The Court's Role Under Rule 103

The Court's Role Under Rule 103

The preceding sections treated preservation as work the parties do: the opponent objects, the proponent makes an offer. Two subdivisions of Rule 103 describe what the judge may and must do while that work goes on. Subdivision (c) gives the court tools for building a clear record, and subdivision (d) obliges the court to protect the jury while the record is being built. The two fit together because the form of an offer is partly the judge's choice, and that choice is how the judge keeps the jury from hearing excluded matter.

Rule 103(c) has two sentences. The first lets the court make any statement about the character or form of the evidence, the objection made, and the ruling.¹ The second lets the court direct that an offer of proof be made in question-and-answer form.² Both sentences are permissive, and both serve the reviewing court. A transcript is only words on a page, and an appellate judge reading it cannot see whether a question was a leading one, which exhibit was being discussed, or what the objection actually targeted. A short statement from the trial judge supplies those facts and shows what the evidence was, the form in which it was offered, the objection, and the ruling.³ The question-and-answer direction does a different job. When counsel only summarizes what a witness would say, the reviewing court must take that summary on faith. Putting the witness on the stand puts the exact words on the record, which resolves every doubt about content.⁴ A judge who doubts that the witness will testify as counsel describes can therefore require the testimony itself.⁵

Rule 103(d) answers a separate problem. The requirement is that, to the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.⁶ The phrase "by any means" matters because the harm is not limited to a witness blurting out the excluded answer. A jury can be affected by a question that insinuates a fact, by the objection that follows it, by a speech from counsel, or by an offer of proof describing the very evidence the judge has just excluded.⁷ Speeches directed at the jury under cover of an objection can themselves amount to reversible error.⁸ Because that harm occurs the moment the jurors hear the material, a limiting instruction afterward can only partly repair it. The rule's response is prevention: the judge may excuse the jury, retire with counsel to chambers, or have counsel approach the bench.⁹ A ruling in advance of trial, taken up in a later section, avoids the problem at its source.

The two subdivisions come together at the offer of proof. Take the judge who doubts that a witness will say what counsel claims. She may direct question-and-answer form under Rule 103(c), and she satisfies Rule 103(d) by excusing the jury before the witness answers. The offer is then complete, and the jurors never hear it.¹⁰ Reverse the facts. Counsel delivers a long offer about excluded matter in open court, and the jury hears everything the ruling was supposed to keep from it. The exclusion has been defeated, and this is the result Rule 103(d) is written to prevent.¹¹ The qualifier "to the extent practicable" leaves room for cases in which the evidence described is too harmless to influence the jury and a recess is not worth the delay. The default, though, is to keep proffers out of the jury's hearing.