Chapter 1 101 Scope

• Library: Evidence Guide 2003

§101 Scope

§102 Purpose and construction

§103 Rulings on evidence

§104 Preliminary questions

§105 Limited admissibility

§106 Remainder of or related writings or recorded statements

§101 Scope

These sections are intended to restate the evidentiary principles applied in proceedings in Missouri courts.

§102 Purpose and Construction

The purpose of these sections is to restate existing evidence law found in Missouri cases and statutes. The sections are not intended to change the law relating to evidence and should be construed according to that intent.

Note

Article 5, § 5, of the Constitution of the State of Missouri states that Rules of the Supreme Court of Missouri may not change the law relating to evidence. Id. These sections are not Supreme Court Rules, and they do not purport to change the law relating to evidence.

§103 Rulings on Evidence

(a) Effect of erroneous ruling

Error may not be predicated upon a ruling that admits or excludes evidence unless there is prejudice to the complaining party, and

(1) Objection

An objection to the admission of evidence must be timely and specific, containing the proper ground for excluding the evidence, except that a general objection is sufficient if the evidence is wholly 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:

(i) the context within which questions were asked indicates the expected answer and its purpose;

(ii) the question was asked on cross-examination; or

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

(b) Record of offer and ruling

As part of its ruling, the court may add any other or further statement necessary to show the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.

(c) Hearing of jury

In jury 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.

(d) Plain error

Nothing in this rule precludes taking notice of plain errors affecting substantial rights even though the errors were not brought to the attention of the court.

(e) Curative admissibility

When inadmissible evidence, which was received without objection, is introduced by an opposing party, similar evidence of the same type or character may be introduced if the introduction of such rebuttal evidence is necessary to offset an unfair prejudice brought about by the admission of the earlier inadmissible evidence.

(f) Invited error

An objection to an answer responsive to the question propounded will have been waived by the questioning party where the phrasing of the question invites the response given.

Notes

Subdivision (a)—Effect of erroneous ruling

This section states what types of error in a ruling on evidence can be the basis for reversal. Section 512.160.2, RSMo 2000 (“No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, and materially affecting the merits of the action”). Missouri courts have stated, “For an error to require a reversal it must have been prejudicial to the complaining party.” Wilcox v. St. Louis-S.W. R.R., 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 such rulings are not prejudicial to the complaining party. Blue Ridge Bank v. State Banking Bd., 509 S.W.2d 763, 766 (Mo. App. W.D. 1974). But the admission of incompetent evidence on a material issue is presumed to be prejudicial unless clearly shown to be otherwise. State ex rel. State Highway Comm’n of Mo. v. Baker, 505 S.W.2d 433, 437 (Mo. App. S.D. 1974). In a court-tried case, however, it is “practically impossible to predicate reversible error on the erroneous admission of evidence” because the party advancing the contention must show the absence of sufficient competent evidence to support the findings. Broyles v. Broyles, 555 S.W.2d 696, 700 (Mo. App. W.D. 1977).

See also Rule 84.13, the pertinent parts of which read as follows:

(a) Preservation of Error in Civil Cases. Apart from questions of jurisdiction of the trial court over the subject matter and questions as to the sufficiency of pleadings to state a claim upon which relief can be granted or a legal defense to a claim, allegations of error not briefed or not properly briefed shall not be considered in any civil appeal . . . from a jury tried case [except such as have been presented to or expressly decided by the trial court].

(b) Materiality of Error. No appellate court shall reverse any judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action.

Erroneous exclusion of evidence does not warrant a reversal unless it materially affects the merits of the action. Jo B. Gardner, Inc. v. Beanland, 611 S.W.2d 317, 322 (Mo. App. W.D. 1980).

Subpart (a)(1)—Objection

To be considered on appeal, an objection to evidence must be timely. “An objection to a question, which is not made until after the answer has been given, comes too late and will not be considered on appeal unless the record shows that the witness answered too quickly and there was no time to object.” Minks v. Smith, 367 S.W.2d 6, 8 (Mo. App. E.D. 1963); see also Emery v. Wal-Mart Stores, Inc., 976 S.W.2d 439, 445–46 (Mo. banc 1998); State v. Archuleta, 955 S.W.2d 12, 16 (Mo. App. W.D. 1997). But see State v. Berry, 916 S.W.2d 389, 392–93 (Mo. App. S.D. 1996) (objection that followed answer was not fatally untimely where the injection of inference of defendant’s prior conviction was contained in the question because objection following question would not have protected against the disclosure). A party’s remedy for an answer that is legally inadmissible and that was swiftly made by the witness requires making of a motion to strike or withdraw the evidence. State ex rel. Mo. Highway & Transp. Comm’n v. Matula, 910 S.W.2d 355, 361 (Mo. App. E.D. 1995). Where the inadmissibility of the evidence first appears of record in subsequent testimony, timely objection must be made at that later point. State v. Bedell, 890 S.W.2d 702, 703–05 (Mo. App. S.D. 1995); see also Plunk v. Hedrick Concrete Prods. Corp., 870 S.W.2d 942, 945–46 (Mo. App. S.D. 1994).

To preserve a constitutional question for review, “the constitutional issue must be raised in the trial court at the earliest opportunity.” State ex rel. Eagleton v. Patrick, 370 S.W.2d 254, 260 (Mo. 1963).

An objection “challenging testing procedures or the results” of blood tests to determine paternity must be made by written motion twenty days before the trial of a paternity action. Section 210.834.5, RSMo 2000; see State ex rel. K.R. v. Brashear, 841 S.W.2d 754, 757 (Mo. App. E.D. 1992); State ex rel. Anderson v. Sutton, 807 S.W.2d 152, 155 (Mo. App. S.D. 1991).

Preservation of objection earlier urged

An objection to the admission of evidence is required even though the admissibility of the evidence was earlier ruled in a hearing on a motion to suppress or a motion in limine. “An order sustaining a motion in limine is an interlocutory order subject to change by the court when the subject matter of the order is presented to the court in proper perspective in the trial of the case.” Annin v. Bi-State Dev. Agency, 657 S.W.2d 382, 385 (Mo. App. E.D. 1983); see also State v. Purlee, 839 S.W.2d 584, 592–93 (Mo. banc 1992).

An objection at the time the evidence is admitted is necessary to preserve the alleged error because the trial judge may be a different judge, because an objection advises the court that the defendant continues to consider the evidence inadmissible, and because the objection gives the trial...