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Criminal Justice Magazine
Fall 2002
Volume 17 Issue 3

Trial Tactics

Stephen A. Saltzburg

Offers of Proof: The Basic Requirement

Federal Rule of Evidence 103(a) provides in relevant part:

(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 . . .

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

The purpose of an offer of proof is twofold: It provides the trial judge with an opportunity to reconsider a ruling excluding evidence with full knowledge of what the impact of the exclusionary ruling is on the proponent of the evidence. It also makes a record so that an appellate court can determine whether exclusion was warranted, and if it was not whether the error is harmless or prejudicial.

Trial judges have considerable leeway in controlling the ways that offers are made. Indeed, Federal Rule 103(b) confirms the authority of the trial judge to dictate the manner in which an offer of proof is made:

(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.

Not many appellate cases discuss at length the requirements of an offer of proof, even though one of the principal purposes of such offers is to protect appellate rights. United States v. Adams, 271 F.3d 1236 (10th Cir. 2001), provides an unusual amount of appellate guidance as to how one appellate court views offers of proof. Although the opinion offers useful suggestions, it may not be entirely in tune with the realities of trial practice before most trial judges. Even if the court takes a more rigid approach to offers than other courts might take, the opinion is one that trial lawyers should know.

The facts

On March 2, 2000, police in Wichita, Kansas, responded to a residential disturbance. An officer arrived at the scene and found a car occupied by the defendant, Dale Adams, and another individual. The officer could see a black plastic case in the car. The case contained an assault-style, semiautomatic pistol. Asked about the gun, Adams told the officer that the car and the weapon both belonged to him. The officer retrieved the pistol from the car and arrested Adams for possession of an illegal firearm. After receiving his Miranda warnings, Adams told the officer that he purchased the weapon a few days earlier, stowed it at his residence, and had put it in the car that very day. Adams repeated this account at police headquarters. He offered details about the purchase including the time, date, location, and seller.

Subsequently, prosecutors charged Adams with possession of a firearm by a felon. The prosecution and the defense engaged in plea bargaining, but it was unsuccessful. Then the defense counsel arranged for a psychological examination for Adams. The results were provided to the prosecution when defense counsel determined that he might seek to have the report admitted into evidence and to have the psychologist testify. The prosecution immediately objected to the report and any testimony about it because it was provided past the deadline set in the trial judge’s discovery order. The trial judge sustained the government’s motion to exclude the report.

At trial, the defense renewed its attempt to admit the report and the psychologist’s testimony, arguing that it was relevant to Adams’s mental condition and education and key to assessing the credibility of the incriminating statements the defendant made to police. The prosecution again objected and the trial judge excluded the report and testimony.

The statements Adams made to police were important evidence against him and the prosecution relied heavily upon them. On the witness stand, Adams claimed that he lied to the police to protect his girlfriend to whom he assigned culpability at trial. The jury, however, didn’t believe him and found Adams guilty. Adams appealed to the Tenth Circuit.

The threshold question

The threshold question for the court of appeals was whether Adams made an adequate offer of proof in order to preserve for appeal his complaint about the trial judge’s rulings. The court recognized the dual purposes of offers of proof:

First, an effective offer of proof enables the trial judge to make informed decisions based on the substance of the evidence. Second, an effective offer of proof creates "a clear record that an appellate court can review to ‘determine whether there was reversible error in excluding the [testimony].’"

(271 F.3d at 1241) (citations omitted.)

In addition to the requirements set forth in Federal Rule of Evidence 103(a), the court cited its prior decisions for the proposition that more is required to preserve a record for appeal:

On numerous occasions we have held that "‘merely telling the court the content of . . . proposed testimony’ is not an offer of proof." Polys v. Trans-Colorado Airlines, Inc., 941 F.2d 1404, 1407 (10th Cir. 1991) (quoting Gates v. United States, 707 F.2d 1141, 1145 (10th Cir. 1983). In order to qualify as an adequate offer of proof, the proponent must, first, describe the evidence and what it tends to show and, second, identify the grounds for admitting the evidence. Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 802 (10th Cir. 2001); Polys, 941 F.2d at 1407. If the proponent’s offer of proof fails this standard, then this court can reverse only in instances of plain error that affected appellant’s substantial rights. Phillips, 244 F.3d at 802; Fed. R. Evid. 103(d).

(271 F.3d at 1241.)

It is plain from this language that the court believed that the same requirements for offers of proof apply in civil and criminal cases. Both Tenth Circuit cases cited were civil cases.

