Rule 43. Evidence; Conduct of Trial

• Library: South Carolina Rules Annotated (SCBar) (2021 Ed.)

RULE 43. EVIDENCE; CONDUCT OF TRIAL

(a) Form and Admissibility.

In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by these rules. All evidence shall be admitted which is admissible under the statutes or rules of evidence heretofore applied in the courts of this State. In any case, the statute or rule which favors the reception of the evidence governs and the evidence shall be presented according to the most convenient method prescribed in any of the statutes or rules to which reference is herein made. The competency of a witness to testify shall be determined in like manner.

(b) [Deleted September 3, 1995]

(c) [Deleted September 3, 1995]

(c) (1) Reservation of Rights Unnecessary.

If an objection has once been made at any stage to the admission of evidence, it shall not be necessary thereafter to reserve rights concerning the objectionable evidence.

(d) Affirmation in Lieu of Oath.

Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof.

(e) Evidence on Motions.

When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but may direct that the matter be heard wholly or partly on oral testimony or depositions.

(f) Interpreters.

When a witness does not speak the English language sufficient to testify, the court may appoint an interpreter of its own selection and may fix his reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court.

(g) Statement of Pleadings to Jury.

Counsel for any party may read his pleadings to the jury or make a statement to the jury of the facts alleged in the pleadings and the theory of his case; but counsel shall not argue his case during his opening statement. The pleadings shall not be submitted to the jury for its deliberations.

(h) Examination of Witness.

One counsel only for each party shall examine or cross-examine a witness. During examination in open court, the examining counsel shall stand. For the purpose of this subdivision of this rule, two or more parties who have pleaded jointly shall be considered one party.

(i) Argument.

Counsel shall not attempt to further argue any matter after he has been heard and the ruling of the court has been pronounced. No argument shall be made on objections to admissibility of evidence or conduct of trial unless specifically requested by the court. No more than two hours shall be taken by each side in final argument or sum up, without permission of the court. Counsel shall not address or refer to by name any member of the jury he is addressing, or otherwise personally appeal to any member thereof.

(j) Right to Open and Close.

The moving party upon a motion shall have the right to open and close argument, and the plaintiff shall have the right to open and close upon the trial; except that a party admitting the adverse party's claim in his pleading, and taking upon himself the burden of proof, shall have the like privilege. The party having the right to open shall be required to open in full, and in reply may respond in full but may not introduce any new matter.

(k) Agreements of Counsel.

No agreement between counsel affecting the proceedings in an action shall be binding unless reduced to the form of a consent order or written stipulation signed by counsel and entered in the record, or unless made in open court and noted upon the record, or reduced to writing and signed by the parties and their counsel. Settlement agreements shall be handled in accordance with Rule 41.1, SCRCP.

(l) Subsequent Applications for Order After Refusal.

If any motion be made to any judge and be denied, in whole or in part, or be granted conditionally, no subsequent motion upon the same state of facts shall be made to any other judge in that action.

Notes:

This Rule 43 substantially preserves present State practice as to evidence and conduct of trial. The present Federal Rule differs because of the adoption of the Federal Rules of Evidence in 1975; however, the practitioner will notice little change in present practice. Rules 43(a) through 43(d) restate present State practice under statutes, rules and case law. Rule 43(d) preserves Code §19-1 -40. Rule 43(c)(1) preserves new Circuit Rule 101. Rule 43(f) is new matter but is implied by the court's powers under Title 14, Chapter 15 of the Code. Rule 43(g) preserves Circuit Rule 85, except it prohibits submitting the pleadings to the jury for its deliberations, a needed change to avoid the jury treating pleadings as evidence or having information therefrom contrary to the judge's charge and instructions.

Notes to 1986 Amendment:

The amendment to Rule 43(b)(2) clarifies the right of a litigant to call an adverse party, or a witness who may bind an adverse party, and use leading questions and impeach him if justified by the facts. The amendments to paragraphs (f) and (h) correct inadvertent omissions in those paragraphs.

Notes to 1987 Amendment:

Rule 43(f) is amended to delete the reference to the hearing impaired whose interpreters are to be provided by statute.

Notes to 1990 Amendment:

Rule 43(m) Expert Testimony is taken from Rules 702 to 705 of the Federal Rules of Evidence. The language in subdivision (3) is that of Federal Rule of Evidence 704 prior to its amendment in 1984. The Advisory Committee Notes to the Federal Rules of Evidence provide commentary and useful guidance on the use of expert testimony under this Rule.

