Presentation of evidence - Objections and offers of proof

Learning Outcomes

After reading this article, you will be able to identify when and how to make objections to evidence, understand the requirements for preserving error for appeal, and explain the function and procedure for offers of proof. You will be able to apply these principles to MBE-style questions and recognize common pitfalls in evidentiary objections and offers of proof.

MBE Syllabus

For MBE, you are required to understand the rules and procedures governing the presentation of evidence, including objections and offers of proof. This article covers:

  • The timing and grounds for making objections to evidence.
  • The necessity of timely and specific objections to preserve error for appeal.
  • The procedure and purpose of offers of proof when evidence is excluded.
  • The consequences of failing to object or make an offer of proof.
  • The judge’s role in ruling on objections and offers of proof.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. When must an objection to evidence generally be made to preserve the issue for appeal?
    1. Any time before the verdict.
    2. As soon as the evidence is offered and before the witness answers.
    3. After the close of evidence.
    4. Only in writing.
  2. What is the main purpose of an offer of proof?
    1. To show the jury the excluded evidence.
    2. To inform the judge and preserve the issue for appeal.
    3. To challenge the credibility of a witness.
    4. To request a mistrial.
  3. If a party fails to object to inadmissible evidence at trial, what is the likely result on appeal?
    1. The error is automatically reversible.
    2. The error is preserved for review.
    3. The error is waived unless it is plain error.
    4. The judge must grant a new trial.

Introduction

Objections and offers of proof are essential tools for controlling the admission of evidence and preserving issues for appeal. Knowing when and how to object, and understanding the function of an offer of proof, is critical for effective advocacy and for success on the MBE.

Objections: Timing and Specificity

Objections must be made promptly, usually as soon as the question is asked or the evidence is offered, and before the witness answers. The objection must state the specific ground for exclusion unless the ground is apparent from the context.

Key Term: Objection A formal statement by a party opposing the admission of evidence, made to alert the court to a potential error and preserve the issue for appeal.

If the objection is not timely or is too general, the error is usually not preserved for appellate review. The objection must be made on the record and, if overruled, the objecting party may still challenge the ruling on appeal.

Ruling on Objections

The judge must rule on objections promptly. If the objection is sustained, the evidence is excluded, and the jury is instructed to disregard it if necessary. If the objection is overruled, the evidence is admitted, and the objecting party may need to renew the objection if further related evidence is offered.

Offers of Proof: Preserving Excluded Evidence

When evidence is excluded after an objection, the party offering the evidence must make an offer of proof to preserve the issue for appeal. This is usually done outside the presence of the jury and involves stating on the record what the evidence would have been and why it should be admitted.

Key Term: Offer of Proof A statement made by counsel describing the substance and relevance of excluded evidence, to preserve the issue for appellate review.

If no offer of proof is made, the appellate court will generally not consider the exclusion to be error unless the substance of the evidence is obvious from the context.

Methods of Making an Offer of Proof

An offer of proof may be made by:

  • Counsel stating on the record what the evidence would have shown.
  • Questioning the witness outside the presence of the jury.
  • Marking and describing a document or exhibit for the record.

The offer must be specific and sufficient to allow the judge and appellate court to understand the nature and relevance of the excluded evidence.

Waiver and Plain Error

If a party fails to object or make an offer of proof, the issue is generally waived on appeal. However, appellate courts may review unpreserved errors if they constitute "plain error" affecting substantial rights, but this is rare.

Key Term: Plain Error An obvious and serious error that affects a party’s substantial rights and may be considered on appeal even if not properly preserved at trial.

Worked Example 1.1

During a trial, the plaintiff’s attorney asks a witness, “What did the defendant say to you about the accident?” The defendant’s attorney does not object, and the witness answers with inadmissible hearsay. On appeal, can the defendant challenge the admission of the hearsay?

Answer: No. Because the defendant did not object at the time the evidence was offered, the error is waived unless it rises to the level of plain error, which is rare in evidentiary matters.

Worked Example 1.2

A party offers a document into evidence, but the judge sustains an objection and excludes it. The party’s attorney asks to make an offer of proof and states for the record, outside the jury’s presence, that the document is a signed contract relevant to the disputed issue. Is this sufficient to preserve the issue for appeal?

Answer: Yes. By making a specific offer of proof describing the document and its relevance, the party has preserved the issue for appellate review.

Exam Warning

Failing to object at the correct time or failing to specify the ground for objection usually waives the error for appeal. Always object promptly and specifically.

Revision Tip

If evidence is excluded, always make a clear and specific offer of proof on the record, outside the jury’s hearing, to preserve the issue for appeal.

Key Point Checklist

This article has covered the following key knowledge points:

  • Objections to evidence must be timely and specific to preserve error for appeal.
  • The judge must rule on objections and may require the grounds to be stated.
  • Offers of proof are required to preserve the exclusion of evidence for appellate review.
  • Failure to object or make an offer of proof usually waives the issue, except for plain error.
  • Offers of proof must clearly describe the excluded evidence and its relevance.

Key Terms and Concepts

  • Objection
  • Offer of Proof
  • Plain Error
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