701.3Rulings on Evidence [Rule 103]
- To appeal an evidentiary ruling, the party opposing the ruling must object. If the evidence was excluded, the proffering party generally must make an offer of proof on the record to preserve the right to appeal.
- An offer of proof should be made outside the jury’s presence.
- The appellate courts may review an evidentiary ruling for plain error, even if the party failed to object.
The Basic Rule
Rule 103 - Rulings on Evidence
(a) Effect of erroneous ruling. – Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. – In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record. No particular form is required in order to preserve the right to assert the alleged error upon appeal if the motion or objection clearly presented the alleged error to the trial court;
(2) Offer of proof. – In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(b) Record of offer and ruling. – The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of jury. – In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Review of errors where justice requires. – Notwithstanding the requirements of subdivision (a) of this rule, an appellate court may review errors affecting substantial rights if it determines, in the interest of justice, it is appropriate to do so.
To argue on appeal that the trial court erroneously permitted a matter into evidence, the party opposing the evidence generally must make a timely objection. See G.S. 8C-103(a)(1); State v. Boyd, 209 N.C. App. 418 (2011) (defendant waived right to appeal admission of videotape by failing to object when it was admitted); State v. Demery, 113 N.C. App. 58 (1993) (defendant waived right to appeal by failing to object during witness’s testimony).
If evidence was excluded, the proponent of the evidence generally must provide an adequate offer of proof regarding the nature of the excluded evidence in order to argue on appeal that the evidence should have been allowed. See G.S. 8C-103(a)(2); State v. Long, 113 N.C. App. 765 (1994) (defense failed to make a sufficient offer of proof regarding excluded testimony where defense counsel only summarized what excluded testimony would have been – defense should have taken the witness’s testimony, outside the presence of the jury); but see State v. Reid, 204 N.C. App. 122 (2010) (offer of proof not strictly required if significance of the evidence is clear from the record). The offer of proof should be conducted outside the jury’s presence. G.S. 8C-103(c); State v. Willis, 285 N.C. 195 (1974).
In its discretion, the appellate court may, in the interest of justice, review a matter affecting a “substantial right” even if the party failed to object. See State v. Highsmith, 173 N.C. App. 600 (2005) (allowing review of denial of defendant’s motion in limine, despite subsequent failure to object at trial, to avoid a “manifest injustice”). However, appellate review of an evidentiary ruling in the absence of an objection is limited to a review for “plain error,” which means the ruling was: (i) a deviation from a legal rule; (ii) clear and obvious; (iii) prejudicial and affected the outcome of the proceeding. See State v. Lawrence, 365 N.C. 506 (2012). The plain error rule is “permissive,” meaning that if the three aforementioned criteria are met, the appellate court may reverse the outcome only if it is satisfied that the error seriously affected the fairness, integrity, or public reputation of the proceeding. Id. (noting that “while a miscarriage of justice, most often meaning actual innocence, would likely satisfy this standard, an error may also satisfy the standard “independent of the defendant's innocence.”)
For more information about when the parties may (or may not) appeal from an evidentiary ruling, see the following related entries: