Preserving Pretrial Issues for Appeal

Before 2000, the federal courts diverged on whether a pretrial motion required renewal during trial to preserve the issue for appeal. Some courts required a renewal at the time the evidence was offered at trial despite the fact that the issue of admissibility was previously ruled on in limine. Other courts did not require an objection or renewal during trial so long as the trial court judge had previously ruled on the issue. In response to the differing views held by the federal courts, Federal Rule of Evidence Rule 103(a) was amended in 2000 to provide that once a court has made a definitive ruling admitting or excluding evidence, either at or before trial, it is not necessary to renew an objection to preserve a claim for appeal. Fed. R. Evid. 103(a) advisory committee’s note. Theoretically, Rule 103(a) should have cleared the murky water concerning when an objection was required during trial to preserve an issue for appeal. Instead, the federal courts have been grappling with the definition of a “definitive ruling” in the context of Rule 103(a), which has led to uncertainty for litigants throughout the country. However, a survey of several federal court rulings interpreting Rule 103(a) post-amendment provides guidance and identifies a host of hazards to sidestep when dealing with the issue of preserving issues for appeal following a pretrial ruling. In practice, this has led to four areas of which litigants should be aware: (1) tentative or conditional rulings, (2) the scope of the ruling, (3) rulings made without prejudice, and (4) a court’s willingness to reconsider. This article explores various courts’ rulings in such circumstances.