In yesterday’s post, I discussed objections and how they’re used during trials in Massachusetts. In this post I want to discuss what happens after an objection is sustained (i.e., allowed) by the trial judge.
If you ask a witness a question that may elicit a legally impermissible answer, the opposing attorney will object and the judge will likely sustain the objection. At this point, you must make an “offer of proof” to the court.
An offer of proof, as defined in Black’s Law Dictionary, is
A presentation of evidence for the record (but outside the jury’s presence) usu. 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.
The typical offer of proof involves:
- presenting the evidence, whether physical or testimonial, to the court;
- explaining the relevance of the evidence; and
- arguing for its admissibility.
This will usually be done on the record at sidebar. However, in some cases, the judge may ask the jury to leave the courtroom while the offer of proof is being handled.
The need to make an offer of proof usually does not apply when a criminal defendant (or his attorney) is cross-examining a witness. According to the Supreme Judicial Court:
Ordinarily a defendant is not required to make an offer of proof in order to preserve for appeal a ruling excluding a question on cross-examination…this is because an offer must point to evidence actually available…and the cross-examiner will often be unable to state what the answer would have been if the question had been allowed…But should the cross-examiner be permitted to make an offer if he wishes? Yes, “to show the pertinency, not otherwise apparent, of the question excluded”…thereby assisting the appellate court and incidentally giving the trial judge a chance to reconsider his exclusion of the question. So, unless the judge is sure of the cross-examiner’s purpose and satisfied that it is apparent from the record, he should allow the offer…Rarely will the refusal of an offer on cross-examination in itself constitute reversible error…
Commonwealth v. Barnett, 371 Mass. 87, 95 (1976).
Additionally, an offer of proof may not be needed when there is no doubt what the precluded evidence or testimony would have been. Though, it seems wise to make an offer of proof nonetheless.
It would have been better practice for the defendant to make an offer of proof, but that could be dispensed with as there was no doubt what testimony would be given.
Commonwealth v. Caldron, 383 Mass. 86, 89 n.2.