Pro Se Chicago's Weblog

June 17, 2014

Offers of Proof – Preserving barred evidence & testimony for appeal


OFFERS OF PROOF

These are used to preserve evidence or testimony for the record when the court bars its introduction during the trial or during an evidentiary hearing. During a trial, if an offer of proof is formally made, the jury will be excluded and the witness is put on the stand so that the testimony will be on the transcript or the attorney/pro se counsel may put the evidence on the record or state what they expect a witness would have said in detail, just to get it on the record for purposes of appeal.  Anything not on the record cannot be considered for appeal.  If the judge won’t let you do this, you can file an offer of proof with an attached affidavit as to what the witness would have said or attached evidentiary document. This memorandum explains offers of proof a little more clearly. Everything I write uses Illinois and federal case law. 

MEMORADUM OF LAW – OFFERS OF PROOF

NOW COMES, Linda Shelton who respectfully presents to the court this memorandum of law.

  1. The refusal to allow an offer of proof in a trial denies due process and is reason for overturning the verdict. Every defendant has a Sixth Amendment right to present a defense. People v. Manion, 67 Ill.2d 564, 10 Ill.Dec. 547, 367  N.E.2d 1313 (1977) It is a fundamental error to deny the right to present a defense that requires the verdict be overturned. (Ibid)  Refusing to allow a person to place an offer of proof on the record, de facto denies defendant the right to present a defense.
  2. “When a party claims she has not been given the opportunity to prove her case because the trial court improperly barred certain evidence, she “must provide [the] reviewing court with an adequate offer of proof as to what the excluded evidence would have been.” In re Estate of Romanowski, 329 Ill. App. 3d 769, 773, 771 N.E.2d 966, 970 (2002). An offer of proof serves two primary functions: (1) it discloses to the trial court and opposing counsel the nature of the offered evidence, thus enabling the court to take appropriate action, and (2) it provides the reviewing court with an adequate record to determine whether the trial court’s action was erroneous. People v. Thompkins, 181 Ill. 2d 1, 10, 690 N.E.2d 984, 989 (1998).
  3. The traditional way of making an offer of proof is the “formal” offer, in which counsel offers the proposed evidence or testimony by placing a witness on the stand, outside the jury’s presence, and asking him questions to elicit with particularity what the witness would testify to if permitted to do so. People v. Wallace, 331 Ill. App. 3d 822, 831, 772 N.E.2d 785, 794 (2002); M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §103.7, at 22 (8th ed. 2004).
  4. In lieu of a formal offer of proof, counsel may ask the trial court for permission to make representations regarding the proffered testimony. If counsel so requests, the court may–within its discretion–allow counsel to make such an informal offer of proof.
  5. A trial court may deem an informal offer of proof sufficient if counsel informs the court, with particularity, (1) what the offered evidence is or what the expected testimony will be, (2) by whom it will be presented, and (3) its purpose. Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill. App. 3d 444, 451, 818 N.E.2d 713, 719 (2004). However, an informal offer is inadequate if counsel (1) “merely summarizes the witness’ testimony in a conclusory manner” (Snelson v. Kamm, 204 Ill. 2d 1, 23, 787 N.E.2d 796, 808 (2003)) or (2) offers unsupported speculation as to what the witness would say (People v. Andrews, 146 Ill. 2d 413, 421, 588 N.E.2d 1126, 1132 (1992)). In deciding whether to permit an informal offer of proof, the court should ask itself the following questions: (1) Are counsel’s representations accurate and complete? and (2) Would a better record be made by requiring counsel to make a formal offer of proof, even though doing so might be inconvenient and require more time?
  6. In addition, before deciding whether to accept counsel’s representations in lieu of a formal offer, the trial court should ask opposing counsel if he objects to proceeding in that fashion, even though counsel’s response in no way limits the court in exercising its discretion on this matter. If opposing counsel concedes the sufficiency of the offer or has no objection to proceeding by counsel’s representations, then opposing counsel’s client may not later challenge the court’s decision to proceed by counsel’s representations, rather than a formal offer. See In re Detention of Swope, 213 Ill. 2d 210, 217, 821 N.E.2d 283, 287 (2004) (“Simply stated, a party cannot complain of error which that party induced the court to make or to which that party consented”); In re Marriage of Sobol, 342 Ill. App. 3d 623, 630, 796 N.E.2d 183, 188 (2003) (a party forfeits the right to complain of an alleged error when to do so is inconsistent with the position the party took in the trial court).
  7. We emphasize that a trial court is never required to settle for less than a formal offer of proof, whatever the positions of the parties at trial may be. Whether to do so is left entirely to the court’s discretion. Thus, if the trial court is not satisfied that counsel’s representations alone are sufficient, the court may require counsel to place his witnesses on the stand and make a formal offer of proof.”  Miller v. Miller, 2004 Ill. App. 4th Dist.

