by Lew A. Kollias¹

Editor's note: Lew A. Kollias of Columbia died on January 1, 2006 at the age of 52.

I. Scope

This article is about a very important record preservative tool, yet one that is frequently overlooked or mishandled: the offer of proof. With a sufficient offer, the client may have a second bite of the apple and receive a new trial, as the issue will be preserved for review.

The "offer of proof serves [a] dual" role: (1) it "inform[s] the [trial] court and opposing counsel of the substance of the excluded evidence, enabling [the court] to take appropriate action; and (2) [it] provide[s] an appellate court with a record allowing it to determine whether the exclusion [of evidence] was erroneous and whether the appellant was prejudiced by the exclusion" of that evidence at trial.² Far too many appeals have been denied on the basis that an inadequate offer of proof was made at the trial court level. This article will explore some of these cases, with a goal of describing how to avoid this pitfall, and its potentially disastrous consequences, for the client on appeal.

II. Civil Case

Offers of proof are applicable in all cases, civil³ as well as criminal,⁴ although due to constitutional provisions involved, an inadequate offer can occasionally be salvaged in a criminal case.⁵

The primary consideration is to remember to provide the trial court, and thereby later if necessary the appellate court, with sufficient information to determine the relevance to the issues in the case and prejudice to the client by exclusion of the information, evidence, testimony, or exhibit that you are precluded from introducing at trial.⁶ In Call v. Heard,⁷ the plaintiff, who was an inmate confined in a correctional facility, challenged the constitutionality of a statute⁸ precluding confined inmates from appearing in court in civil proceedings. The Supreme Court of Missouri noted that, even if the statute was unconstitutional (a matter which they did not decide), the issue was not preserved for review without an adequate offer of proof first being made in the trial court. Here, the offer would have been satisfied by making a record (presumably by affidavit, since the plaintiff was confined) as to what plaintiff's testimony would have been and how its exclusion prejudiced the plaintiff.⁹

Similarly, when an objection to testimony is sustained, it is necessary to make an offer of proof as to what the testimony would have been, and how it was relevant and material¹⁰ and thereby prejudicial to the offering party by not allowing its admission. Further, on appeal, the transcript must show what testimony the witness would have provided if allowed to answer, and "the assignment of error" must provide the reviewing court with the transcript page "where the excluded evidence appear[ed]."¹¹

When an exhibit is offered but refused by the court, the record again must support the propriety, i.e., relevance and admissibility, of the exhibit by detailed offer explaining how its admission is necessary to advance the issues in your case, that it is relevant to a variable legal theory, and it is prejudicial to your case to refuse its admission.¹² It is also essential to either ensure that the exhibit is made part of the transcript on appeal if it is capable of reproduction in the written record, or filed directly in the appellate court to enable the reviewing court to render a decision on the propriety of the lower court's ruling excluding your exhibit.¹³

The necessity to place on the record whatever evidence you seek to admit so that the appellate court may conduct review is also exemplified by the decision of Salsberry v. Archibald Plumbing and Heating Co., Inc.¹⁴ This was a wrongful death case brought against a plumbing company that had installed natural gas pipes, which in turned leaked natural gas, causing an explosion that killed the plaintiff's husband. The decendent was a painter who was working on a construction project when the explosion occurred. Defendant's position was that "the explosion was caused by an accumulation of lacquer fumes" and other volatile solvents, such as paint thinner, and not the natural gas.¹⁵ There had been an earlier, separate lawsuit brought by another injured party against defendant Archibald, and defendant utilized an expert witness, Alfred Benberg, at that trial.¹⁶ Unfortunately for the defendant, Benberg died prior to plaintiff Salsberry's trial, and defendant sought, unsuccessfully, to introduce into evidence Benberg's earlier trial testimony. The point was rejected on appeal due to defendant's failure of offer of proof by not making a proper tender of the trial transcript of Benberg's earlier testimony, nor making it part of the record on appeal.¹⁷

No matter what the exhibit, document, or evidence, it must be presented to the trial court in an offer of proof clearly displaying its relevance, and it must be made a part of the record on appeal if it is an issue you truly want the appellate court to review.

III. Criminal Cases

There are rules to keep in mind in all cases, civil and criminal, and any offer of proof should demonstrate clear relevance of the proffered item, and be specific and definite.¹⁸ A review of some criminal appellate case decisions will underscore this fact. For instance, in State v. Broussard¹⁹ the defendant was charged with raping the victim after the defendant and the victim used methamphetamine. Defendant sought to introduce testimony from a so-called narcotics expert, as well as a pamphlet entitled There is no Safe Speed. Defendant failed to show the relevance of this pamphlet to the case, nor did he show how the narcotics expert's testimony regarding his experience in dealing with methamphetamine users was relevant to any symptoms attributed to the defendant, or as they may have impacted on lack of consent of the victim. ²⁰ Absent a clear and definitive articulation of how the offer of proof is relevant to the case, the offer will fail.

