Eighth Circuit reviews whether a challenged evidence ruling by the trial court was properly preserved for appeal under FRE 103(b); the issue turned on whether the trial court’s ruling was “tentative” or “definitive”; the objecting party holds the burden to clarify the nature of the ruling, in United States v. Young, _ F.3d _ (8th Cir. May 23, 2014) (Nos. 12-2527, 12-2593).I have made this point before about objections.

Remember that another requirement related to objections is an offer of proof where the MJ sustains a prosecution objection.Under Federal Rule of Evidence 103(a)(2), the objecting party must make an offer of proof to the court, or else show that the substance of the excluded evidence was apparent from the context of the proceeding, to preserve an objection to a ruling excluding evidence. Fed. R. Evid. 103(a)(2); United States v. Quinn, 123 F.3d 1415, 1420 (11th Cir. 1997).

Before trial, the defendants in Miller filed a motion in limine to prevent opposing counsel from engaging in “golden rule” arguments.That motion was granted.During closing, however, opposing counsel made comments that the defendants felt were just such golden rule arguments.Believing the trial court’s pretrial grant of the motion in limine constituted a definitive ruling on the issue and no objection was needed to preserve the issue for appeal, no objection was made to the golden rule comments. The appellate court disagreed and held the issue was waived.Citing to its own prior case law and to cases interpreting Federal Rule of Evidence 103(b), the court held that only the party who has opposed an earlier ruling is entitled to rely on the ruling to preserve a claim of error for appeal. The party who obtained the favorable ruling must still timely object if the opposing party violates the ruling.Preservation Tip If you prevail on a ruling before or at trial, particularly on a motion in limine, and the opposing party violates that ruling during trial, you must timely object to that violation to preserve the issue for appeal.

The appellate court disagreed and held the issue was waived. Citing to its own prior case law and to cases interpreting Federal Rule of Evidence 103(b), the court held that only the party who has opposed an earlier ruling is entitled to rely on the ruling to preserve a claim of error for appeal. The party who obtained the favorable ruling must still timely object if the opposing party violates the ruling.Preservation TipIf you prevail on a ruling before or at trial, particularly on a motion in limine, and the opposing party violates that ruling during trial, you must timely object to that violation to preserve the issue for appeal.

The Federal Circuit noted a significant difference between court proceedings and proceedings before the Board: In districtcourt litigation, a party dissatisfied with a ruling excluding evidence is allowed to make an offer of proof to preserveerror. Fed. R. Evid. 103. Parties in IPRs are notgiven similar protections.

The district court sentenced Cummings to a 75-year term of imprisonment.The Appeal On appeal, Cummings challenged the district court’s admission of Volcy’s testimony on the grounds that it constituted hearsay under Federal Rule of Evidence 802 and was not subject to an enumerated exception. The Second Circuit held: (1) that Cummings had not waived his hearsay claim, notwithstanding counsel’s failure to contemporaneously object at trial; (2) the district court’s failure to exclude Volcy’s evidence as hearsay was in error; and (3) that error was not harmless.Waiver Federal Rule of Evidence 103 requires parties to timely and specifically object to an evidentiary ruling. Otherwise, the court reviews only for plain error.

The court agreed that the communications were inadmissible and also held that the wife had waived any error by failing to make an offer of proof as to the substance of the excluded evidence. In so holding, the court cited to Texas Rule of Evidence 103(a)(2), which is virtually identical to Federal Rule of Evidence 103(a)(2), and provides that to “preserve error concerning the exclusion of evidence, the complaining party must demonstrate the substance of the excluded evidence through an offer of proof or a bill of exception unless the substance of the evidence is apparent from the context.” 2016 WL 1039035, at *6.

But there is SCOTUS and First Circuit authority that fronting bad evidence constitutes a waiver of the right to appeal admissibility of such evidence. The plaintiff pointed to a 2000 amendment to Federal Rule of Evidence 103 (on preserving claims of error), but the First Circuit held the amendment and Advisory Committee Note too unclear to dislodge existing authority. To our eyes, it looks like a close call.

This rule is critically important if a defendant has any hope of securing a “second chance” on appeal. The rule is codified in Federal Rule of Criminal Procedure 51(b) and Federal Rule of Evidence 103(a) (1).There are three exceptions—one general, two specific—to the contemporaneous objection rule. First, “if the party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.”

Objections must be specific. Fed. R. Evid. 103(a)(1)(B). The phrase 'apparent from the context,' as used in that rule, does not mean apparent to the attorney who has been studying the pleading and evidence for months and has developed subtle, but undisclosed, theories about the relationship between various exhibits and the elements of each cause of action."