Advisory Committee Historical Note
Effective July 1, 2016, Rule 103(a)(3) on the “Effects of Definitive Rulings” was adopted.
Effective July 1, 2016, the Rule was amended as part of the general restyling of the Evidence Rules.
Effective June 16, 2016, the “Comment” was retitled “Advisory Committee Note.”
Advisory Committee Note
The language of Rule 103 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. The provisions concerning preserving a claim of error and continuing objections – formerly combined in a single paragraph – now appear in separate subdivisions. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
Rule 103 concerns the making of an evidentiary record for purposes of appeal.
(a) Subdivision (a) reflects existing Mississippi practice. (1) The objection must state the specific ground of objection unless the specific ground is apparent from the context. This adopts and carries forward the approach taken in Murphy v. State, 453 So. 2d 1290, 1293-94 (Miss. 1984). (2) By the same token, when a party objects to the exclusion of evidence, he must make an offer of proof to the court, noting on the record for the benefit of the appellate court what evidence the trial judge excluded. See Brown v. State, 338 So. 2d 1008 (Miss. 1976); King v. State, 374 So. 2d 808 (Miss. 1979). Federal Rule of Evidence 103, which is identical, has been interpreted to have no effect on the harmless error principle. See Hughes v. State, 470 So. 2d 1046, 1048 n. 1 (Miss. 1985).
Harris v. Buxton T.V., Inc., 460 So. 2d 828 (Miss. 1984) held that no offer of proof was necessary where a party was improperly prohibited from cross- examining a witness. Rule 103(a)(2) does not affect this holding.
(b) Subdivision (b) retains the existing practice of recognizing continuing objections, where allowed by the trial judge, as a viable means of preserving a point for appeal.
(c) Subdivision (c) has three distinct, but related, effects. First, paragraph
(c) (1) provides that a claim of error with respect to a definitive evidentiary ruling (whether at or before trial, including rulings in limine) is preserved for review when the party has otherwise satisfied the objection or offer of proof requirements of Rule 103(a). When the ruling is definitive, a renewed objection or offer of proof at the time the evidence is to be offered is more a formalism than a necessity. See MRCP 46 (formal exceptions unnecessary); Jones v. Panola County, 725 So. 2d 774, 775 (Miss. 1998) (“a ruling on ‘a motion in limine regarding the introduction of evidence properly preserved the issue for appeal and a contemporaneous objection was not necessary’ ”); see also Lacy v. State, 700 So. 2d 602 (Miss. 1997). On the other hand, when the trial court has reserved its ruling or has indicated that the ruling is provisional, it makes sense to require the party to bring the issue to the court’s attention subsequently. Subdivision (c) thus imposes the obligation on counsel to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point. Even when the court’s ruling is definitive, nothing in this section prohibits the court from revisiting its decision when the evidence is to be offered. If the court changes its initial ruling, or if the opposing party violates the terms of the initial ruling, objection must be made when the evidence is offered to preserve the claim of error for appeal. The error, if any, in such a situation occurs only when the evidence is offered and admitted. Subdivision (c) does not apply to rulings other than those admitting or excluding evidence, such as rulings regarding, for example, the conduct of opening statements or closing arguments.
A definitive advance ruling is reviewed in light of the facts and circumstances before the trial court at the time of the ruling. If the relevant facts and circumstances change materially after the advance ruling has been made, those facts and circumstances cannot be relied upon on appeal unless they have been brought to the attention of the trial court by way of a renewed, and timely, objection, offer of proof, or motion to strike. See Old Chief v. United States, 519 U.S. 172, 182 n.6 (1997) (“It is important that a reviewing court evaluate the trial court's decision from its perspective when it had to rule and not indulge in review by hindsight.”). Similarly, if the court decides in an advance ruling that proffered evidence is admissible subject to the eventual introduction by the proponent of a foundation for the evidence, and that foundation is never provided, the opponent cannot claim error based on the failure to establish the foundation unless the opponent calls that failure to the court's attention by a timely motion to strike or other suitable motion. See Huddleston v. United States, 485 U.S. 681, 690 n.7
(1988) (“It is, of course, not the responsibility of the judge sua sponte to ensure that the foundation evidence is offered; the objector must move to strike the evidence if at the close of the trial the offeror has failed to satisfy the condition.”). Secondly, paragraph (c)(2) provides that a party who objects to evidence of a prior conviction (under Rules 404 or 609, for example) that the court finds admissible in a definitive ruling, and who then offers the evidence to “remove the sting” of its anticipated prejudicial effect, does not thereby waive the right to appeal the trial court’s ruling. This is consistent with prior Mississippi law, see McGee v. State, 569 So. 2d 1191 (Miss. 1990), overruled on other grounds by White v. State, 785 So. 2d 1059 (Miss. 2001) (a defendant may preempt the state by offering evidence of the defendant’s own prior conviction on direct examination without waiving the issue for appeal), Malone v. State, 829 So.2d 1253 (Miss. Ct. App. 2002), but contrary to federal law, Ohler v. United States, 529 U.S. 753 (2000) (when a trial judge rules that the government may use a prior conviction to impeach a defendant, a defendant waives the right to appeal the issue by introducing the conviction on direct examination). Importantly, paragraph
(c) (2) does nothing to vitiate the authority of the trial judge to control the timing of the preemptive admission of evidence of a prior conviction when there is serious doubt about whether the opposing party will, in fact, offer the evidence. For example, the trial judge can impose a condition precedent to preemptive admission, such as by requiring the prosecution first to confirm, at or near the time of the defendant’s testimony, its intent actually to offer evidence of a prior conviction. See Saltzburg, Martin, & Capra, Federal Rules of Evidence Manual, vol. 1, sec. 103.02[15] (2015). Notably, paragraph (c)(2) states only that a party who objects to evidence of a prior conviction that the court finds admissible in a definitive ruling does not waive the right to appeal the ruling by offering the evidence to remove the sting of its anticipated prejudicial effect. The Rule does not address whether or not a party’s offer of other objectionable evidence that the court finds admissible in a definitive ruling operates as a waiver of the right to appeal the ruling. Paragraph (c)(2) leaves the development of the law of waiver in such other situations unaffected.
