(1) A court may predicate error, set aside or reverse a judgment, or grant a new trial on the basis of an erroneous evidentiary ruling only if a substantial right of the party is affected and:
- (a) If the ruling is one admitting evidence, a timely objection or motion to strike appears on the record, stating the specific ground of objection if the specific ground was not apparent from the context.
- (b) If the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which questions were asked.
(2) The court may, and when requested must, instruct the jury to disregard evidence which is inadmissible or which was stricken.
"Preserving" an Error for Appeal: This is a fundamental rule for trial lawyers. It explains how to properly object to a judge's decision on evidence in a way that allows a higher court to review that decision on appeal.
To successfully appeal an evidence ruling, a lawyer must show not just that the judge made a mistake, but that the mistake affected a "substantial right" of their client (i.e., it was a harmful error, not a trivial one). They also must have followed the correct procedure at trial:
Scenario 1: The Judge Lets in Evidence You Think Is Bad
If the judge admits evidence you want to keep out, you must make a "timely objection" (object right away) and state the specific legal reason for your objection (e.g., "Objection, hearsay").
Scenario 2: The Judge Keeps Out Evidence You Think Is Good
If the judge excludes evidence you want to get in, you must make an "offer of proof" (also called a "proffer"). This means you must make sure the record reflects what the evidence would have been, so the appellate court can see what was missed and determine if it was a harmful error.
