See also: CO-CONSPIRATOR STATEMENTS–Appellate Review
CREDIBILITY—Appellate Review; OBJECTIONS
EVIDENCE–Determining Admissibility
EXPERTS–Appellate Review; HARMLESS ERROR
MOTIONS–Appellate Review; OBJECTIONS; PLAIN ERROR
PREJUDICE–Appellate Review
RELEVANCE–Appellate Review

1.  Appealability of Interlocutory Rulings

Interlocutory orders regarding evidence issues are not appealable except in extraordinary cases.{footnote}See also Cordant Holdings Corp. v. Moore Bus. Forms, Inc., 1996 Del. LEXIS 253 (application for review of discovery order implicating attorney-client privilege refused).{/footnote}  Some jurisdictions allow the prosecution to appeal unfavorable rulings on the suppression of evidence which impair the prosecution’s abaility to present the case.{footnote}Ill. Sup. Ct. R. 604(a)(1); People v. Keith, 148 Ill. 2d 32, 169 Ill. Dec. 276, 591 N.E.2d 449 (Sup. Ct. 1992)(granting of defenant’s motion in limine held appealable).{/footnote}

2.  Standards of Review

2(a).  Discretionary Decisions

The trial court has wide discretion in ruling on admissibility.{footnote}Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 277 (5th Cir. 1991); Wright & Miller § 2885, at 282 (1973).
Webb v. State, 938 S.W.2d 806 (Ark. 1997); Denbow v. Williams, 672 P.2d 1011, 1014 (Colo. 1983); State v. Castonguay, 590 A.2d 901, 907 (Conn. 1991) (trial court’s decision entitled to “great deference.”); _______, 788 P.2d 1293, 1296 (Ida. 1989) (“broad discretion”); State v. Browning, 1997 W. Va. LEXIS 37 (W. Va. 1997) (“significant discretion”).{/footnote}  A trial court’s evidentiary ruling will be upheld unless the court abused its discretion{footnote}Cohen v. Brown Univ., 101 F.3d 155, 185 (1st Cir. 1996); United States v. Sorrentino, 726 F.2d 876 (1st Cir. 1984); Hancock v. Dodson, 958 F.2d 1367, 1371 (6th Cir. 1992); City of Long Beach v. Standard Oil Co. of California, 46 F.3d 929, 936 (9th Cir. 1995); Purrington v. University of Utah, 996 F.2d 1025, 1034 (10th Cir. 1993).
Buster v. Gale, 866 P.2d 837, 841 (Alaska 1994); Selby v. Savard, 655 P.2d 342, 347 (Ariz. 1982); Shuck v. Texaco Refining & Marketing, Inc., 872 P.2d 1247, 1250 (Ariz. App. 1994); Webb v. State, 938 S.W.2d 806 (Ark. 1997) (standard is “manifest” abuse of discretion”); People v. Crawford, 553 P.2d 827, 829 (1976); State v. Castonguay, 590 A.2d 901, 907 (Conn. 1991); Laws v. Webb, 658 A.2d 1000 (Del. 1995); People v. Kidd, 591 N.E.2d 431 (Ill. 1992); State v. Clifford, 121 P.3d 489, 494 (Mon. 2005); State v. Apanovitch, 514 N.E.2d 394 (Ohio 1987); Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App.), cert. denied, ____ U.S. ___ (1993); State v. Browning, 1997 W. Va. LEXIS 37 (W. Va. 1997).{/footnote} by committing clear error,{footnote}United States v. Collins, 764 F.2d 647 (9th Cir. 1985).{/footnote} or in other words, committed a clear abuse of discretion.{footnote}Rock v. Huffco Gas & Oil Co., 922 F.2d 272, 277 (5th Cir. 1991); Auto-Owners Ins. Co. v. Jensen, 667 F.2d 714, 722 (8th Cir. 1981).
State v. Boucino, 506 A.2d 125 (Conn. 1986); State v. Jurgensen, 681 A.2d 981 (Conn. App. 1996); _______, 788 P.2d 1293, 1296 (Ida. 1989) (must be “clear showing of abuse [of discretion]”).
{/footnote}  The appellate court must be left with the “definite and firm conviction” that the trial court committed error.{footnote}United States v. Collins, 764 F.2d 647 (9th Cir. 1985) (appellate court must have “a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.”); Sorenson v. City of Aurora, 984 F.2d 349, 354 (10th Cir. 1993) (“This [abuse of discretion] standard is only met if the appellate court has “a definite and firm conviction that the lower court made a clear error in judgment or exceeded the bounds for permissible choice under the circumstances.”)
Buster v. Gale, 866 P.2d 837, 841 (Alaska 1994); State v. Soto, 933 P.2d 66 (Haw. 1997) (ruling is clearly erroneous where “the appellate court is left with the definite and firm conviction, in reviewing the entire record, that a mistake has been committed.”)
{/footnote}
It has also been held a trial court’s admission of evidence will not be overturned on appeal unless the decision is shown to be “arbitrary or irrational.”{footnote}United States v. Johnson, 54 F.3d 1150, 1156 (4th Cir. 1995).
See also State v. Adams, 404 N.E.2d 144 (Ohio 1980) (abuse of discretion implies that court’s attitude is unreasonable, arbitrary or unconscionable); . Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987) (appellate court may reverse a trial court for abuse of discretion only if, after searching  the record, it clearly shows that the court’s decision was arbitrary and unreasonable).{/footnote}   See also EXPERTS–Appellate Review; PREJUDICE–Appellate Review.
The appellate court is required to view the evidence in the light most favorable to the trial court’s action and indulge in every presumption which would favor the trial court’s action.{footnote}Ocean Transp., Inc. v. Greycas, Inc., 878 S.W.2d 256, 269 (Tex. Ct. App. 1994).{/footnote}

