Post by Jim on Jun 12, 2009 14:42:00 GMT -5
Preserving Your Evidence for Appeal
If you start to present some testimony or other evidence and, before you can get it before the court, the judge sustains the other side's objection, you must move the court to allow you to make an offer of proof.
The purpose of an offer of proof is to make clear on the record what the evidence was or, we might say, what the evidence would have been if the judge had allowed it to come in.
If the judge disallows your evidence, move the court for an order allowing you to make an offer of proof.
"I move the court for an order allowing an offer of proof so I can make a record of the evidence your Honor is excluding."
If you don't get your evidence in and you don't make an offer of proof to put your evidence on the record, you'll have nothing to appeal if you lose your case, because the record will not show what your evidence would have been.
If the judge denies your motion for an offer of proof, be sure to object again right then and there - and again at the conclusion of the evidence - and again before judgment is rendered.
You cannot present evidence for the first time on appeal!
When your attempt to get evidence in is prevented by the court's sustaining the other side's objection, immediately move the court for an order allowing you to make an offer of proof, so you can make a record of what the evidence would have been, what you intended to prove by it, and why the evidence should be admissible.
Then, if you lose and appeal must be taken to a higher court on the grounds that you were not allowed to get your evidence in, you'll have a record to show the appellate court what the evidence was (or would have been, if the judge had allowed it), and the appellate court can decide if the lower court judge committed harmful error in disallowing your evidence. If the appellate court finds your evidence should have been admitted, the appellate court will either reverse or remand your case back to the trial judge for further proceedings that allow your evidence to come in!
If you start to present some testimony or other evidence and, before you can get it before the court, the judge sustains the other side's objection, you must move the court to allow you to make an offer of proof.
The purpose of an offer of proof is to make clear on the record what the evidence was or, we might say, what the evidence would have been if the judge had allowed it to come in.
If the judge disallows your evidence, move the court for an order allowing you to make an offer of proof.
"I move the court for an order allowing an offer of proof so I can make a record of the evidence your Honor is excluding."
If you don't get your evidence in and you don't make an offer of proof to put your evidence on the record, you'll have nothing to appeal if you lose your case, because the record will not show what your evidence would have been.
If the judge denies your motion for an offer of proof, be sure to object again right then and there - and again at the conclusion of the evidence - and again before judgment is rendered.
You cannot present evidence for the first time on appeal!
When your attempt to get evidence in is prevented by the court's sustaining the other side's objection, immediately move the court for an order allowing you to make an offer of proof, so you can make a record of what the evidence would have been, what you intended to prove by it, and why the evidence should be admissible.
Then, if you lose and appeal must be taken to a higher court on the grounds that you were not allowed to get your evidence in, you'll have a record to show the appellate court what the evidence was (or would have been, if the judge had allowed it), and the appellate court can decide if the lower court judge committed harmful error in disallowing your evidence. If the appellate court finds your evidence should have been admitted, the appellate court will either reverse or remand your case back to the trial judge for further proceedings that allow your evidence to come in!