In Polys v. Trans-Colorado Airlines, Inc., 941 F.2d 1404, 1407 (10th Cir. 1991), the losing party complained about the trial judge’s exclusion of the deposition testimony of two expert witnesses. In examining the offer of proof made in that case, the Tenth Circuit explained by citing a Fifth Circuit opinion why it is so important for the offer to be full and complete:

In Reese v. Mercury Marine Div. of Brunswick Corp., 793 F.2d 1416, 1421 (5th Cir. 1986), the Fifth Circuit stated:

"In asserting objections to a trial court’s exclusion of evidence, a party is required under Fed. R. Evid. 103(a)(2) to carefully articulate every ground for which the evidence is admissible. Failure to do so renders the district court’s ruling reversible only upon a finding of plain error. . . . Busy trial courts should not be required to repeat trials, especially civil trials, because the trial judge has excluded evidence for lack of a clear understanding of the proponent’s purpose in offering the evidence. The trial judge must be put on notice of the purpose for which the evidence is offered while there is still time to remedy the situation. It is the proponent’s duty, not that of the trial court, to clearly articulate the purpose for which the evidence is offered."

(941 F.2d at 1408 n.4.)

The failure of the plaintiffs to make an adequate offer of proof in Polys is difficult to understand. They had the depositions. They knew what they contained. All they had to do was to explain the contents to the trial judge and mark the depositions as exhibits. But counsel for Polys made no formal offer of proof when the district court sustained Trans-Colorado’s objection to the admission of both the depositions. Following the exclusion of one deposition, counsel responded "Thank you, Judge. The next witness we would call. . . ." And, the next witness was the other expert whose deposition was offered and excluded. Plaintiff’s counsel did explain that the first witness was out of the country and the second was out of the district, both more than 100 miles away, but he did not explain the substance or purpose of the expert testimony. The record indicated that there was no attempt by plaintiff’s counsel to alert the trial judge to the substance or purpose of the depositions. The court didn’t accept the plaintiff’s argument that the requirements of Rule 103(a)(2) were met when, "in the course of proceedings, the district court was made aware of the nature and substance of the excluded testimony" at four points in the trial when the two experts were mentioned.

The plaintiffs appear to believe that if the significance of excluded evidence becomes apparent later, a trial judge sua sponte must reconsider its earlier evidentiary ruling. The plaintiffs misunderstand the offer of proof requirement. First, eliciting through later testimony the substance of previously excluded evidence, without more in the way of explanation or proffer to the court, satisfies neither the plain language of, nor the purpose for, Rule 103(a)(2). As we stated, the Rule contemplates some contemporaneity between the trial judge’s knowledge about the proposed evidence and the evidentiary ruling to allow a proper decision at the time the evidence is offered. Even considering, hypothetically, that counsel had requested admission of the excluded deposition testimonies later in the proceedings when other witnesses testified about these doctors, the testimony in question was not sufficient to apprise the district court of the substance and purpose of the excluded testimony and would not have satisfied the second purpose of the rule—to create a clear record for us to review the trial court’s decision.

(941 F.2d at 1409.)

In Phillips, the plaintiff brought an Emergency Medical Treatment and Active Labor Act (EMTALA) and wrongful death lawsuit against a medical center and a doctor. The trial judge refused to permit the plaintiffs to use two documents in the cross-examination of a defense witness. The documents purported to show disparate treatment of the deceased in support of the EMTALA claim. The court of appeals noted that "[s]pecifically, the exhibits were identified, their contents and origins discussed, and argument as to their admissibility was made." (244 F.3d at 802.) This, it said, is all that’s required of a valid offer of proof.

Alternative ways of making an offer

The Adams court observed that the Federal Rules of Evidence do not prescribe any particular method for making an offer of proof and that four alternative methods are often used:

Federal Rule of Evidence 103(a)(2) does not mandate a particular form for offers of proof. Instead, the rule invests the trial judge with discretion in determining the form of the offer. Fed. R. Evid. 103(b). There are at least four ways to make an offer of proof of testimony and achieve the purposes underlying the rule. . . .

The court addressed each of the alternatives, and its discussion is analyzed below.

First alternative: question-and-answer mode

First, and most desirable from all standpoints except cost, the proponent may examine the witness before the court and have the answers reported on the record. . . . The question-and-answer method necessitates excusing a jury, but this concern is not present when the offer of proof is made, as here, at a pretrial motion hearing. When the proponent proffers testimony in this manner, opposing counsel may be permitted "to cross-examine the witness to develop any factors which would put the proffered testimony in its true light."

