Black-letter propositions
- 01
A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and the party preserved it.
- 02
If the ruling admits evidence, the party must timely object or move to strike on the record and state the specific ground, unless it was apparent from the context.
- 03
If the ruling excludes evidence, the party must inform the court of its substance by an offer of proof, unless the substance was apparent from the context.
- 04
Once the court rules definitively on the record, before or at trial, a party need not renew an objection or offer of proof to preserve the claim of error for appeal.
- 05
The court may direct that an offer of proof be made in question-and-answer form, and to the extent practicable must conduct a jury trial so that inadmissible evidence is not suggested to the jury.
- 06
A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
- 07
The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible, and in deciding it the court is not bound by the rules of evidence except those on privilege.
- 08
When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact exists, and the court may admit the evidence on the condition that the proof be introduced later.
- 09
The court must conduct a hearing on a preliminary question so the jury cannot hear it if it involves the admissibility of a confession, if a criminal defendant is a witness and requests it, or if justice so requires; by testifying on a preliminary question a criminal defendant does not become subject to cross-examination on other issues.
- 10
If evidence is admissible against a party or for a purpose but not against another party or for another purpose, the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
- 11
At a party's request, the court must order witnesses excluded from the courtroom so they cannot hear other witnesses' testimony, or it may do so on its own.
- 12
The rule does not authorize excluding a party who is a natural person, one designated officer or employee of a party that is not a natural person, a person whose presence a party shows is essential to presenting its claim or defense, or a person authorized by statute to be present.
Use this attack sequence under time
Frame the issue
For a ruling admitting evidence, ask whether there was a timely objection with a specific ground.
Resolve the next checkpoint
For a ruling excluding evidence, ask whether an offer of proof told the court the substance.
Resolve the next checkpoint
For a preliminary question, decide whether the judge decides it alone or whether it is a question of conditional relevance for the jury.
Finish the conclusion
For evidence admissible only for one purpose or against one party, ask whether a limiting instruction was requested.
Common wrong turns
- A general objection without a specific ground does not preserve error unless the ground was apparent from context.
- A limiting instruction is given on timely request, and the court does not have to give one on its own.
- A party who is a natural person cannot be excluded under the sequestration rule, though a witness may be.
Worked example
A judge sustains a hearsay objection and excludes a witness's answer. The lawyer says nothing more and moves on. On appeal the lawyer argues that the answer would have proved a key fact.
The lawyer did not make an offer of proof, and the substance of the answer was not apparent from context, so the claim of error is not preserved unless plain error applies.
Practice this topic
Preserving error under Rule 103
Federal Rule of Evidence 103(a) allows a party to claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and, for an admitting ruling, the party on the record timely objects or moves to strike and states the specific ground unless it was apparent from context, or, for an excluding ruling, the party informs the court of the substance by an offer of proof unless the substance was apparent from context.
Rule 103(b) provides that once the court rules definitively on the record, either before or at trial, a party need not renew an objection or offer of proof, Rule 103(c) allows the court to direct that an offer of proof be made in question-and-answer form, Rule 103(d) requires the court to conduct a jury trial so that inadmissible evidence is not suggested to the jury to the extent practicable, and Rule 103(e) allows notice of plain error affecting a substantial right even if not properly preserved.
Preliminary questions and limiting instructions
Rule 104(a) requires the court to decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible, and in doing so the court is not bound by evidence rules except those on privilege. Rule 104(b) provides that when relevance depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact exists, and the court may admit the evidence conditionally on later proof.
Rule 104(c) requires a hearing on a preliminary question to be conducted so the jury cannot hear it if it involves the admissibility of a confession, if a criminal defendant who is a witness so requests, or if justice so requires, and Rule 104(d) says testifying on a preliminary question does not subject a criminal defendant to cross-examination on other issues. Rule 105 requires the court, on timely request, to restrict evidence admissible against one party or for one purpose to its proper scope and to instruct the jury accordingly.
Excluding witnesses
Rule 615(a) requires the court, at a party's request, to order witnesses excluded from the courtroom so they cannot hear other witnesses' testimony, and permits the court to do so on its own. The rule does not authorize excluding a natural person who is a party, one officer or employee designated by the attorney as the representative of a party that is not a natural person, any person whose presence a party shows to be essential to presenting the claim or defense, or a person authorized by statute to be present.
Rule 615(b) provides that an order under subdivision (a) operates only to exclude witnesses from the courtroom, but the court may also prohibit disclosure of trial testimony to excluded witnesses and prohibit excluded witnesses from accessing trial testimony.
Frequently asked questions
What is the controlling rule for preserving error, preliminary questions, limiting instructions, and excluding witnesses?+
Say who decides the question, apply Rule 103 preservation rules, treat conditional relevance separately from admissibility questions decided by the judge, and address limiting instructions and sequestration.
What must a lawyer do to preserve error when evidence is admitted?+
Make a timely objection or motion to strike and state the specific ground, unless the ground was apparent from context, under Rule 103(a)(1).
What is an offer of proof?+
A statement of the substance of excluded evidence, given to the court so the exclusion can be reviewed, and it may be required in question-and-answer form, under Rule 103.
Who decides whether evidence is admissible?+
The judge decides preliminary questions about qualification, privilege and admissibility under Rule 104(a), and the judge is not bound by evidence rules except privilege.
When must the court give a limiting instruction?+
On timely request, when evidence is admissible against one party or for one purpose but not another, under Rule 105.
Who cannot be excluded from the courtroom as a witness?+
A natural person who is a party, one designated officer of an entity party, an essential person, or a person authorized by statute, under Rule 615(a).