Motions In Limine And Preserving Error For Appeal

• Published date: 08 October 2021
• Subject Matter: Litigation, Mediation & Arbitration, Court Procedure, Trials & Appeals & Compensation
• Law Firm: Freeman Mathis & Gary
• Author: Mr Jacob E. Daly

Since the mid-1800s, Georgia law has required attorneys to object on the record to an alleged error at trial at the earliest possible opportunity in order to preserve the alleged error for consideration by the appellate courts.??Known as the contemporaneous objection rule, its rationale is that the trial court should have an opportunity to correct the alleged error at the time it is made because correcting an error at that time reduces the possibility of a new trial being required following a post-trial motion or an appeal.

Over time, the Georgia Supreme Court held that a contemporaneous objection is not required when the alleged error was the subject of a motion in limine.??For example, the Court modified the contemporaneous objection rule in 1979 so that the denial of a motion in limine relieved the moving party of its obligation to object when the disputed evidence was introduced at trial because the motion and the trial court's ruling were deemed sufficient to preserve the alleged error for appeal and because requiring the moving party to renew its objection would highlight the objectionable evidence to the jury.

Similarly, the Georgia Supreme Court held in 1982 that the moving party was not required to object when excluded evidence was erroneously introduced or made at trial in violation of an order granting a motion in limine because objecting would defeat the purpose of the motion and would also highlight the improper evidence to the jury. During the ensuing decades, the Georgia Court of Appeals held that these modifications to the contemporaneous objection rule applied not only to evidence, but also to statements and argument by counsel.

This was the state of the contemporaneous objection rule in Georgia until earlier this year when the Supreme Court decided?Williams v. Harvey, 311 Ga. 439 (2021).??The Court began its analysis with O.C.G.A.?' 24-1-103(a), which was enacted as part of the 2013 Evidence Code (and, therefore, was not in effect when the modifications discussed above were adopted). This statute provides that "[o]nce the court makes a definitive ruling on the record admitting or excluding any evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve such claim of error for appeal."??Because this statute is virtually identical to Rule 103(b) of the Federal Rules of Evidence, the Court looked to the Advisory Committee Notes for this federal rule as persuasive authority for interpreting the...