SC Bar Evidence 3 — Questions and Answers
Question 1: A plaintiff in a slip-and-fall case offers evidence that the store installed warning signs the day after her fall to prove the store was negligent. Is this evidence admissible for that purpose?
- No, subsequent remedial measures are inadmissible to prove negligence (Correct answer)
- Yes, because it shows the store recognized the danger
- Yes, because remedial measures are admissible in premises cases
- No, unless the store objects on relevance grounds
Correct answer: No, subsequent remedial measures are inadmissible to prove negligence
Rule 407 bars evidence of subsequent remedial measures to prove negligence or culpable conduct, though it may be admitted for other purposes like ownership or feasibility if disputed.
Question 2: A witness cannot recall the license plate number she reported to police right after a hit-and-run. The prosecutor shows her the police report, but her memory is not refreshed. She testified she accurately reported the number when it was fresh in her mind. How may the number come in?
- Read into evidence as past recollection recorded, but the document itself is not admitted as the proponent's exhibit (Correct answer)
- The report is admitted as a self-authenticating public record
- The number is excluded because the witness has no present memory
- The report is admitted as substantive evidence and given to the jury
Correct answer: Read into evidence as past recollection recorded, but the document itself is not admitted as the proponent's exhibit
Under the recorded recollection exception, a qualifying record may be read to the jury but received as an exhibit only if offered by the adverse party.
Question 3: A defendant charged with arson offers evidence that he refused to plead guilty during plea discussions and statements he made to the prosecutor during those discussions are offered against him by the State. Are the plea-discussion statements admissible?
- No, statements made during plea discussions with the prosecuting attorney are inadmissible (Correct answer)
- Yes, as admissions of a party-opponent
- Yes, if the discussions did not result in a plea agreement
- No, unless the defendant testifies inconsistently at trial
Correct answer: No, statements made during plea discussions with the prosecuting attorney are inadmissible
Rule 410 excludes withdrawn guilty pleas, nolo pleas, and statements made in plea discussions with the prosecuting authority that did not result in a guilty plea.
Question 4: At trial, a party seeks to prove the contents of a written contract by having a witness testify to its terms from memory, though the original contract exists and is available. Is the testimony proper?
- No, the best evidence rule requires the original or an excuse for its absence (Correct answer)
- Yes, because witnesses may always testify from personal knowledge
- Yes, because the contract's existence is not disputed
- No, unless the witness drafted the contract
Correct answer: No, the best evidence rule requires the original or an excuse for its absence
The best evidence rule requires the original writing (or a duplicate) when proving its contents unless the original is shown to be lost, destroyed, or otherwise unobtainable.
Question 5: A defendant in a sexual assault prosecution seeks to introduce evidence of the victim's prior sexual conduct with third parties to suggest consent. Under the rape shield rule, is this generally admissible?
- No, evidence of a victim's sexual behavior with others is generally inadmissible, subject to narrow exceptions (Correct answer)
- Yes, if it is relevant to consent
- Yes, because the defendant's confrontation rights always prevail
- No, unless offered by the prosecution first
Correct answer: No, evidence of a victim's sexual behavior with others is generally inadmissible, subject to narrow exceptions
Rape shield provisions generally bar evidence of a victim's other sexual behavior, allowing only narrow exceptions such as proving an alternative source of physical evidence or prior conduct with the accused.
Question 6: A trial judge in South Carolina takes judicial notice that Columbia is the capital of South Carolina in a civil case. What is the effect of that notice on the jury?
- The jury must accept the noticed fact as conclusive in a civil case (Correct answer)
- The jury may accept or reject the fact
- The fact merely shifts the burden of production
- The fact is treated as a rebuttable presumption
Correct answer: The jury must accept the noticed fact as conclusive in a civil case
In civil cases, a judicially noticed fact is conclusive and the jury must accept it, whereas in criminal cases the jury may but is not required to accept it.
Question 7: An expert witness for the plaintiff bases her opinion on inadmissible hearsay reports that experts in her field reasonably rely upon. May she give her opinion?
- Yes, an expert may rely on inadmissible facts if reasonably relied upon by experts in the field (Correct answer)
- No, an expert opinion must rest entirely on admitted evidence
- Yes, and the hearsay reports automatically become admissible
- No, unless the reports are business records
Correct answer: Yes, an expert may rely on inadmissible facts if reasonably relied upon by experts in the field
Experts may base opinions on otherwise inadmissible facts or data if of a type reasonably relied upon by experts in the particular field, though the underlying data is not thereby admitted.
SC Bar Evidence 3
A plaintiff in a slip-and-fall case offers evidence that the store installed warning signs the day after her fall to prove the store was negligent.
Is this evidence admissible for that purpose?