How to Make an Offer of Proof

In In re Marriage of Miller, Justice Steigmann of the Fourth District recently explained how to make an offer of proof.

Why is an offer of proof necessary? If a party wants to appeal a trial court's exclusion of evidence, the party needs to tell the trial court what the evidence would be if admitted. This serves two purposes. First, it gives the trial court an opportunity to change its ruling. Second, it provides the appellate court with a record it can use to determine whether the exclusion of evidence was proper.

Justice Steigmann explained that there are both formal and informal offers of proof.

The traditional way of making an offer of proof is the "formal" offer, in which counsel offers the proposed evidence or testimony by placing a witness on the stand, outside the jury's presence, and asking him questions to elicit with particularity what the witness would testify to if permitted to do so.

In lieu of a formal offer of proof, counsel may ask the trial court for permission to make representations regarding the proffered testimony. If counsel so requests, the court may--within its discretion--allow counsel to make such an informal offer of proof.

A trial court may deem an informal offer of proof sufficient if counsel informs the court, with particularity, (1) what the offered evidence is or what the expected testimony will be, (2) by whom it will be presented, and (3) its purpose. However, an informal offer is inadequate if counsel (1) "merely summarizes the witness' testimony in a conclusory manner" or (2) offers unsupported speculation as to what the witness would say. In deciding whether to permit an informal offer of proof, the court should ask itself the following questions: (1) Are counsel's representations accurate and complete? and (2) Would a better record be made by requiring counsel to make a formal offer of proof, even though doing so might be inconvenient and require more time?

In addition, before deciding whether to accept counsel's representations in lieu of a formal offer, the trial court should ask opposing counsel if he objects to proceeding in that fashion, even though counsel's response in no way limits the court in exercising its discretion on this matter. If opposing counsel concedes the sufficiency of the offer or has no objection to proceeding by counsel's representations, then opposing counsel's client may not later challenge the court's decision to proceed by counsel's representations, rather than a formal offer.

In re Marriage of Miller (citations omitted). Following the quoted passage, Justice Steigmann explained why the Miller lawyer's offer of proof was flawed. His first mistake was failing to tell the judge he was making an informal offer of proof in lieu of a formal offer. "Thus, the court was never called upon to exercise its discretion in determining whether [the lawyer] should be allowed to make an informal offer." Second, the lawyer failed to make his representations about the evidence he wanted to offer with the required particularity.

Thanks to the reader who notified me about the case.

Comments

[Hopey]

I think you miss the point on the offer of proof. Generally, counsel does the summary because the argument is that the material is irrelevant or otherwise barred. Thus, even if the proof is as offered, it would not be admissible. For that reason, most judges will not take the time to have the witness testify.

[Evan]

Hopey: I'm merely quoting from the Fourth District's opinion--the indented passage is a direct quote. So what you mean to say, I think, is that Justice Steigmann has missed the point about offers of proof. Or am I missing the point?