Rare Published Decision on Discretionary Review

Division Three of the Washington Court of Appeals recently issued a rare published decision addressing discretionary review, entitled Minehart v. Morning Star Boys Ranch, 2010 WL 2278471 (June 8, 2010).  Addressing cross-motions for discretionary review, the court denied both motions. 

The parties sought pre-trial review of rulings on motions in limine that certain testimony would be admitted or excluded at trial under ER 404(b).  The court observed: 
Pretrial review of rulings confuses the functions of trial and appellate courts.  A trial court finds facts and applies rules and statutes to the issues that arise in the course of a trial.  An appellate court reviews those rulings for legal error and considers the harm of the alleged error in the context of its impact on the entire trial.  An appellate court is not competent to review most evidentiary rulings when a trial has not yet occurred both because it does not find its own facts and because it is incapable of assessing the impact of the evidence on the whole case. 
In addition, the court emphasized that balancing probative value versus prejudicial impact under ER 404(b) is the trial court role, and "an appellate court simply is not in a position to meaningfully review [such a ruling] where there has been no trial."  The court observed that "[m]any parties might be better served by a pretrial ruling on evidentiary issues, but our appellate review system symply was not designed to accomodate them."