§ 11.7 Particular Applications of the General Rule and Its Exceptions

JurisdictionWashington

§11.7 PARTICULAR APPLICATIONS OF THE GENERAL RULE AND ITS EXCEPTIONS

This section discusses, in various procedural contexts, case law applying the general rule that errors first raised on review usually will not be considered, as well as exceptions to that rule.

(1) Admission and exclusion of evidence

Generally, error in the admission of evidence may be challenged on review only if there has been a timely objection in the trial court, stating the specific ground of objection. Error in the exclusion of evidence will be preserved for review only if the substance of the evidence has been made known to the trial court by an offer of proof. Although the failure to make an objection or offer of proof is not fatal to appellate review if the complaining party's position in the trial court was "apparent from the context," ER 103(a)(1), (2), it is nevertheless advisable to preserve error explicitly, and in detail.

The requirements for preserving claims of error as to the admission and exclusion of evidence are in ER 103. The Advisory Task Force on Appellate Rules stated: "These rules do not supersede court rules which define the means by which an error must be preserved in the trial court, such as CR 43, 46, and 51." Rules of Appellate Procedure (RAP), Rule 2.5 cmt. (a), 86 Wn.2d 1133, 1152 (1976), reprinted in 2A Karl B. Tegland, WASHINGTON PRACTICE: RULES PRACTICE, Task Force Comment to RAP 2.5, at 263 (8th ed. 2014). CR 43 is entitled "Taking of Testimony." Sections (b) and (c) of CR 43 are currently reserved, with references to ER 103 and ER 611. ER 103(a) provides:

Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike is made, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

(a) Erroneous admission of evidence

Factors such as timeliness and sufficiency of objections and the use of limiting instructions can affect the appealability of erroneous admission of evidence.

(i) Timeliness of objection or motion to strike

An objection or motion to strike must be timely. ER 103(a) (1); State v. Leavitt, 111 Wn.2d 66, 70-73, 758 P.2d 982 (1988) (objection one day after hearsay was admitted was too late, but error was harmless in any event). Error is preserved if the answer was given too quickly for an objection to be interposed, State v. Gallo, 20 Wn.App. 717, 728, 582 P.2d 558 (1978), review denied, 91 Wn.2d 1008 (1978), or if the answer was unresponsive, Lundberg v. Baumgartner, 5 Wn.2d 619, 623-25, 106 P.2d 566 (1940) (objection should be made as soon as the objectionable nature of response becomes apparent). An objection is not untimely if the basis for objection does not become apparent until later in the trial. 5 Karl B. Tegland, WASHINGTON PRACTICE: EVIDENCE LAW & PRACTICE §103.8, at 50 (5th ed. 2007) (citing Braun, MCCORMICK ON EVIDENCE §52 (6th ed.)).

A late objection should be phrased as a motion to strike and should include a request for an instruction to disregard the evidence. Gallo, 20 Wn.App. at 728 (belated objection and motion to strike will be allowed if there was inadequate time to interpose objection before answer or if admissibility of answer was not apparent from nature of question). See 5 Tegland, §103.8, at 50-51. If the evidence is extremely prejudicial, a party should consider not only a motion to strike, but also a motion for mistrial, especially in a criminal case. Id.; see State v. Stevens, 58 Wn.App. 478, 493-95, 794 P.2d 38 (when defense counsel had objected on basis of lack of foundation after unresponsive, prejudicial answer, but failed to move to strike, then at next recess objected on basis that the testimony invaded province of jury, but again failed to move to strike, the latter basis of objection was not properly preserved for review), review denied, 115 Wn.2d 1025 (1990).

There may, of course, be tactical reasons for withholding an objection or motion to strike that would call attention to unfavorable evidence. But the likely price for such tactics is preclusion from arguing the issue on review.

(ii) Sufficiency of objection or motion to strike

Unless the specific basis of the objection is "apparent from the context," ER 103(a), the general rule is that an objection that does not state the specific ground of objection does not preserve a claim of error for review.

