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§ 901.03, Objection/Offer of Proof – Pretrial: Definitive Ruling Properly Preserves Objection; Conditional Ruling Doesn’t

State v. Daniel H. Kutz, 2003 WI App 205, PFR filed 10/27/03
For Kutz: T. Christopher Kelly

Issue/Holding: “A definitive pretrial ruling preserves an objection to the admissibility of evidence without the need for an objection at trial, as long as the facts and law presented to the court in the pretrial motion are the same as those that arise at trial.” ¶27. The trial court’s “definitive” rulings on Kutz’s pretrial hearsay objections preserved the issue of admissibility of those statements, and counsel wasn’t obligated to renew those objections at trial. ¶28. A ruling that was “conditional … but nonetheless definitive” (certain statements satisfied a hearsay exception so long as the prosecution laid a proper foundation at trial) similarly preserved the issue without renewed objection (unless the State had failed to present the foundational evidence it said it would); the trial court’s failure to “definitively rule on other possible exceptions did not require Daniel to raise the inapplicability of those exceptions at trial.” ¶29.

However, where the trial “court made very clear it could not rule on what exceptions might apply to those statements until it heard how the evidence came in at trial[, it] was therefore incumbent on Daniel to object at trial to any testimony on this incident that he considered inadmissible hearsay.” ¶30. The court declines to excuse waiver in this instance under its discretionary authority. ¶31.

The court in effect cautions, ¶30 n. 8, that counsel must resolve doubt in favor of renewed objection:

We understand that it is often not possible for a trial court to give a definitive ruling on an evidentiary issue pretrial because the court does not know exactly what the evidence is going to be at trial. In such situations, the trial court’s comments on how it is likely to rule under a particular scenario are helpful to the parties, and we appreciate the trial court’s efforts to do that in this case. The difficulty for an appellate court on review is distinguishing between a pretrial ruling that is sufficiently definite so that the moving party should not be expected to make the same objection at trial to preserve the issue for appeal, and statements by the court that are sufficiently tentative or preliminary so that the moving party should be expected to understand that it is necessary to make the same objection at trial to preserve the objection. The best approach for the moving party-from the standpoint of preserving issues for appeal-is both to clarify with the court the nature of the pretrial ruling and to make the same objection at trial if there is any doubt.)

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