2(b).  Decisions Reviewed De Novo

A trial court’s conclusions of law, however, are reviewed de novo.{footnote}Asplundh Mfg. Div. v. Benton Harbor Engg., 57 F.3d 1190, 1195 (3d Cir. 1995) (“A determination regarding the scope of evidence properly admitted under a Federal Rule of Evidence is a question of law subject to plenary review.”); Hancock v. Dodson, 958 F.2d 1367, 1371 (6th Cir. 1992) (whether proffered evidence constitutes hearsay).
State v. Muck, 1997 Kan. LEXIS 85 (Kan. 1997) (foundational requirements for breath test results).{/footnote} Whether admission of an out-of-court statement violates the Confrontation Clause is a question of law, subject to de novo review.{footnote}State v. Ruiz, 903 P.2d 845 (N.M. App. 1995).{/footnote}

Where a trial court has excluded evidence under the erroneous belief that it has no discretion to rule otherwise, appellate courts have held there to have been an abuse of discretion.{footnote}Johnson v. United States, 398 A.2d 354, 363 (D.C. 1979).{/footnote}

2(c).  “Right Ruling, Wrong Reason”

If the lower court reached the right result, but not for the right reason, its decision will be upheld.{footnote}Helvering  v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154 (1937) (“[I]f the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason .”); United States v. Nivica, 887 F.2d 1110, 1127 (1st Cir. 1989) (hearsay erroneously admitted under one exception nonetheless admissible under different rule); United States v. Johnson, 54 F.3d 1150, 1156 (4th Cir. 1995).{/footnote}  Courts on appeal must determine whether there was any proper ground for the lower court’s decision to admit or exclude the evidence.{footnote}United States v. Pinkus, 551 F.2d 1155 (9th Cir. 1977); United States v. Williams, 837 F.2d 1009 (11th Cir. 1988).
State v. Hamilton, 236 N.W.2d 325, 333 (Iowa 1975).{/footnote}  [does app ct stand in place of judge-what is burden re new ground] [what about evid that can come in under catch-all excep?]  This rule will not be applied, however, where the appellant would have been able to cure the now-asserted defect had it been brought to her attention at the time. [CASES].  [can app. ct use catch-all exception?]  In addition, the Ninth Circuit has declined to rule on the question of whether evidence improperly excluded as hearsay should have been excluded on grounds of prejudice, where there was no ruling below as to prejudice.{footnote}United States v. Layton, 720 F.2d 548, 563 (9th Cir. 1983).
But see Lubanski v. Coleco Indus., Inc., 929 F.2d 42, 46 (1st Cir. 1991) (in dicta, court stated that even if trial court erred in exclduing accident report under public records exception to hearsay rule, exclusion may have been appropriate under FRE 403).{/footnote}

3.  Admission of Evidence: Failure to Object

Failure to make a proper objection to the admission of evidence ordinarily constitutes a waiver of the objection.{footnote}FRE 103(a)(1); United States v. Mejia, 844 F.2d 209 (5th Cir. 1988); United States v. Brady, 595 F.2d 359 (6th Cir. 1979); Morrow v. Greyhound Lines, Inc., 541 F.2d 713 (8th Cir. 1976); Wilson v. Attaway, 757 F.2d 1227 (11th Cir. 1985).

Cal. § 353(a); Kansas § 60-404; State v. Kaesontae, 920 P.2d 959 (Kan. 1996).{/footnote}  See OBJECTIONS.  Moreover, the basis for exclusion claimed on appeal must be the same as, or at least suggested by, the objection below.{footnote}Jay Edwards, Inc. v. New England Toyota Distributor,Inc., 708 F.2d 814, 823 (1st Cir.), cert. denied, 464 U.S. 894, 104 S.Ct. 241, 78 L.Ed 2d 231 (1983); Bryant v. Consolidated Rail Corp., 672 F.2d 217, 220 (1st Cir. 1982); Brookhaven Landscape & Grading Co. v. J.F. Barton Contracting Co., 676 F.2d 516, 573 (11th Cir. 1982).
State v. Pulse, 925 P.2d 797, 808 n. 10 (Haw. 1996); Elliott v. Mid-Century Ins. Co., 701 S.W.2d 462 (Mo. App. 1985) (“[T]he scope of objections made at trial may not be broadened on appeal.”)
1 Weinstein para. 103[02] at 103-21 to 103-22 (1982).{/footnote}  It does not matter for the purpose of these requirements that the appellant was representing himself pro se at trial.{footnote}United States v. Chaney, 662 F.2d 1148 (5th Cir. 1981).{/footnote}  Where a number of questions raised the same evidentiary issue and some but not all were objected to, the court can address those instances where there was a specific objection.{footnote}Hogan v. American Telephone & Telegraph Co., 812 F.2d 409, 411 n.3 (8th Cir. 1987).{/footnote}

