Preservation of Evidence Error

If evidence is excluded by the judge, and the party offering the evidence thinks that the judge erred, that party has to make an offer of proof to preserve the error. The party must have the desired evidence presented to the court outside of the presence of the court. This offer is usually made by questioning the witness. In the rare cases in which the desired evidence can clearly be given by narrative, it may be so given. The offer of proof must be given before the close of the evidence. The idea is that the offer of proof may convince the judge that evidence should be allowed to be presented to the jury.

Typing Is Important

In a per curiam opinion, Circuit Justices Jerry E. Smith, senior Circuit Justice Jacques L. Wiener, Jr., and Circuit Justice Jennifer Elrod held that after a supplemental trial court hearing that corrected an absurdity in the record-- that the defendant pleaded "not guilty" at his plea bargain setting resulting in a conviction-- could not attack the sufficiency of the evidence against him on appeal. The supplemental hearing showed that the defendant was pleading "no contest" rather than "not guilty." The guilty plea had been structured so as to allow him to challenge the search of his house, which was how the evidence of credit card abuse had been obtained.

Does Your Trial Record Preserve Your Evidence Exclusion Error?

Continuing to reflect on whether or not you should do your trial client's own appeal, there's something extra to think about if you want to complain about evidence's being excluded at trial. Most of the time, if that's the kind of error you want to bring forward, an offer of proof must be in the record.
Here's the situation: trial counsel offers some evidence; the opponent objects and is sustained by the judge. Generally, if the first lawyer wants to complain on appeal about the exclusion, that lawyer must, outside the presence of the jury, put what the testimony would be on the record. Usually this is done by simply asking the questions and taking the testimony as if the objection had not been made. If the objected-to evidence is simple, the testimony may be offered, if the trial judge allows it, as a narrative, though this is disfavored. After the evidence is presented in the offer of proof, opposing counsel may withdraw the objection or the trial judge might change the ruling sustaining the objection. The offer doesn't have to made right away, but it does have to be made before the case is submitted to the fact-finder.
Evidence exclusion is not a very strong objection, because the standard of review is whether the ruling is in the sound discretion of the court. We'll talk about this more in subsequent posts.