Appellate Review of Evidentiary Rulings

Question 1

FRE 103(a) Rulings on Evidence

Preserving a Claim of Error

Answer 1

A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

1. If the ruling admits evidence, a party, on the record,
   
   1. Timely objects or moves to strike and
   2. States the specific grounds, unless it was apparent from the context or
2. If the ruling excludes evidence, a party informs the court of its substance by an offer of proof unless the substance was apparent from the context

Question 2

FRE 103(b) Rulings on Evidence

Not Needing to Renew an Objection or Offer of Proof

Answer 2

Once the court rules definitively in the record – either before or at trial – a party need not renew an objection or offer of proof to preserve a claim of error on appeal

Question 3

FRE 103(c) Rulings on Evidence

Court’s Statement About the Ruling; Directing an Offer of Proof

Answer 3

The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct an offer of proof be made in question-and-answer form.

Question 4

FRE 103(d) Rulings on Evidence

Preventing the Jury From Hearing Inadmissible Evidence

Answer 4

To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

Question 5

FRE 103(e) Rulings on Evidence

Taking Notice of Plain Error

Answer 5

A court may take notice of plain error affecting a substantial right, even if the claim of error was not properly preserved

Question 6

FRE 103(a) Application

Answer 6

• Courts generally interpret the “unless apparent” clauses very narrowly
• Although there’s no language about making timely offers of proof, courts interpret FRE 103(a)(2) as if there was

Question 7

How FRE 103(a) Should Work

Answer 7

Ideally, the opponent should object before the witness answered. If he’s not fast enough, he should move to strike the testimony. The jury most likely won’t ignore the evidence, but it gives the proponent time to cure or explain the evidence and the court time to fix the error

Question 8

Role of an Offer of Proof

Answer 8

This is how appellate courts can see evidence that the trial court excluded.

Question 9

Best Offer of Proof

Answer 9

The best way is to have the witness testify outside the hearing of the jury but conducted as though the jury was present

Question 10

Second Best Offer of Proof

Answer 10

The second way is to have the witness write an affidavit about what he would have testified and sign it under penalty of perjury. Many judges would accept this because its unreliable – the attorney could have written it.

Question 11

Worst Offer of Proof

Answer 11

The least effective way is for the attorney to tell the court what the witness would have testified, but it’s better than not having it on the record at all.

Question 12

Best Practice of Offers of Proof

Answer 12

Lawyers should make offers of proof as soon as possible.

Question 13

FRE 103(b) Before Trial Explained

Answer 13

When the trial court has made a definitive ruling on a motion in limine that the evidence is inadmissible, to preserve the issue for appeal, the proponent is not required to offer the evidence for admission at the trial itself. However, if the circumstances have changed, the proponent must renew the motion to admit the evidence and bring the new circumstances to the attention of the trial judge

Question 14

Luce v. United States

1985

Answer 14

When the trial court has made a definite ruling on a motion in limine that evidence is admissible, to preserve the issue for appeal, the evidence must have been admitted at the trial itself. So, when impeachment evidence is involved, the opponent must testify and then the proponent must introduce the impeachment evidence. At that time, although not required, the opponent should renew her objection.

Question 15

Ohler v. United States

2000

Answer 15

Where the trial court had made a definitive ruling on a motion in limine that impeachment evidence is admissible, if the defendant chooses to “remove the sting” by offering the impeachment evidence herself, then any objection to the in limine ruling is waived.

Many states have rejected this approach.

Question 16

Puckett v. United States

2009

Answer 16

To constitute plain error, the appellant must demonstrate that

• There was an “error that has not been intentionally relinquished or abandoned.” If the proponent intentionally doesn’t object, it doesn’t count as clear error
• The error was “clear and obvious, rather than subject to reasonable dispute.”
• The error “affected the appellant’s substantial rights,” meaning that it “affected the outcome” of the trial and
• “The error seriously affected the fairness, integrity or public reputation of the judicial proceedings.”

