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Evidence

Cases from Dec. 2012 to Feb. 2013

Forensic interviewer
A forensic interviewer should avoid making statements at trial that: are direct opinions as to the child’s veracity; vouch for the child’s believability; indicate that the interviewer believes the child’s allegations; or state that the child was told to be truthful.
State v. Kromah, No. 27212 (S.C. Sup. Ct., Jan. 23, 2013) (Shearouse Adv. Sh. No. 4).

Exclusion of testimony
An erroneous application of evidentiary rules, which results in the wholesale exclusion of a defendant’s testimony, constitutes a structural error and is not subject to a harmless-error analysis.
State v. Rivera, No. 27220 (S.C. Sup. Ct., Feb. 13, 2013) (Shearouse Adv. Sh. No. 7).

Cases from Oct. 2012 to Dec. 2012

Polygraph testimony
Polygraph evidence is not per se inadmissible. When determining its admissibility, courts should examine the evidence pursuant to State v. Council, 335 S.C. 1 (1999).
State v. Samuel, No. 5046 (S.C. Ct. App., Nov. 14, 2012) (Shearouse Adv. Sh. No. 41).

Rule 403
To exclude a conviction offered to impeach a witness that is not a defendant, the court must find the probative value of the conviction substantially outweighs the danger of unfair prejudice.
State v. Brayboy, No. 5060 (S.C. Ct. App., Dec. 12, 2012) (Shearouse Adv. Sh. No. 45).

Cases from May 2012 and June 2012

Admission of evidence
Introduction of a “mug shot” into evidence is not error if the photograph is neither unfairly prejudicial nor needlessly cumulative, such as when the photograph was used in a photographic lineup where the defendant was identified, and attacking the reliability of this lineup was a main strategy the defendant used at trial.
State v. Stephens, No. 4996 (S.C. Ct. App. June 27, 2012) (Shearouse Adv. Sh. No. 22)

Eyewitness identification
A “full” in camera pretrial hearing is required to determine reliability and admissibility of eyewitness identification testimony, regardless of whether the witness knows the accused.
State v. Liverman, No. 27130 (S.C. Sup. Ct. June 6, 2012) (Shearouse Adv. Sh. No. 19)

Impeachment
In a criminal trial, it is not error to allow a defendant to be impeached with his prior drug convictions if the admission of the convictions do not prejudice the trial and there is ample evidence of drug use.
State v. Heller, No. 4990 (S.C. Ct. App. June 13, 2012) (Shearouse Adv. Sh. No. 20)

Nonscientific expert testimony
Per State v. White, 382 S.C. 265, 676 S.E.2d 684 (2009), a circuit court judge must properly consider the reliability of nonscientific testimony prior to introducing that testimony to the jury. Admission of the testimony based merely on a finding that the person testifying is an expert, and leaving the reliability determination for the jury, is an error.
State v. Tapp, No. 27129 (S.C. Sup. Ct. June 6, 2012) (Shearouse Adv. Sh. No. 19)

Relevance
Admission of a photograph of a victim when alive is not error when it is relevant to prove a trait of the victim that is not outwardly apparent. It is error to admit evidence that represents a weapon, but was not the weapon used, and the evidence is more prejudicial than probative.
State v. Salley, No. 27135 (S.C. Sup. Ct. June 20, 2012) (Shearouse Adv. Sh. No. 21)

Testimony
Giving lengthy testimony regarding a consent forfeiture order in a criminal trial is admissible if a party to the order testifies in a way that opens the door to admission of evidence that the party agreed to the forfeiture.
State v. McEachern, No. 4981 (S.C. Ct. App. June 6, 2012) (Shearouse Adv. Sh. No. 19)

Testimony
Testimony concerning post-arrest financial assistance to a co-conspirator in a criminal trial may be admitted to show bias.
State v. McEachern, No. 4981 (S.C. Ct. App. June 6, 2012) (Shearouse Adv. Sh. No. 19)

Cases from March 2012 to May 2012

Character evidence
S.C.R. Evid. 608(a) prohibits a forensic interviewer’s testimony if it bolsters the credibility of a victim, as the jury should determine witness credibility.
State v. McKerley, No. 495 (S.C. Ct. App., Mar. 28, 2012) (Shearouse Adv. Sh. No. 11)

