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.