No matter how prepared you are for trial, it’s bound to happen. Your judge sustains an objection and strikes a piece of evidence or testimony that is significant and material to advancing your case. And while your immediate goal is to continue developing your case and obtain a victory at trial, a seasoned lawyer is also thinking ahead and working to develop the record and preserve issues for appeal. But for a less-than-seasoned attorney, this is not so easy to do. This article addresses one largely neglected technique to preserving error when evidence is struck from consideration: the offer of proof.
The offer of proof is the other side of the objection coin. Just as an objection preserves errors in admitting evidence for review, an offer of proof preserves errors in excluding evidence. Federal Rule of Evidence 103 specifically provides that a party may claim error “if the ruling excludes evidence, [and] a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.” Fed. R. Evid. 103(a)(2).
This preservation device can be critical to a case when key evidence has been excluded by the trial court. Proponents of excluded evidence put themselves in a weak position to later argue the value of excluded evidence if they failed to make an offer of proof at trial and have been unsuccessful in seeking reversals of dismissals of their cases when they based their appeals on excluded evidence for which no offer of proof was made. See, e.g., Nulf v. Int’l Paper Co., 656 F.2d 553, 562 (10th Cir. 1981); Sime v. Trustees of Cal. State Univ. & Colleges, 526 F.2d 1112, 1113–14 (9th Cir. 1975). So the most obvious purpose of an offer of proof is that it creates an adequate record from which an appellate court can determine whether the exclusion of evidence affected the substantial rights of the offering party and whether the error requires reversal. Inselman v. S&J Operating Co., 44 F.3d 894, 896 (10th Cir. 1995), on reh’g in part, (Feb. 17, 1995). Rule 103 contemplates that hearings on offers and objections will build a basis on which a reviewing court may consider the ruling ultimately made. Christensen v. Felton, 322 F.2d 323, 328 (9th Cir. 1963) (hearing on proffer gives reviewing court “a better basis on which to decide” whether court was right to exclude evidence). Simply put, the offer of proof allows the appellate court to review and consider the evidence if it determines that the evidence should have been admitted by the trial court. Instead of the appellate court only seeing that there would have been evidence or testimony regarding a certain point or issue, an offer of proof enables the appellate court to review what the evidence specifically was.
But the offer of proof also serves a second purpose likely of more interest to trial counsel: It gives you an opportunity to persuade the trial court to change its mind and admit the evidence. An offer of proof provides the trial court more information regarding the evidence on which to make a more complete and adequate basis for a ruling and allows the trial court to review the evidence and potentially reevaluate and change its ruling on the objection. A well-crafted offer of proof can also be an opportunity to argue the facts in an effort to persuade the judge to accept your theory of the case.
Where Should the Offer Be Made?
Rule 103(d) dictates that offers of proof should be made out of the hearing of the jury “to the extent practicable.” To accomplish this, the jury may be excused, the court and counsel may retire to chambers, or counsel may approach the bench. The purpose is to prevent “inadmissible evidence” from being “suggested to the jury by any means.” Fed. R. Evid. 103(d). The main reason to make proffers outside the hearing of the jury is to avoid whatever prejudice might result from exposing the jury to the evidence that is ultimately excluded.
When Should I Make My Offer of Proof?
The rule says nothing about the timeliness of offers of proof. But when a party proffers evidence that the trial court considered irrelevant, immaterial, or otherwise inadmissible, the party must be given opportunity to put in the record a fair statement of what is intended to be proved. M.A.B. v. State, 718 S.W.2d 424, 425–26 (Tex. App.1986). The best practice would be to make the offer of proof immediately after the objection or the court’s ruling on the objection. The witness is likely to be present or readily available, the point in question is fresh in everyone’s mind, and the trial court has the immediate familiarity with context that helps make a sound decision. U.S. v. Nacchio, 519 F.3d 1140, 1154–55 (10th Cir. 2008), vacated in part on other grounds, 555 F.3d 1234 (10th Cir. 2009) (judge erred in excluding defense expert without allowing proponent to present arguments for admissibility; judge “has to let” lawyers argue). Yet that is not always practicable, and the trial court has the power to postpone the making of an offer of proof to a later time to avoid disrupting the trial by removing the jury in order to comply with rule 103(d). If that occurs, remain diligent and request to present the offer of proof as soon as practicable. Montgomery v. State, 383 S.W.3d 722, 726 (Tex. App. 2012) (where party acceded to trial judge’s urging that offer be made at later time, objection not preserved where offer never made).
