A Microscopic Look at

Foundations, Offers, Objections, and Similar Matters


by Peter Tillers

© 2007



 




Proof Procedure at Trial


Getting Proof Underway, Laying the Foundation, and Preliminaries to the Laying of Foundations


Almost all evidence is presented through witnesses. Most rules of evidence come into play when an attempt is made to have a witness give testimony.


How do you ordinarily begin the business of the process of proof? After you've made your opening statement, how do you get things underway?

Answer:

 

You begin by calling witness Jane Jones to the stand.



JJ at left = Jane Jones

C = "call" at beginning of the witness testimony time line, below.




JJ C --------------------------------->

time



The bailiff or the clerk swears the witness in or has the witness swear or affirm that she will [try to] tell the truth.


O = oath, or affirmation



JJ C O----------------------------------->


time


If the bailiff or clerk has not already done so, you, the lawyer, establish the witness's identity; that is, you say, "What is your name?"




I = question and answer about the witness; identity.


JJ C---- O ---- I ------------------------------>


Time ------->




You then ordinarily establish certain background facts about the witness.




B = background facts



JJ C--I-- O & B ------------------------------------>


------->

time



For example, you might ask questions that elicit Jane Jones's


address; marital status; age; occupation; [religion?]; and the like


You've done that; you've elicited background information about the witness. Now what do you do?


Well, you have the witness there for a reason. You don't have her there to tell her life story or otherwise entertain the jury. You have her there because she has some information and you want her to convey that information to the trier of fact.


For example, suppose this is a personal injury, automobile accident, and negligence case. You believe that Jane Jones saw the cars collide and you want her to tell the jury what she saw. Indeed, you believe that Jane Jones, if asked, will say that she saw David Defendant and his car rocket through the red light at the intersection of Fifth Avenue and Twelfth Street, slam into Peter Plaintiff, hurl Peter Plaintiff's body into the air, and turn Peter Plaintiff's head into a bloody mess. That's the punch line that you want Jane Jones to deliver. That's why you have her there.


But you have to be patient.


Suppose your questioning of Jane Jones goes as follows:


Q. What is your name?

A. Jane Jones.


Q. Are you married?

A. No.


Q. At 10:00 p.m. on the night of June 1, 2002, did you see David Defendant’s car recklessly rocket through a red light at the corner of 5th Avenue and Twelfth Street and then violently and ferociously slam into Peter Plaintiff?

The last question = PLQ = the punch line question

JJ C -- I -- O -- B --------- PLQ -------------->


----->

time


If you were to ask this question, you might well encounter a flurry of objections. That's because there are several possible things wrong with your question.


First, your question is almost certainly a leading question, a question that suggests to the witness the answer you want. Counsel ordinarily are not allowed to use leading questions on direct examination. See FRE 611 ( c ) & Park § 1.03.


Second, a court might agree that your question is an improper compound question. [Rule? FRE 611(a)? See Park § 3.08]


Third, it's conceivable that the trial judge would condemn part of your question on the ground that your question asks Jane Jones to give opinions that she is not qualified to give and that are not likely to be helpful to the trier of fact. Cf. FRE 701 & Park § 3.12


Fourth, it is even possible that the trial court would condemn your question as a trick question, a deceptive question designed to lure the witness into saying something that the witness didn't necessarily want to assert. [Rule? See Park §3.05]


But there is something even more fundamentally wrong with your question.


What is it? What's the problem?

Answer:

[Fifth] In lawyers' parlance, the problem with your punch line question is that you have failed to lay the necessary foundation for your question and for the answer that you hope to get from Jane Jones.


Before you ask Jane Jones what she saw the night of June 1 you must ask her some further questions, you must ask some preparatory questions (see below).



JJ C---I---O---B -- **** --> PLQ ------------>


------->

time

Such as what?


Well, in this case you would first ask Jane Jones a series of questions that place her at the scene of the accident at the pertinent time and establish that she was in a position to see what happened between plaintiff and defendant; you would ask Jane Jones a series of carefully-planned questions showing that Jones was there and was in a position to see what happened. Only after you have asked her such questions could you spring the question, "What happened then?" [This question, you will observe is NOT leading, compound, or deceptive.]




Source of foundation requirements


How do I know that this is what you would do and what you have to do?


