The Missing Link

September 22, 2014 § 6 Comments

Here’s a typical trial scenario with inexperienced lawyers:

L1:  Now, your honor, we ask that this document be admitted into evidence.

L2: Objection. Hearsay and not properly authenticated.

CH: Sustained.

L1: Um, uh, er. Okay. So, Mr. witness, what did you do next?

Stop right there. What did L1 not do that he should have done?

If you said, “Proffer,” or “Offer of proof,” you are correct. If you didn’t get it, well, you need to read — attentively — on.

In the case of Granger v. State, 853 So.2d 830, 833 (Miss. App. 2003), the court said, ” … a party who wishes to preserve an issue for appeal must make a proffer. Generally, when a party seeks to offer evidence which in turn is excluded by the trial court, before we will consider the matter on appeal the party must somehow have placed in the record the nature and substance of the proffered evidence for our consideration.”

MRE 103(a)(2) covers the point:

(a) Error may not be predicated on a ruling which admits or excludes evidence unless a substantial right of a party is affected, and … (2) 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.

So, if L1 above could not have stumbled his way around the objections, he should have made a proffer that would look something like this:

L1:  Now, your honor, we ask that this document be admitted into evidence.

L2: Objection. Hearsay and not properly authenticated.

CH: Sustained.

L1: We ask that this document be marked for identification purposes only.

That way, the substance of the document is part of the record, and the appellate court can look at it and judge for itself whether it should have been excluded.

Now, getting the document into the record may not be all the appellate court needs to know about it. The court may need to know more in order to make a proper decision. So L1 would then take that document marked for ID, tell the court he would “like to make a proffer,” or would “ask to make an offer of proof,” and when permission is granted either ask the witness questions about the document that make the record, or make a statement into the record about the document and its nature and substance, and why it was admissible. At the conclusion, L1 should say, “Now I am off proffer,” or “that concludes my offer of proof,” or words to that effect. Nothing said or offered in proffer is considered by the trial judge, but it may be considered by the appellate court.

That latter procedure also works where the trial judge has sustained objections to questions you ask the witness, and you need that information in the record.

Despite the language of the rule, you should never assume that the substance is apparent from the context. You should always make your proffer.

This is important because your key role at trial is not to have the trial judge rule for you, or to satisfy your client, or to be the best-dressed lawyer. Your key role is to MAKE A RECORD of every bit of evidence that supports every element of your case, in a way that is intelligible to the appellate court. No matter how convincing your case was to the trial judge, no matter how charming and persuasive you were in the court room, if you haven’t made a good record you run the substantial risk of getting your case reversed on appeal. Clients hate that.

If you do not make a proffer when the court excludes evidence, you are leaving a missing link in your record that may snatch defeat from the jaws of victory.


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