Rule 103. concerns the making of an evidentiary record for purposes of

appeal.

(a) Subdivision (a) reflects existing Mississippi practice. (1) The objection

must state the specific ground of objection unless the specific ground is apparent

from the context. This adopts and carries forward the approach taken in Murphy v.

State, 453 So. 2d 1290, 1293-94 (Miss. 1984). (2) By the same token, when a

party objects to the exclusion of evidence, he must make an offer of proof to the

court, noting on the record for the benefit of the appellate court what evidence the

trial judge excluded. See Brown v. State, 338 So. 2d 1008 (Miss. 1976); King v.

State, 374 So. 2d 808 (Miss. 1979). Federal Rule of Evidence 103, which is

identical, has been interpreted to have no effect on the harmless error principle.

See Hughes v. State, 470 So. 2d 1046, 1048 n. 1 (Miss. 1985).

Harris v. Buxton T.V., Inc., 460 So. 2d 828 (Miss. 1984) held that no offer

of proof was necessary where a party was improperly prohibited from cross-

examining a witness. Rule 103(a)(2) does not affect this holding.

(b) Subdivision (b) retains the existing practice of recognizing continuing

objections, where allowed by the trial judge, as a viable means of preserving a

point for appeal.

(c) Subdivision (c) has three distinct, but related, effects. First, paragraph

(c)(1) provides that a claim of error with respect to a definitive evidentiary ruling

(whether at or before trial, including rulings in limine) is preserved for review

when the party has otherwise satisfied the objection or offer of proof requirements

of Rule 103(a). When the ruling is definitive, a renewed objection or offer of proof

at the time the evidence is to be offered is more a formalism than a necessity. See

MRCP 46 (formal exceptions unnecessary); Jones v. Panola County, 725 So. 2d

774, 775 (Miss. 1998) (“a ruling on ‘a motion in limine regarding the introduction

of evidence properly preserved the issue for appeal and a contemporaneous

objection was not necessary’ ”); see also Lacy v. State, 700 So. 2d 602 (Miss.

1997)

time the evidence is to be offered is more a formalism than a necessity. See

MRCP 46 (formal exceptions unnecessary); Jones v. Panola County, 725 So. 2d

774, 775 (Miss. 1998) (“a ruling on ‘a motion in limine regarding the introduction

of evidence properly preserved the issue for appeal and a contemporaneous

objection was not necessary’ ”); see also Lacy v. State, 700 So. 2d 602 (Miss.

1997). On the other hand, when the trial court has reserved its ruling or has

indicated that the ruling is provisional, it makes sense to require the party to bring

the issue to the court’s attention subsequently. Subdivision (c) thus imposes the

obligation on counsel to clarify whether an in limine or other evidentiary ruling is

definitive when there is doubt on that point. Even when the court’s ruling is

definitive, nothing in this section prohibits the court from revisiting its decision

when the evidence is to be offered. If the court changes its initial ruling, or if the

opposing party violates the terms of the initial ruling, objection must be made

when the evidence is offered to preserve the claim of error for appeal. The error, if

any, in such a situation occurs only when the evidence is offered and admitted.

Subdivision (c) does not apply to rulings other than those admitting or excluding

evidence, such as rulings regarding, for example, the conduct of opening

statements or closing arguments.

A definitive advance ruling is reviewed in light of the facts and

circumstances before the trial court at the time of the ruling. If the relevant facts

and circumstances change materially after the advance ruling has been made, those

facts and circumstances cannot be relied upon on appeal unless they have been

brought to the attention of the trial court by way of a renewed, and timely,

objection, offer of proof, or motion to strike. See Old Chief v. United States, 519

U.S

efore the trial court at the time of the ruling. If the relevant facts

and circumstances change materially after the advance ruling has been made, those

facts and circumstances cannot be relied upon on appeal unless they have been

brought to the attention of the trial court by way of a renewed, and timely,

objection, offer of proof, or motion to strike. See Old Chief v. United States, 519

U.S. 172, 182 n.6 (1997) (“It is important that a reviewing court evaluate the trial

court's decision from its perspective when it had to rule and not indulge in review

by hindsight.”). Similarly, if the court decides in an advance ruling that proffered

evidence is admissible subject to the eventual introduction by the proponent of a

foundation for the evidence, and that foundation is never provided, the opponent

cannot claim error based on the failure to establish the foundation unless the

opponent calls that failure to the court's attention by a timely motion to strike or

other suitable motion. See Huddleston v. United States, 485 U.S. 681, 690 n.7

(1988) (“It is, of course, not the responsibility of the judge sua sponte to ensure

that the foundation evidence is offered; the objector must move to strike the

evidence if at the close of the trial the offeror has failed to satisfy the condition.”).

