RULINGS ON EVIDENCE
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence and the specific evidentiary basis supporting admission were made known to the court by offer or were apparent from the context.
(b) Record of Offer and Ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
This rule is identical to the federal rule with the exception of the omission of subsection (d) relating to plain error. The rule of plain error contained in the federal rule is inconsistent with the law in South Carolina. Cf. State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991) (abolishing in favorem vitae review in capital cases and holding that error must be preserved by contemporaneous objection in the trial court). It should be noted that the Supreme Court has recognized a very few limited circumstances in which it will review issues raised for the first time on appeal. Cf. Toyota of Florence, Inc. v. Lynch, 314 S.C. 257, 442 S.E.2d 611 (1994) (challenge to abhorrent and outrageous argument raised for first time on appeal); State v. Pace, 316 S.C. 71, 447 S.E.2d 186 (1994) (failure to make contemporaneous objection to judge's comments excused where judge's tone and tenor made it clear that any objection would have been futile). Further, the failure to adopt a rule of plain error in no way limits the authority of trial judges to raise evidentiary issues on their own motion.
Subsection (a) means that reversal on appeal is only required where a substantial right of a party has been affected; error which is harmless does not affect a substantial right. Graham, Handbook of Federal Evidence, 103.1 (3rd ed. 1981). This is equivalent to South Carolina law holding that reversal is not required unless an error is prejudicial and not harmless. State v. Sosebee, 284 S.C. 411, 326 S.E.2d 654 (1985) (probable prejudice must be shown); State v. Gaskins, 284 S.C. 105, 326 S.E.2d 132 (1985) (a new trial is not required for harmless error), cert. denied, 471 U.S. 1120, 105 S.Ct. 2368, 86 L.Ed.2d 266 (1985), overruled on other grounds, State v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991); Watts v. Bell Oil Co., 266 S.C. 61, 221 S.E.2d 529 (1976) (prejudice must be shown).
Subsection (a)(1) is generally in accord with prior South Carolina law which required a contemporaneous objection with specific grounds to preserve an error for review. State v. Hoffman, 312 S.C. 386, 440 S.E.2d 869 (1994) (contemporaneous objection); White v. Wilbanks, 298 S.C. 225, 379 S.E.2d 298 (Ct. App.1989) (contemporaneous objection), rev'd on other grounds, 301 S.C. 560, 393 S.E.2d 182 (1990); State v. Bailey, 253 S.C. 304, 170 S.E.2d 376 (1969) (specific grounds required; general objection preserves nothing). It does somewhat relax the requirement of stating specific grounds where the grounds are apparent from the context. The better practice, however, is for counsel to always give, and the court always to require, specific grounds for an objection; this will avoid later disputes regarding what was apparent from the context. It should be noted that Rule 43(i), SCRCP, Rule 18, SCRCrimP, and Rule 9(b), SCRFC, do not prevent counsel from stating the grounds for an objection, but merely control argument on the grounds for the objection. This rule does not alter the prior practice regarding motions in limine, which allowed the motion to exclude evidence to be made at the pretrial stage, State v. Glenn, 285 S.C. 384, 330 S.E.2d 285 (1985), but required a contemporaneous objection when the evidence is actually offered into evidence at the trial to preserve the issue for review. State v. Schumpert, ____ S.C. ____, 435 S.E.2d 859 (1993); Parr v. Gaines, 309 S.C. 477, 424 S.E.2d 515 (Ct. App.1992).
Subsection (a)(2) is the federal rule modified to require the grounds for admission to be stated. As modified, this rule is consistent with South Carolina law which requires a proffer of the excluded evidence and the grounds for admission to be stated to preserve the trial court's ruling for review. State v. Cabbagestalk, 281 S.C. 35, 314 S.E.2d 10 (1984); State v. Cox, 258 S.C. 114, 187 S.E.2d 525 (1972); Legrande v. Legrande, 178 S.C. 230, 182 S.E. 432 (1935); Gold Kist, Inc. v. Citizens & Southern Nat'l Bank, 286 S.C. 272, 333 S.E.2d 67 (Ct. App.1985). The rule does change South Carolina law by dispensing with the requirement of a proffer and a statement of the grounds for admissibility where the substance of the evidence and the grounds are apparent from the context. The prior law only dispensed with the requirement of a proffer where the judge refused to allow a proffer. State v. Schmidt, 288 S.C. 301, 342 S.E.2d 401 (1986). To avoid later disputes over what was apparent from the context, however, the better practice is for a proffer and a statement of the grounds to always be made.
The first sentence of subsection (b) is similar to language contained in former Rule 43(c), SCRCP. Although no specific South Carolina case can be found to support the second sentence, requiring an offer to be made in question and answer form is within the discretion of the judge.
Subsection (c) is in accord with prior South Carolina law. Chandler v. People's Nat'l Bank, 140 S.C. 433, 138 S.E. 888 (1927); Rule 43(c), SCRCP.