§ 6.09 RECORD OF OFFER AND RULING: FRE 103(C)

• Jurisdiction: United States

§ 6.09. RECORD OF OFFER AND RULING: FRE 103(c)

Making the record is one of trial counsel's most important responsibilities. If the court does not make a decision, it is assumed that the court overruled an objection. It is counsel's job to ensure that all objections and offers of proof are recorded. Off-the-record objections are typically insufficient.⁷⁸ Failure to request that all pretrial conferences, sidebars, or hearings without the jury be recorded may preclude a party from raising the issue on appeal.⁷⁹

Rule 103(c) permits the trial court to add to the record any further statement about an objection, offer of proof, or ruling. According to the federal drafters, the purpose of this provision is "to reproduce for an appellate court, insofar as possible, a true reflection of what occurred in the trial court."⁸⁰ In some cases, trial judges decline to explain a ruling. In United States v. Dwyer,⁸¹ for example, the judge refused to provide reasons for excluding evidence. The Second Circuit reversed, stating: "The trial judge's refusal, despite repeated requests, to put his reasons for exclusion on the record substantially impairs our ability to ascertain the source of the prejudice' to which he referred in his ruling."⁸²

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Notes:

^[78] See United States v. Johnson, 542 F.2d 230, 234 n.8 (5th Cir. 1976) ("Appellant's manner of preserving the point for appeal was irregular. No objection was ever made on the record. Instead, the objection was made and overruled in chambers with the court reporter absent. . . . If it is necessary to hear an objection outside the presence of the jury, this can be done without depriving this court of a record upon which to base its holding.").

^[79] See State v. Goodwin, 703 N.E.2d 1251, 1260 (Ohio 1999) ("[The defendant] did not make a pretrial motion to record all sidebars, nor does the record show that counsel for [the defendant] requested that all pretrial or bench conferences be recorded. In the absence of such a request, any possible error is waived."); State v. Keenan, 689 N.E.2d 929, 938 (Ohio 1998) (47 unrecorded...