If the trial court considers and rules upon a belated objection to the admission of evidence without relying upon waiver, the appellate court will review the ruling as though the objection had been properly preserved.{footnote}E.g., State v. Johnson, 821 P.2d 1150, 1161 (Utah 1991).{/footnote}

The exception to this rule of waiver is the doctrine of plain error.  See PLAIN ERROR.   In cases where the death penalty has been imposed, errors need not have been preserved at trial in order to be considered on appeal.{footnote}Ky. Rev. Stat. 532.075(2); Ice v. Commonwealth, 667 S.W.2d 671, 674 (Ky. 1984). {/footnote}

4.  Exclusion of Evidence

4(a).  Generally

In order to preserve the issue of excluded evidence for appeal, the offering party must ordinarily have made an offer of proof.{footnote}FRE 103(a)(2).{/footnote}   See OFFER OF PROOF.  If the trial court makes a definitive ruling on the offer of proof, the offering party need not renew the offer of proof in order to preserve a claim of error for appeal.{footnote}FRE 103(a) (2000 amendment).{/footnote}  If the ruling was merely provision, or the court reserved its ruling, the offer of proof must be renewed.{footnote}FRE 103(a) (Advisory Committee comments on 2000 Amendment); United States v. Valenti, 60 F.3d 941 (2d Cir. 1995); United States v. Vest, 116 F.3d 1179, 1188 (7^th Cir. 1997).{/footnote}  If there is any ambiguity as to whether the court’s ruling was provisional or definitive, the offering party must request clarification.{footnote}FRE 103(a) (Advisory Committee comments on 2000 Amendment); Walden v. Georgia-Pacific Corp., 126 F.3d 506, 520 (3d Cir. 1997).{/footnote}  The evidence must also have been unobjectionable on any ground.  That the correct basis for objection was not asserted by a party or considered by the judge is of no consequence.{footnote}Lubanski v. Coleco Indus., Inc., 929 F.2d 42, 46 (1st Cir. 1991){/footnote}  This is an application of the “right ruling, wrong reason” rule discussed above.  Prejudice as an alternative ground for exclusion is an exception to this last rule, at least in the Ninth Circuit.{footnote}United States v. Layton, 720 F.2d 548, 563 (9th Cir. 1983).  {/footnote}  See “Right Ruling, Wrong Reason”, supra.

An abuse of discretion in the exclusion of evidence is more likely to be found where no other evidence in the case established the fact which the proponent was seeking to prove through the excluded evidence.{footnote}Lies v. Farrell Lines, Inc., 641 F.2d 765 (9th Cir. 1981).
See also Lubanski v. Coleco Indus., Inc., 929 F.2d 42, 46 (1st Cir. 1991) (finding harmless error in exclsuion of police accident report where police officer’s testimony covered substantially same ground).
{/footnote}

4(B).  Proponent Must State Correct Basis for Admissibility

It has been held that an offering party must state the basis for admitting evidence in order to preserve an appeal as to its exclusion.{footnote}Wright v. Hartford Accident & Indem. Co., 580 F.2d 809 (5th Cir. 1978).{/footnote}  An offering party cannot appeal the exclusion of hearsay by raising an exception which was not argued to the trial court at the time the hearsay was offered.{footnote}United States v. Pugliese, 713 F.2d 1574 (2d Cir. 1983); Huff v. White Motor Corp., 609 F.2d 286, 290 (7th Cir. 1979);  United States v. Benally, 756 F.2d 773 (10th Cir. 1985).
CHECK United States v. Thomas, 429 F.2d 407, 408 (5th Cir. 1970), relying on dictum in Landers v. United States, 304 F.2d 577, 578-579 & n.1 (5th Cir. 1962){/footnote}

5.  Instructions as to Evidence

A jury is generally assumed to have followed the court’s limiting  instructions,{footnote}United States v. Ellis, 1997 U.S. App. LEXIS 21040 (4th Cir. 1997) (jury instructed to use Witfneprior consistent statements only to assist in determining the credibility of the witness, rather than as substantive evidence).
CHECK United States v. Shannon, 512 U.S. 573, 584 (1994).{/footnote} as well as other instructions regarding the evidence in the case.{footnote}McClellan v. United States, 1997 D.C. App. LEXIS 136 (D.C. App. 1997).{/footnote}

6.  Prejudicial Error and Harmless Error

Most errors will result in reversal only where they were “prejudicial”, i.e., not “harmless.”  See HARMLESS ERROR.