(271 F.3d at 1241.)

As noted above, Federal Rule 103(b) specifically authorizes a trial judge to compel a question-and-answer offer of proof. This mode of offer informs both the trial judge and an appellate court of precisely—word for word in some instances—what the trial judge excluded. It has the advantage of completeness, and it provides an opportunity for a cross-examination to make a showing on the record that the witness’s testimony has problems not apparent in the offer. But, as the court recognized, the principal drawback of this approach is its cost—measured in terms of the time such offers of proof require. Trial judges may be required to hear such testimony and, in a jury trial, the jury may have to be excused when the offer is made unless it can be made during a previously planned recess.

The court emphasizes that, when an objection to evidence is made pretrial and the parties are afforded a hearing, the costs of the question-and-answer approach diminish and it is the preferred approach. There is reason, however, to question whether all trial judges have the same view as to cost as the court of appeals. Many trial judges might well be satisfied with an offer of proof in another form that does not require them to hear an examination of a witness followed by a cross-examination—and, perhaps, redirect testimony as well. In a case such as Adams, there is reason to ask whether a question-and-answer approach is cost-effective. After all, the defense could have given the trial judge the report and summarized it. The prosecutor could have pointed out any problems in the report, and the judge could have read it much faster than testimony could be presented. If the judge determined that there was a need for testimony, it could be ordered consistent with Rule 103(b).

Where there is a report or recorded testimony (e.g., preliminary hearing testimony, grand jury testimony), there does not appear to be any good reason to prefer questions and answers as an offer of proof to submission of the report or recorded testimony along with a summary by the proponent and an opportunity to be heard by the opponent. This is especially true when neither side nor the trial judge sees a necessity for a question-and-answer offer.

Second alternative: representation by counsel

The second, and least favorable, method for making an offer of proof of testimony is a statement of counsel as to what the testimony would be. . . . In this case, the colloquy between counsel and the district court was so lacking in detail that it is difficult to decipher why exclusion of the evidence might be error. During the hearing on the motion in limine, defense counsel stated that he had asked the examining psychologist to "look into whether or not [Mr. Adams’s] personality, mental makeup, however you want to put it, would he be so inclined—given the testing that’s done, would there be a possibility that he would give a false statement to the police. . . ." Counsel then proffered that the examining psychologist had "suggested in one of the paragraphs [of the report] . . . that his personality certainly is one that could have been—statements to the police could have been false. . . ."

An offer of proof of testimony by counsel is the least favored method because of its potential to fall short of the standard required by the rules of evidence as well as the standard set out in Phillips and Polys. Defense counsel’s offer of proof made during the colloquy with the judge illustrates the potential pitfalls of this method. Specificity and detail are the hallmarks of a good offer of proof of testimony . . . and conclusory terms, especially when presented in a confused manner, mark poor ones. . . . Defense counsel hardly met the baseline requirement of "merely telling the court the content of . . . [the] proposed testimony." Polys, 941 F.2d at 1407. As for the additional requirements set out in Phillips and Polys, counsel did not explain the significance of the proposed evidence or what he expected the evidence to show. Phillips, 244 F.3d at 802; Polys, 941 F.2d at 1407. Nor did counsel clearly identify "the grounds for which [he] believes the evidence to be admissible. . . ."

(271 F.3d at 1241–42) (some citations omitted.)

The Adams court seems to have lumped together two separate issues: (1) Was the lawyer offer adequate in the Adams case? (2) Are lawyer offers uniformly to be discouraged?

The court’s view of the first issue clearly colored its view of the second. It seems that the offer of proof in Adams failed to indicate to the trial judge why the defense wanted to use the report and to have the psychologist testify. The defense counsel was responsible for the failure. Why no better offer was made in this case is as difficult to understand as why no better offer was made in Polys. Polys and Adams are reminders that trial and appellate judges have not prepared the case the way the lawyers have. Judges often do not review documents until they are challenged, and then they rely on the lawyers to tell them why the documents matter. Adams’s lawyer did not do enough to help the trial judge, and the court of appeals was duly critical of the offer that was made.

This does not mean that lawyer offers should uniformly be discouraged or that they are the least useful mode of preserving a record. Lawyers who offer evidence are in a position to articulate for a trial judge the content of excluded evidence and its importance to the case, and opposing counsel are in a position to add to the record anything that they believe the judge should know in making a ruling. In many cases, all that is needed is for the trial judge to be comfortable that the evidence that is subject to objection has been explained and that a ruling can be made without further elaboration.

