Appealing Evidentiary Rulings, Part 2: My Objection Was Overruled--Now What?

Posted on November 24, 2009 by Jay O'Keeffe

A few weeks back, we wrote about appealing evidentiary rulings. That post generated a pretty obvious follow-up question: What do you do when your (clearly correct) objection is overruled, and the bad guys are allowed to introduce their (wildly improper) evidence?

The problem may be most starkly presented when you file a motion in limine, stating a detailed legal objection to harmful evidence, and the judge overrules it. Now what? The other side will present their evidence. Do you cross examine them on it? Can you introduce your own rebuttal evidence? Or will you waive your original objection by doing so, forever forfeiting your right to raise the issue on appeal?

The answer will depend on the specific facts of the case, but--with the help of the World's Busiest Associate, Mike Finney--we've put together a few general principles that should provide some guidance:

  1. Play the percentages. The best thing you can do to help your chances of winning on appeal is to win at trial--especially if the only appeal in your case is a discretionary one to the Supreme Court of Virginia. Very roughly speaking, the Supreme Court grants about 1 in 5 petitions for appeal, and reverses in about 1/2 of the appeals it takes. Let those numbers guide your strategic decisions. They show that it will rarely make sense to risk losing your case to win your appeal.
  2. You only have to object once. Va. Code Section 8.01-384(A) obviates the need for repeated objections. See Drinkard-Nuckols v. Andrews, 269 Va. 93, 102-03, 606 S.E.2d 813, 818-19 (2005) (“[P]rovisions of Code 8.01 § 384(A) obviate the need for repeated objections after having made an objection or motion known to the trial court . . . .”). Make your objection once, clearly, on the record. And before you come close to touching the objectionable evidence on cross examination or your case in chief, gently remind the Court (on the record and outside of the presence of the jury) why you are doing so. That will help you with the next step:
  3. Avoid waiver. This is where it gets tricky. You will waive your objection to evidence if, after it is admitted, you introduce the same evidence yourself. Southern Ry. Co. v. Blanford, 105 Va. 373, 387, 54 S.E. 1, 6 (1906). Put slightly differently, if a party “’unsuccessfully objects to evidence which he considers improper and then on his own behalf introduces evidence of the same character, he thereby waives his objection.” Saunders v. Commonwealth, 211 Va. 399, 401, 177 S.E.2d 637, 638 (1970). There are, however, limitations to this waiver rule. An objecting party may “elicit[] evidence of the same character either during cross-examination of a witness or in rebuttal testimony.” Drinkard-Nuckols, 269 Va. at 102, 606 S.E.2d at 818. In addition, to constitute waiver, “the subject matter of the evidence at issue [must] be the same as the subject matter of the evidence to which an objection was made.” Id. at 102, 606 S.E.2d at 818 (citing Pettus v. Gottfried, 269 Va. 69, 606 S.E.2d 819 (2005)). 
  4. Object to jury instructions (and, if necessary, move to set aside the verdict). Just to be on the safe side, formally object to any jury instruction regarding the parties’ alleged oral contract. And if--God forbid--the jury should return an adverse verdict, move for both a new trial and for the court to set aside the jury’s verdict on this ground. See Spitzli v. Minson, 231 Va. 12, 341 S.E.2d 170 (1986) (“[W]hen defendant failed to object to the instruction submitting the entire case to the jury, and failed to move the court to set aside the verdict and grant a new trial, she waived her right to assign error . . . .”) (quoting Hilton v. Fayen, 196 Va. 860, 867, 86 S.E.2d 40, 43-44 (1955)).

That, in a nutshell, is an appellate lawyer's perspective on what to do with an adverse evidentiary ruling. The takeaway from all of this: it's really just a lot easier to win your motion in limine in the first place.

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Appealing Evidentiary Rulings

Posted on September 30, 2009 by Jay O'Keeffe

As every trial lawyer knows, judges are human. They will, from time to time, make mistakes. Often those mistakes will manifest themselves as mistaken evidentiary rulings. The judge may exclude a piece of evidence that should have come in, or allow the jury to hear something that it shouldn't.

Given the volume of evidentiary issues in the course of a normal trial--and the correspondingly vast potential for error--it's important for both trial and appellate counsel to be comfortable with the process of appealing evidentiary rulings. Thankfully, we don't need to reinvent the wheel; James Harris has written a fine article on the subject called "Appealing Evidence."

Here are some of his observations:

 

1. Preserve the record.

Every appeal starts in the trial court. It is trial counsel's obligation to make a record that will allow her client to succeed on appeal. This means giving the trial court a fair opportunity to rule intelligently on the evidentiary issue. If you are opposing a piece of evidence, object contemporaneously to its admission; if it is admitted, move to strike it from the record. And mention the specific basis of your objection. You don't have to give a dissertation on the origins of the hearsay rule, but a simple "Objection, hearsay" may prove quite helpful down the road.

On the flip side, if you are the proponent of a piece of evidence that is wrongfully excluded, object to the exclusion and make a proffer.

And in each case, get a ruling. You must give the appellate court something to work with, or your appeal may well be over before it begins. 

 

2. Identify the standard of review

The next step in your appeal is to identify the standard of review. "That's easy," you say. "A trial court's rulings on the exclusion of evidence are reviewed for an abuse of discretion."

As a general proposition, that's correct. But remember the Standard of Review Ladder: questions of law are reviewed de novo, while questions of fact are reviewed for clear error. The appellant always wants to climb the ladder to de novo review, while the appellee always wants to slide down to a deferential review of questions of fact.

When reviewing an evidentiary ruling--or any other ruling, for that matter--it is therefore crucial to determine what, exactly, the trial court did wrong. Did it apply the wrong legal rule, or impose requirements for admission that do not exist under the applicable rule, correctly stated? If so, it committed an error of law, subject to plenary review. (Remember: a mistake of law is always an abuse of discretion.)

If you are the appellee, on the other hand, you may be able to frame the issue as one of fact. For example, you may be able to show that the court applied the correct legal standard, but the appellant just quibbles with its underlying fact finding (e.g., whether the declarant was aware of his imminent death). If so, you may be entitled to review under the clear error standard.

The applicable standard of review can often determine the outcome of an appeal. Don't just toss some boilerplate about abuse of discretion into your brief. Analyze the issues, and frame them to your best advantage.

 

3. Show that the mistake mattered.

De novo review does not equal reversal. The appellant still must show why the trial court's mistake mattered--that it probably affected the outcome of the case. The appellee, on the other hand, will be well-served to explain why it was harmless.

The simple truth is that most evidentiary errors are not prejudicial. Therefore, it often makes sense for an appellee confronted with a clear mistake in the trial court to concede the error, but argue that it was harmless. For instance, it may be harmless error to exclude evidence because:

  • the evidence had little or no probative value;
  • the evidence was cumulative;
  • the evidence was inadmissible for other reasons; or
  • a jury instruction cured the error.

Likewise, it may be harmless error to admit evidence because:

  • the evidence was cumulative;
  • a jury instruction cured the error; or
  • the evidence supported a proposition that was true as a matter of law.

For this reason, an appellant may wish to point to multiple evidentiary errors, and argue that the cumulative effect of the errors was prejudicial even if each error, considered individually, would not warrant reversal.
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