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Playing to the Discretion of the Trial Judge: Practicing the Art of Evidence from a Trial Lawyer’s Perspective.

April 21, 2012

As I get ready to teach evidence again this summer at the Charleston School of Law, I thought I would restart my blogging by posting my written materials for a talk I did on “discretion” at the South Carolina Bar Convention in Columbia, South Carolina on January 20, 2012:

A lawyer stands in a courtroom in front of a trial judge and makes an argument, for or against the admissibility of the evidence, and the judge makes a ruling. Evidence is all about that moment—when the trial judge exercises his or her discretion, and rules. At that point, in somewhere above 95% of the cases, the issue is over—the lawyer has either won or lost an important struggle and the appellate courts can do nothing to change it.

In State v. Commander, Op. No. 27062 (S.C. Sup. Ct. filed Oct. 31, 2011) (Shearouse Adv. Sh. No. 38 at 51), our supreme court repeated the well-established language delineating the responsibilities of the appellate courts from those of the trial judge:

Standard of Review 

“The general rule in this State is that the conduct of a criminal trial is left largely to the sound discretion of the presiding judge and this Court will not interfere unless it clearly appears that the rights of the complaining party were abused or prejudiced in some way.” State v. Bridges, 278 S.C. 447, 448, 298 S.E.2d 212, 212 (1982) (citations omitted). Therefore, in criminal cases, this Court will only review errors of law. State v. Baccus, 367 S.C. 41, 48, 625 S.E.2d 216, 220 (2006) (citations omitted).  


I.    Admissibility of Expert Testimony

The admission or exclusion of evidence is a matter within the trial court’s sound discretion, and an appellate court may only disturb a ruling admitting or excluding evidence upon a showing of a “manifest abuse of discretion accompanied by probable prejudice.” State v. Douglas, 369 S.C. 424, 429, 632 S.E.2d 845, 847–48 (2006) (citations omitted).

The same rules apply in a civil case:

In Whaley v. CSX Transportation, Inc., 362 S.C. 456, 483, 609 S.E.2d 286, 300 (2005), our supreme court recognized that similar acts are admissible under Rule 404(b), SCRE, if they tend to prove or disprove some fact in dispute, and applied the abuse of discretion standard of review to the admissibility of evidence of similar accidents. “The admission of evidence is within the trial judge’s discretion and his decision will not be reversed absent an abuse of discretion.” State v. Gaster, 349 S.C. 545, 557, 564 S.E.2d 87, 93 (2002). See Branham v. Ford Motor Co., 390 S.C. 203, 230, 701 S.E.2d 5, 19 (2010) (discussing Whaley).

In Commander, the supreme court stated “we adopt a rule whereby an expert in forensic pathology’s opinion testimony as to cause and manner of death is admissible under Rule 702.”  However, that statement does not mean that every trial judge must admit such an opinion every time it is offered.  When an appellate court decides an appeal based on the admissibility of evidence, the court is really saying “in this particular case, on these particular facts, we find this trial judge acted within his or her broad discretion to admit or exclude evidence, and we will affirm.”  It is very possible the same appellate court could review a similar case in which a trial judge ruled precisely the opposite way, and affirm that decision as well.  See State v. Commander, Op. No. 27062 (S.C. Sup. Ct. filed Oct. 31, 2011) (Shearouse Adv. Sh. No. 38 at 62) (Pleicones, J., dissenting) (“I do not join that part of the majority’s opinion that suggests that a forensic pathologist’s testimony regarding the victim’s anecdotal history is always admissible under Rule 702, SCRE.”).

The point is that the trial judge’s decision is discretionary.  Our courts have had some colorful things to say about the discretion given to trial judges.  In White v. Coleman, 38 S.C. 556, 17 S.E. 21 (1893), the supreme court wrote:

“Discretion” is defined to be “a man’s own judgment as to what is best in a given case, as opposed to a rule governing all cases of a certain kind.” We are unable to see upon what principle we could proceed in considering that which from its very nature is in the breast of the circuit judge. The effort to consider such charges might only make a new way of appeal from that which under the law is declared to be unappealable.

In Michalson v. Rountree, 51 S.C. 405, 29 S.E. 66 (1898), the supreme court repeated language from an even earlier case:

As a general rule, where a court or judge is invested with power to be exercised at discretion, such power is absolute, and, when exercised, it is final. From the very meaning of the term, and the nature of the power, discretion is unlimited. It is bounded by no rule except the good sense and integrity of the party empowered to exercise it, and, in the absence of an express right to appeal, it necessarily follows that its exercise is unappealable.

In Bishop v. Jacobs, 108 S.C. 49, 93 S.E. 243 (1917), the court said this:

It is true the exercise of discretion by a judge does not mean the same thing as the exercise of his desire in a given case. It is true one judge might exercise his discretion one way, and another judge might exercise it another way, on the same state of facts. In the nature of the case, then, there must be latitude in which the judicial discretion may move; and that means a hard and fast rule for the exercise of discretion cannot be stated.

While modern courts use less colorful language, the breadth of discretion has not changed.  Trial judges have a duty to consider and decide, and when they do, it’s over.  “The exercise of discretion implies conscientious judgment, not arbitrary action, and takes account of the law and particular circumstances of the case, being directed by the reason and conscience of the judge to a just result.”  State v. Galations Hill, 266 S.C. 49, 221 S.E.2d 398 (1976).   This presentation is about how to get the trial judge to consider and rule in your favor, so that when the other side appeals, you can help the appellate courts relearn how to use colorful language, like this:

The [trial] judge has a particularly wide range of discretion in ruling on the admissibility of evidence. Indeed, we have gone so far as to declare that appellants who challenge evidentiary rulings “are like rich men who wish to enter the Kingdom; their prospects compare with those of camels who wish to pass through the eye of a needle.”  

Smith v. Great American Restaurants, Inc., 969 F.2d 430 (7thCir. 1992) (quoting United States v. Glecier, 923 F.2d 496, 503 (7th Cir. 1991) (citing Matthew 19:24)).

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