Note to 1995 Amendment:

This amendment deleted subsections (b), (c) [but not (c)(1)], and (m). These matters are now governed by th e South Carolina Rules of Evidence.

Note to 2009 Amendment:

The amendment to Rule 43(k) provides a settlement agreement is also binding if the agreement is reduced to writing and signed by the parties and their counsel.

Annotations Rule 43

43

Appeal

"[I]f a party has obtained a final ruling on the admissibility of impeachment evidence, that party does not lose his right to challenge on appeal the admissibility of the evidence by eliciting the evidence during direct examination." State v. Mueller, 319 S.C. 266, 460 S.E.2d 409, 411 (Ct. App. 1995).

"A trial court's ruling on the admission of evidence will not be disturbed on appeal absent a clear abuse of discretion." Gooding v. St. Francis Xavier Hospital, 317 S.C. 248, 454 S.E.2d 328, 330 (Ct. App. 1995) affirmed in part, reversed in part, 326 S.C. 248, 487 S.E.2d 596 (1997).

"The admission or exclusion of evidence is a matter within the sound discretion of the trial court and absent clear abuse, will not be disturbed on appeal." Recco Tape and Label Co., Inc. v. Barfield, 312 S.C. 214, 439 S.E.2d 838, 840 (1994).

"In order for this Court to reverse the trial court for erroneously excluding evidence, Appellant must show both the error of the ruling and resulting prejudice." To meet the first part of the test, one must show that the proffered evidence was relevant. "Relevancy of evidence means the logical relationship between the proposed evidence and a fact to be established." Recco Tape and Label Co., Inc. v. Barfield, 312 S.C. 214, 439 S.E.2d 838, 840 (1994).

Failure to Object

Failure to object when the evidence is offered constitutes a waiver of the right to object. State v. Black, 319 S.C. 515, 462 S.E.2d 311, 315 (Ct. App. 1995).

Ramos v. Hawley, 316 S.C. 534, 451 S.E.2d 27 (Ct. App. 1994).

A party failing to object to the admission of evidence at the time it was offered, waives the right to object on appeal. Wilson v. Wilson, 312 S.C. 172, 439 S.E.2d 323, 327 (Ct. App. 1993).

Improper Evidence

"[T]he admission of improper evidence is harmless where it is merely cumulative of other evidence." Fox v. Newberry County Memorial Hospital, 316 S.C. 537, 451 S.E.2d 28, 32 n.3 (Ct. App. 1994), rev'd in part, affirmed in part, 319 S.C. 278, 461 S.E.2d 392 (1995).

"[T]he admission of improper evidence is harmless where it is merely cumulative of other evidence." Ramos v. Hawley, 316 S.C. 534, 451 S.E.2d 27, 28 (Ct. App. 1994).

Introduction of Evidence Generally "Proper trial procedure for the introduction of evidence requires that opposing counsel be given reasonable opportunity to inspect the proposed evidence before it is accepted by the court. This opportunity allows counsel to determine whether an objection is proper. . . Fundamental principles of trial advocacy dictate that inspection be made by counsel having the obligation to object, with no legal right to rely upon an adversary to make determination of admissibility." Ramos v. Hawley, 316 S.C. 534, 451 S.E.2d 27, 28 (Ct. App. 1994).

43(a)

Appeal

"It is well established that evidence should be excluded when its probative value is outweighed by its prejudicial effect. A trial judge has considerable latitude in ruling on the admissibility of evidence and his rulings will not be disturbed absent a showing of probable prejudice." State v. Kelley, 319 S.C. 368, 460 S.E.2d 368, 370 (1995).

"The admission or exclusion of evidence is a matter within the sound discretion of the trial court and, absent clear abuse, will not be disturbed on appeal. Any error in excluding evidence warrants reversal only if the appellant can show both the error of the ruling and resulting prejudice." Payton v. Kearse, 319 S.C. 118, 208, 460 S.E.2d 220, 232 (Ct. App. 1995), reversed on other grounds, 329 S.C. 51, 495 S.E.2d 205 (1998).

"The trial court has sound discretion in deciding whether to admit or exclude evidence; the court's decision will not be disturbed on appeal absent clear showings of both abuse and prejudice." Sullivan v. Davis, 317 S.C. 462, 454 S.E.2d 907, 909 (Ct. App. 1995).

"The admission of evidence is within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of that discretion." Washington...