Play it safe and make an offer of proof whenever you’re introducing evidence. Even if your evidence is excluded after a motion in limine or a trial objection, an offer of proof will preserve the record for appeal.
An offer of proof is a disclosure, made out of the hearing of the jury, of the substance, purpose, and relevancy of evidence the offering party seeks to introduce. Evid C §354.
The legal reasons to make an offer of proof are threefold:
- to persuade the judge before a ruling is made to admit the evidence;
- to persuade the judge after a ruling is made to reconsider the ruling; and
- to create a record for appeal that the judge was specifically aware of the nature of the evidence being excluded.
Making an offer of proof may also provide tactical benefits. For example, the testimony will be emphasized because it’s the first thing the jury will hear on returning to the courtroom after recessing for the offer of proof. In addition, witnesses who testify before the judge in the offer of proof have a chance to “practice” their testimony.
But beware: a witness’s testifying first during an offer of proof also gives your opponent a “sneak preview” that may assist in formulating effective cross-examination.
Offers of proof are made under various circumstances, such as when
- opposing counsel has objected to a question or to the introduction of a document, and the trial judge hasn’t yet ruled;
- opposing counsel has moved to strike certain testimony, and the trial judge hasn’t yet ruled; or
- opposing party claims a privilege, and the trial judge hasn’t yet ruled.
An offer of proof may also be made after the judge has ruled that the evidence is inadmissible, to try to persuade the judge to reconsider and to make a record for appeal. In that situation, make sure that, if your offer of proof is in the form of a document that the trial court has excluded, it’s marked for identification or is otherwise included in the record.
Making an offer of proof is crucial—if the court erroneously excludes evidence, the error is waived unless the proponent can show that the substance, purpose, and relevance of the evidence was made known to the court by an offer of proof or other means. Evid C §354.
The safest practice is to always make an offer of proof. It’s dangerous to assume that your situation falls into one of the exceptions to the offer-of-proof requirement (see Evid C §354(b)-(c)). And even if it’s not required, an offer of proof is often useful in educating the judge to make a favorable ruling for your client.
For practical advice on combating evidence objections, including a sample offer of proof, turn to CEB’s Effective Introduction of Evidence in California, chapter 3. Also check out chapter 3 on responding to objections in CEB’s California Trial Objections.
For family law practitioners, CEB’s On Demand program Key Trial Skills for Family Law Attorneys covers making an offer of proof, among many other important skills.
Related CEB blog posts:
- 7 Ways to Respond to an Evidence Objection
- 3 Alternatives to Objecting
- To Object or Not to Object
- Blinding Them with Science
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