It's partly because I just know that this is the sort of thing that trial lawyers do and that when they don't do it, they get into trouble.


But why is this the sort of thing that trial lawyers do? And why do they get into trouble if they don't do this sort of thing, why do they get into trouble if they don't lay what they call a foundation?


JJ C -- I --O -- B --F --> PLQ -->


----- >


time


Answer:


It's because of those nasty things known as rules of evidence. One of those rules happens to be Federal Rule of Evidence 602. (All other jurisdictions have an identical rule or a very similar rule.) So, if you are a seasoned trial lawyer (which I am not), you understand that the law of evidence proclaims that witnesses can impart their knowledge to the trier of fact -- there are exceptions to this rule -- the law of evidence proclaims that a witness can impart his or her punch line knowledge to the trier of fact only if there is some reason to think that the witness has personal knowledge -- first-hand knowledge -- of the punch line matters that the witness is to tell the jury about.



If you are a seasoned trial lawyer, you understand several other things about the laying of foundations:

 



1. Timing or sequence of the laying of a foundation


If you are a seasoned trial lawyer, you understand that the trial judge ordinarily wants to know if the witness can deliver the punch line to the jury before the witness delivers the punch line. You must establish your right to introduce evidence before your introduce your evidence.



2. Need for Evidence during Laying of Foundation


If you are a seasoned trial lawyer, you also understand that the trial judge and the opposing lawyer won't accept your say-so that your witness has met the requirements for delivering the punch line to the trier of fact. (A lawyer's say-so in court is [ordinraily] "not evidence." That's the law.) You (the trial lawyer) must introduce evidence showing that the factual requirements for admissibility are satisfied. (The laying of the foundation is an evidentiary procedure; it is a phase of the trial in which evidence is introduced. The laying of the foundation amounts [in part] to the presentation of evidence prior to the submission of evidence to the trier of fact.)


3. The Arbiter of the Adequacy of a Foundation

Finally, if you are a seasoned trial lawyer, you understand that it is the trial judge who determines whether the requirements for the delivery of the punch line have been satisfied or have not been satisfied.


&&&

So, understanding all of these things about foundations, you understand that you've got to give the trial judge -- the umpire, the referee -- some evidence that shows or suggests that your witness has met the requirements for the delivery to the jury of that witness's punch line. This is why you [the trial lawyer] go to the trouble of laying foundations.


So this -- the presentation of evidence to the trial judge -- is what's going on; after B [background evidence], and before PLQ [punch line question], there is F, the foundation, the laying of the foundation:

JJ C--I--O--B---F----->PLQ--------------------->


------->

time


As I noted earlier, in this situation a crucial audience for the answers given by the witness during F is the trial judge (see TrJ, below):

TrJ

JJ C--I-- O -- B -- {F ----> PLQ} ----->


------->

time



If and only if the TrJ believes that F satisfies the requirements of the rules of evidence that apply to the situation will the trial judge allow the proponent of the testimonial evidence proceed to PLQ and then to PLA [punch line answers or answers]:


TrJ

JJ C -- I -- O -- B -- {F --> PLQ} -->PLA -->

-- >

time



 


The Audience(s) for a Foundation


In most instances (though certainly not in all instances) the jury -- see Jy below the time line --



TrJ



JJ C -- I -- O -- B --{F ------> PLQ} ----->PLA -------->



Jy


------->

time


-- in many instances, ordinarily, the jury Jy; as well as the trial judge TrJ hears the stuff that surfaces during F; the jury hears the evidence that is presented during the interval F.


But this is mainly because it is supposed that ordinarily the proponent will be allowed to go to PLQ and thus elicit PLA and because the information in F is relevant for the jury's assessment of PLA.


It would be extraordinarily time-consuming to require that in every instance W be required to give the evidence in F twice; once, for the benefit of the trial judge and a second time, for the jury.


It is generally believed that usually not much harm is done if the Jy hears F without hearing PLA because the Jy usually will not be able to infer PLA if it hears only F. Alternatively, it is generally believed -- the law generally assumes -- that, if told do so, jurors usually and genuinely try to put the evidence in F out of mind and that they generally do so with a reasonable or acceptable degree of success.


