Tuesday, May 31, 2011

How to Make Offers of Proof ... Jurisdictonary Evidence Tutorial

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How to Make Offers of Proof ...

From the Jurisdictionary Evidence Tutorial ...
If you begin to offer evidence and, before you can get it before the court, the other side objects and the court sustains the objection, you must move the court to allow you to make clear on the record what the evidence was.
This is called an offer of proof.
If you don't get your evidence in and don't offer the proof, you'll have nothing to appeal if the court rules against you.

You won't be able to win on appeal, because the record for the appellate court to review will not show what the evidence would have been!

Therefore, when your attempt to get evidence in is prevented by the court's sustaining the other side's objection, be sure to make an offer of proof stating what the evidence would have been and what you intended to prove by it.

Then, if an appeal must be taken to the higher court on the basis that you were not allowed to get the evidence in, you'll have a record to show what the evidence was (or would have been) and be able to argue that "but for" the excluded evidence you would have won ... or, at least, that you should be given another chance on remand to the trial court with instructions from the appellate court!

In jury trials, offers of proof should be made outside the hearing of the jury. In some cases an offer of proof may be made at the bench, but if you make your offer of proof at the bench, make certain the court reporter comes over to the bench along with his or her recording device to take down every word you, the judge, and other side say!
  • No record = no appeal possible.
  • No appeal possible = judge free to rule as he chooses!
  • Not good.
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