Secondly, paragraph (c)(2) provides that a party who objects to evidence of

a prior conviction (under Rules 404 or 609, for example) that the court finds

admissible in a definitive ruling, and who then offers the evidence to “remove the

sting” of its anticipated prejudicial effect, does not thereby waive the right to

appeal the trial court’s ruling. This is consistent with prior Mississippi law, see

McGee v. State, 569 So. 2d 1191 (Miss. 1990), overruled on other grounds by

White v. State, 785 So. 2d 1059 (Miss. 2001) (a defendant may preempt the state

by offering evidence of the defendant’s own prior conviction on direct

examination without waiving the issue for appeal), Malone v

ereby waive the right to

appeal the trial court’s ruling. This is consistent with prior Mississippi law, see

McGee v. State, 569 So. 2d 1191 (Miss. 1990), overruled on other grounds by

White v. State, 785 So. 2d 1059 (Miss. 2001) (a defendant may preempt the state

by offering evidence of the defendant’s own prior conviction on direct

examination without waiving the issue for appeal), Malone v. State, 829 So.2d

1253 (Miss. Ct. App. 2002), but contrary to federal law, Ohler v. United States,

529 U.S. 753 (2000) (when a trial judge rules that the government may use a prior

conviction to impeach a defendant, a defendant waives the right to appeal the issue

by introducing the conviction on direct examination). Importantly, paragraph

(c)(2) does nothing to vitiate the authority of the trial judge to control the timing of

the preemptive admission of evidence of a prior conviction when there is serious

doubt about whether the opposing party will, in fact, offer the evidence. For

example, the trial judge can impose a condition precedent to preemptive

admission, such as by requiring the prosecution first to confirm, at or near the time

of the defendant’s testimony, its intent actually to offer evidence of a prior

conviction. See Saltzburg, Martin, & Capra, Federal Rules of Evidence Manual,

vol. 1, sec. 103.02[15] (2015). Notably, paragraph (c)(2) states only that a party

who objects to evidence of a prior conviction that the court finds admissible in a

definitive ruling does not waive the right to appeal the ruling by offering the

evidence to remove the sting of its anticipated prejudicial effect. The Rule does

not address whether or not a party’s offer of other objectionable evidence that the

court finds admissible in a definitive ruling operates as a waiver of the right to

appeal the ruling. Paragraph (c)(2) leaves the development of the law of waiver in

such other situations unaffected.

l the ruling by offering the

evidence to remove the sting of its anticipated prejudicial effect. The Rule does

not address whether or not a party’s offer of other objectionable evidence that the

court finds admissible in a definitive ruling operates as a waiver of the right to

appeal the ruling. Paragraph (c)(2) leaves the development of the law of waiver in

such other situations unaffected.

Third, paragraph (c)(3) embraces the principles of Luce v. United States,

469 U.S. 38 (1984), and its progeny. In Luce, the Supreme Court held that a

criminal defendant must testify at trial in order to preserve a claim of error

predicated upon a trial court's decision to admit the defendant's prior convictions

for impeachment. Paragraph (c)(3) extends the Luce principle to all situations in

which the occurrence of a trial event is a condition that must be fulfilled before

evidence is admitted or excluded (often described as a “condition precedent”).

Such a condition might include the pursuit of a certain claim or defense, the

introduction of a certain witness, the introduction of particular witness testimony

(that the defendant never violated the law, for example), or the fulfillment of a

particular evidentiary foundation. Lower federal courts have applied Luce to a

wide array of contexts. See United States v. DiMatteo, 759 F.2d 831 (11th Cir.

1985) (applying Luce where the defendant's witness would be impeached with

evidence offered under Rule 608). See also United States v. Goldman, 41 F.3d

ny

(that the defendant never violated the law, for example), or the fulfillment of a

particular evidentiary foundation. Lower federal courts have applied Luce to a

wide array of contexts. See United States v. DiMatteo, 759 F.2d 831 (11th Cir.