 



The Relationship between Rules of Evidence and Steps Taken during the Laying of the Foundation


Foundation requirements -- the steps that must be taken during the laying of a foundation -- are extracted from rules of evidence., from legal rules -- rules of evidence -- that lay out the requirements for the admissibility of evidence.


This doesn't mean that the foundation that must be laid prior to the submission of evidence to the jury is the same every time. It is true that there are certain requirements -- such as the requirement of personal knowledge -- that apply to practically all evidence, at least to practically all testimonial evidence. So the foundation for practically all testimonial evidence must include evidence of the witness's first-hand knowledge.


But the personal knowledge requirement is not the only rule that constrains the submission of evidence to the jury. There are other rules of evidence, there are other exclusionary rules, and each such rule has its own set of requirements for admissibility, for submission of punch line evidence to the jury.


Not every rule of evidence applies to every offer of evidence: some rules of evidence to some offers of evidence but not to others. So the kind of foundation that has to be laid depends on the kind of evidence that is being offered and on the rules of evidence that apply to that kind of evidence.


The rules of evidence and their associated factual requirements for admissibility vary widely. Consequently, the kind of foundation that must be laid to get punch line evidence admitted, to get evidence before the jury, also varies widely.


Let's look at another example of how the business of laying a foundation works. Let's begin with a bit of background information:


The law of evidence has something called the hearsay rule. The hearsay rule proclaims that hearsay evidence is inadmissible. See FRE 801. However, like practically every legal rule, the hearsay rule has is subject to exceptions. Indeed, the hearsay rule is subject to an enormous number of exceptions. See FRE 803 & 804.


One of those exceptions is the exception for dying declarations. At common law this exception allows a party to introduce a hearsay statement for consideration by the trier of fact if:


(1) the hearsay statement was about the speaker's own death,

(2) the out-of-court speaker (the "declarant") thought that his or her death was imminent, and

(3) the speaker -- "the declarant" -- is unavailable to testify at the trial; e.g., the declarant is dead


Now suppose that you are a party in a lawsuit -- you are a party in a civil action, for wrongful death, let us say -- and you want to take advantage of this exception, the exception for dying declarations. To do that you have to lay a foundation that shows that you are entitled to take advantage of this exception. You must establish that there are facts that make the the dying declaration exception applicable. You must introduce some evidence that shows or suggests that the factual requirements for the application of the exception are satisfied.


So how do you go about laying a foundation for the dying declaration exception?


Professor Imwinkelried, in one of the best-selling law books of all time -- a book called Evidentiary Foundations (in various & numerous editions) -- shows you how:


see pp. ---- Imwinkelried (photocopy)


[The thought of the law of copyright deters me from reproducing the pertinent passages here.

Please use your imagination -- or consult his book.]




Let me alter the episode that you just witnessed.


Suppose the testimony during the laying of the foundation had gone this way:

[I repeat the questions until:]

Q. Doctor, where is Ms. Shafer now?

A. I have no idea. The last time I saw her was when the ambulance took her to the hospital.


Q. What is anything did she say about the cause of her death?

{you there! you're the defense lawyer; what do you say?; you say:} OBJECTION

{YOU THERE! YOU'RE THE TRIAL JUDGE? WHAT DO YOU SAY?:}

You say:


SUSTAINED


WHY?


Answer: The objection is sustained in this situation -- it was properly overruled in the original scenario [the one in the book] --, the objection is sustained in this situation because there is no evidence about one of the essential requirements for the application of the dying declarations exception. The requirement in question is, under the FRE, the requirement that the declarant be "unavailable" to testify at the trial. See FRE 804(a). [At common law this requirement was stricter: the declarant had to be dead. So, in that case, at common law, evidence of the declarant's permanent demise would have to be adduced.] In my revised scenario there is no evidence that tends to show that the declarant was unavailable to testify at the trial.


&&&

In one respect rules of evidence resemble criminal prohibitions: like crimes, rules of evidence have essential elements.


The rule defining a dying declaration is no exception (so to speak): as you have seen, this rule has certain essential elements.


A proponent of evidence who wants to take advantage of a rule of evidence (such as the dying declarations exception) must introduce evidence supporting each essential element of the rule in question.


In this case that means the proponent must introduce evidence establishing, among other things, the element, the requirement, the factual requirement, of unavailability (at common law, death).


