Topics: Appellate Review


The proper step is to make a



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The proper step is to make a motion to strike the witness’s answer, together with a request that the judge instruct the jury to ignore the answer. As with an objection, the motion to strike should state the specific grounds on which the question was improper. Obviously, the motion to strike, even if granted, is not nearly as effective as an objection lodged before the witness has an opportunity to answer. The jury already will have heard the answer, and will have difficulty following the court’s instruction to ignore it.
3. Why is it necessary to “make the record” during trial?
Because witnesses are not called to testify before the appellate court, and because the appellate court will only see a transcript and other documentary records, parties must make sure that all such writings clearly indicate not only any objections and their basis, but the effect that admission or exclusion of the evidence likely had on the trial. Only by providing the most complete possible context can the appellate court adequately determine both whether the trial court erred and whether the error “affected a substantial right” of the appealing party.
4. Why is it usually said that the trial judge’s evidentiary rulings will not be disturbed in the absence of “abuse of discretion”?
Appellate courts recognize that much of what is needed to determine a proper evidentiary ruling cannot adequately be reflected in an appellate record. Such things as the effect of a witness’s demeanor and the sensitivities of jurors, for example, will not be reflected adequately in the record. Thus, the trial court will be in a better position to make the ruling.

6. If an appellate court finds that a trial court committed error in the admission or exclusion of evidence, will the appellate court necessarily reverse the judgment of the trial court?
If the trial court erred, it is necessary to determine whether the error “affected a substantial right of a party.” In other words, the court must determine if the error was “prejudicial.” This is a complex standard, but it is most often understood to mean that the error had an effect on the outcome of the case.
7. Why not reverse whenever the trial court errs? Wouldn’t a reversal make the court more careful in issuing its evidentiary rulings?
Appellate courts recognize that trial judges generally must rule quickly and in the heat of the trial. With hindsight, not all rulings will be correct. But if appellate courts scrutinized all trial court rulings in great depth, reversal will result too often, and the system will become even more congested than it is currently.



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