Offers of Proof

• Publication year: 2002
• Pages: 85

31 Colo.Law. 85 Colorado Lawyer 2002.

2002, January, Pg. 85. Offers of Proof

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85

Vol. 31, No. 1, Pg. 85

The Colorado Lawyer
January 2002
Vol. 31, No. 1 [Page 85]

Specialty Law Columns
The Civil Litigator
Offers of Proof
by Fotios M. Burtzos

This article provides practitioners with an overview on using offers of proof to properly preserve their record on appeal regarding excluded evidence

This article was written by Fotios M. Burtzos, Colorado Springs, an attorney with

Paul S. Edwards & Associates—(719) 228-3800

Appeals regarding trial court rulings that excluded evidence inevitably are ill-fated if the appellate court cannot figure out which evidence the appellant is complaining about. This article addresses what practitioners can do to preserve the appellate record when a trial court excludes evidence they wished to have admitted

Most practitioners are aware that appeals concerning what was allowed into evidence at trial will fail unless: (1) a contemporaneous objection was made to the introduction of such evidence,1 (2) the objection was made with reasonable specificity as to its grounds,2 and (3) the grounds for the objection were correct.

When a trial court excludes evidence, it is the obligation of the party offering the evidence to make an "offer of proof" to preserve all appellate rights regarding the excluded evidence. An offer of proof is used to inform the trial court what counsel expects to prove by the excluded evidence, and to ensure that the appellate court will be able to evaluate the scope and effect of the ruling to determine whether the exclusion constituted reversible error.3

It is well established that offers of proof are required to preserve a record of excluded evidence.4 The right to make an offer of proof is almost absolute, and the failure of a trial court to allow a party to make an offer of proof generally will not be condoned by an appellate court.5 When an offer of proof is made following proper procedures, and prejudice occurs from the exclusion of evidence, a reversal is proper.6 Offers of proof must be procedurally and substantively adequate when made.7

C.R.E. 103 and
Offers of Proof

Offers of proof are governed by Colorado Rule of Evidence ("C.R.E.") 103. For purposes of this article, the relevant parts of this rule state that error may not be predicated on the exclusion of evidence unless a substantial right of the party offering the evidence is affected. Further, if evidence was excluded, the substance of the evidence had to be made known to the court by an offer of the party requesting admission of the evidence, or the substance of the evidence had to be apparent from the context within which questions were asked.

The rule specifies a preference that evidentiary issues, including the making of offers of proof, be handled by the court outside the presence of the jury. C.R.E. 103(b) mentions only in general terms how making an offer of proof might be approached, but it does not provide specific formats or procedures.

Motions in Limine

Practitioners can use several approaches to make an offer of proof, and can use more than one method in any case. For example, if counsel is considering offering certain...