harmless error

Preserving an Objection for Appeal

Posted by David Adelstein on May 20, 2018
Appeal, Expert Testimony / Comments Off on Preserving an Objection for Appeal

Preserving an objection for appeal.  Preserving an objection for appeal.  Preserving an objection for appeal.  Repeat again and again, because this is important.  The lack of preservation of an objection is demonstrated in a criminal trial, Pierre v. Florida,  43 Fla.L.Weekly D1110b (Fla. 4th DCA 2018), which involved man wearing a ski-mask attempting to kill his ex-wife.  Of course, his ex-wife and son saw his face, but there was other evidence to support the attempted murder.   The jury found that the man was guilty of attempted murder.

An issue on appeal dealt with the scope of an expert’s testimony that tied the defendant to the scene of the crime.  Prior to the expert’s trial testimony, the defense argued that the prosecution’s expert was going to be rendering an opinion outside of his expertise as demonstrated by prior deposition testimony.  The defense argued to exclude this testimony.   The judge held that the prosecution needed to lay the proper predicate (foundation) for the expert’s opinion, and he will entertain an objection at a later time.  The prosecution’s expert rendered the opinion and the defense never renewed the objection.  Because the defense never renewed this objection and there was never a definitive ruling on the motion to exclude the testimony, the defense never preserved this issue for appeal. Pierre, supra (“But because Pierre [defendant] then failed to renew his objection during Silvia’s [prosecution’s expert] testimony or obtain a ruling on his earlier motion to exclude the testimony, this argument was not preserved for review either.”).  Moreover, the appellate court held that the trial court permitting this opinion, even if the trial court was wrong, was not a fundamental error (i.e., it was harmless error) because the jury could have convicted the defendant based on eyewitness testimony alone.

Remember, it is important to preserve an objection for appeal, particularly if it will be the basis of a potential appeal. 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

Tags: , , , , , ,

Improperly Admitting Hearsay can still be Harmless Error

Posted by David Adelstein on September 03, 2016
Evidence / Comments Off on Improperly Admitting Hearsay can still be Harmless Error

images

I have discussed the hearsay rule (the evidentiary exclusionary rule and the numerous exceptions) ad nauseam and will continue to do so because it is such an important aspect of a civil trial. There will invariably be an objection under the hearsay rule during trial. The trial court will either sustain the objection or overrule the objection, perhaps under an exception to the hearsay rule.

What if a trial court makes a mistake—it happens—and overrules a hearsay objection and admits hearsay evidence? As previously mentioned, an appellate court will review the admission of evidence under an abuse of discretion standard of review, limited by Florida’s rules of evidence.

In Johnson v. State, 2016 WL 446889 (Fla. 4th DCA 2016)—yes, a criminal case—a defendant argued that the trial court erred in overruling a hearsay objection and admitting hearsay evidence / testimony. During the trial, the defendant objected when the responding police officer was asked to testify how the victim and the victim’s friend described the defendant. The trial court overruled this objection and the officer was allowed to testify. The appellate court correctly found that this testimony was hearsay as it was offered to prove the truth of the matter asserted–that the defendant was involved in the crime. There was not a hearsay exception that would otherwise allow the officer to recount the victim and the victim’s friend’s description of the defendant.

Unfortunately for the defendant, the trial court’s error was harmless. So, yes, the trial court erred by allowing the officer to offer hearsay testimony, but the error was deemed harmless error. If the error is harmless, then the appellate court will affirm the trial court. Remember, just because a trial court commits error during the course of the trial does not mean the error will result in a new trial or a reversal.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , , ,

Trial Court’s Error is Harmless when there is No Reasonable Possibility Error Contributed to Verdict

Posted by David Adelstein on May 04, 2016
Appeal, Trial Perspectives / Comments Off on Trial Court’s Error is Harmless when there is No Reasonable Possibility Error Contributed to Verdict

images

Just because the trial court committed an error does NOT mean the error constitutes reversible error warranting a new trial. The trial court’s error could very well be harmless error.

When it comes to a trial court’s error, the recipient of the error should prove that “there is no reasonable possibility that the error contributed to the verdict.” Maines v. Fox, 41 Fla.L.Weekly D1062a (Fla. 1st DCA 2016) quoting Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256-57 (Fla. 2014). The trial court’s error is harmless if the recipient of the error proves there is no reasonable possibility that the trial court’s error contributed to the jury’s verdict.