What Are the Necessary Requirements for Offer of Proof?
The rule dictates that the proponent must explain what it expects to show and the grounds for which the party believes the evidence to be admissible. Sounds simple, right? Like everything we do, preparation is key. An offer of proof may come in a variety of forms: written statements, affidavits, summaries, or live question-and-answer presentations. But no matter the form, trial counsel should be prepared to argue succinctly how and why a particular fact, piece of evidence, or line of testimony advances the inquiry by addressing the following five requirements:
Counsel must inform the trial court of the nature or content of the evidence being offered. An appellate court will not pass on the issue of error in excluding evidence when the record is inadequate to show what the excluded evidence would have been. U.S. v. Muncy, 526 F.2d 1261, 1263 (5th Cir. 1976). In the case of testimony, that means spelling out in some detail the facts sought to be elicited or specific facts the witness would establish and not simply saying that the witness will address a certain issue in the case. The most thorough method of making the offer is to put the witness on the stand, ask questions, and put his answers in the record. Rule 103(c) authorizes the court to require such thoroughness by providing that it “may direct that an offer of proof be made in question-and-answer form.” If the evidence excluded consists of a document authenticated by offer of proof, counsel should request that the reporter mark and insert the exhibit in the record. The key is to describe the aspects of the evidence that would render its exclusion prejudicial to your client.
Counsel must describe the purpose of the evidence. This should include some account of the issue or issues on which it bears and sometimes a reference to other testimony that the proffered evidence is to address, explain, or refute. Counsel must give the court the reasons for admitting the evidence, especially in cases where the evidence may be admissible if offered for one purpose but not for another.
Explain the evidence’s relevance to the trial court. This may appear to go hand-in-hand with describing the evidence’s purpose, but it still could be unclear just what consequential facts the evidence is expected to prove. So a statement regarding relevance should be articulated, especially in cases where it is circumstantial and its meaning is not obvious on the face of a description of its content. There is no error on the part of the trial court in restricting cross-examination of a witness where the cross-examining party does not tender for the court’s consideration any line of questioning or arguments that would show the relevancy of the questioning. U.S. v. Medel, 592 F.2d 1305, 1314 (5th Cir. 1979).
If the proffered evidence is the only proof on point, the proponent should show that the evidence is sufficient to prove the consequential fact to which it is directed, either alone or with other proof the proponent expects to offer late in the case. In this circumstance, the proponent may have to commit to offering whatever other evidence is necessary to make the proffered evidence count in an appropriate way in the case. See Perkins v. Silver Mountain Sports Club & Spa, LLC, 557 F.3d 1141, 1147–48 (10th Cir. 2009).
Counsel must articulate why the evidence is competent and present the legal theories or grounds under which the evidence is admissible. U.S. v. Roti, 484 F.3d 934, 935–36 (7th Cir. 2007). This includes presenting any evidence needed to prove any preliminary questions of fact required to make the evidence admissible under rule 104—or at least to surmount the specific objection relied upon by the trial judge in excluding the evidence. On appeal, the sufficiency of the offer is judged only in the light of the ground of admissibility and the purpose stated at trial, and not by reference to a ground or purpose advanced for the first time on appeal. Tate v. Robbins & Myers, Inc. 790 F.2d 10, 12 (1st Cir. 1986); U.S. v. Cruz, 894 F.2d 41, 43–44 (2d Cir. 1990). But a proponent probably does not need to cite chapter and verse when identifying a hearsay exception. The proponent need only make it clear which exception he means and why the statement fits. U.S. v. Miller, 904 F.2d 65, 67 (D.C. Cir. 1990) (in offering grand jury testimony, defense obviously relied on former testimony exception and alerted court to legal basis; claim of error was preserved despite failure to cite relevant provision).
The offer of proof is a difficult skill to perform competently, much less master. But if done properly, an offer of proof not only preserves the issue for appeal but also gives trial counsel another valuable chance at persuading the trial court to admit the proffered evidence.
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