Third, paragraph (c)(3) embraces the principles of Luce v. United States, 469 U.S. 38 (1984), and its progeny. In Luce, the Supreme Court held that a criminal defendant must testify at trial in order to preserve a claim of error predicated upon a trial court's decision to admit the defendant's prior convictions for impeachment. Paragraph (c)(3) extends the Luce principle to all situations in which the occurrence of a trial event is a condition that must be fulfilled before evidence is admitted or excluded (often described as a “condition precedent”). Such a condition might include the pursuit of a certain claim or defense, the introduction of a certain witness, the introduction of particular witness testimony (that the defendant never violated the law, for example), or the fulfillment of a particular evidentiary foundation. Lower federal courts have applied Luce to a wide array of contexts. See United States v. DiMatteo, 759 F.2d 831 (11th Cir. 1985) (applying Luce where the defendant's witness would be impeached with evidence offered under Rule 608). See also United States v. Goldman, 41 F.3d 785, 788 (1st Cir. 1994) (“Although Luce involved impeachment by conviction under Rule 609, the reasons given by the Supreme Court for requiring the defendant to testify apply with full force to the kind of Rule 403 and 404 objections that are advanced by Goldman in this case.”); Palmieri v. DeFaria, 88 F.3d 136 (2d Cir. 1996) (where the plaintiff decided to take an adverse judgment rather than challenge an advance ruling by putting on evidence at trial, the in limine ruling would not be reviewed on appeal); United States v. Ortiz, 857 F.2d 900 (2d Cir.1988) (where uncharged misconduct is ruled admissible if the defendant pursues a certain defense, the defendant must actually pursue that defense at trial in order to preserve a claim of error for appeal); United States v. Bond, 87 F.3d 695 (5th Cir. 1996) (where the trial court rules in limine that the defendant would waive his fifth amendment privilege were he to testify, the defendant must take the stand and testify in order to challenge that ruling on appeal). Paragraph (c)(3) represents a change in Mississippi practice. In Williams v. State, 684 So. 2d 1179 (Miss. 1996), the Mississippi Supreme Court noted it had yet to follow Luce. Rather, “ ‘a defendant wishing to present the point on appeal, absent having taken the witness stand himself, must preserve for the record substantial and detailed evidence of the testimony he would have given so that we may gauge its importance to his defense.’ ” (quoting Heidelberg v. State, 584 So. 2d 395 (Miss. 1991)).
(d) Rule 103(d) is consistent with pre-rule Mississippi case law which provided that a trial judge was entitled to explain his rulings. Ratliff v. State, 313 So. 2d 386 (Miss. 1975); Ladnier v. State, 273 So. 2d 169 (Miss. 1973).
The court may also permit the aggrieved party to preserve the record by dictating into the record a statement of the evidence offered but excluded. This accords with the rule announced in such cases as Murray v. Payne, 437 So. 2d 47, 55 (Miss. 1983).
(e) Subdivision (e) is an attempt to protect the jury from exposure to inadmissible evidence. It conforms to Mississippi practice. See Cutchens v. State, 310 So. 2d 273 (Miss. 1975).
(f) Subdivision (f), regarding plain error, is a restatement of that doctrine as it existed in pre-rule practice. It reflects a policy to administer the law fairly and justly. A party is protected by the plain error rule when (1) he has failed to perfect his appeal and (2) when a substantial right is affected. Miss.Sup.Ct.R. 6(b) and 11 permit a plain error rule: “The Court may, at its own option, notice a plain error not assigned or distinctly specified.” See also Boyd v. State, 204 So. 2d 165 (Miss. 1967). If a party persuades the court of the substantial injustice that would occur if the rule were not invoked, the court may invoke the rule. See Edwards v. Sears, Roebuck & Co., 512 F.2d 276 (5th Cir. 1975). The plain error rule may be applied in either criminal cases or civil cases. See House v. State, 445 So. 2d 815 (Miss. 1984).
[“Advisory Committee Note” substituted for “Comment,” effective June 16, 2016; amended effective July 1, 2016.]
