Federal Rules of Evidence – Rule 103 (through December 1, 2015)
You may only object to evidence rulings if they affect substantial rights.
- And if the ruling admitted evidence, you must timely object and give the specific reason for your objection, unless the reason is obvious.
- If the ruling excluded evidence, you must inform the court of the evidence’s substance by an offer of proof, unless the substance is apparent.
Plain error does not have to be preserved. And after a definitive ruling on the record, you don’t need to repeat your objection or offer of proof to preserve for appeal.
To extent practicable, the judge must protect the jury from even the allusion of inadmissible evidence.
(a) Preserving a Claim of Error. 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:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
(b) Not Needing to Renew an Objection or Offer of Proof. 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.
(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
Selected Committee Notes
Subdivision (a) states the law as generally accepted today. Rulings on evidence cannot be assigned as error unless (1) a substantial right is affected, and (2) the nature of the error was called to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take proper corrective measures. The objection and the offer of proof are the techniques for accomplishing these objectives. For similar provisions see Uniform Rules 4 and 5; California Evidence Code §§353 and 354; Kansas Code of Civil Procedure §§60–404 and 60–405. The rule does not purport to change the law with respect to harmless error. See 28 U.S.C. §2111, F.R.Civ.P. 61, F.R.Crim.P. 52, and decisions construing them. The status of constitutional error as harmless or not is treated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), reh. denied id. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241.
Subdivision (b). The first sentence is the third sentence of Rule 43(c) of the Federal Rules of Civil Procedure virtually verbatim. Its purpose is to reproduce for an appellate court, insofar as possible, a true reflection of what occurred in the trial court. The second sentence is in part derived from the final sentence of Rule 43(c). It is designed to resolve doubts as to what testimony the witness would have in fact given, and, in nonjury cases, to provide the appellate court with material for a possible final disposition of the case in the event of reversal of a ruling which excluded evidence. See 5 Moore’s Federal Practice §43.11 (2d ed. 1968). Application is made discretionary in view of the practical impossibility of formulating a satisfactory rule in mandatory terms.
Subdivision (c). This subdivision proceeds on the supposition that a ruling which excludes evidence in a jury case is likely to be a pointless procedure if the excluded evidence nevertheless comes to the attention of the jury. Bruton v. United States, 389 U.S. 818, 88 S.Ct. 126, L.Ed.2d 70 (1968). Rule 43(c) of the Federal Rules of Civil Procedure provides: “The court may require the offer to be made out of the hearing of the jury.” In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962), left some doubt whether questions on which an offer is based must first be asked in the presence of the jury. The subdivision answers in the negative. The judge can foreclose a particular line of testimony and counsel can protect his record without a series of questions before the jury, designed at best to waste time and at worst “to waft into the jury box” the very matter sought to be excluded.
Subdivision (d). This wording of the plain error principle is from Rule 52(b) of the Federal Rules of Criminal Procedure. While judicial unwillingness to be constructed by mechanical breakdowns of the adversary system has been more pronounced in criminal cases, there is no scarcity of decisions to the same effect in civil cases. In general, see Campbell, Extent to Which Courts of Review Will Consider Questions Not Properly Raised and Preserved, 7 Wis.L.Rev. 91, 160 (1932); Vestal, Sua Sponte Consideration in Appellate Review, 27 Fordham L.Rev. 477 (1958–59); 64 Harv.L.Rev. 652 (1951). In the nature of things the application of the plain error rule will be more likely with respect to the admission of evidence than to exclusion, since failure to comply with normal requirements of offers of proof is likely to produce a record which simply does not disclose the error.
Key Rules (MBE/MEE)
- FRE 103 – Evidence Rulings
- FRE 105 – Limiting How Evidence may be Used
- FRE 106 – Completeness Rule
- FRE 201 – Judicial Notice
- FRE 301 – Presumptions
- FRE 401 – Relevance
- FRE 402 – Irrelevant = Inadmissible
- FRE 403 – Excluding the Prejudicial, Confusing, etc.
- FRE 404 – Character Evidence
- FRE 405 – Proving Character
- FRE 406 – Habit, Routine
- FRE 407 – Subsequent Remedial Measures
- FRE 408 – Compromise Negotiations
- FRE 409 – Offers to Pay Expenses
- FRE 411 – Liability Insurance
- FRE 412 – Victim’s Sexual Predisposition
- FRE 413, 414, 415 – Other Sex-Related Rules
- FRE 502 – Attorney-Client Privilege, Work-Product Doctrine
- FRE 601 – Witness Competency
- FRE 602 – Personal Knowledge
- FRE 605 – Judge as Witness
- FRE 606 – Juror as Witness
- FRE 607 – Impeachment
- FRE 608 – Honest, Dishonest Character
- FRE 609 – Evidence of Criminal Conviction
- FRE 611 – Mode, Order of Evidence
- FRE 612 – Recollection Refreshed
- FRE 613 – Prior Statements
- FRE 614 – Court Witness Examination
- FRE 615 – Excluding Witnesses
- FRE 701 – Non-Expert Opinion
- FRE 702 – Expert Opinion
- FRE 703 – Bases of Expert Opinion
- FRE 704 – Ultimate Issue
- FRE 705 – Disclosing Underlying Data
- FRE 801 – Hearsay Defined
- FRE 802 – Rule Against Hearsay
- FRE 803 – Strong Hearsay Exceptions
- FRE 804 – Weak Hearsay Exceptions
- FRE 805 – Double Hearsay
- FRE 806 – Impeaching Hearsay Declarants
- FRE 807 – Residual Hearsay Exception
- FRE 901 – Authentication, Identification
- FRE 902 – Self-Authenticating Evidence
- FRE 1001 – Original Defined
- FRE 1002 – Original Sometimes Required
- FRE 1003 – When Copies Generally Admissible
- FRE 1004 – Other Times Admissible
- FRE 1005 – Public Record Copies Often Admissible
- FRE 1006 – Summaries
- FRE 1007 – Acknowledged Content
- FRE 1008 – Functions of Court, Jury
- FRE 1101 – Rules’ Applicability