§ 6.03 Offers of Proof: Rule 103(a)(2)

• Jurisdiction: United States

§ 6.03 Offers of Proof: Rule 103(a)(2)

When evidence has been excluded by a trial court ruling, Rule 103(a)(2) requires an offer of proof to preserve the issue for appeal.³⁴ Without an offer of proof in the trial record, an appellate court cannot determine whether or not the action of the trial court was erroroneous.³⁵ Unlike the situation involved with objections, here there is simply nothing in the record.³⁶ In addition, counsel must state the theory of admissibility as well as the content of the excluded evidence.³⁷

The offer of proof should be made out of the hearing of the jury because an offer in front of the jury informs the jury of the nature of excluded evidence, thus defeating the purpose underlying the judge's decision to exclude. A sidebar conference at the judge's bench or a hearing in the jury's absence may be used for this purpose.³⁸ Although the trial judge may control when an offer of proof may be made (e.g., at a hearing without the jury), a party cannot be precluded from making an offer of proof. Counsel who is prevented from making an offer of proof orally at trial should submit a written motion as soon as possible in order to make a record of the issue.

[A] Form of Offer of Proof

An offer of proof may take several forms. First, an offer of testimonial evidence often takes the form of a statement by counsel as to the expected content of the excluded testimony. There is, however, a real danger that such an offer will be inadequate.³⁹ Second, the trial court may require or be asked to take the "offer" by an examination of the witness, including cross-examination.⁴⁰ For example, some of the early DNA evidence cases involved several weeks of expert testimony before a decision on admissibility was made.⁴¹ Third, an affidavit (which requires an oath) summarizing the witness's expected testimony and signed by the witness is another way to make an offer of proof.⁴² Finally, excluded documentary evidence should be "marked for identification" and appended to the trial record.⁴³

[B] Exceptions to Offer-of-proof Requirement

There are several exceptions to the offer of proof requirement. First, an offer is not necessary when the substance of the excluded evidence is "apparent from the context."⁴⁴However, trial counsel can never assume that an appellate court will later find that the substance of the offer is obvious from the context; counsel should make a record. Second, although not explicitly stated in Rule 103, more leeway is typically given to a...