Question 17

De Novo Review

Answer 17

• This standard applies to the review of matters of law and mandatory decision and is the least differential to the trial court
• De novo review is “review without deference” or review that is “independent and plenary”
• The appellant court will “look at the matter anew, as though it had come to the courts for the first time.”

Question 18

Clearly Erroneous Review

Answer 18

• This standard applies to the review of factual determinations and is deferential to the trial court
• A finding of facts is said to be “‘clearly erroneous’ when, even though there is evidence to support it, the court reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed.”
• The appellate court will not reverse merely because it would have found the facts differently: “where there are two permission views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”

Question 19

Abuse of Discretion Review

Answer 19

• This standard applies to review of discretionary decisions and is the most differential to the trial court
• Abuse of discretion will only be found if the trial court’s decision is “arbitrary,” “irrational,” “capricious,” “whimsical,” “fanciful,” or “unreasonable.”
• The trial court’s exercise of its discretion will not be disturbed unless it can be said that “no reasonable person would adopt the district court’s view.
• Where the trial court’s exercise of discretion is based on weighing of factors, abuse of discretion will be found only if the trial court
  
  • Failed to consider appropriate factors
  • Considered improper factors or
  • Made a “clear error of judgment” in weighing the correct factors.

Question 20

Harmless Error

Answer 20

Once a party on appeal demonstrates that there was an error that occurred at trial, the appellate court will often not automatically give relief. Instead, the appellate court will determine whether the error was harmless, making it unnecessary to grant relief. There is a different approach with respect to harmless error analysis depending on whether the error that occurred was constitutional in nature or evidentiary (i.e. statutory).

Question 21

Structural Constitutional Errors

Answer 21

Structural constitutional errors are not subject to the harmless error analysis. Rather, relief is automatically granted for those errors once the defendant establishes such a violation. Structural errors include

• Actual or constructive total deprivation of counsel at trial
• A proceeding held before a bias judge
• Exclusion of prospective jurors based on racial grounds
• Denial of a public trial
• Denial of a jury trial

Question 22

Trial Constitutional Errors

Answer 22

Trial errors are subject to the harmless error analysis. The standard for harmless error analysis depends on the procedural posture of the appellate proceeding.

Question 23

Trial Constitutional Errors

Direct Appeal

Answer 23

Direct appeal is when you can appeal right after the trial. It’s based on issues that can be seen on the trial court transcript. On direct appeal, relief will be granted unless the state proves “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”

Question 24

Trial Constitutional Errors

Collateral Appeal

Answer 24

Collateral appeal deals with issues that don’t appear on the trial court transcript, like if a prosecutor hid evidence. On collateral appeal, such as federal habeas corpus, relief will be granted only if it has a “substantial and injurious effect or influence on determining the jury’s verdict.”

Question 25

Evidentiary Errors

Answer 25

Relief is not automatically granted for evidentiary errors. Rather, FRE 103(a) provides that a party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party. The burden of proof is on the party that claims error.

Question 26

Substantial Rights in Criminal Cases

Answer 26

In criminal cases, an evidentiary error affects a substantial right if it had a substantial and injurious affect or influence on the jury’s verdict. In other words, there must be “a reasonable probability that, but for [the error claimed], the result of the proceeding would have been different.” Put another way, the probability of a different result must be “sufficient to undermine confidence in the outcome of the proceeding.”

Question 27

Substantial Rights in Civil Cases

Answer 27

In civil cases, an evidentiary error affects substantial rights if it is “highly probable” that the erroneous admission affected the jury verdict. In other words, it must be “more probable than not” that the erroneous admission affected the jury verdict.

Question 28

Factors Used to Decide Whether an Error was Harmless

Answer 28

• Whether the erroneously admitted evidence was the primary evidence relied upon
• Whether the aggrieved party was nonetheless able to present the substance of its claim
• The existence and usefulness of curative jury instructions
• The extent of jury argument based on tainted evidence
• Whether erroneously admitted evidence was merely cumulative and
• Whether other evidence was overwhelming.