(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) Scope of Examination and Cross-Examination. Deleted
(1) Examination, Leading Questions. Deleted
(2) Hostile and Adverse Witnesses. Deleted
(c) Record of Excluded Evidence. Deleted
(c) (1) Reservation of Rights Unnecessary. If an objection has once been made at any stage to the admission of the 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.
(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.
(m) Expert Testimony. Deleted
(1) Testimony by Experts. Deleted
(2) Bases of Opinion Testimony by Experts. Deleted
(3) Opinion on Ultimate Issue. Deleted
(4) Disclosure of Facts or Data Underlying Expert Opinion. Deleted
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.
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.
Rule 43(f) is amended to delete the reference to the hearing impaired whose interpreters are to be provided by statute.
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.
This amendment deleted subsections (b), (c) [but not (c)(1)], and (m). These matters are now governed by the South Carolina Rules of Evidence.
This amendment changed the title of the Rule to be more reflective of its content and added the final sentence to Rule 43(k), Agreements of Counsel to provide that agreements regarding sealing settlements will be handled according to Rule 41.1, SCRCP.
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.
Last amended by Order dated January 29, 2009, effective April 29, 2009, pursuant to Order of the same date.
A. Introduction
Rule 43 contains several provisions regarding the conduct of counsel, trial procedure, the examination of witnesses, and argument by counsel, as well as the admissibility of evidence. Most of the language comes from the pre-1985 Circuit Court Rules.
The promulgation of the South Carolina Rules of Evidence repealed Rules 43(b)(1) and (2) on scope of examination, 43(c) on offer of evidence, and Rule 43(m) on expert witnesses. The scope of examination is now found in Rule 607, SCRE; the proffer of evidence in Rule 103(a), SCRE; and expert testimony in Rules 702-05, SCRE. Trial procedure remains unaffected.
One of the most important provisions is Rule 43(k), "Agreements of Counsel," which requires all agreements between counsel be in writing or in the record, or in writing and signed by counsel and the parties, in order to be binding and enforceable. Courts have refused to excuse the failure to make a timely response when the agreement of counsel extending the time to respond was not in the record. Furthermore, Rule 43(k) controls the enforceability of settlement agreements as discussed below.
B. Form and Admissibility of Evidence
1. General Provisions
The first sentence of Rule 43(a) states the common law's preference for oral testimony, but also recognizes that other evidence can be used when authorized by the rules.2 The second sentence states that all evidence admissible under the statutes or rules shall be admitted.3 That provision is comparable to Rule 402, SCRE, and does not appear to limit the court's right to exclude repetitious, prejudicial or confusing evidence.4 The third sentence, however, is a presumption in favor of admitting the evidence because it provides that the most favorable rule governs. This provision was in the 1958 draft of the civil rules and subsequently incorporated into these rules in 1985.5 The last sentence applies the same standard to the competency of witnesses.
C. Procedure for the Examination of Witnesses
1. Oath or Affirmation
Rule 43(d) states the standard rule found in prior law and the Rules of Evidence6 that a solemn affirmation of the truth is equivalent to an oath.
2. Examination of the Witness
Rule 43(h) provides that only one counsel for a party may examine a particular witness and that counsel stands during the examination. The rule also limits the examination to one counsel when the parties have pleaded jointly. An early case held that the judge had discretion to waive the rule.7
3. Reservation of Rights Unnecessary
Rule 43(c)(1) modifies an older evidentiary procedure. Previously, a party objecting to evidence was required to reserve the objection before examining the witnesses. A failure to reserve waived the objection. Rule 43(c) provides that once the objection is made, there is no need for the formal reservation of rights.
Rule 43(c)(1) apparently does not eliminate...
