Rule 103 Rulings on Evidence

• Jurisdiction: Arizona

(a) 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 appears of record, 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.
(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of jury. In jury cases, proceedings shall 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) Fundamental error. Nothing in this rule precludes taking notice of errors affecting fundamental rights although they were not brought to the attention of the court.

Comment

An appellate court may not reverse the trial court absent a proper objection or offer of proof.[1] This rule thus requires a party to take the proper steps at the trial level so the trial court can correct any possible errors and avoid the time and expense of a second trial. The only exception to this occurs in criminal trials if the error affects the fundamental rights of the party.[2] Fundamental error usually involves a constitutional question, but not every error that involves a constitutional question will be considered fundamental,[3] thus failure to object may waive even a constitutional issue.[4] If there are several parties in the litigation, one party may rely on the motions and objections made by the other party, but only if the parties have so advised the trial court.[5]

Subsection (a) provides that a party may not claim error unless the evidentiary ruling affects a substantial right of the party, which means that not every erroneous ruling will result in a reversal.[6] This is consistent with Ariz. Const. art. 6, Sec. 27, which provides that no cause shall be reversed for technical error in pleadings or proceedings when it appears, based upon the entire case, that substantial justice has been done. Further, the appellate courts have the duty to affirm the ruling of the trial court, provided the result is legally correct on any basis.[7]

Subsection (a)(1) requires the party to make a timely objection if the ruling is one admitting evidence.[8] This allows the trial court to rule before the evidence or testimony in question is presented to the jurors. Often this is done by what is referred to as a "motion in limine," which is a request for a preliminary ruling under Rule 104(a), made out of the presence of the jurors, as required by Rules 103(c) and 104(c). Although the rules of criminal procedure provide that all motions must be made 20 days prior to trial, if the evidence is such that a party may object to it during trial, the trial court may consider such a pretrial motion any time prior to or during trial.[9]

If the trial court denies such a pretrial motion and it is clear what the evidence is and what the surrounding circumstances are at the time of the objection and request for the ruling, the party need not object further each time the evidence in question is offered.[10] On the other hand, if the trial court grants such a pretrial motion and the other party nevertheless attempts to introduce evidence in violation of that ruling, the party must object during trial to preserve the issue for appeal.[11] Further, if other evidence clarifies or changes the circumstances or somehow affects the evidence in question, or if the evidence offered exceeds the purpose for which the trial court ruled it would be admissible, the party must object further during trial to allow the trial court to re-assess its ruling in light of these changes.[12] Once the trial court has ruled against a party on an objection or offer of proof, the party may change its strategy without waiving the right to challenge the ruling on appeal.[13]

A timely objection generally means one made before the evidence or testimony is offered.[14] If a party is not able to object until after the evidence or testimony in question is presented to the jurors, an objection alone may not be enough. If the evidence or testimony is so prejudicial that the jurors will not be able to ignore it, the party should object and move for a mistrial prior to the time the trial court submits the matter to the jurors, because a party will not be allowed to permit the trial to continue hoping for a favorable verdict, and then raise the issue on appeal if the verdict is unfavorable.[15] If the evidence or testimony is not so prejudicial and such that the jurors would be able to disregard it, the party should make a motion to strike the testimony. A party is not required to present the claim to the trial court in a motion for new trial after verdict before being allowed to raise the claim on appeal.[16]

Subsection (a)(1) requires the party to state the specific ground for the objection, so the trial court will be able to analyze the issue and determine whether the evidence is admissible, thus a general objection, such as "incompetent, irrelevant, and immaterial," preserves nothing for appeal.[17] Similarly, objecting on the basis of "foundation" alone will not preserve the issue on appeal; the party must instead state how the foundation is lacking.[18] Further, raising one objection at trial will not preserve a different objection on appeal, since the trial court cannot be faulted for not doing something it was never asked to do.[19]

Subsection (a)(2) requires the party to make an offer of proof identifying the substance of the evidence and the purpose for which it is offered if the ruling is one excluding evidence.[20] This allows the trial court to consider the evidence fully and possibly change its ruling based on the offer. It also allows the appellate court to determine whether the ruling of the trial court was an error within the context of the specific case.[21] As with objections, evidence offered for one purpose at trial will not support a claim of admissibility for a different purpose on appeal.[22]

There are two types of action a party itself may take that will preclude relief on appeal. The first is "invited error," which happens when the party asks a certain question or asks the trial court to take some action that results in otherwise inadmissible evidence being introduced.[23] The second is "opening the door," which occurs when the party introduces properly admissible evidence that makes certain otherwise inadmissible evidence admissible.[24] If a party attempts to introduce inadmissible evidence, however, the other may not sit back and use that inadmissible evidence as justification for later admission of its own inadmissible evidence.[25]

Subsection (b) describes the method by which the trial court may expand the record to include more specifics about the evidence offered and the objections made. Such a detailed offer may permit the appellate court to decide the case without a remand for more evidence.

The purpose of requiring the parties to make a record is to provide the appellate court with an accurate record to review in assessing the rulings of the trial court.[26] Both the Arizona Supreme Court and Arizona Court of Appeals have therefore stated they strongly disapprove of the practice of arguing motions off the record and then making a record at a later time,[27] because making a record at the time of the ruling will avoid having to rely on memories of the parties and the trial court, and therefore will result in a more accurate record. This must, however, be considered together with Rule 611(a), which allows the trial court to control the conduct of the trial, and should prevent a party from unduly delaying the trial by requesting a recorded side-bar conference on every evidentiary ruling.

Subsection (c) provides that the trial court shall conduct proceedings to the extent practicable to prevent inadmissible evidence from being suggested to the jurors.[28] This is the basis for the "motion in limine," which may be made at any time, not just 20 days before trial.[29]

Subsection (d) provides that the rules do not preclude the appellate courts from reviewing for fundamental error, which is error that goes to the foundation of the defendant's case or takes from the defendant a right essential to the defense the defendant presented.[30] Thus, if the alleged error does not relate to the defense the defendant actually utilized, error cannot be fundamental.[31]

Cases

Paragraph (a) - Effect of erroneous ruling.

103.a.010 If a party is entitled to object to certain evidence during trial, the trial court has discretion to consider the objection by means of a motion in limine made before or during trial, even though the party makes this motion less than 20 days before the trial begins.

Brown v. U.S.F. & G., 277 Ariz. Adv. Rep. 27, ¶¶ 9-11 (Ct. App. Sep. 10, 1998) (plaintiff did not file motion in limine by cut-off date imposed by trial court, and instead filed motion asking trial court to reconsider cut-off date and rule on plaintiff's motion to preclude polygraph evidence; trial court denied motion to reconsider cut-off date; at trial, plaintiff made tactical decision to admit polygraph evidence first; on appeal, plaintiff contended trial court erred in admitting polygraph evidence; court held that, because trial court had not ruled on merits of polygraph evidence before trial, plaintiff could have objected at trial if defendant sought to admit that evidence, and...