Presentation of evidence - Objections and offers of proof

Learning Outcomes

This article explains how objections and offers of proof operate in the presentation of evidence, including:

• Identifying when objections must be raised at trial to be timely and how to frame them with sufficient specificity to preserve evidentiary issues for appeal.
• Distinguishing among common form objections (such as leading, compound, vague, and argumentative questions) and substantive objections (such as relevance, hearsay, and improper character evidence), and recognizing related motions like motions in limine and motions to strike.
• Preserving challenges to excluded evidence through clear, detailed offers of proof that state the substance of the evidence, the theory of admissibility, and the resulting prejudice from exclusion.
• Analyzing the consequences of failing to object or to make an offer of proof, including waiver, the limited scope of plain-error review, and the operation of harmless-error analysis under FRE 103.
• Applying the concepts of limited admissibility and limiting instructions to evidence admitted for a restricted purpose or against specific parties, and understanding how to request and use such instructions to protect the record on appeal in bar exam fact patterns.

MBE Syllabus

For the MBE, you are required to understand the rules and procedures governing the presentation of evidence, with a focus on the following syllabus points:

• 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, including waiver.
• The judge’s role in ruling on objections and offers of proof, and standards of appellate review.
• Limited admissibility and limiting instructions when evidence is admissible for one purpose but not another.
• Plain error and harmless error in evidentiary rulings.

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.

At trial, evidentiary rulings happen quickly. A lawyer who stays silent when inadmissible evidence is offered usually waives any complaint, even if the ruling was wrong. Conversely, when a judge excludes important evidence, the offering party must make a record of what the evidence would have shown; otherwise an appellate court cannot evaluate whether the exclusion was harmful.

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

Key Term: Offer of Proof
A statement made by counsel describing the substance and relevance of excluded evidence, so that the trial judge and an appellate court can evaluate whether the exclusion was erroneous and prejudicial.

Key Term: Preserving Error
The process of making timely and specific objections or offers of proof so that an evidentiary ruling can be reviewed on appeal.

The Federal Rules of Evidence (FRE 103) frame most of this area. An evidentiary ruling can be reversed only if:

• The ruling affects a party’s substantial rights (i.e., it is not harmless), and
• The court was informed of the problem by an objection or offer of proof, unless the error is plain.

Understanding this framework helps you answer MBE questions that ask whether an error has been preserved, waived, or is subject to plain-error review.

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. If the witness answers before counsel can object, counsel should immediately move to strike the answer from the record.

Key Term: Motion in Limine
A pretrial request asking the court to rule on the admissibility of evidence before it is offered at trial.

A motion in limine can resolve evidentiary issues in advance, but on the bar exam you should assume that, to be safe, counsel must still object when the evidence is actually offered unless the judge clearly states that the pretrial ruling is final and no further objection is needed.

The objection must state the specific ground for exclusion unless the ground is apparent from the context. FRE 103(a)(1) requires that the objecting party state:

• The basis for the objection (e.g., hearsay, relevance, leading, improper character evidence), and
• Any particular rule or concern (e.g., unfair prejudice substantially outweighs probative value under FRE 403).

If there are multiple independent grounds to exclude the same evidence, each should be raised. For example, if a question calls for hearsay and is also leading, counsel should identify both grounds. An objection that simply states “objection” without explanation is usually too general to preserve error.

Common form objections include:

• Leading
• Compound
• Vague or ambiguous
• Assumes facts not in evidence
• Argumentative
• Calls for speculation

These go to how the question is asked rather than to the admissibility of the evidence itself. Substantive objections challenge the evidence itself (e.g., hearsay, lack of relevance, improper character evidence).

If similar questions will recur (for example, an entire line of questioning about a hearsay document), a judge may allow a “continuing objection,” so counsel does not have to object repeatedly. On the MBE, however, assume that if no continuing objection is granted, each new question or exhibit must be challenged to preserve error.

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, provided that a substantial right was affected.

Ruling on Objections

The judge must rule on objections promptly. A ruling is either:

• Sustained – the evidence is excluded (or the answer is stricken).
• Overruled – the evidence is admitted.