In Maines, the trial court abused its discretion by preventing a defense expert from testifying that in his opinion the plaintiff did not suffer a traumatic injury as the result of the car accident. However, the defense expert was able to testify that only a very fragile person could have sustained a traumatic injury like plaintiff’s injury from the car accident. Hence, while the expert could not specifically testify that the plaintiff did not suffer the injury from the car accident, his other opinions clearly portrayed his causation opinion to the jury. For this reason, the First District held that while the trial court did commit an error, the error was nothing more than a harmless error–there was no reasonable possibility that this error contributed to the jury’s verdict in favor of the plaintiff.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , ,

Recipient of Trial Court’s Error Needs to Prove Harmless Error

Posted by David Adelstein on November 05, 2015
Evidence / Comments Off on Recipient of Trial Court’s Error Needs to Prove Harmless Error

Unknown

I previously discussed that the “no reasonable possibility test” is the harmless error test in civil trials. This means that even if the trial judge committed an error, the recipient of the error (generally the appellee) has to prove that the error was harmless in that there was no reasonable possibility that the error contributed to the verdict (against the appellant).

Here is a case where the trial court committed error but the appellee that prevailed at trial was unable to establish that the error was harmless. Thus, the error committed by the trial court was deemed to be reversible error entitling the appellant (losing party) to a new trial.

In Maniglia v. Carpenter, 40 Fla. L. Weekly D2485c (Fla. 3d DCA 2015), the plaintiff sued the defendant over injuries sustained in a car accident.   Less than a month after the accident, the plaintiff was involved in a golf tournament where he got inebriated and drove the golf car into the street, collided with a car, fell off the golf cart, and then got into a physical altercation with the police.   The defendant naturally wanted to introduce these events during trial for multiple reasons. First, the defendant wanted to establish that the plaintiff never told his treating chiropractor about these events, which could have affected the plaintiff’s credibility to the jury. And, second, these other events could have served as a jury instruction relating to other intervening causes for the plaintiff’s injuries.

The trial court granted a motion in limine finding that these events were unfairly prejudicial to the plaintiff. As a result, the jury never heard the true nature of the events and a verdict was entered against the defendant.

On appeal, the appellate court held that it was error for the trial court to exclude this evidence since the evidence was probative and was not outweighed by the danger of unfair prejudice. Based on this error, the appellate court held that the plaintiff was required to prove that the error was harmless – there was no reasonable possibility that the error contributed to the jury’s verdict. The plaintiff, however, was unable to meet this burden meaning that the defendant was entitled to a new trial.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , , ,

Pinning the Poor Against the Rich at Trial…Nope due to the Presumed Prejudice!

Posted by David Adelstein on May 01, 2015
Evidence / Comments Off on Pinning the Poor Against the Rich at Trial…Nope due to the Presumed Prejudice!

Unknown

We all like to root for the underdog and want the underdog to succeed. In this regard, there is something compelling about pinning the poor against the rich. We perhaps seek redemption for the poor. So, how does this play out in a jury trial? The answer is it does not and should not. Why; because of the presumed prejudice to the rich and the tendency to punish the deep pocket. By eliciting this evidence, a party is exposing itself to a mistrial.

“Florida has a long-standing rule that no reference should be made to the wealth or poverty of a party, nor should the financial status of one party be contrasted with the other’s. Courts are very adamant about this rule because jurors have a tendency to favor the poor as against the rich, especially when provoked by inflammatory evidence.”

Hurtado v. Desouza, 2015 WL 1727851, *3 (Fla. 4th DCA 2015) (internal quotations and citations omitted) (finding that error was not harmless when plaintiff told jury that he lost his home in foreclosure, did not have a lot of money, and could not seek medical treatment because he could not afford health insurance).

While it is certainly appealing to pin the poor against the rich at trial, this appeal will oftentimes be perceived as creating an unfair prejudice to the rich and warrant a mistrial!

