Peter Nicolas, De Novo Review in Deferential Robes?: A Deconstruction of the Standard of Review of Evidentiary Errors in the Federal System, 54 Syracuse L. Rev. 531 (2004), https://digitalcommons.law.uw.edu/faculty-articles/295
Syracuse Law Review
Although the labels have changed, the name of the appellate game is still the same. For any given type of error in admitting or excluding evidence, one needs to determine whether review is discretionary or deferential. The purpose of this Article is to parse each of the rules of evidence to determine which types of claimed errors are entitled to de novo review, which are entitled to clear error review, and which are entitled to traditional abuse of discretion review. By "type" of error, this Article does not mean to refer to such large categories as "hearsay," "best evidence," "relevance," "privilege," or the like. Rather, this Article will demonstrate that within each of the Federal Rules of Evidence, different types of error can be made, some subject to de novo review and others subject to clear error or abuse of discretion review.
It is the goal of this Article to provide a roadmap for both courts and practitioners to determine the appropriate standard of review for any potential evidentiary error that may arise during the course of a trial under the reincarnated tripartite standard of review.
A few qualifications are in order before proceeding. The first is that the analysis in this Article presumes that an appropriate objection or offer of proof has been made in the trial court, as required by Rule 103(a). If not, review is at best for plain error, a very difficult standard to overcome that requires a showing that the error is not only obvious, but also prejudicial in that it must have affected the outcome of the trial court proceedings.
The second qualification is to point out that, even assuming that review is de novo, and that the appellate court finds that the trial court has erred, this does not guarantee reversal. Rule 103(a) also requires that the trial court's ruling affected "a substantial right of the party," a codification of the so-called "harmless error doctrine, which allows for reversal only if it is determined that the jury's judgment was affected by the error. Yet assuming the error was properly preserved for appeal and cannot be deemed harmless, the distinctions that follow are critical in that they can literally make or break an appeal, making a thorough understanding of them crucial to practitioners and judges alike.