Offer of Proof
“If thy offences were upon record,
Would it not shame thee in so fair a troop
To read a lecture of them?”
Whether you do appellate work or not, always keep the appeal in mind while you are at the trial court level. Preserve, preserve, preserve those issues.
There are many ways to do this. Today I’d like to talk about the offer of proof.
Tennessee Rule of Evidence 103(a)(2) states that when evidence is excluded, the substance of the evidence and the specific evidentiary basis for admitting it must be made known to the court by an offer of proof, unless those things are already apparent from the context. In a jury trial, if a judge sustains an objection to your line of questioning, or otherwise excludes evidence, you have the option to make an offer of proof.
The main purpose of the offer of proof is to put the excluded evidence into the record so that an appellate court can later determine whether the exclusion was harmful error. For the appellate court to do this, it must find that the exclusion had a negative effect on the rights of a party and that the court was made aware of the evidentiary basis for admitting the proof.
Your first step in response to the ruling excluding the evidence is to say, “Your Honor, may I make an offer of proof?” Some ways to make an offer of proof are:
1. Have the witness actually give the excluded testimony on the record.
2. Have the parties stipulate to what the evidence would have shown.
3. Give the court an oral or written summary of the excluded evidence.
4. Identify an excluded document or exhibit and explain its contents and the legal basis for admission.
The offer of proof doesn’t make excluded evidence admissible. It just preserves the challenge for appeal. So, the offer of proof must be made away from the jury. If it is a non-jury trial, you still have to make an offer of proof to preserve the issue for appeal.
Failing to make an offer of proof can waive your ability to challenge exclusion of evidence on appeal. Make the offer of proof a basic part of your trial court toolkit.