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , ,

Know Your Standard of Appellate Review Regarding the Admissibility of Evidence

Posted by David Adelstein on March 21, 2015
Appeal, Standard of Review, Uncategorized / Comments Off on Know Your Standard of Appellate Review Regarding the Admissibility of Evidence

Unknown

The standard of appellate review regarding the trial court’s admissibility of evidence is an abuse of discretion. See Vavrus v. City of Palm Beach Gardens, 927 So.2d 992 (Fla. 4th DCA 2006); Castaneda ex rel. Cardona v. Redlands Christian Migrant Ass’n, Inc., 884 So.2d 1087 (Fla. 4th DCA 2004).  Naturally, a party needs to preserve this issue by objecting to the admissibility of the evidence.  If a trial court sustains an objection and excludes the evidence, the party trying to introduce the evidence should make a proffer / offer of proof

On the other hand, the standard of review for the trial court’s interpretation of a contract, which is a question of law, is subject to the much more favorable de novo standard of appellate review. See Jenkins v. Eckard Corp., 913 So.2d 43 (Fla. 1st DCA 2005); RNK Family Limited Partnership v. Alexander-Mitchell Associates, 788 So.2d 1035 (Fla. 2d DCA 2001). This means the appellate court can examine the contract and reach a completely different legal interpretation than the trial court. See Leisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163 (Fla. 4th DCA 2003). Best explained by the Fourth District Court of Appeal in Gilman Yacht Sales, Inc. v. FMB Investments, Inc.766 So.2d 294, 296 (Fla. 4th DCA 2000) (internal citations omitted):

The interpretation of a written contract is a question of law to be decided by the court. An appellate court is not bound to give the trial judge’s interpretation or construction of a contract any weighted presumption of correctness. To the contrary, a decision construing a contract is reviewable on appeal under a de novo standard of review, and therefore we are required to consider for ourselves anew the meaning of the disputed contractual language.

It is important for parties to know the standard(s) of appellate review they may confront when appealing a trial court’s ruling as the standard of review will dictate the amount of deference the appellate court is required to give the trial court’s ruling. A de novo standard of review is much more favorable than an abuse of discretion standard of review.  The appellate standard of review is an essential component of appellate practice and will be identified in an appellate brief.   And, besides the standard of review, a party defending an appeal (appellee) may argue that to to the extent the trial court erred, such error was nothing more than a harmless error that did not contribute to the verdict.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , , , , ,

Harmless Error and the “No Reasonable Possibility” Test

Posted by David Adelstein on February 07, 2015
Appeal, Burden of Proof / Comments Off on Harmless Error and the “No Reasonable Possibility” Test

Unknown

The terms “harmless error” and “reversible error” are well known terms in the trial and appellate world. In a nutshell, a harmless error is an error committed by the trial judge that does NOT impact the fairness of the trial; a reversible error is an error that does impact the fairness of the trial. 

A party appealing a trial judge’s ruling (appellant) aims to establish that the trial judge’s ruling, etc. amounted to reversible error. The party responding to the appeal (appellee) aims to establish that there was no error, but if there was, it was harmless. If an error amounts to reversible error, it could result in a new trial or even a reversal of the judgment.

Florida Statute s. 59.041 explains the harmless error standard:

No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.

However, what impacts a fair trial and results in a “miscarriage of justice” has long been established on a case-by-case basis. This, however, has led to uncertainty as to how to specifically define a harmless error–an error that does not result in a miscarriage of justice / the right to a fair trial–in civil matters. In other words, when does an error result in miscarriage of justice and when does it not and whose burden is it to establish the harmless error?

The Florida Supreme Court in Special v. West Boca Medical Center, 2014 WL 5856384 (Fla. 2014) addressed this exact issue in ruling that the “no reasonable possibility” test is the harmless error test to be applied to civil trials:

To test for harmless error, the beneficiary of the error [appellee] has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error [appellee] must prove that there is no reasonable possibility that the error contributed to the verdict.

***

[T]he application of the no reasonable possibility test for harmless error in civil appeals will serve multiple purposes. The test acts in a manner so as to conserve judicial resources while protecting the integrity of the process. Additionally, the test strikes the proper balance between the parties. While the party that seeks relief  [appellant] must still identify the error and raise the issue before the appellate court, this test properly places the burden of proving harmless error on the beneficiary of the error [appellee]. Requiring the beneficiary of the error to demonstrate that there is no reasonable possibility that the error contributed to the verdict discourages efforts to introduce error into the proceedings.

Special, supra, at *4, 5.

Thus, under the “no reasonable possibility” test: (1) a harmless error is an error in which there is no reasonable possibility that the error contributed to the verdict and (2) the party responding to the appeal (appellee) has the burden to establish that the error was harmless.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , ,

Contact Me Now

Prove YOUR Case!

Contact:

David Adelstein ♦

(954) 361-4720 ♦

dadelstein@gmail.com