§103 Rulings on Evidence

• Library: Evidence Restated Deskbook (2021 Ed.)

§103 Rulings on Evidence

A. Effect of erroneous ruling. Reversible error may not be predicated upon a ruling that admits or excludes evidence unless the error was committed by the trial court against the appellant, materially affecting the merits of the action; and

1. Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, except that a general objection is sufficient if the evidence is clearly inadmissible for any purpose; or

2. Offer of proof. In case the ruling is one excluding evidence, a timely offer of proof must be made and show what the evidence would be, its purpose, and facts sufficient to establish admissibility, except that an offer may not be necessary if:

a. the context within which questions were asked indicates the expected answer and its purpose;

b. the question was asked on cross-examination; or

c. the offer would be a useless gesture where the court has ruled broadly that evidence of a particular class or type is inadmissible.

A pretrial order to admit or exclude evidence (ruling on a motion in limine, motion to suppress, etc.) is an interlocutory order. A party must renew an objection or offer of proof at trial to preserve a claim of error on appeal.

B. Record of offer of proof and ruling. As part of its ruling, the court may add any other or further statement necessary to show the:

· character of the evidence;

· form in which it was offered;

· objection made; and

· ruling thereon.

It may direct the making of an offer of proof in question and answer form or in narrative form.

C. Hearing of jury. In jury-tried cases, the better practice is for proceedings to be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

D. New trial motion. In jury-tried cases, allegations of error in regard to the admission or exclusion of evidence must be included in a motion for a new trial to be preserved for appellate review.

E. Plain error. A court may take notice of plain errors affecting substantial rights, even though the errors were not brought to the attention of the trial court, when the court finds that manifest injustice or miscarriage of justice has resulted therefrom. An affirmative statement of "no objection" waives even plain error review.

F. Curative admissibility. When inadmissible evidence is offered and received without objection, an opposing party may introduce similar ordinarily inadmissible evidence of the same type or character if the introduction of the rebuttal evidence is necessary to offset an unfair prejudice brought about by the admission of the earlier inadmissible evidence.

G. Invited error. A party is estopped from complaining on appeal of errors that the party is responsible for. A party who has introduced evidence pertaining to a particular issue may not object when the opposite party introduces related evidence intended to rebut or explain, even if the evidence introduced to rebut or explain would have been inadmissible in the first instance. Moreover, a party may not complain on appeal of any alleged error in which, by that party's conduct at trial, the party joined or acquiesced.

Notes

A. Effect of erroneous ruling

It is generally recognized that an erroneous ruling on evidence will not lead to a reversal by an appellate court unless the error:

· was against the appellant; and

· "materially affect[ed] the merits of the action."

Section 512.160.2, RSMo 2016; Rule 84.13(b). Accordingly, Missouri courts have stated that, "[f]or an error to require a reversal it must have been prejudicial to the complaining party." Wilcox v. St. Louis-Sw. R.R. Co., 418 S.W.2d 15, 19–20 (Mo. 1967). "Rulings on evidence immaterial to the issues or not affecting the merits are not ground for reversal" because those rulings are not prejudicial to the appellant. Blue Ridge Bank v. State Banking Bd., 509 S.W.2d 763, 766 (Mo. App. W.D. 1974). See also In re J.G.H. v. Greene Cty. Juvenile Office, 576 S.W.3d 257, 260 (Mo. App. S.D. 2019) (in order to demonstrate reversible error, an appellant must demonstrate that a challenged trial court ruling was legally erroneous and that appellant was actually prejudiced as a result).

Even though a single error may not amount to reversible error, a complaining party may point to the cumulative effects of trial court errors to show prejudice—but prejudice must be shown. See:

· Koontz v. Ferber, 870 S.W.2d 885, 894 (Mo. App. W.D. 1993)

· Kline v. City of Kansas City, 334 S.W.3d 632, 649 (Mo. App. W.D. 2011)

· Rogers v. Hester ex rel. Mills, 334 S.W.3d 528, 547 (Mo. App. S.D. 2010)

But the claim that the cumulative effect of trial court occurrences justifies a mistrial should first be made to the trial court to preserve the point for appeal. State v. Shockley, 410 S.W.3d 179, 194–96 (Mo banc 2013); see also The need to request further relief, infra. Moreover, "[n]umerous non-errors cannot add up to error." State v. Miller, 372 S.W.3d 455, 476 (Mo. banc 2012) (quoting State v. Gray, 887 S.W.2d 369, 374 (Mo. banc 1994)).