Lawyer offers of proof are especially useful when an objection is made to a line of questioning while a witness is testifying. The lawyer may ask for an opportunity to make a sidebar offer or to make an offer at the first recess before the examination of a witness is completed. If the objection is relevance or Rule 403, e.g., undue consumption of time, a question-and-answer approach to an offer might waste judicial time and interrupt the flow of a jury trial.

Third and fourth alternatives: written presentations

Documentary offers of proof comprise the third and fourth proper forms of proffering anticipated testimony. McCormick § 51 at 216 n.9. [McCormick on Evidence (John W. Strong, 5th ed. (1999).] The first of these, and least common, is a statement written by examining counsel describing the answers the proposed witness would give if permitted to testify. Id. More commonly, and relevant to this case, the proponent of the evidence may introduce a "written statement of the witness’s testimony signed by the witness and offered as part of the record." Id. (emphasis added). In using either method of documentary proffer for anticipated testimony, "it is suggested . . . that the writing be marked as an exhibit and introduced into the record for proper identification on appeal." Id.; see also Palmer v. Hoffman, 318 U.S. 109, 116, 87 L. Ed. 645, 63 S. Ct. 477 (1943); 1 Michael H. Graham, Handbook of Federal Evidence, § 103.7, at 61 (5th ed. 2001). Indeed the primary, formal reason for an offer of proof is "to preserve the issue for appeal by including the proposed answer and expected proof in the official record of trial." (emphasis added.)

If a lawyer anticipates an objection and believes there is a good chance that it will be sustained, the preparation of a written offer of proof may be an improvement upon an oral proffer. But, in many instances, lawyers will not anticipate the objection in advance and will not have thought to put anything in writing. In other cases, the lawyer who anticipates an objection may anticipate the wrong one or might not anticipate the trial judge’s ground for a ruling. Thus, even if there is a written offer, it might have to be supplemented. There is no denying that when objections have not been fully anticipated and written offers either do not exist or are incomplete, oral proffers are not only permissible, but, when properly made, should be sufficient.

The court’s suggestion that a written offer of proof should be marked for identification and made a part of the record is important. The fact that a trial judge excludes evidence means only that it will not be considered by the trier of fact. The proponent has a right—a duty, in fact—to make certain that whatever was before the trial judge is preserved in the record. Thus, the depositions should have been marked in Polys, the documents that were at issue should have been marked in Phillips, and the report should have been marked in Adams.

Informal offers

One more aspect of Adams warrants mention. On the morning of the pretrial hearing, Adams’s counsel sent a facsimile of the psychologist’s report directly to the trial judge. The judge referred to the document at the hearing, but it was not marked as an exhibit. The court of appeals was not impressed by counsel’s effort:

Merely sending a facsimile of the psychologist’s report to the judge on the morning before the hearing unfortunately does not guarantee that the faxed item will actually be marked as an exhibit or filed and become part of the record. Our rules anticipate that when an appeal is based upon the challenge to the admission or exclusion of evidence, we be furnished not only with pertinent transcript excerpts, but also with pertinent trial exhibits that are part of the record. . . .

(271 F.3d at 1242.)

This is an important point for trial lawyers. It is not enough to mention an exhibit or to show it to the trial judge. That does not make it part of the record. Another important point: If counsel omits an exhibit, it is possible to move to supplement the record pursuant to Federal Rule of Appellate Procedure 10(e)(2). That is what Adams’s counsel did; the government did not object, and the court of appeals granted the motion.

Conclusion

Lawyers object at trial to raise evidence points. If they fail to object, they waive any right to complain about the evidence, except to make the difficult argument that its admission was plain error. Lawyers who offer evidence respond to objections. If they are unable to defeat an objection, they must make offers of proof. The offers must not only impart to the trial judge and to any appellate court the substance of the evidence, but they must also demonstrate that the evidence fits in the case and the grounds of admissibility. The Adams court expressed a preference for question-and-answer offers, but this preference might be an overreaction to the facts of the case. The other forms in which offers traditionally have been made often do the job as well as the question-and-answer form, and promise to spare trial judges the task of hearing unnecessary evidence and spare juries the delays that may arise from offers of proof made in question-and-answer form.

 

Stephen A. Saltzburg is the Howrey Professor of Trial Advocacy, Litigation, and Professional Responsibility at George Washington University School of Law in Washington, D.C. He is also a contributing editor to Criminal Justice magazine and a Section delegate to the ABA House of Delegates.



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