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

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. 
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