifications of the expert are sufficient and (2)the subject matter of the expert’s testimony is reliable.”²⁷ If it is determined that the testimony is scientific in nature, then the trial court will follow the standard set out by the Supreme Court in Council.28

Conclusion

Each year, the South Carolina Supreme Court adds to the existing rules of evidence or clarifies their application with different fact patterns. While it is not likely that the most used rules of evidence will profoundly change any time soon, it is clear that each year brings about new glosses and dynamics with evidence and litigation.

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Notes:

[1] State v.

Robinson, 426 S.C. 579, 828 S.E.2d 203 (2019)

[2] Id. (emphasis added).

[3] 337 S.C. 622, 627, 525 S.E.2d 246, 248 (2000).

[4] State v.

Heyward, 426 S.C. 630, 828 S.E.2d 592 (2019).

[5] Id. at 636–37, 828 S.E.2d at 595 (citations omitted).

[6] State v.

Simmons, 430 S.C. 1, 15, 841 S.E.2d 845, 852 (2020), reh’g denied (May 22, 2020) (citation omitted).

[7] Clark v.

Cantrell, 339 S.C. 369, 383, 529 S.E.2d 528, 535 (2000).

[8] Hamrick v.

State, 426 S.C. 638, 828 S.E.2d 596 (2019).

[9] Id. at 645, 828 S.E.2d at 599.

[10] Id.

[11] Id. at 651–52, 828 S.E.2d at 603 (citation omitted).

[12] Matter of

Campbell, 427 S.C. 183, 191, 830 S.E.2d 14, 19 (2019).

[13] Id. (citing State

v. Jones, 343 S.C. 562, 570, 541 S.E.2d 813, 817 (2001)) (internal quotation marks omitted).

[14] Id. at 192, 830 S.E.2d at 19.

[15] Id. at 193, 830 S.E.2d at 19.

[16] State v.

Cross, 427 S.C. 465, 468, 832 S.E.2d 281, 283 (2019), reh’g denied (Sept. 19, 2019).

[17] Id. at 477, 832 S.E.2d at 287.

[18] 477–78, 832 S.E.2d at 287–88.

[19] Id. at 478, 832 S.E.2d at 288.

[20] Id. at 476, 832 S.E.2d at 287.

[21] Id. at 485, 832 S.E.2d at 292 (Few, J., dissenting).

[22] United States

v. Muro, 784 F. App’x 160, 162 (4th Cir. 2019).

[23] Huffman v.

Sunshine Recycling, LLC, 426 S.C. 262, 826 S.E.2d 609 (2019).

[24] Id. at 281, 826 S.E.2d at 619.

[25] Daubert v.

Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

[26] State v.

Council, 335 S.C. 1, 20, 515 S.E.2d 508, 518 (1999) (“While this Court does not adopt Daubert, we find the proper analysis for determining admissibility of scientific evidence is now under the SCRE. When admitting scientific evidence under Rule 702, SCRE, the trial judge must find the evidence will assist the trier of fact, the expert witness is qualified, and the underlying science is reliable.”); see also Colin Miller Palmetto State: South Carolina Courts Don’t Apply Daubert...Quite, EvidEncEProf Blog (Mar. 24, 2014), https://lawprofessors.typepad. com/evidenceprof/2014/03/for-decades-the-dc-circuits-opinion-infryev-united-states-293-f-1013-dc-cir-1923-ruled-the-roost-in-terms-of-the.html

[27] State v.

Prather, 429 S.C. 583, 598, 840 S.E.2d 551, 559 (2020).

[28] Graves v. CAS

Med. Sys., Inc., 401 S.C. 63, 74, 735 S.E.2d 650, 655 (2012) (“If the proffered testimony is scientific in nature, then the circuit court must determine its reliability per the factors set forth in Council.” ).

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