The proponent in this situation did not do that. Hence, the trial judge in my revised scenario sustained the objection and excluded the hearsay statement. If moved to offer an explanation, the trial judge might well say that the proponent of the hearsay evidence failed to lay an adequate foundation for admission of the hearsay statement.



&&&


As nearly as I can figure out, all exclusionary rules work the way that the dying declarations exception does: i.e., all exclusionary rules harbor a set of requirements for admissibility. We call those requirements "essential elements" because the absence of any one of those requirements makes the proffered punch line evidence inadmissible.


It is generally the job of the proponent of evidence for the jury to give the trial judge evidence of the proponent's compliance with such “preliminary conditions” (as they are sometimes called).





Offers and Objections


{foundations -- > offers of evidence}


The business of laying an adequate foundation for the submission of evidence to the jury can be rather intricate. The proponent of evidence often has to perform an elaborate minuet. I have described some parts of this dance. But I have not yet described all of the steps that sometimes have to be taken.


The additional steps I have in mind are usually mentioned in connection with talk about the requirements of an "offer of evidence."1 These additional requirements generally come into play when a party objects to an attempt to submit evidence to the trier of fact.


As you now know, to make an adequate offer of evidence you must, to be sure, lay a foundation showing that the factual requirements -- the factual predicates -- for submission pf your evidence to the jury are there. But that is not always enough.


Suppose your opponent makes an objection.


[Look, below, at OBJ]



TrJ


JJ C__I__O__B__F------->PLQ__OBJ__?____SUBMIT (e.g., PLA) -------->



Jy


------->

time




That OBJ, you will observe, typically occurs after you have gone through the business of laying a foundation. If your opponent does make an objection, you and your opponent might very well have a little conversation, a dialogue, an argument, about the question of the validity of the objection and the admissibility or inadmissibility of the punch line answer. Since this conversation, this argument, involves material that the jury might in the end not be allowed to see, the trial judge will sometimes call the lawyers to the bench to have a little private tete a tete out of the hearing of the jury, or what lawyers call a sidebar or a bench conference {depending on how the courtroom is configured]. Sometimes the jury will just be removed from the courtroom so that the lawyers can speak loudly without any fear that the jury might overhear the argument and hear of evidence whose admissibility remains in doubt.


When you have such a discussion about the admissibility of evidence, you have to keep in mind -- i.e., the proponent or offeror must keep in mind -- his or her obligation to make an adequate offer of evidence. To make an adequate offer, you may have to explain to the trial judge, during a bench conference or otherwise,


This duty of an offeror to provide the trial court with legal authority supporting admissibility is not clearly stated in FRE 103(a)(2). But the offeror has this duty at common law and the federal courts routinely impose this common law requirement.




BTW: The common law rules of evidence are not yet entirely dead. For one thing, although the vast majority of states have adopted codes patterned after the Federal Rules of Evidence, a few jurisdictions have not yet fully codified their rules of evidence. New York is one example. [2001: Connecticut, Illinois, Massachusetts, Missouri, New York, Pennsylvania, and Virginia] Furthermore, all codifications, including the Federal Rules of Evidence, make heavy use of common law concepts, principles, practices, and terminology. I will say more about codifications and the common law later in the course.




Actual or Definite Offer


After the proponent of evidence has gone through the preliminaries -- after the proponent has laid or has attempted to lay the foundation for submission of punch line evidence to the trier of fact -- the proponent must make the actual offer.


The law requires that an "actual" offer of evidence be made, that evidence be "actually offered."


In the case of testimonial evidence, this means that the proponent must (finally!) ask the punch line question -- e.g., "What did you see?"


In the case of tangible evidence, the offer is made a bit differently: the proponent of tangible evidence makes an actual offer of evidence by announcing that it is making an offer; the proponent of such evidence will say something like this: "Your Honor, we offer Plaintiff's Exhibit No. 21 in evidence."


{elaboration of meaning of actual offer requirement:}


Saying -- just saying --"Your Honor, we would like to have the witness tell us what she saw" or {just} saying "Your Honor, we intend to offer exhibit no. 21" won't do. Such statements are considered just the announcement of an intention or a desire. You the proponent must ask the punch line question or say that you now offer the exhibit -- not that you might do so, want to do so, intend to do so, etc. Take a lesson from Nike here: Just do it!




