§ 6.01  Introduction [67]

 

An objection or motion to strike is used to exclude evidence an attorney believes is inadmissible.  In contrast, when an attorney’s proffer of evidence has been excluded by a trial judge’s ruling, an offer of proof is required to preserve the issue for appeal.

 

§ 6.02  Objections: FRE 103(a)(1) [67-72]

 

 

Failure to make a timely and specific objection forfeits the right to raise the issue on appeal.  Another consequence of failing to object is that the admitted evidence becomes part of the trial record and may be considered by the jury in its deliberations, by the trial court in ruling on motions (i.e., directed verdicts), and by a reviewing court determining the sufficiency of the evidence.

 

                        [A]       Specificity: Grounds

 

Rule 103 requires specific objections – i.e., a statement of the grounds upon which the objection is based must accompany the objection unless the grounds are apparent from the context.  For instance, “objection, hearsay” is a specific objection.  An objection that is not sufficiently specific is called a general objection.

 

                        [B]       Specificity: Parts of Documents

 

Although not explicitly stated in Rule 103, the specificity requirement further demands that counsel indicate which particular portion of evidence is objectionable.

 

                        [C]       “Continuing” or “Running” Objections

 

Many jurisdictions recognize “continuing objections,” which remove the need to object repeatedly to a line of testimony after an adverse ruling on an earlier objection based on the same issue.

 

                        [D]       Timeliness of Objections

 

                                                [1]        Motions to Strike

 

In some instances, a witness may answer before counsel can object, or a question’s tendency to elicit an objectionable response will not become apparent until the response is given.  If a motion to strike is granted, the court should instruct the jury to disregard the evidence.  Even though the jury has heard the answer, it is nevertheless important to ask the trial judge to strike the response because such a ruling precludes opposing counsel from referring to the stricken material in closing argument. 

           

 

§ 6.03  Offers of Proof: FRE 103(a)(2)  [72-74]

 

When evidence has been excluded by a trial court ruling, Rule 103(a)(2) requires an offer of proof to preserve the issue for appeal.  Without an offer of proof in the trial record, an appellate court cannot review the trial court’s ruling to determine whether or not the action of the trial court is harmless error.

 

            [A]       Form of Offer of Proof

 

An offer of proof may take several forms.  First, an offer of testimonial evidence often takes the form of a statement by counsel as to the expected content of the excluded testimony.  Second, the trial court may require or be asked to take the “offer” by an examination of the witness, including cross-examination.  Third, an affidavit (which requires an oath) summarizing the witness’s expected testimony and signed by the witness is another way to make offer of proof.  Finally, excluded documentary evidence should be “marked for identification” and appended to the record of trial     

 

§ 6.04  Motions in Limine  [74-76]

 

The term motion in limine means “at the threshold.”  It is a pretrial request for a preliminary decision on an objection or offer of proof.  Although the Federal Rules do not explicitly mention motions in limine, their use is now common.

 

            [A]       Definitive Rulings

 

Rule 103(a) provides:  “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”

 

 

§ 6.05  Required Testimony: Luce v. United States  [76-77]

 

In Luce v. United States, 469 U.S. 38 (1984), the Supreme Court ruled that an accused who had failed to testify could not appeal a pretrial (in limine) decision to permit impeachment under Rule 609 (prior convictions). Other courts have extended Luce to other evidentiary contexts.

 

§ 6.06  “Drawing the sting”: Ohler v. United States [77-78]

 

In Ohler v. United States, 529 U.S. 753 (2000), the Supreme Court held that an accused who brought out her prior conviction on direct examination (“drawing the sting”) could not challenge the admissibility of that conviction on appeal.

 

§ 6.07  Invited Error Rule  [78]

 

The “invited error” doctrine is another waiver rule.  This rule prohibits a party who induces error in the trial court from taking advantage of the error on appeal

 

§ 6.08  Meeting “Fire with fire” [79]

 

If one party introduces irrelevant or incompetent evidence, in some circumstances the other party  may respond “in kind.”

 

§ 6.09  Record of Offer & Ruling:  FRE 103(b)  [79-80]

 

“Making the record” is one of trial counsel’s most important responsibilities.  If the court does not make a decision, it is assumed that the court overruled the objection.  It is counsel’s responsibility to ensure that all objections and offers of proof are recorded.  Off-the-record objections are typically insufficient.

 

§ 6.10  Hearings Out of the Jury’s Presence: FRE 103(c)  [80]

 

Rule 103(c) requires that discussions involving the admissibility of evidence be held outside the hearing of the jury whenever practicable.

 

§ 6.11  Plain Error Rule:  FRE 103(d)  [80-81]

 

Rule 103(d) recognizes the plain error doctrine, under which an appellate court may consider an evidentiary error despite a party’s failure to make an objection, a motion to strike, or an offer of proof at trial.  The purpose of this doctrine is to safeguard the right to a fair trial, notwithstanding counsel’s failure to object. 

 

§ 6.12  Harmless Error  [81-82]

 

In determining whether to reverse a trial court judgment, appellate courts must decide whether an evidentiary error is harmless or prejudicial (reversible).  Rule 103(a) provides that a case will not be reversed on appeal because of an erroneous evidentiary ruling unless the ruling involves a “substantial right” and the other procedural requirements of Rule 103, such as timely objection, have been satisfied.  The term “substantial right” is not defined in the rule, but it refers to the harmless error doctrine. 

§ 6.13  Appellate Review of Admissibility Decisions [82]

 

Questions concerning the interpretation of an evidence rule, rather than its application in a particular case, are treated differently.  Generally, the former involves de novo review, while the latter is reviewed under an abuse-of-discretion standard.