Rule 2:103. Objections and Proffers

• Library: A Guide to the Rules of Evidence in Virginia (Virginia CLE) (2021 Ed.)

Rule 2:103. OBJECTIONS AND PROFFERS

(a) Admission or exclusion of evidence. Error may not be predicated upon admission or exclusion of evidence, unless:

(1) As to evidence admitted, a contemporaneous objection is stated with reasonable certainty as required in Rules 5:25 and 5A:18 or in any continuing objection on the record to a related series of questions, answers or exhibits if permitted by the trial court in order to avoid the necessity of repetitious objections; or

(2) As to evidence excluded, the substance of the evidence was made known to the court by proffer.

(b) Hearing of jury. In jury cases, proceedings shall be conducted so as to prevent inadmissible evidence from being made known to the jury.

NOTES

Subdivision (a). Virginia requires a timely objection to evidence, argument, or rulings, and in the case of exclusion of proof, a proffer must be made to create a reviewable record of the excluded matter. Objections and proffers must be timely asserted. Creamer v. Commonwealth, 64 Va. App. 185 (2015) (proffers); Wright v. Commonwealth, 23 Va. App. 1 (1996); Marlowe v. Commonwealth, 2 Va. App. 619 (1986). They also must be specific. See Arnold v. Wallace, 283 Va. 709 (2012); Clinton v. Commonwealth, 204 Va. 275 (1963), rev'd on other grounds, 377 U.S. 158 (1964); Murray v. Commonwealth, 71 Va. App. 449 (2020) (a proffer must be sufficient to allow the appellate court to determine admissibility of excluded evidence, and whether its exclusion was prejudicial to the proffering party). Absent a proper offer of proof, an appellate court generally will not consider whether exclusion of evidence was error. Williams v. Harrison, 255 Va. 272 (1998); Ray v. Commonwealth, 55 Va. App. 647 (2010). See Galumbeck v. Lopez, 283 Va. 500 (2012). Rules 5:25 and 5A:18 of the Rules of the Supreme Court of Virginia govern appellate review of claims of error. See Wright v. Norfolk & W. Ry., 245 Va. 160, 168 (1993) (purpose of doctrine explained); Jones v. Ford Motor Co., 263 Va. 237 (2002) ("objection; foundation" not sufficient to permit appellate review of the basis for expert testimony). In general, "[m]aking one specific argument on an issue does not preserve a separate legal point on the same issue for [appellate] review," Edwards v. Commonwealth, 41 Va. App. 752, 760 (2003) (en banc), and the appellate courts will not consider an argument that differs from the specific argument presented to the trial court, even if it relates to the same general issue. E.g.,

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Commonwealth Transp. Comm'r v. Target Corp., 274 Va. 341, 348-50 (2007) (refusing to consider a new argument in support of a jury instruction). On the issue of whether the grounds for an objection are apparent from the context, see Solomon v. Atlantic Coast Line Railroad Co., 187 Va. 240 (1948) (objection sufficient where the grounds are patent); Smith v. Commonwealth, 165 Va. 776 (1935) (same); Evans v. Commonwealth, 161 Va. 992 (1933) (reason for objection should be assigned but not fatal where the ground would be "immediately apparent"); see also Menefee v. Commonwealth, 189 Va. 900 (1949); Saunders v. Commonwealth, 186 Va. 1000 (1947); Davis v. Commonwealth, 161 Va. 1037 (1933); Joyner v. Commonwealth, 10 Va. App. 290 (1990)...