Preserving the Record for Appeal

• Publication year: 1999
• Pages: 63
• Citation: Vol. 28 No. 11 Pg. 63

28 Colo.Law. 63 Colorado Lawyer 1999.

1999, November, Pg. 63. Preserving the Record for Appeal

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63

Vol. 28, No. 11, Pg. 63

The Colorado Lawyer
November 1999
Vol. 28, No. 11 [Page 63]

Specialty Law Columns
The Civil Litigator
Preserving the Record for Appeal
by Scott S. Evans, Julie M. Williamson

During the heat of battle in trial, it is easy to forget that the case may not end after the verdict, but may continue on to an appellate court for its review. The last thing that any lawyer wants to do is to have to explain to the client what the appellate court meant when it wrote in its published opinion, "Even if objectionable, this issue is not properly before this court for review due to the failure of defendant to make timely objection."1 Compiled below is a list of fifteen questions and answers that should help the trial lawyer avoid common pitfalls and properly preserve the trial record for appeal

Question 1

Can any evidentiary ruling support an appellate finding of trial court error

Answer

No. In both the state and federal courts of Colorado, case law and the rules of evidence make it clear that error may not be predicated on a ruling that admits or excludes evidence unless a substantial right of the party is affected.2 According to the Colorado Court of Appeals, a "substantial right of the party" is affected when the court can say with fair assurance that the error influenced the outcome of the case or impaired the basic fairness of the trial itself.3

Question 2

Will an appellate court consider the issue of whether evidence was properly admitted if trial counsel failed to object to its admission

Answer

Generally, the appellate court will not do so, subject to the doctrine of plain error discussed below.4 In Colorado state courts, in order "[t]o preserve an issue for appeal, a party must make a timely objection which is specific enough to provide the trial court with a meaningful opportunity to correct the error."5 Generally, evidentiary issues presented in the pleadings but not presented at trial will not serve as a basis of appellate review.6 Once an unsuccessful objection has been made to a particular class of evidence, however, counsel is not required to renew the fruitless objection to the same class of evidence to preserve the objection for appeal.7

Question 3

If improper evidence was admitted without objection, can an appellate court rely on the evidence to support the verdict?

Answer

Yes. If evidence was admitted without objection, the appellate court generally will not consider the issue of whether the evidence was properly admitted and can rely on the evidence to support the verdict.8

Question 4

Can an appellate court reverse a trial court based on an evidentiary ruling if a proper objection was not made?

Answer

Yes. The doctrine of plain error allows an appellate court to reverse without a proper objection if the error was "plain," that is, obvious or clear.9 The error must be highly prejudicial, and there must be a high probability that it materially affected the outcome of the trial.10 This standard is rarely satisfied. Accordingly, counsel should make the objection at trial rather than waiting to correct the mistake in the appellate court. Furthermore, although the "plain error" doctrine is typically applied in criminal cases, under Federal Rules of Civil Procedure ("F.R.C.P.") 52(b), it also is applicable in civil cases.11

Colorado state courts also apply the doctrine of plain error, but the threshold appears to be less onerous. Plain error occurs when the error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction or the proceedings.12

Question 5

After trial counsel's motion in limine attempting to exclude certain evidence at trial is denied, must counsel object again during the trial in order to preserve the objection?

Answer

In Colorado state courts, the answer is no. A motion in limine constitutes a timely objection for purposes of preserving error where the admissibility of specific evidence was fully argued to the trial court on the same grounds asserted on appeal.13 Pre-trial motions directed to a broad array of evidence, however, will not preserve a specific objection for appeal.14 Additionally, a party may not appeal the inclusion of evidence on different grounds than those raised in the failed pre-trial motion, unless the new grounds for the objection are made contemporaneously at trial.15

In federal court, if counsel loses a motion in limine, although the majority rule is otherwise, some courts say that counsel must again object on the record when the evidence is admitted in order to preserve the objection for appeal.16 The Tenth Circuit applies a three-part test: an issue may be preserved for appeal by a motion in limine, even when a party fails to object at trial, if "(1) the matter was adequately presented to the district court; (2) the issue was of a type that can be finally decided prior to trial; and (3) the court's ruling was definitive."17

Question 6

Trial counsel files a motion in limine to exclude certain evidence at trial. The motion is denied. If counsel then presents the unfavorable evidence during direct examination in an attempt to diffuse its impact, has counsel waived the right to appeal on that issue?

Answer

Probably not. Although this issue has not been directly addressed in the Tenth Circuit in the context of a motion in limine, one panel has held that if counsel decides to bring out the damaging evidence on direct to diffuse its impact after the relevant objection has been made and overruled, counsel has not waived the point on appeal.18 Another panel of the Tenth Circuit has similarly held that once evidence is admitted over a party's objection, that party is entitled to elicit testimony from its witnesses relating to the evidence, in order to reduce the negative effect of the objectionable evidence, without waiving the right to assert the erroneous evidentiary ruling as grounds for appeal.19 The Tenth Circuit's ruling on this issue, however, is a minority view among the federal circuits.20

Question 7

Co-defendant's counsel properly objects to the admission of certain evidence at trial, but trial counsel does not. Does the co-defendant's objection preserve the issue for appeal?

Answer

Maybe. Federal courts have held that a proper objection by one party may preserve the issue for appeal when raised by...