Prior bad acts
Testimony under the common scheme or plan exception to the admission of prior bad acts, if limited to matters that would aid in establishing a common scheme or plan and allowing no speculation on the defendant’s intent, is admissible if its probative value is not substantially outweighed by the danger of unfair prejudice to the defendant.
State v. Atieh, No. 4966 (S.C. Ct. App., Apr. 25, 2012) (Shearouse Adv. Sh. No. 14)

Cases from Jan. 2012 to March 2012

Common scheme
Where two crimes are highly similar to each other except for the physical location of where the crime occurred, they can be used as evidence in a common scheme pursuant to SCRE 404(b).
State v. Taylor, No. 4920 (S.C. Ct. App., Dec. 21, 2011) (Shearouse Adv. Sh. No. 46) 

Expert witnesses
One may be qualified as an expert witness when his experience would aid the jury in determining a defendant’s intent and when his testimony provides information not commonly known to the jury.
State v. Robinson, No. 4942 (S.C. Ct. App., Feb. 15, 2012) (Shearouse Adv. Sh. No. 6) 

Rule 403
Graphic autopsy photos should not be admitted into evidence when such photos could unfairly prejudice the jury and have minimal probative value, even if they corroborate the testimony of a witness.
State v. Collins, No. 4941 (S.C. Ct. App., Feb. 15, 2012) (Shearouse Adv. Sh. No. 6) 

Rule 404
Construction defects at other developments all owned by the same amalgamation and substantially similar may be admitted and do not violate Rule 404 of the S.C. Rules of Evidence.
Magnolia North POA v. Heritage Communities, Inc., No. 4943 (S.C. Ct. App., Feb. 15, 2012) (Shearouse Adv. Sh. No. 6)

Case from Oct. 2011 to Jan. 2012

Hearsay 
Testimony that may have been improper hearsay can be harmless when other properly admitted testimony of both the victim and the victim’s mother identified the defendant as the perpetrator.
State v. Chisholm, No. 4899 (S.C. Sup. Ct., Oct. 26, 2011) (Shearouse Adv. Sh. No. 38).

Cases from July 2011 to Oct. 2011 

Directed verdict 

While one police officer’s testimony did not link the defendant to the medicine bottle containing cocaine, another deputy present at the scene testified she observed the defendant toss the bottle away from himself and his moving bicycle. Because the defendant’s argument regarding the deputy’s observation of the medicine bottle relates to the weight of the evidence and not its existence, the court concluded the circuit court did not err in denying the defendant’s motion for a directed verdict.
State v. Abraham, No. 4885 (S.C. Ct. App., Sept. 7, 2011) (Shearouse Adv. Sh. No. 31).

Hearsay
In this case, the trial court violated Rule 803(5), SCRE, by allowing a police officer’s notes to be read into evidence and received as an exhibit to prove the defendant committed the crime. The officer took notes contemporaneously while the police investigator typed the defendant’s written statement, but the notes were never utilized to refresh his memory. However, the defendant did not demonstrate reversible error and guilt was conclusively proven by competent evidence, so the admission of the hearsay was harmless.
State v. Lindsey, No. 4866 (S.C. Ct. App., Aug. 10, 2011) (Shearouse Adv. Sh. No. 27).

The trial court erred in allowing the State to introduce the forensic interviewer's written reports because they contained impermissible hearsay, vouched for the children's credibility and their admission was not harmless.
State v. Jennings, No. 27043 (S.C. Sup. Ct., Sept. 19, 2011) (Shearouse Adv. Sh. No. 32).

Judicial notice 
An appellate court may take judicial notice of something that was not before the trial court if it is indisputable.
Wise v. Wise, No. 4879 (S.C. Ct. App., Aug. 24, 2011) (Shearouse Adv. Sh. No. 29).

Prejudice 
At trial in this negligence action, the defendant bank was referred to as "big," "the largest" bank in America and the "third largest bank in the world" on several occasions in the jury's presence. These references were brief and isolated, and the court found no prejudice in the statements.
Cody P. v. Bank of Am., N.A., No. 4875 (S.C. Ct. App., Aug. 23, 2011) (Shearouse Adv. Sh. No. 29).

Witness testimony
It is permissible for the State to call a previously unsequestered witness to give reply testimony because the admission of the testimony did not deprive the defendant of either fundamental fairness or due process of law. The testimony was offered by the State in reply to directly contradictory testimony by the defendant’s witnesses. Furthermore, the defendant's counsel cross-examined the witness extensively regarding her presence in the courtroom during the other witnesses' testimony.
State v. Singleton, No. 4886 (S.C. Ct. App., Sept. 7, 2011) (Shearouse Adv. Sh. No. 31).