Description of grounds. In State v. Pittman, 54 Wn.App. 58, 772 P.2d 516 (1989), the court held that a general objection to a question asked of a witness was insufficient, because it was not "apparent from the context" that the objection was based on relevancy. Id. at 66 (citing State v. Guloy, 104 Wn.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986); State v. Boast, 87 Wn.2d 447, 451-52, 553 P.2d 1322 (1976)); cf. State v. Black, 109 Wn.2d 336, 340, 745 P.2d 12 (1987) (although the defense did not specifically object to the scientific reliability or acceptance of "rape trauma syndrome," defendant was not precluded from raising this issue on review because that ground of objection was "apparent from the context" in view of defense counsel's voir dire of the witness); State v. Jones, 71 Wn.App. 798, 813, 863 P.2d 85 (1993) (because ground for objection was apparent from the context, objection was sufficient to preserve alleged error for review (citing Black, 109 Wn.2d 336)), review denied, 124 Wn.2d 1018 (1994); State v. Padilla, 69 Wn.App. 295, 300-01, 846 P.2d 564 (1993) (in view of colloquy between court and counsel, ground for objection was apparent from the context).

Description of target. The specific evidence objected to, as well as the grounds, must be described in the objection or motion to strike. For example, if only part of a witness's testimony is objectionable, the objection should be expressly limited to that part. See, e.g., Pac. Nw. Pipeline Corp. v. Myers, 50 Wn.2d 288, 291, 311 P.2d 655 (1957); Davidson v. Municipality of Metro. Seattle, 43 Wn.App. 569, 572-73, 719 P.2d 569, review denied, 106 Wn.2d 1009 (1986).

Cannot change grounds on review. "[I]t is well established that '[i]f a specific objection is overruled and the evidence in question is admitted, the appellate court will not reverse on the basis that the evidence should have been excluded under a different rule which could have been, but was not, argued at trial.'" State v. Mak, 105 Wn.2d 692, 719, 718 P.2d 407 (quoting 5 Karl B. Tegland, WASHINGTON PRACTICE §10, at 25 (2d ed. 1982)), cert. denied, 479 U.S. 995 (1986), overruled on other grounds by State v. Hill, 123 Wn.2d 641, 870 P.2d 313 (1994); Reitz v. Knight, 62 Wn.App. 575, 584, 814 P.2d 1212 (1991).

Tactics. "A trial court's ruling on the admissibility of evidence will not be disturbed on appeal if it is sustainable on alternative grounds." Thomas v. French, 99 Wn.2d 95, 104, 659 P.2d 1097 (1983). Consequently, as one commentator has pointed out, "[i]f the trial court sustains a general objection, the ruling will be affirmed if there was any valid basis for excluding the evidence." 5 Tegland, WASHINGTON PRACTICE: EVIDENCE LAW & PRACTICE §103.11, at 63 (emphasis in original; footnote omitted). Strictly from the standpoint of preserving error, a party opposing the admission of evidence should make a general objection at first, and provide specifics only if the objection is overruled or the basis for the objection is requested by the court or opposing counsel. (One exception is when the evidence is admissible for a limited purpose, as discussed in the next subsection.) On the other hand, the proponent of the evidence should always request a statement of the specific basis of any objection.

(iii) Evidence admissible for only a limited purpose; limiting instructions

Evidence may be admissible as to one party or for one purpose but inadmissible as to another party or for another purpose. If an opposing party objects to such evidence in general terms, without requesting a limiting instruction, and the trial court admits the evidence, the opposing party will be deemed to have waived its right to a limiting instruction. "Failure to request an appropriately worded limiting instruction waives the right to the instruction and fails to preserve the error for appeal." Sturgeon v. Celotex Corp., 52 Wn.App. 609, 624, 762 P.2d 1156 (1988); see also State v. Newbern, 95 Wn.App. 277, 295-96, 975 P.2d 1041 ("A party's failure to request a limiting instruction constitutes a waiver of that party's right to such an instruction and fails to preserve the claimed error for appeal."), review denied, 138 Wn.2d 1018 (1999). This rule is also embodied in ER 105, which provides:

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

A disadvantage of requesting a limiting instruction as part of one's initial objection to a piece of evidence is that the request will serve to educate the proponent of the evidence as to a proper basis for offering it. Tactically, it may be more effective to object to the evidence "if it is being offered to prove [objectionable basis]" and then leave it to the proponent to come up with an alternative basis, if one exists. If the proponent does, counsel can then request a limiting instruction. If the proponent fails to come up with an appropriately limited basis for admitting the evidence, the trial court's exclusion of the evidence should be affirmed...

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