{objections}


Once a party has made an offer of evidence by, for example, asking a question, something else can happen: an opponent can object to the admission of the evidence that the proponent offers, an opponent can object to the submission of the proffered evidence -- the punch line evidence -- to the jury.




TrJ


JJ C__I__O__B__F------->OFF (e.g., PLQ) __OBJ__?____SUBMIT (e.g., PLA) -------->



Jy


------->

time




&&&

Let's reprise a few rules about objections.


{necessity of objection:} The first rule -- the most basic rule -- is that if a party wants to keep evidence from going to the jury -- if it wants evidence to be excluded -- it must (ordinarily!) object. Subject to a rarely-applied damnable exception, the rule is that a party who does not object waives or forfeits any potential claim it might otherwise have been able to make later that the trial court erred in admitting the evidence in question.

{exception to need for objection:}


!FRE 103(a)(1); cf. FRE 103(d) (plain error rule; rarely applied in civil litigation; in criminal cases only in favor the accused, and courts say, roughly, the error must be palpable, or clearly apparent, and particularly egregious)


{timeliness requirement:}


{requirement that objection be timely:} That's simple enough, isn't it? But now things get a bit more complicated. There is another basic requirement that applies to objections: an objection must be timely. See FRE 103(a)(1).


This requirement of timeliness has two sides; it has a Goldilocks flavor or quality. An objection can't come too soon. But it also can't come too late. The timing of the objection must be just right.


Let's first consider the problem of premature objection articulation. If an objection is made too soon, it will be condemned as "premature"; the objection can be ignored and overruled for that reason alone. The judge will frown at you and say, "Counsel, your objection is premature. Overruled."


But when is an objection premature? The answer (subject to some damnable objections) is that an objection made during the laying of the foundation is premature. A party is not permitted to object to the answer to the punch line question -- to the PLA -- while the foundation for the punch line question PLQ is being laid. (See diagram below.)


Furthermore, a party cannot object to the giving of the punch line answer in the presence of the jury until the punch line question is asked (or, in the case of tangible evidence, until the proponent says, "Your Honor, we offer exhibit #26"). So the OBJ cannot be made either during F or during PLQ, but only after PLQ.





TrJ



JJ C__I__O__B__F -----> OFF (e.g., PLQ) __OBJ____SUBMIT (e.g., PLA)

Jy


------------->

time


But, as I told you, the requirement that an objection be timely is has a Goldilocks quality, it is a two-sided sword.


The timing of an objection must be just right.


The converse of the principle that an objection must not be premature is the principle is that an objection must not be made too late, it must not be made belatedly.


If the objection is made too late, if the objection is belated, a hard-nosed judge is entitled to say -- and sometimes will say -- that the party making the belated objection has forfeited or waived its right to object. The judge may well frown and say, "Counsel, I am overruling your objection as unseasonable. You did not make your objection in a timely fashion."


But when, precisely, is the right time to make an objection? How long can you wait before it is too late?


The answer is, "Not long." Subject once again to those damnable exceptions that the law is so fond of, the more precise answer is this: In the case of both testimonial evidence and tangible evidence the opponent must object immediately after the offer of evidence. In the case of testimonial evidence, this means that the opponent must object before the witness answers. In the case of tangible evidence, this means that the opponent must make its objection before the trial judge gets around to saying, "Admitted," before the trial judge rules favorably on the offer of tangible evidence.


The rule that an objection must be made before the witness' answer (or, in the case of tangible evidence, before the judge rules on the offer) -- this rule is called the contemporaneous objection rule.


The contemporaneous objection rule is one of the many reasons why trial lawyers tend to develop ulcers and drink to excess. For, as you can see, the trial lawyer who wishes to keep evidence from the jury has just this little interval -- this little space between PLQ and PLA [please look at it] -- in which to lodge an objection. So trial lawyers literally have to be quick on their feet -- or, at least, they have to speak quickly (often before they know what they will say). [Rise to object and start thinking.] Trial lawyers can't afford to have a bad day; they can't afford to nod off during a trial. This is one reason why trial work tends to be a young person's game. Older folks ... etc. [I speak here as a geezer. - pt]

{motion to strike; justified delayed objection:}


But, as you know the law is occasionally sensible, even charitable. (Yes, sometimes it really is that.) The law’s treatment of the contemporaneous objection requirement actually exhibits a measure of common sense. Consider this scenario:

You are the lawyer for David Driver. He is the defendant in an automobile accident case. Peter Plaintiff's complaint avers that Plaintiff was injured on June 1, 2001, as a result of Driver's negligent driving. You have denied everything: your answer says (a) Driver didn't do it; Driver didn't drive through the intersection or against the red light; and (b) Driver was forced to do it; he was forced by Perky Passenger to drive through the intersection at an excessive rate of speed and against the red light).


