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

AuthorBy Judge Daniel Coble
PositionVol. 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...

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