Also known as: offer of proof · offering of proof · proffer · proffer of proof
Written by attorneys · grounded in primary & secondary sources — see below
A procedural mechanism by which a party creates a record of the substance of evidence excluded by a trial court ruling. The mechanism allows an appellate court to determine whether the exclusion affected a substantial right. It is required when the substance of the excluded evidence is not already apparent from the context of the proceedings.
Octavia Okonkwo sought to introduce a witness statement during her contract dispute with Orion Technologies. The trial court sustained an objection and excluded the statement. Okonkwo then described the statement's content and purpose on the record so the appellate court could assess whether the exclusion was erroneous.
Odette Orozco offered a business record at trial against Overland Transport. The court ruled the document inadmissible before trial. Orozco did not renew the offer during trial because the pretrial ruling was definitive on the record.
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Odessa Okada attempted to introduce expert testimony in her suit against Optima Health. The court excluded the testimony and directed counsel to make the offer of proof through a series of questions and answers outside the jury's presence.
Otis Olsen attempted to present evidence supporting a duress claim in his criminal prosecution. The trial court excluded the evidence. Olsen made a detailed offer of proof describing the facts he would have proved so the appellate court could evaluate the ruling.
Opal Okoro sought to introduce testimony about statements by alleged co-conspirators. The court excluded the testimony. Okoro placed the substance of the excluded statements on the record through an offer of proof to preserve the issue for appeal.
Ophelia O'Brien attempted to introduce evidence of housing code violations in her action against her landlord. The trial court excluded the evidence. O'Brien made an offer of proof describing the specific violations and their relevance to her warranty claim.
A party must make an offer of proof when the trial court excludes evidence and the substance of that evidence is not already apparent from the context. The offer creates a record that allows an appellate court to determine whether the exclusion affected a substantial right.
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A party need not renew an objection or offer of proof once the court has made a definitive ruling on the record either before or during trial. The ruling itself preserves the claim of error for appeal.
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A court may direct that an offer of proof be made in question-and-answer form. The court may also make a statement on the record about the character of the evidence, the objection, and the ruling.
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The party cannot claim error on appeal from the exclusion unless the substance of the evidence was apparent from the context. An appellate court will not consider the claim without a sufficient record of what the evidence would have shown.
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…we would be inclined to remand to give plaintiffs an opportunity to submit additional proof that the scientific testimony they proffer was "derived by the scientific method." Daubert , however, establishes two prongs to the Rule 702 admissibility inquiry. See pp. 1315-16 supra. We therefore consider whether the testimony…