Proffers and Prejudice for an Appeal

Today’s post finishes up on how to preserve objections to wrongly admitted or excluded evidence. It discusses wrongly excluded evidence and prejudice.

Proffers are normally required to say that evidence was wrongly excluded.

Rule 103(a)(2), SCRE, provides that a party may not challenge the exclusion of evidence unless “the substance of the evidence and the specific evidentiary basis supporting admission were made known to the court by offer or were apparent from the context.” The reasoning is that the substance of the excluded evidence must somehow get in the record. There is otherwise nothing for an appellate court to review.

Such proffers are normally done by marking an excluded document as a court exhibit, making a narrative statement, or questioning a witness outside the jury’s presence.

The rule’s “apparent from the context” provision is a potential out for the failure to make a more formal proffer. But the Rule’s Note wisely states that “the better practice is for a proffer and a statement of the grounds to always be made.” Amen.

Prejudice is required to reverse.

Proffers are required in part for an appellate court to determine if prejudice occurred. A ruling wrongly admitting or excluding evidence is not reversible error unless it affects a party’s substantial right. Rule 103(a), SCRE. In an appeal that I handled, the Court defined prejudice to mean that the appealing party must show a “reasonable probability the jury’s verdict was influenced by the wrongly admitted or excluded evidence.” Vaught v. A.O. Hardee & Sons, 366 S.C. 475, 480, 623 S.E.2d 373, 375 (2005).

This prejudice requirement can bite. In another appeal that I handled, opposing counsel argued in part that the trial court should have excluded a witness’s testimony because she was belatedly disclosed and because her testimony was cumulative to her husband’s testimony.

The Court of Appeals noted that counsel could have but did not move for a continuance to depose the witness – which could have cured the perceived prejudice from the late disclosure. Curtis v. Blake, 392 S.C. 494, 503, 709 S.E.2d 79, 83 (Ct.App. 2011). Though the Court did not also address the cumulative argument – for lack of a contemporaneous objection – it would be awfully tough to prove that admitting cumulative evidence is prejudicial. The general rule is that admitting or excluding cumulative evidence is not reversible error. Wright v. Hiester Const. Co., 389 S.C. 504, 518 n. 4, 698 S.E.2d 822, 830 n.4 (Ct.App. 2010). Arguing on appeal that evidence was wrongly admitted because it is cumulative may thus be a shot in the foot. If the evidence was cumulative, the court will likely affirm – not reverse.

Has anyone else out there similarly caught their opposing counsel challenging evidence as cumulative? Please leave a reply or reach me at www.attorneyroberthill.com.

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