HOW TO PRESERVE
EVIDENTIARY ERROR
FOR APPEAL
Diane B. Bratvold
Briggs and Morgan, P.A.
612-977-8789
dbratvold@briggs.com
2251889v1
© Copyright, Briggs and Morgan, Professional Association, 2006-2008
OVERVIEW
• Purpose of Evidentiary Rules
• Error preservation
 What is error?
 How is it preserved for appeal?
 What are the strategic considerations?
 What about fundamental errors?
Purpose of the Rules of Evidence, MRE 102
 Paramount concerns: fairness and
convenience
 Discretion of trial court
 Truth and justice: the goal; rules are not to
be “worshipped as a fetish”
Error Preservation: What is error?
 Must affect substantial rights of a party,
MRE 103(a)
 Harmless error
 Case-by-case; civil versus criminal
 Thompson suggests -• Who has the burden of establishing the
effect of the error?
• What is the burden that must be proven?
Error Preservation: Civil Cases Generally
 Burden on party claiming error
 Prejudicial error
 Record as a whole
 Limiting instructions
Error Preservation: Criminal Cases
Generally
 Federal constitutional rights
 Harmless error/reasonable doubt
 Is there any reasonable doubt the result would
have been different if evidence had not been
admitted?
 Non-constitutional error
Error Preservation: Trial Admission or
Exclusion of Evidence, MRE 103(a)
 Timely objection – the motion in limine
 Specific objection – don’t acquiesce
 Objection and ruling on the record: cardinal
rule
 Motion for new trial
 The alternative is waiver
Error Preservation: Trial Admission or
Exclusion of Evidence
 Motion to strike
 Motion for limiting instruction, MRE 105
 Exclusion of evidence requires offer of proof:
on the record, outside jury’s presence, MRE
103(a)(2) & 103(c)
Preservation of Error: Renewal of Objection
 The rule
 “Once the court makes a definitive ruling on the
record admitting or excluding the evidence, either
at or before trial, a party need not renew an
objection or offer of proof to preserve a claim of
error.”
 The cautious approach
 What is a definitive ruling?
 Any change during trial proceedings?
 Recent case law: State v. Word
Error Preservation: More on Trial
 Jury instructions & verdict form: do the
same thing, MRCP 51.03
 Object on the record with reasons
 Submit alternate instructions/verdict
form
 Get a ruling from the court
 Motion for new trial
Error Preservation: Strategy for Best Record
 If it’s not in the record it didn’t happen
 Docket entries
 Pretrial conferences, hearings, side bar,
chambers
 Letters to court
 Exhibits ruled on and filed with court
 Evidence on the monitor: slides, videotape
depositions, etc.
 Have a court reporter present
 Put it in writing and file it
Error Preservation: Strategy for Appellate
Argument
 Preserve your story, not just the error
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Applies to all parties
Background
Illustrations
Written or testimonial offers of proof
 Preserve legal error, not just
evidentiary error
 Standard of review is better
 Post-trial motion for JMOL may be required
Error Preservation: Summary Judgment
 Same rules apply
 Put it in the record
 Exhibits and testimony
 Tell your side of the case
 May need to present again post-trial
 Bahr v. Boise Cascade Corp., 766 N.W.2d
910 (Minn. 2009).
 Employee defamation suit
 Sufficiency of evidence of actual malice
Error Preservation: Summary Judgment
(cont.)
“While under our rule the appellate court has the
authority to review orders that “affect” the
judgment being appealed, Minn. Civ. R. App.
P. 103.04, a denial of a motion for summary
judgment in a case such as this cannot be
viewed as “affecting the judgment.” This is
because the district court’s conclusion at the
summary judgment stage that there was a
genuine dispute of fact becomes moot once
the jury reaches a verdict on that issue.”
Bahr, 766 N.W.2d at 918.
Error Preservation: Fundamental Errors,
MRE 103(d)
“Nothing in this rule precludes taking notice
of errors in fundamental law or of plain
errors affecting substantial rights although
they were not brought to the attention of
the court.”
 Goal: Fairness and judicial integrity
 Test: Plain error that affects substantial
rights
 Other factors
Don’t worry! That’s what appellate lawyers
are for.
Thank You
dbratvold@briggs.com
(612) 977-8789