1985) (applying Luce where the defendant's witness would be impeached with

evidence offered under Rule 608). See also United States v. Goldman, 41 F.3d

785, 788 (1st Cir. 1994) (“Although Luce involved impeachment by conviction

under Rule 609, the reasons given by the Supreme Court for requiring the

defendant to testify apply with full force to the kind of Rule 403 and 404

objections that are advanced by Goldman in this case.”); Palmieri v. DeFaria, 88

F.3d 136 (2d Cir. 1996) (where the plaintiff decided to take an adverse judgment

rather than challenge an advance ruling by putting on evidence at trial, the in

limine ruling would not be reviewed on appeal); United States v. Ortiz, 857 F.2d

900 (2d Cir.1988) (where uncharged misconduct is ruled admissible if the

defendant pursues a certain defense, the defendant must actually pursue that

defense at trial in order to preserve a claim of error for appeal); United States v.

Bond, 87 F.3d 695 (5th Cir. 1996) (where the trial court rules in limine that the

defendant would waive his fifth amendment privilege were he to testify, the

defendant must take the stand and testify in order to challenge that ruling on

appeal). Paragraph (c)(3) represents a change in Mississippi practice. In Williams

v. State, 684 So. 2d 1179 (Miss. 1996), the Mississippi Supreme Court noted it had

yet to follow Luce. Rather, “ ‘a defendant wishing to present the point on appeal,

absent having taken the witness stand himself, must preserve for the record

substantial and detailed evidence of the testimony he would have given so that we

may gauge its importance to his defense.’ ” (quoting Heidelberg v. State, 584 So.

2d 395 (Miss. 1991)).

1996), the Mississippi Supreme Court noted it had

yet to follow Luce. Rather, “ ‘a defendant wishing to present the point on appeal,

absent having taken the witness stand himself, must preserve for the record

substantial and detailed evidence of the testimony he would have given so that we

may gauge its importance to his defense.’ ” (quoting Heidelberg v. State, 584 So.

2d 395 (Miss. 1991)).

(d) Rule 103(d) is consistent with pre-rule Mississippi case law which

provided that a trial judge was entitled to explain his rulings. Ratliff v. State, 313

So. 2d 386 (Miss. 1975); Ladnier v. State, 273 So. 2d 169 (Miss. 1973).

The court may also permit the aggrieved party to preserve the record by

dictating into the record a statement of the evidence offered but excluded. This

accords with the rule announced in such cases as Murray v. Payne, 437 So. 2d 47,

55 (Miss. 1983).

(e) Subdivision (e) is an attempt to protect the jury from exposure to

inadmissible evidence. It conforms to Mississippi practice. See Cutchens v. State,

310 So. 2d 273 (Miss. 1975).

(f) Subdivision (f), regarding plain error, is a restatement of that doctrine as

it existed in pre-rule practice. It reflects a policy to administer the law fairly and

justly. A party is protected by the plain error rule when (1) he has failed to perfect

his appeal and (2) when a substantial right is affected. Miss.Sup.Ct.R. 6(b) and 11

permit a plain error rule: “The Court may, at its own option, notice a plain error

not assigned or distinctly specified.” See also Boyd v. State, 204 So. 2d 165 (Miss.

1967). If a party persuades the court of the substantial injustice that would occur if

the rule were not invoked, the court may invoke the rule. See Edwards v. Sears,

Roebuck & Co., 512 F.2d 276 (5th Cir. 1975). The plain error rule may be applied

in either criminal cases or civil cases. See House v. State, 445 So. 2d 815 (Miss.

1984).

ecified.” See also Boyd v. State, 204 So. 2d 165 (Miss.

1967). If a party persuades the court of the substantial injustice that would occur if

the rule were not invoked, the court may invoke the rule. See Edwards v. Sears,

Roebuck & Co., 512 F.2d 276 (5th Cir. 1975). The plain error rule may be applied

in either criminal cases or civil cases. See House v. State, 445 So. 2d 815 (Miss.

1984).

[“Advisory Committee Note” substituted for “Comment,” effective June 16, 2016;

amended effective July 1, 2016.]