In Evidence

March 30, 2015 § 2 Comments

Have you ever stopped to ask yourself what the phrase “in evidence” means? We toss it around all the time. “Is that in evidence?” “Your honor, I object because that document is not in evidence.”

The phrase simply means that the judge or the jury can look at the document or hear the testimony, and can consider it in reaching a decision.

The meaning is simple, but the ramifications can be profound.

  • If something is not in evidence, it is not part of the record. If it is not part of the record, the judge can not consider it.
  • If you offered something into evidence and were denied, you must make the proffered evidence part of the record. If it was oral testimony, you must make an offer of proof (MRE 103(a)(2)). You can do this by requesting to make an “offer of proof,” or a “proffer.” The judge will then allow you to state on the record what the testimony would have been, or will allow you to do it in question-and-answer form (MRE 103(b)). If the ruling was one denying entry of a document in evidence, then you must ask that the document be marked for identification only, which request will always be granted. Remember that neither a proffer nor a document marked solely for identification may be considered by the judge in ruling on the merits; however, they are part of the record on appeal.
  • Pleadings are not evidence. Just because you pled something does not mean it is proven.
  • Never fail to put on proof based on your assumption that the judge will connect the dots and draw the conclusion favorable to your client. The judge might not. Or the judge might, but there will be inadequate evidence in the record to support the judge’s conclusions, which is the formula for reversal on appeal.

Make sure that every element or factor that you need to prove is supported by proof in evidence. A graphic illustrating this vital concept is here.

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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