Are You Showing Enough in an Offer of Proof?

attorney making offer of proof to judge at trialWhen the opposing side objects to your evidence or the judge rules your evidence inadmissible, it’s time to make an offer of proof to encourage the court to admit the evidence or reconsider its ruling. Here’s a handy table illustrating how much of a showing is necessary in an offer of proof.

Offers of proof must be specific, setting out the actual evidence to be produced. Focus on the requirements: the substance, purpose, and relevance of excluded evidence. Evid C §354(a).

This table compares sufficient and insufficient showings for common issues in an offer of proof:

  • A showing that the evidence is available:
Sufficient Showing Insufficient Showing
Mrs. Jones is waiting in the hall and is prepared to testify that … We want to put on some evidence that …
  • A specific summary of the substance of the evidence:
Sufficient Showing Insufficient Showing
Mrs. Jones would testify that she saw Mr. Smith at the scene of the crime. Mrs. Jones would testify about what she saw.
  • A specific showing of the purpose of the evidence:
Sufficient Showing Insufficient Showing
Mrs. Jones’ eyewitness testimony would conclusively establish the presence of another person at the scene. Mrs. Jones’ testimony would show that my client is innocent.
  • A specific showing of the relevance of the evidence:
Sufficient Showing Insufficient Showing
Mr. Smith’s presence at the scene near the time of the robbery is a relevant fact that the jury should consider in determining whether or not my client was in fact the man who took Mr. Victim’s wallet. Mrs. Jones’s testimony hurts the prosecution’s case.

How you approach an offer of proof will depend on your purpose. Are you trying to convince the judge or are you trying to set up a reversal on appeal, or both? If you’re looking toward appeal, and your offer of proof is in the form of a document that the trial court has excluded, make sure that it’s marked for identification or is otherwise included in the record.

Learn how to combat objections to evidence through offers of proof and motions in limine in CEB’s Effective Introduction of Evidence in California, chap 3. And check out CEB’s program Evidence: How and Why to Make an Offer of Proof.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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