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. 
Continue Reading Appealing Evidentiary Rulings

The Court of Appeals of Virginia welcomes us back from summer vacation with a discussion of questions presented that will keep appellate specialists up at night in Carroll v. Commonwealth.


In 2007, Carroll was charged with raping his stepdaughter twenty-four years earlier. Carroll had initially been charged in 1983, but the case was nolle prossed–only to be reopened later, as the result of a separate rape allegation involving Carroll’s sister. In 1984, the government destroyed specimens and other evidence obtained from a physical examination of the victim.

Despite the Commonwealth’s evidentiary difficulties, Carroll entered an Alford plea. This allowed him to maintain his innocence while acknowledging that the Commonwealth had enough evidence to convict him.

Carroll entered into a plea agreement with the Commonwealth, under which he did not admit that he committed the rape and, to the contrary, expressly claimed his innocence. The plea agreement provided that Carroll would satisfy the conditions of his probation, which included that he maintain good behavior, have no contact with the victim, and pay court costs. If he did so, his sentence would be continued while he was on probation, and upon satisfying probation, the government would ask the court to vacate his conviction and accept instead a guilty plea of assault and battery. The agreement included an integration clause: “I understand that the judge will not enforce any agreement not written down here.” The plea agreement made no mention of sex-offender treatment.

The trial court accepted Carroll’s plea and continued the case for 5 years. One of the conditions of the trial court’s order was that Carroll would comply with all rules and requirements set by his probation officer.

Carroll’s probation officer mandated that he attend sex-offender treatment, which required him to accept responsibility for his actions. Carroll refused, and was discharged from the program. The trial court issued a bench warrant. At the resulting hearing, Carroll argued that he had not violated his probation because the trial court had accepted his Alford plea. The trial court disagreed. It found that Carroll had violated his probation and convicted him of rape. It sentenced him to 5 years in prison, all suspended.Continue Reading New Court of Appeals Opinion on Questions Presented

The VLW Blog reports that Chief Justice Hassell was hospitalized recently with an infection and will not participate in the Supreme Court of Virginia’s oral argument session next week. The story is here. One of the Court’s senior justices will likely sit in for him during his absence.

We wish the Chief a speedy