Introduction

Preserving Evidentiary Error

Introduction

Federal Rule of Evidence 103(a) opens with a limit that surprises many students: a party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party, and only if the party has also taken the steps the rule describes.¹ The rule treats a trial as a contest run by the lawyers. The judge does not hunt for inadmissible evidence on her own initiative and ordinarily rules only when someone asks. An appellate court, in turn, reviews a ruling only if the trial record shows that the trial judge was asked to make it and understood what the dispute was. A mistake that no one raised below is generally not available as a ground for reversal.

The steps the rule requires depend on which way the ruling went. When the judge lets evidence in, the complaining party must act on the record by timely objecting or moving to strike, and must state the specific ground unless it was apparent from the context.² When the judge keeps evidence out, the proponent has a different burden: informing the court of the evidence's substance by an offer of proof, unless that substance was apparent from the context.³ The two rules look in opposite directions because the missing information differs. After an admission, the judge needs to know why the evidence is objectionable. After an exclusion, the record is empty, and the appellate court needs to know what the jury never heard.

The rest of the chapter follows that structure. It begins with why preservation exists, then takes up objections to admitted evidence and offers of proof after exclusion. Next it covers the court's own powers to comment on a ruling and direct how an offer is made, and the rule that a definitive ruling, often made on a motion in limine, can spare a party from renewing its objection.⁴ It closes with the doctrines that operate after preservation fails or succeeds: waiver, plain error, and harmless error. The first section addresses the problem that Rule 103(a) was built to solve, which is why a trial record must be made at all.