If the objection is sustained, the evidence is excluded, and the jury is instructed to disregard it if necessary. If the jury has already heard an answer, the judge may grant a motion to strike and give a curative instruction telling the jury to ignore that answer. Whether the instruction cures the harm is part of the harmless-error analysis on appeal.

If the objection is overruled, the evidence is admitted. Counsel should:

• Consider renewing the objection if related evidence is offered, and
• Request a limiting instruction if the evidence is admissible only for a particular purpose.

Key Term: Limited Admissibility
Evidence admitted for one permissible purpose (or against one party) but not for another purpose, often accompanied by a limiting instruction under FRE 105.

Most evidentiary rulings are reviewed on appeal for abuse of discretion. Even if the judge abused that discretion, the appellate court will reverse only if the ruling affected a substantial right of a party.

Key Term: Harmless Error
An evidentiary or procedural mistake that does not affect a party’s substantial rights and therefore does not justify reversal on appeal.

An error is harmless if the appellate court believes that the outcome would have been the same even without the error (for example, where the evidence of guilt is overwhelming and the error is minor).

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. Without an offer of proof, an appellate court usually cannot determine whether excluding the evidence was harmful.

An offer of proof is usually made outside the presence of the jury and should:

• Describe what the evidence would have been (substance).
• Explain why it is relevant and admissible (legal theory).
• Show how its exclusion harms the offering party’s case (prejudice).

If the substance of the evidence is obvious from context, no formal offer is needed. For example, if the judge sustains a hearsay objection to the question, “What did the defendant say to you about the accident?” the appellate court can infer the general substance from the question alone.

However, if the evidence is a document, or if the significance of a witness’s testimony is not apparent from the question, a specific offer of proof is essential.

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. Vague statements like “this evidence goes to bias” or “this is very important to our case” are not enough.

Waiver, Harmless Error, and Plain Error

If a party fails to object or fails to make an offer of proof when its own evidence is excluded, the issue is generally waived on appeal. Under FRE 103:

• A party complaining that evidence was improperly admitted must have made a timely, specific objection or motion to strike.
• A party complaining that evidence was improperly excluded must have made an offer of proof (unless the substance was apparent).

Even if an error is properly preserved, it must affect a substantial right to justify reversal. Minor mistakes that do not affect the outcome are harmless error and will be ignored on appeal.

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.

Under the plain error rule, appellate courts may review unpreserved errors that are clear on the face of the record and that seriously affect the fairness, integrity, or public reputation of judicial proceedings. This is rare in ordinary evidentiary matters and is more commonly applied to structural or constitutional errors.

Limited Admissibility and Limiting Instructions

Often evidence is admissible for one purpose, but not for another, or is admissible against one party but not another. FRE 105 addresses this situation.

When evidence is admitted for a limited purpose, the court, on request, must instruct the jury that:

• The evidence may be considered only for the permissible purpose or against the appropriate party, and
• The jury may not use it for any prohibited purpose.

Examples include:

• A prior conviction admitted to impeach a witness’s credibility but not to prove propensity.
• Prior bad acts admitted under a non-propensity theory (e.g., motive, intent, identity) but not as character evidence.
• A co-defendant’s statement admitted against that co-defendant but not against others.

If a party wants a limiting instruction, it must usually request one. Failure to request a limiting instruction may waive any complaint that the jury was not properly guided. On the MBE, look for facts stating that counsel did or did not ask for such an instruction.

Key Term: Limited Admissibility
Evidence that is admissible for one purpose or against one party, but not for another purpose or against other parties, typically accompanied by a limiting instruction directing the jury’s proper use of the evidence.

Rule of Completeness and Related Objections

When a party introduces part of a written or recorded statement, the opposing party may immediately introduce other portions that “in fairness ought to be considered at the same time” (FRE 106). This prevents the jury from being misled by a partial, out-of-context excerpt.

