Preserving Evidentiary Objections for an Appeal

This week’s posts focus on challenges to evidence, including the contemporaneous objection rule.

In an appeal that I handled last year, opposing counsel argued on appeal that a witness’s testimony was unduly prejudicial and cumulative. But there was no objection at trial. The Court of Appeals held that counsel waived the issue by failing to object when the evidence was offered. Curtis v. Blake, 392 S.C. 494, 503, 709 S.E.2d 79, 83-84 (Ct.App. 2011). See also Rule 103(a)(1), SCRE (requiring a timely objection or motion to strike to claim error).

Motions in limine do not substitute for a contemporaneous objection. Such motions generally seek pre-trial rulings and not final decisions. These pre-trial rulings are not final because evidence later developed at trial may warrant the ruling’s reconsideration. Any objection must thus be renewed when the evidence is offered. Sabb v. South Carolina State University, 350 S.C. 416, 430, 567 S.E.2d 231, 238 (2002).

But other evidence must be admitted after the ruling on the motion for the motion to truly be a motion in limine. If no evidence is submitted between the ruling and the admission of the objected-to evidence, the ruling is final and the objection preserved the issue. Samples v. Mitchell, 329 S.C. 105, 109, 495 S.E.2d 213, 215 (Ct.App. 1997).

So far we have assumed that the trial court admitted evidence over your objection. What if the trial judge sustains your timely objection but you then lose the trial? Is the timely objection enough to raise the issue on appeal? No. The courts reason that you got everything that you requested when the trial court sustained your objection. There is thus nothing to left to appeal unless you also move to strike the testimony, for a mistrial, or for a curative instruction. McKissick v. J.F. Cleckley & Co., 325 S.C. 327, 350, 479 S.E.2d 67, 79 (Ct.App. 1996).

For the same reason, a curative instruction is generally deemed to have cured any alleged error. Manios v. Nelson, Mullins, Riley & Scarborough, LLP, 389 S.C. 126, 144, 697 S.E.2d 644, 654 (Ct.App. 2010). You must thus contemporaneously object to the curative instruction’s sufficiency – or move for a mistrial – to raise the issue on appeal.

Has anyone else caught their opposing counsel trying to appeal evidence that they did not object to at trial? We would love to hear from you. Please leave a reply or reach me at www.attorneyroberthill.com.

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