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Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Evidentiary Rulings

Winning an appeal by arguing evidentiary error is exceedingly difficult—in part because rules for preserving an evidentiary ruling for appeal are not codified in one place—but here are five of the most important rules to follow to preserve an evidentiary ruling for appeal:

1. All evidentiary questions must first be presented to the trial court.  This means the evidence must be “offered” and must be “objected” to.  See Minn. R. Evid. 103; Thiele v. Stich, 425 N.W.2d 580, 593 (Minn. 1988).

2. The evidence “offer” and “objection” must be on the record.  An offer or objection not made on the record will not be admitted as part of the appeal.  See Minn. R. Evid. 103(a)(1); Hunt v. Regents of University of Minnesota, 460 N.W.2d 28, 32 (Minn. 1990).

3. Exclusion of evidenced should be made the subject of an “offer of proof.”  The “offer of proof” must also be on the record unless the substance of the excluded evidence is apparent from the context within which the question was asked.  See Minn. R. Evid. 103(a)(2).

4. The evidentiary question must be ruled on by the trial court, and the court’s ruling must be on the record.  Objecting to evidence or making an offer of proof is not enough; the court must make a ruling and the parties have an absolute right to insist on a ruling.

5. In civil cases any evidentiary error must be brought before the trial court in a motion for a new trial.  The motion for a new trial is crucially important and mandatory if appellate review of an evidentiary question is sought.

Without a motion for new trial, appellate review is limited to a) whether the evidence supports the findings of fact, and b) whether the findings support the conclusions of law and judgment.  If the appeal is taken from an order denying a motion for new trial, all matters raised in the motion, including evidentiary rulings, can be reviewed, but the evidentiary error must be specifically included in, and made part of the motion for a new trial.

Judge Alan Pendleton

10th Judicial District

Anoka

For the complete text of Judge Pendleton’s tip and his 92 other updates, visit the Minnesota Judicial Training & Education Blog at www.pendletonupdates.com

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