© Copyright, Briggs and Morgan, Professional Association, 2006-2012

Evidence on Appeal: Preserving Evidence for an Appeal and Dealing with Evidence Problems on Appeal

Eric Magnuson – ShareholderDiane Bratvold – ShareholderJonathan Schmidt – Shareholder

Introduction

• Appellate courts are courts of limited jurisdiction.

• Appellate courts generally do not review evidence.

• Appellate courts must rely entirely on the trial record.

• Trial lawyers must ensure that the record contains all evidence and issues for which appellate review is desired.

Appellate Review of Evidence Rulings

• Trial-level evidentiary rulings are governed by Minn. R. Evid. 103 and Fed. R. Evid. 103.

• Error cannot be predicated on a ruling admitting or excluding evidence unless –1. Substantial right affected; and 2. Objection or Offer of Proof

• Appellate courts can take notice of fundamental errors of law or plain errors affecting substantial rights even if they were not brought to the trial court’s attention.

The Record on Appeal

• Record consists of all papers filed with the trial court clerk, all exhibits, and the transcript of the proceedings, if any. Fed. R. App. P. 10(a); Minn. R. Civ. App. P. 110.01

• Evidence submitted for the first time with motion to reconsider – • Trial Court does not have to consider.• Record on appeal will not include it if not considered.• If considered, appellate court may only review it as it

pertains to the trial court’s decision on the motion.

The Record on Appeal

• Exhibits Introduced but Not Admitted• Generally not considered part of record on appeal.• Trial attorney should make note on record that

evidence was rejected and either – • have clerk accept it as an exhibit; or• make an offer of proof.

• Exceptions• Technicalities, so long as material was available for

trial court’s consideration.• Exhibits considered, but not formally marked and

offered.

The Record on Appeal

• Sanctions• A party that improperly includes evidence outside

the record on appeal, and which is not admissible on appeal, may be sanctioned for violating Minn. R. App. P. 110.01 and 128.

Correction or Modification of Record on Appeal

• General Rule• Any issue as to whether the appellate record

accurately describes what occurred in the trial court is to be submitted in the first instance to the trial court.

• All other questions as to the form and content of the record are to be addressed by the appellate court.

• Motion to Strike• If an opponent’s brief refers to and/or contains

evidence outside of the record on appeal, a motion to strike those portions of the brief and appendix should be made to the appellate court.

Admission of Evidence on Appeal

• General Rules• Except for limited exceptions, evidence that is not

part of the appellate record may not be cited or relied upon on appeal.

• Parties may present additional arguments and authorities on appeal.

• Procedure• Make a motion in the appellate court regarding the

admission of such evidence; or• Include the documentary evidence in the appendix to

the brief or in a supplemental record, and include an argument regarding its admissibility in the brief.

Controlling the Record During Trial

• Raise all potential issues.

• Objections – To preserve an evidentiary issue for appeal, an attorney must object on the record to the trial court.• Objection to Admission – Must be timely and specific.• Objection to Exclusion – Offer of proof must be made.• Objection to Jury Instructions – Objecting attorney

must both:1. ask for requested instructions, and2. object to instructions used.

Controlling the Record During Trial

• In Limine Motions

• Need not be renewed during trial if the court made a definitive ruling on the record in deciding the motion before trial.

• Renewal is necessary if new evidence is in the record at the time of renewal.

Actions to Take After Trial

• Motion for New Trial• State Court

• Motion should be brought to preserve issues for appeal.

• Without motion, appellate court may only review whether the evidence supports the findings of fact and the findings support the conclusions of law and the judgment.

• Federal Court• Traditionally, motion for new trial not a

prerequisite for review of sufficiency of evidence.• Newer cases indicate that parties that don’t move

for a new trial could be precluded from raising sufficiency of evidence on appeal.

Actions to Take After Trial

• Motion for New Trial

• To preserve an allegation of error regarding the admission or exclusion of evidence –

• make a motion for a new trial; and• specifically enumerate the error complained of.

• After motion is denied, an appeal should be taken from –

• the judgment; and• the order denying the motion for a new trial.

Actions to Take After Trial

• Motion for Judgment as a Matter of Law

• A party may bring a motion for JAML after the opposing party has been fully heard and before the case is submitted to the jury.

• The movant may renew the motion for JAML or alternatively request a new trial by moving within the specified time period.

• Where a legal theory and its application to the evidence is put before the trial court by a motion for JAML, the issue of the sufficiency of the evidence is reviewable on appeal.

Actions to Take After Trial

• Motion for Reconsideration

• Should not be relied on for any appellate purpose.

• Not one of the enumerated motions in Minn. R. Civ. App. P. 104.01, subd. 2, that extends the deadline for perfecting an appeal.

• Courts will not allow parties to use a motion for reconsideration to add to the record on appeal by including materials not initially submitted to the trial court.

Treatment of Evidence on Appeal

• Findings of Fact• Not set aside unless clearly erroneous.• Attorney must clearly demonstrate to the court that

the evidence relied on was presented below.• Challenging Evidentiary Rulings on Appeal

• Decision of the trial court will not be reversed unless it is demonstrated that the trial court clearly abused its discretion.

• Harmless Error Rule – An error will not justify reversal unless it appears the decision was prejudicial or the evidence might reasonably have changed the result of the trial.

• Possible exception if appellant can demonstrate that the exclusion of evidence was based on the trial judge’s misinterpretation of the law.

Conclusion

• Evidence is different on appeal.

• The admissibility or exclusion of evidence is viewed through triple filters of –

• Error preservation• Abuse of discretion• Harmless error

• Diligence is required at each step to protect the record and the evidentiary issues for appellate review.