;
In order to perfect a record for appellate review, an unsuccessful offering party ordinarily must make an offer of proof (see exceptions, below).{footnote}Andrews v. Bechtel Power Corp., 780 F.2d 124 (1st Cir. 1985), cert. den., 106 S.Ct. 2896 (1986)(pro se litigant); United States v. Dennis, 843 F.2d 652 (2d Cir. 1988); Fischer V. Dallas Fed. Savings & Loan Assoc., 835 F.2d 567 (5th Cir. 1988);  James v. Bell Helicopter Co., 715 F.2d 166 (5th Cir. 1983); Espino v. City of Kingsville, 676 F.2d 1075 (5th Cir. 1982); United States v. Winkle, 587 F.2d 705 (5th Cir. 1979); Strong v. Mercantile Trust Co., 816 F.2d 429 (8th Cir. 1987), cert. den., 108 S.Ct. 759 (1988); United States v. Cutler, 676 F.2d 1245 (9th Cir. 1982); United States v . Brady, 579 F.2d 1121 (9th Cir.), cert. den., 439 U.S. 999 (1978); United States v. Wright, 783 F.2d 1091 (D.C. Cir. 1986).

Kansas § 60-405.{/footnote}  An offer of proof must set forth the substance of the offered evidence sufficient to inform the appellate court of what was excluded.{footnote} [2812]  FRE 103(a)(2); Beech Aircraft Corp. v. Rainey, 488 US. 153, 174, 109 S.Ct. 439, 102 L.Ed 2d 445, 466 (1988). {/footnote}  Conclusory offers of proof will not preserve any alleged error.{footnote}United States v. Winkle, 587 F.2d 705, 710 (5th Cir. 1979) (offer by defendant of "his version" of conversations insufficient); United States v. Callahan, 551 F.2d 733 (6th Cir. 1977); United States v. Brown, 540 F.2d 1048 (10th Cir. 1976) (summary of expert testimony insufficient); Weinstein & 103[04] at 103-38; Moore’s § 103.22; Simon v. Plotkln, 50 Ill. App. 3d 603, 365 N.E.2d 1022 (1st Dist. 1977).

But see Charter v. Chleborad, 551 F.2d 246, 248-9 (8th Cir. 1977) (sufficient that "[trial] court was aware of the general nature of the evidence to be offered."){/footnote}  Without such an offer, the appellate court would have a difficult time judging whether the decision below was erroneous, or if it was, the extent to which the offeror was prejudiced.  Thus, it is crucial that the offeror demonstrate the relevance of the excluded evidence to the lower court.
 
Procedure for Testimony

An offer of proof for excluded testimony may take two forms.  The attorney may describe the substance of the testimony, or may elicit the testimony itself from a witness on the stand.  In either case, the offer should be made outside the jury’s presence.{footnote} [2814]  See FRE 103(c); Posttape Associates v. Eastman Kodak Co., 537 F.2d 751 (3d Cir. 1976).{/footnote}  It has been held error for the judge to be absent when an offer of proof is being made.{footnote}United States v. Smith, 831 F.2d 657 (6th Cir. 1987).

People v. Eckert, 194 Ill. App. 3d 667, 551 N.E.2d 820 (5th Dist. 1990).{/footnote} 

Procedure for Exhibits

Making an offer of proof for excluded exhibits is simply a matter of identifying them and asking that they be included as exhibits in the record.

Failure to Make Offer of Proof Excused

The failure of a party to make an offer of proof will be excused under some circumstances.{footnote}McQuaig v. McCoy, 806 F.2d 1298 (5th Cir. 1987)(nature of evidence otherwise apparent from record).{/footnote}  Where the nature of the evidence is apparent from the context of the testimony, no offer of proof is required.{footnote} [2817]  FRE 103(a)(2); Beech Aircraft Corp. v. Rainey, 488 US. 153, 174, 109 S.Ct. 439, 102 L.Ed 2d 445, 466 (1988); United States v. Peters, 732 F.2d 1004 (1st Cir. 1984).

Cal. § 354(a); Schusler v. Fletcher, 74 Ill. App. 2d 249, 219 N.E.2d 588 (2d Dist. 1966).{/footnote}  Where it is clear from the court’s prior rulings in the case that an offer of proof would have been futile, the requirement may be waived in some jurisdictions.{footnote}Cal. § 354(b).  See also McQuaig v. McCoy, 807 F.2d 1298 (5th Cir. 1987)(no offer of proof required where substance of evidence was made known to court during pretrial conference and was ruled inadmissible).{/footnote} 

Cross-Examination.  It has been held that no offer of proof is required where a party has been prevented from asking particular questions on cross-examination, as opposed to direct examination.{footnote}Alford v. United States, 282 U.S. 687, 75 L.Ed. 624, 51 S.Ct. 218 (1931).

Cal. § 354(c).{/footnote}  Courts have required offers of proof, however, where the cross-examiner is aware of the testimony the witness could be expected to give.{footnote}Salzman v. Fullerton Metals Co., 661 F.2d 647 (7th Cir. 1981); United States v. Berzinski, 529 F.2d 590 (8th Cir. 1976)(offer of proof required unless clear what testimony would have been, or unless ruling was plain error).{/footnote}

It is almost always error for the court to prevent a party from making an offer of proof.{footnote}Gray v. Lucas, 677 F.2d 1086 (5th Cir. 1982), cert. den., 461 U.S. 910 (1983)  State v. Shaw, 565 P.2d 1057 (N.M. 1977)(G).  See also Beech Aircraft Corp. v. Rainey, 488 US. 153, 174, 109 S.Ct. 439, 102 L.Ed 2d 445, 466 (1988). (incomplete offer of proof acceptable in light of judge’s interruption of offer).{/footnote}  Similarly, failure to make an offer of proof has been excused where the judge’s demeanor was such that the offering party was effectively prevented from making an offer of proof.{footnote}Goad v. Evans, 191 Ill. App. 3d 283, 547 N.E.2d 690 (4th Dist. 1989).{/footnote} 

Related Articles

OBJECTIONS; APPEAL.