A Guide to Offers of Proof (“Proffers”) under the Rules of Evidence
When a Trial Judge Has Sustained an Objection and Excluded Evidence, an Offer of Proof Can Help You Reverse the Ruling or Preserve Your Right to Appeal the Decision
In law, the person seeking an award of damages from another (the “plaintiff”) or disability benefits through an administrative system such as workers comp or Social Security (the “claimant”) must satisfy their burden of proof.
You meet this burden by presenting evidence, the term for any material offered to prove or disprove a fact. Evidence may include trial testimony, deposition testimony, narrative reports from doctors, or medical records.
But what can you do if the other party objects to specific evidence at trial or in a pretrial motion in limine and the trial court sustains the objection, excluding your proof?
How do you preserve this issue for an appeal if the judge or jury does not render a favorable verdict and you think it is because the judge excluded significant evidence?
The answer is making an offer of proof.
And this article explains when, why, and how to make offers of proof during personal injury litigation (car accident, product liability, or medical malpractice cases) or administrative hearings for workers comp benefits or Social Security disability insurance (SSDI) or Supplemental Security Income (SSI) payments.
Keep reading for more information on satisfying the rules of evidence in tort claims.
And if you have any questions about your case, call me at (804) 251-1620 or (757) 810-5614 or complete the online form.
We have helped thousands of injured workers and accident victims get the money and medical treatment they needed to improve their quality of life.
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Who Decides Whether Evidence is Admissible or Inadmissible?
A trial court has broad discretion to determine the admissibility of evidence under the Federal Rules of Evidence and the Virginia Rules of Evidence.
An appellate court will not reverse a trial court’s decision to exclude specific evidence unless you can show an abuse of discretion.
It can be challenging to show that the trial court abused its discretion in excluding evidence. Indeed, appellate courts tend to give a high level of deference to evidentiary rulings because the trial court has a better vantage point to assess all the factors considered in the decision. For example, the trial judge’s evidentiary ruling comes after they have supervised the case through pretrial discovery and litigation and observed the witnesses’ demeanor and the jury’s reactions at other points during the trial.
The fact that the court of appeals may have reached a different conclusion than the trial judge and allowed you to introduce and admit the evidence does not matter. Instead, you must prove that the trial court’s evidentiary ruling resulted in the judge or jury not considering a relevant factor that should have been given significant weight or was a legal error.
And the offer of proof is the best (and required) method to persuade the trial court to change its mind, avoiding the need for an appeal, or convince the appellate court of the relevance and significance of the evidence excluded at trial.
What is the Definition of an Offer of Proof?
Black’s Law Dictionary (11 ed. 2019) defines an offer of proof as:
A presentation of evidence for the record (but outside the jury’s presence) usually made after the judge has sustained an objection to the admissibility of that evidence, so that the evidence can be preserved on the record for an appeal of the judge’s ruling.
What Evidentiary Rules Address Offers of Proof?
I practice law in the federal and state courts in Virginia.
Therefore, I will discuss the applicable rules to my practice below.
If you practice law in a different jurisdiction, you should review the evidentiary rules for that state, district, or territory. In my experience, many states have adopted evidence rules similar to those used in federal courts. But you should always check before a trial.
Offers of Proof under the Federal Rules of Evidence
Rule 103(a)(2) of the Federal Rules of Evidence (F.R.E.) governs offers of proof in trials in federal district courts.
Under F.R.E. 103, a trial court’s ruling excluding evidence cannot be a reversible error on appeal unless –
1. You inform the court of the substance of the evidence by an offer of proof or
2. The substance was apparent from the context within which you asked questions at trial
Otherwise, you waive your claim of error in the trial court’s ruling.
Offers of Proof (Proffers) under the Virginia Rules of Evidence
Rule 2:103 of the Virginia Rules of Evidence governs offers of proof in state courts in Virginia.
This rule, however, uses the term “proffer” instead of an offer of proof.
Virginia’s rule on offers of proof states that a court of appeals cannot find that the trial court erred in excluding evidence unless “the substance of the evidence was made known to the court by proffer.”
Why Do Courts Require an Offer of Proof to Preserve the Issue on Appeal?
Offers of proof serve two purposes.
First, the goal of an offer of proof is to allow the trial court to correct an error in judgment during the trial.
The offer of proof educates the trial judge on how the evidence fits with the other facts of the case, allowing the judge to reconsider and change the ruling.
Second, an adequate offer of proof gives the appellate court enough information to determine whether there was a reversible error in excluding the evidence and if that error resulted in prejudice to you.
Do I Make an Offer of Proof in Front of the Jury?
No.
You offer proof outside the jury’s presence, so the jury does not learn of inadmissible evidence. Otherwise, you risk a mistrial, which would cause you to incur additional expenses and delay, or the giving of curative instructions after the parties submit the case to the jury.
What are the Steps to Making an Offer of Proof?
If the trial court sustains the other party’s objection or grants its motion in limine, you should follow these steps to make a valid, properly presented, detailed, and recorded offer of proof.
First, ask the judge for permission to approach the bench or a hearing outside the jury’s presence (either in the judge’s chambers or with the jury leaving the room).
But make sure that the court reporter can hear the conversation so that the statements become part of the trial transcript and record on appeal.
Second, tell the judge that you want to make an offer of proof.
Third, describe the evidence and what it would show.
Ask the judge if you can offer the proof in a question-and-answer format, with the witness answering the questions objected to. With this method, you can show the actual testimony. And as one treatise states, opposing counsel can cross-examine the witness “to develop any factors which would put the preferred testimony its true light.”
If the trial court does not allow the question-and-answer method, then you must state what the witness would have testified to if the judge had allowed the questioning.
Provide specifics and details to strengthen the offer of proof of testimony. But stick to the facts and avoid exaggeration.
In addition to these methods, you may also make an offer of proof by submitting a written document. Specifically, you can present a written narrative of the proposed testimony or an affidavit signed by the witness under oath. But if you choose to proffer a written statement, make sure the court marks the document as an exhibit so that it is part of the official trial record on appeal.
Fourth, tell the court the significance of the proposed evidence and how it is relevant to the disputed issues.
Fifth, explain why the evidence is admissible.
For example, suppose the trial court rejects testimony from an expert witness. In that case, you should state why the proffered expert has sufficient knowledge, skill, or experience to render him competent to testify as an expert on the subject matter.
What Happens if I Did Not Make a Valid Offer of Proof at Trial? Exceptions to the Offer of Proof Requirement
Generally you forfeit the right to appeal the exclusion of evidence if you did not make a valid offer of proof at trial.
But in some situations, your failure to make an offer of proof at trial will not waive your right to appeal an erroneous exclusion of evidence.
First, you can argue that the substance, purpose, and relevance of the excluded evidence are apparent from prior proceedings or discussions during the trial.
Second, if your offer of proof was inadequate (or you did not make one), the court can reverse if the trial court’s ruling was in plain error and affected your substantial rights.
Third, suppose the judge excluded a line of inquiry during the cross-examination of the defendant’s expert witness at a personal injury trial. In that situation, the appellate court may forgive the failure to make an offer of proof because cross-examination questions are often exploratory and the attorney may not know the answers.
Get Help Presenting Your Case Effectively and Protecting Your Right to Appeal Unfavorable Rulings
Things move fast at trial.
But you must respond to objections to get your evidence into the record and before the jury. Or act quickly if the trial court excludes the evidence to preserve your right to claim error on appeal.
For help navigating all aspects of personal injury litigation, call us today. We are ready to prosecute your claim.
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