 

QUOTED FROM ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION  9 — 35

EVIDENTIARY MOTIONS AT TRIAL §9.48

 

 

  1. “Offers of proof are technically not evidentiary motions but rather serve as a sort of narrative insurance policy for appeal. Offers of proof are designed to preserve the record and guarantee that testimony that is not allowed is at least previewed for the appellate court. The purpose of offers of proof is discussed in Lagestee v. Days Inn Management Co., 303 Ill.App.3d 935, 709 N.E.2d 270, 237 Ill.Dec. 284 (1st Dist. 1999). Lagestee followed previous holdings that offers of proof are made to disclose to opposing counsel and the trial court the substance of excluded evidence and to enable the reviewing court to determine whether the trial court committed error thereon. It should be noted that unlike most of the motions made at trial, a motion to make an offer of proof is not subject to the discretion of the court. It has been held in People v. Richmond, 201 Ill.App.3d 130, 559 N.E.2d 302, 147 Ill.Dec. 302 (4th Dist. 1990), that trial courts are required to permit counsel to make offers of proof. Refusal to permit an offer may constitute error. However, refusal of an offer is not error if the suggested testimony is not relevant.

 

  1. Because offers of proof are essential to make and preserve a viable record, the offers should be as accurate as possible. In Snelson v. Kamm, 319 Ill.App.3d 116, 745 N.E.2d 128, 253 Ill.Dec. 354 (4th Dist. 2001), aff’d in part, rev’d in part, 204 Ill.2d 1 (2003), an offer was held adequate if it informed the court of the particular answer that would have been given. Note that Snelson also holds that a summary or synopsis will not suffice. The offer must be as accurate as possible.

 

  1. To insure that the offer is as accurate as possible, the author would urge that counsel write out, or at least loosely outline, the offer in advance so that it can be read carefully into the record. Obviously, the offer cannot always be written out; but in most instances, the opponent’s objection and the court’s possible denial can be anticipated. A written statement or an outline helps to ensure that all necessary evidentiary elements are included and clearly and artfully set forth. If the need for an offer has not been anticipated, counsel may ask the court’s indulgence for a short break to gather his or her thoughts and compose or outline the offer. If the evidence has been excluded during the testimony of a witness, the questions and proposed answers should be set so as to show the reviewing court what has been excluded. The traditional or classic method of making the offer involves posing the question and eliciting the answers from the witness. The alternative to the questions-and-answers format is for counsel to read the offer into the record. Presenting an offer of proof by orally reciting the substance of the expected testimony was specifically approved in Wright v. Stokes, 167 Ill.App.3d 887, 522 N.E.2d 308 (5th Dist. 1988). Although it runs counter to the conventional method of putting the witness on the stand, the narrative by counsel is the most effective and safest method. The narrative avoids an inarticulate or nervous witness who is very likely to be shocked and concerned by the exclusion of his or her testimony, insures that the testimony is on point, and should provide the optimum voice in setting forth the reasons why the evidence has been improperly excluded. An offer read into the record by counsel is generally more orderly and better understood.

 

  1. In making the offer, specificity is the goal. Conclusory or summary statements as to what the testimony or evidence would have shown will not preserve the record. Snelson, supra. Any offer of proof should be made out of the presence of the jury, and it is suggested that at the close of the offer counsel renew the request that the testimony be allowed into evidence. Restatement of the request gives continuity to the record, ties up loose ends, and ensures that the offer and the ruling of the court are tied together and understood by the reviewing court.

 

  1. Various texts and cases reflect a further relaxation in the method of making an offer and go as far as to suggest that it is not needed at all when the court clearly understands the objection and the nature of the evidence being offered. See People v. Foster, 81 Ill.App.3d 915, 401 N.E.2d 1221, 37 Ill.Dec. 128 (1st Dist. 1980). Notwithstanding Foster, it is strongly suggested that the offer of proof be made outside the presence of the jury in a formal manner whenever testimony has been circumscribed in whole or in part.

 

  1. From a purely practical standpoint, there is generally little likelihood that the offer of proof will have an immediate impact on the trial court. The fact that the offer is being made is indicative of the trial court’s position. The offer is primarily directed toward compiling and preserving an accurate record for appeal. Since the offer entails the refusal of testimony during the case in chief, it properly should be viewed as a very serious motion deserving careful attention.

 

  1. Thus, the offer of proof satisfies two critical needs in preserving the record on appeal: it demonstrates (1) that an error has been committed in excluding evidence and (2) that that error was harmful to the presentation of counsel’s case in chief. The author believes that the only way the above defects can be lucidly conveyed to an appellate court is through a disciplined, formal recitation on the record, as in the following sample: Your Honor, at this time I would like to make an offer of proof in connection with the testimony of [witness]. [Witness], if allowed to testify under oath in these proceedings, would testify as follows: [foundation establishing background and competency, and then a specific narrative of the substantive testimony that would have been adduced.]

 

  1. Again, the offer of proof should be as specific as possible, at all times avoiding summaries or vague conclusions.” [emphasis added]

 

Dated: April 29, 2014

Respectfully submitted,

 

 

Linda L. Shelton

Pro Se Defendant

 

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