If your opponent offers only a damaging snippet of a deposition or recording, you should:

• Object that the excerpt is misleading, and
• Invoke the rule of completeness, requesting permission to introduce the related portions.

This may allow otherwise hearsay statements to come in, because FRE 106 is a limited override of the hearsay rule for the sake of fairness and context.

Judicial Notice and Objections

Judicial notice allows the court to accept certain facts as true without requiring formal proof. Parties may:

• Request judicial notice of an appropriate fact, or
• Object if a proposed fact is reasonably disputable or not from a reliable source.

If you believe the court has taken improper judicial notice, you should object on the record so that the issue is preserved. This is less commonly tested, but it fits the same preserve-or-waive pattern as other evidentiary rulings.

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. The appellate court will treat the hearsay as properly in the record.

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. The appellate court can now decide whether excluding the contract affected a substantial right.

Worked Example 1.3

At trial, the prosecution asks a witness, “Isn’t it true that the defendant told you he always drives home drunk from that bar?” Defense counsel waits until after the witness answers “Yes” and then objects: “Objection, hearsay and unfair prejudice.”

Answer:
The objection is partially timely and partially late. The hearsay objection should have been made as soon as the question was asked. Once the answer is given, counsel must move to strike the answer to remove it from the record. The trial judge may still cure the error by striking the answer and instructing the jury to disregard it. If counsel neither objects to the question nor moves to strike the answer, the hearsay issue is likely waived on appeal.

Worked Example 1.4

In a civil trial, the defendant has a prior fraud conviction. The judge admits evidence of that conviction “for any purpose.” Defense counsel objects to admissibility but does not ask the court to instruct the jury that the conviction may be used only to assess credibility, not to prove that the defendant acted fraudulently in this case. On appeal, the defendant argues that the jury should have received a limiting instruction.

Answer:
The argument is weak. Although the conviction is admissible only for impeachment, FRE 105 requires a limiting instruction only “on timely request.” Because defense counsel did not request such an instruction, the lack of a limiting instruction is typically treated as waived. The appellate court would review only for plain error, which is unlikely to be found in this context.

Worked Example 1.5

During the plaintiff’s case, the judge sustains the defendant’s objection to testimony about lost profits and bars any such evidence. Plaintiff’s counsel does not explain what the lost profits would have been, and no proffered numbers appear in the record. The jury returns a verdict for the defendant. On appeal, the plaintiff argues that the exclusion of lost-profits evidence requires a new trial.

Answer:
The plaintiff will likely lose. Because counsel did not make an offer of proof describing the amount and basis of the lost profits, the appellate court cannot assess whether the exclusion affected a substantial right. The issue has not been properly preserved, and the appellate court will affirm unless the rare plain-error standard is met.

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, and move to strike answers if a question is improper and the witness has already responded.

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. When evidence is admitted for a limited purpose, remember to request an appropriate limiting instruction.

Key Point Checklist

This article has covered the following key knowledge points:

• Objections to evidence must be timely (usually when evidence is offered) and specific to preserve error for appeal.
• A motion in limine can resolve evidentiary issues pretrial, but you should generally renew objections when evidence is offered.
• The judge must rule on objections, and most evidentiary rulings are reviewed for abuse of discretion.
• An evidentiary error is reversible only if it affects a substantial right; harmless errors do not justify reversal.
• Offers of proof are required to preserve challenges to the exclusion of evidence unless the substance is obvious from context.
• Offers of proof must clearly describe the excluded evidence, its relevance, and the theory of admissibility.
• Failure to object or make an offer of proof usually waives the issue, except for rare cases of plain error.
• Evidence may be admitted for a limited purpose or against a limited set of parties; a limiting instruction should be requested to guide the jury’s use of such evidence.
• The rule of completeness allows the opposing party to require introduction of related parts of a statement to avoid misleading the jury.
• Judicial notice, like other evidentiary rulings, can be challenged and must be preserved by timely objection.

Key Terms and Concepts

• Objection
• Offer of Proof
• Preserving Error
• Motion in Limine
• Limited Admissibility
• Harmless Error
• Plain Error