This case and controversy goes to trial. Peter Plaintiff calls Wally Witness as his first witness. Wally takes the oath. See FRE 603. Then this happens:


Q. What is your name?

A. Wally Witness.


Q. What is your occupation?

A. On June 1, 2001, David Driver ran a red light at the intersection of Main and North Streets. Driver was traveling from west to east on Main Street at a rate of approximately 100 miles an hour. After running the red light, Driver ran into Peter Plaintiff's car. It was just an awful, bloody mess. Peter was thrown to the top of a tree at the southeast corner of the intersection.


Driver's lawyer, who was unsuccessfully trying to get the judge's and witness's attention by waving his hands, then finally blurts out:


Your Honor, we move to strike the answer of the witness. No foundation. No showing of personal knowledge.


Judge: "Are you objecting, counsel?"


D's counsel: "Yes we are, your Honor."


P's counsel: "Your Honor, D's objection comes too late, it is not timely. He should have objected before the witness answered. He didn't do that. Hence, he has forfeited his right to object."


The judge will probably say, "Come, come, counsel. The general rule is as you describe it: the objection must be made before the witness answers. But there is an exception for unresponsive answers. The reason is obvious. Opposing counsel cannot anticipate an unresponsive answer and, thus, cannot object before the answer is given. That's what happened here. You asked for the witness's occupation. There was nothing objectionable about your question or the expected answer. But the witness gave an unexpected answer. So I will sustain Defendant's objection. Proceed."


The trial judge's mini-lecture is unexceptionable. But the trial judge did make a technical mistake. The trial judge intimated that Driver should have said "objection" rather than "I move to strike." That is probably because the judge correctly viewed the motion to strike as a delayed objection, a belated objection. But in fact the normal procedure when an objection is made to testimony that the jury has been allowed to hear is for the objecting lawyer to make a "motion to strike."


However, this language -- "motion to strike" -- is, strictly speaking, anachronistic. For the answer, even if ruled inadmissible, is not literally struck from the record: all sorts of things that the jury never sees -- including oodles of inadmissible evidence -- remain in the record of a trial. The court reporter has the obligation to transcribe and record everything (insofar as practicable) that happens during a trial. The court reporter therefore keeps a record of testimony and other evidence that the trial judge has decided that the jury should not be permitted to see.


Nonetheless, if a witness gives a punch line answer before you've had a chance to objection you should say something like this, "Move to strike. Inadequate foundation. Personal knowledge not shown." Everyone in the courtroom (including the court reporter, the stenographer) will know what you mean.


Note on terminology: Objections are either sustained or overruled; they are NOT "granted" or "denied." Motions, by contrast, are either granted or denied; they are NOT "sustained" or "overruled."


 


The Offer of Proof.

Once the proponent of evidence has made an adequate offer of evidence, the proponent, the party offering evidence, the offeror, may have to take yet another step if its attempt to persuade the trial court to admit the proffered evidence fails. If an unsuccessful proponent of evidence wishes to preserve its right to complain about the trial court’s exclusion of allegedly admissible evidence -- the trial court's exclusion of evidence that passes muster under the rules of evidence -- , the unsuccessful and disappointed proponent may have to make an offer of proof. [Note about terminological confusion.] In general terms, the making of an offer of proof is nothing more than the placing of excluded evidence -- the placing of the allegedly admissible but excluded evidence -- on the record. The purpose of an offer of proof is to make it possible for an appellate court (or other reviewing court) to ascertain (by examining the record) the nature of the evidence that was excluded, allegedly improperly, by the trial court.


The proponent must make an offer of proof unless the nature of the excluded evidence is already apparent (or unless the proponent put the evidence that was later excluded on the record while making its offer of evidence).


