Complying With Fed. R. App. P. 28(e) To Challenge Trial Evidence On Appeal

First Circuit notes failure of party to “cite the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected,” as required under Fed. R. App. P. 28(e), waived review of evidence challenges on appeal, in Guillemard-Ginorio v. Urrutia-Valles, 586 F.3d 508 (1st Cir. Oct. 29, 2009) (No. 08-1302)

In presenting evidence at trial, it is important to create a sufficient record that supports admission or preserves an objection. The failure to do so has consequences. The record is important for a reviewing court to understand the issues before the trial court. A recent First Circuit case serves as a reminder about the importance of establishing a proper record on appeal so that any challenges can be meaningfully reviewed.

In the case, licensed insurance agents filed an action alleging that the Office of the Insurance Commissioner of Puerto Rico and two Insurance Commissioners who “investigated and sanctioned them for purported Insurance Code violations solely because of their political affiliation with the New Progressive Party.” The jury returned a verdict for the plaintiffs and a $4.7 million money judgment and permanent injunctive relief. On appeal, the defendant raised a number of evidence errors, including the admission of hearsay testimony about a conversation involving a deceased former Insurance Commissioner, the exclusion of relevant evidence, and the admission of unfairly prejudicial evidence.

The First Circuit affirmed the judgment “in all respects.” Based on the failure of the defendants to comply with Fed. R. App. P. 28(e), the evidence challenges were waived on appeal. As the circuit explained:

“Reasserting their evidentiary challenges once more before this court, defendants fail to include in their appellate brief citations to the relevant portions of the appendix or transcript as explicitly required by our procedural rules. Specifically, pursuant to Rule 28(e) of the Federal Rules of Appellate Procedure (‘FRAP’), ‘[a] party referring to evidence whose admissibility is in controversy must cite the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected.’ Fed. R. App. P. 28(e); see also 1st Cir. Loc. R. 28(e) (same). Defendants fail to comply with this procedural requirement, not including in their brief a single reference to their voluminous (3000+ page) appendix or to the transcript of the proceedings below, where rulings as to the challenged evidence were made. They include only two references: to two docket numbers corresponding with the district court's written rulings on evidentiary motions. We therefore hold their evidentiary objections to be waived. See Conto v. Concord Hosp., Inc., 265 F.3d 79, 81-82 (1st Cir. 2001) (holding claim waived on appeal on the basis of counsel's failure to comply with procedural rule requiring citations to the record); United States v. Isabel, 945 F.2d 1193, 1199 n.12 (1st Cir. 1991) (holding that because defendants ‘failed to comply with the FRAP 28(e) requirement that reference be made to the transcript pages containing the evidence whose admissibility is controverted on appeal’ they ‘must be deemed to have waived their 801(d)(2)(E) claim’ challenging the admissibility of co-conspirator statements).”
Guillemard-Ginorio, 585 F.3d at 534-35.


The failure to point to the areas in the extensive record which were being challenged prevented the circuit from properly assessing the record. The circuit provided some examples:

“[D]efendants challenge the exclusion of the OIC Order issued against UVI, which they claim, ‘seriously prejudiced [them].’ However, they provide no citations to anything in the record or transcript that would alert us to the contents of the Order, leaving us without a basis to evaluate the propriety of its exclusion. We face a similar problem with respect to defendants' challenge to the exclusion of the ‘Ocaso’ documents, which the district court excluded, in part, on relevancy grounds. Defendants contend that, pursuant to Rule 403 of the Federal Rules of Evidence (‘FRE’), the probative value of those documents outweighed any concern of prejudice. But as we have held, ‘[b]ecause the judicial officer who presides at a trial has a unique perspective which enables [him] to make assessments of this kind knowledgeably, 'only rarely--and in extraordinarily compelling circumstances--will we, from the vista of a cold appellate record, reverse a district court's on-the-spot judgment concerning the relative weighing of probative value and unfair effect.' United States v. Pitrone, 115 F.3d 1, 8 (1st Cir. 1997) (citation omitted).”
Guillemard-Ginorio, 585 F.3d at 535.


The Guillemard-Ginorio case underscores the importance of creating an adequate record and then identifying those portions of the record that support an evidence challenge on appeal. The inability to satisfy this burden may hamper appellate review of the issue and could result in waiver altogether.

Federal Rules of Evidence
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