An appellate court will presume trial court error to be prejudicial when it appears from the record that the error materially affected the merits of the action. When the error is presumed prejudicial, the burden falls on the opposing party to show that the error was not prejudicial. Newton v. Ford Motor Co., 282 S.W.3d 825 (Mo. banc 2009); Lewis v. Wahl, 842 S.W.2d 82 (Mo. banc 1992).

But it should be recognized that, in a court-tried case, it is practically impossible to argue reversible error because of the erroneous admission of evidence because the party making the argument must show an absence of sufficient competent evidence to support the findings. Broyles v. Broyles, 555 S.W.2d 696, 700 (Mo. App. W.D. 1977). This is because "the court can presumably sort out the incompetent and the irrelevant and base his decision upon the competent and relevant." Wilson v. Sullivan, 922 S.W.2d 835, 838 (Mo. App. E.D. 1996) (quoting N.K.M. v. L.E.M., 606 S.W.2d 179, 187 (Mo. App. W.D. 1980)). Thus, the issue in a court-tried case is whether, absent the error, the outcome of the case would have been different. Blue Pool Farms, LLC v. Basler, 239 S.W.3d 687 (Mo. App. E.D. 2007). This can be shown in a court-tried case when it is clear from the record that the trial judge considered and relied on inadmissible evidence in reaching a decision. State v. Crews, 406 S.W.3d 91, 94 (Mo. Ap. W.D. 2013).

Criminal cases

In criminal cases, the test for determining whether the improper admission of evidence was prejudicial to the defendant is whether the improper admission was outcome-determinative. To be outcome-determinative, the improperly admitted evidence must have "so influenced the jury that, when considered with and balanced against all evidence properly admitted, there is a reasonable probability that the jury would have acquitted but for the erroneously admitted evidence." State v. Moore, 352 S.W.3d 392, 404 (Mo. App. E.D. 2011); see also:

· State v. Williams, 353 S.W.3d 685, 688 (Mo. App. W.D. 2011) (a conviction will be reversed because of the admission of improper evidence only if the defendant proves prejudice by showing a reasonable probability that, absent that evidence, the verdict would have been different)

· State v. Tisius, 362 S.W.3d 398, 405 (Mo. banc 2012) (a reversal in a criminal case is only warranted if the error was so prejudicial that it deprived the defendant of a fair trial)

· State v. Sprofera, 372 S.W.3d 17, 21 (Mo. App. W.D. 2012) (even though there was no logical relevance to the admission into evidence that the defendant made a profane outburst to the prosecutor and the admission could have some prejudicial effect, on the record, the admission was not so prejudicial that it deprived the defendant of a fair trial and warranted reversal of the conviction)

· State v. Patton, 419 S.W.3d 125 (Mo. App. E.D. 2013) ("[D]espite the questionable relevance of the [admission of the victim's] family photographs, the overwhelming evidence of [defendant's] guilt dictates that [he] was not so prejudiced by their admission as to affect the outcome of the trial")

"Furthermore, [for example,] 'prejudice will not be found from the admission of hearsay testimony where the declarant was also a witness at trial, testified on the same matter, and was subject to cross-examination because the primary defects in the hearsay testimony are alleviated.'" State v. Martinez, 407 S.W.3d 669, 673 (Mo. App. S.D. 2013) (quoting State v. Steele, 314 S.W.3d 845, 850 (Mo. App. W.D. 2010)); see also State v. Jackson, 426 S.W.3d 717, 719 (Mo. App. E.D. 2014); State v. Forrest, 183 S.W.3d 218, 224 (Mo. banc 2006).

But a rebuttable presumption of prejudice to the defendant follows an erroneous exclusion of evidence in a criminal case. "The state may rebut this presumption by proving that the error was harmless beyond a reasonable doubt." State v. Jackson, 353 S.W.3d 657, 661 (Mo. App. S.D. 2011).

1. Objection

Must be timely

To preserve for appeal an alleged error relating to the admission of evidence, it is necessary that an objection be timely made. Rule 78.09; Fleshner v. Pepose Vision Inst., P.C., 304 S.W.3d 81, 97 n.14 (Mo. banc 2010); R&J Rhodes, LLC v. Finney, 231 S.W.3d 183, 190 (Mo. App. W.D. 2007). This requires that an objection be made to the admission of the evidence "at the earliest possible opportunity in the progress of the case so that the trial judge may have an opportunity to correct, or set right, that which is later to be claimed to be wrong," and with respect to an objectionable question asked of a witness, usually that time is before the answer has been given. Oak Bluff Condo. Owner's Ass'n v. Oak Bluff...