The penalty for the failure of an offeror to make a necessary offer of proof is forfeiture of the right to appeal on the ground of improper {illegal} exclusion of the offeror’s evidence by the trial court.


!There are two kinds of offers of proof. One kind is is the informal, or lawyer, offer in which the proponent simply describes the evidence that he would have submitted if the trial court had not excluded. With the other kind of offer -- the formal offer of proof -- the lawyer proceeds in the absence of the jury to submit the evidence just as he would have if the trial court had not excluded it. See FRE 103(b), 2d sentence (the court "may direct the making of an offer in question and answer form").



The (ostensible) reason for the offer of proof requirement has to do with rules governing appeals. An appellate court can reverse a judgment in a trial court if and only if it is shown that any error committed by the trial was "prejudicial." I.e., not any old error will do; not any old error gives a party the right to relief from an appellate or other reviewing court. The error committed by the trial court must have been prejudicial error. Appellate relief will be denied if the appellate court concludes that any erroneous exclusion of evidence by the trial court was harmless.




 

Prejudicial Error Requirement


If the trial court makes an error and you take all of the steps necessary to preserve your claim of error, it does not necessarily mean that you will win on appeal:


If the trial court has made an error and you have preserved your right to complain about its error on appeal, you will lose on appeal if the trial court's error was not "prejudicial"; that is, you will win only if the trial court's error was prejudicial error. See FRE 103(a) ("substantial right" of a party must be adversely affected by the trial court's ruling).


(definition of prejudicial error)


There are various formulations of the prejudicial error requirement but roughly speaking they add up to the following fuzzy rule:


An appellate court will reverse because of a mistaken ruling about the admissibility of evidence only if there is a substantial possibility or probability that the result would have been different from the actual result if the trial court had not made the mistake that it did make. If the appellate court believes that the result at the trial very probably would have been the same, it will not reverse.


!Do not confuse this rule, the rule requiring prejudicial error for reversal on appeal, with another prejudice rule, the rule which says that the trial court may exclude unduly prejudicial evidence. These are two different rules. The prejudicial error rule is a rule governing appellate practice: it is a rule that limits the power of an appellate court to reverse a judgment because of a trial court's mistakes.



Earlier I told you a story. Let's call it Story #1. The moral of Story #1 is the need for an offer of proof if evidence has been excluded:


If a trial court excludes evidence and the content of the excluded evidence is not apparent, the unsuccessful proponent of the evidence must make an offer of proof. This [imagine that my finger is moving to the right] --


C_ O_ I_ B_ F —> PLQ __ OBJ __ R (exclude!) __ OoP


-- the interval after PLQ, OBJ & R -- is now where you are.


Now -- being here --, having failed in your attempt, you must make an offer of proof. My failure to do so meant I lost on appeal even though the trial judge incorrectly sustained a hearsay objection to the question I asked of my witness.



Now I would like to tell you Story #2:



Story #2


Paula Plaintiff brings a federal civil action against David Driver for injuries allegedly sustained as a result of Driver's negligent driving.


The collision occurred at Smith and Main Streets at 2:30 p.m. on June 1, 2000.


Foul Friend was a passenger in Driver's car at the time of the collision.


Paula Plaintiff's counsel calls Wanda Witness.


She asks Wanda Witness if she was at Smith and Main Streets at 2:30 p.m. on June 1, 2000.


Paula asks Wanda W if Wanda saw the collision.


Wanda replies that she didn't because she was turned in the opposite direction at the time of the collision. However, Wanda Witness testifies that she heard a loud noise, turned out, and saw two wrecked cars in the intersection, Paula's and Driver's and that she then rushed up to Driver's car to offer her help. She testifies that she first saw Foul Friend lying in the passenger seat of Driver's car.


Paula asks Witness what happened then.


Witness: I asked him what happened.


Q. What did he say?


Driver'S ATTORNEY: OBJECTION, HEARSAY


Paula'S ATTORNEY:


Your Honor, the out of court statement falls within an exception to the hearsay rule.


COURT: Which exception is that?


Paula's ATTORNEY:


Wanda's answer will make that plain, your Honor.


COURT: Might I be enlightened on how?


Paula'S ATTORNEY: