Noting The Burden To Preserve Evidence Challenge For Review On Appeal

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)

The consequences of failing to preserve an evidence issue for appeal can be fatal. Either the issue may be waived or it may be reviewed for plain error under FRE 103(e). Under FRE 103(b), addresses the circumstances in which a party needs to renew an objection at trial: "Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal." the application of this rule was recently reviewed by the Eighth Circuit.

Trial Court Proceedings: Ruling "At This Point In Time"

In the case, defendants Young and Mock were charged with conspiracy to commit murder for hire resulting in death and a substantive count based on the murder of Young's husband. At trial, defendant Mock moved to admit statements made by defendant Young to the sheriff to "inform the jury of Young's second, conflicting account of the events that occurred on the night of" the murder in order to "provide evidence of Young's guilty conscience as well as
corroborate Mock's theory that Young set Mock up to be the 'fall guy' for" the murder. The trial court excluded the evidence noting:

[T]he most salient part of the discussion I think is the last thing that [the Assistant United States Attorney] alluded to, which is that the statement is in large part self-serving at this point in time. Now looking down the road though, it's clear to me that more likely than not at some point in time, we will be revisiting this statement, and more likely than not if circumstances are right, it's probably going to come in. There is also an incidental problem to the use of the statement now. That is a timing issue. There are some things that most likely need to be brought out or established before the statement can come in because it's just kind of there and hanging there now. So having said that, I guess I'm sustaining the Government's objection at this point in time.

Young, _ F.3d at _ (emphasis added). Defendant Mock never moved to admit the testimony again. After being convicted by the jury, on appeal the defendant claimed that the trial court erred in failing to admit this testimony.

Eighth Circuit Review: Failure To Preserve Evidence Issue

The Eighth Circuit held "that Mock failed to preserve this issue for appellate review." The initial ruling of the trial court was "tentative" and not “definitive” under FRE 103(b). As the circuit explained:

[A] district court's invitation to re-raise evidentiary challenges renders its ruling non-definitive. The inquiry does not focus on magic words like "sustained"
or "overruled" but on the overall context of the ruling. When that context includes a district court's invitation to re-raise the issue later at trial, then the ruling is not definitive. As the advisory committee note to the 2000 amendment suggests, counsel bears the burden of obtaining clarification as to whether a district court's ruling is definitive. Here, the district court's invitation to re-raise the issue of whether it should allow introduction of Young's conflicting account prevented its ruling from being definitive. As a result, Mock failed to preserve this issue for normal appellate review.

Young, _ F.3d at _ (citing United States v. Echols, 346 F.3d 818, 820 (8th Cir. 2003) (failure to preserve issue where trial court reserved its ruling); Sprynczynatyk v. General Motors Corp., 771 F.2d 1112, 1118 (8th Cir. 1985) (concluding that “the district court made a definitive pre-trial ruling that affected the entire course of the trial” and the “denial of the motion was not made conditionally or with the suggestion that the matter would be reconsidered") (emphasis added)).

The circuit then assumed "without deciding, that plain-error review" may apply. No plain error was shown as "the error did not affect Mock's substantial rights because the evidence supporting her conviction was overwhelming." Young, _ F.3d at _ (citing United States v. Lindsey, 702 F.3d 1092, 1100-01 (8th Cir.) (noting that a party's substantial rights are not violated where overwhelming evidence of guilt supports verdict), cert. denied, 133 S.Ct. 2842 (2013)).

Conclusion

The Young case highlights the obligation of the objecting party to preserve an evidence issue for appeal. Unless the trial court's ruling is "definitive," then a final ruling should be obtained. The burden lies with the objecting party.

For another issue raised in the Young case, consider the blog post: Using Surrounding Circumstances To Authenticate Evidence.

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