It is not enough to show to what the witness would testify if the proffered testimony is cumulative to testimony that has already been introduced at trial. The offer of proof must distinguish the proffered testimony from that already presented. Thus, in State v. Johnson,²¹ the Supreme Court of Missouri found that an offer of proof as to character witnesses in the penalty phase of a death case failed, as it did not differentiate the proposed testimony from already admitted defense character witnesses.²²

It must be remembered that a motion in limine is interlocutory only²³ and preserves nothing for review.²⁴ In State v. Purlee,²⁵ the defendant, a passenger in a van driven by co-defendant Schmidt, was arrested for possession of a controlled substance and carrying a concealed weapon. Defendant sought to admit Schmidt's guilty plea to the charges as an admission against penal interests, but the state's pre-trial motion in limine to preclude admission of this evidence was sustained.²⁶ Defendant raised this as an issue on appeal, but relief was denied. Despite the sustaining of the state's motion in limine, the defendant still was required to proffer the evidence at trial; if the trial court denies the admission of the evidence on the state's objection, defendant must make an offer of proof.²⁷ The Purlee Court notes that, with the declaration against penal interest, admission of these statements is heavily fact-dependent, and only with a fully developed factual context can the trial judge make the appropriate ruling balancing relevance and reliability issues.²⁸

IV. Sex Crimes

When attempting to show evidence is admissible under an exception to the rape shield statute, the defendant must show the evidence is admissible by way of written motion submitted to the court with an offer of proof, or make a detailed offer of proof on the record outside of the hearing of the jury. "The court [will] hold an in camera hearing to determine the sufficiency of the" offense and may hear other evidence to aid the court in making a ruling.²⁹ Thus, in State v. Salkil,³⁰ the defendant's failure to make a written offer of proof as to the prosecutrix's alleged tendency to engage in extra-marital affairs after fighting with her husband — to support defendant's claim of consent — caused the appellate court to deny review of this issue on appeal. If a written notice containing the offer of proof is made to argue for a rape shield exception, specificity to show "sufficient probative value" of the proffered evidence is necessary or the offer will fail.³²

It is also not error to exclude medical records of defendant that defendant contends would show he could not or would not want to have sexual intercourse with the victim, when the records did not support defendant's claim that he in fact could not penetrate the victim, and/or the records of treatment were too remote in time to support defendant's claim.³³

On the other hand, a sufficiently detailed offer of proof was made in State v. Gibson³⁴ to show the trial court erred in excluding evidence of the victim's prior sexual activity with her boyfriend shortly before the alleged kidnap and rape, as the records bore directly on the issue of defendant's claim of consent.³⁵ Where the offer of proof also displayed the victim's alleged sexual activity with someone other than defendant before a medical examination that uncovered "the absence of hymenal tissue," which in turn supported the state's theory defendant penetrated the victim, the trial court was found to have erred by precluding admission of evidence that would have enabled the defendant to rebut the negative inference the state used from the medical testing.³⁶

As is true in non-sex crimes, evidence as to the victim's reputation for truth and veracity is relevant and admissible to impeach the victim, but a party may not impeach with specific bad acts or evidence of disreputable or dishonest conduct.³⁷ And if a party's offer of proof contains both admissible proposed evidence — such as a general reputation for veracity — commingled with inadmissible evidence, such as a specific act of dishonesty, it is the offering party's duty to sever the inadmissible from the admissible, or the entire offer will fail.³⁸ But if a specific witness is identified who will testify only as to the victim's "general reputation for truth and veracity," then it is error to refuse the testimony.³⁹

V. Miscellaneous Issues in Criminal Cases

Keeping in mind the need to show relevance of the proffered evidence to the issues at hand, defendant's offer of prevalence of homosexual abuse in prison failed to support his defense of duress in an escape from confinement case when defendant's offer did not include any assertion defendant was personally subjected to such abuse.⁴⁰ On the other hand, when defendant's offer of proof displayed proffered evidence of imminent danger and harm from threatened physical violence and homosexual attacks from other inmates, defendant was entitled to present this evidence on the issue of necessity to escape from confinement to support a defense to the escape charges.⁴¹

Defendant's offer of proof that his former girlfriend's violent temper was the reason he had a concealed weapon on his person failed in terms of relevance to the charge for which the defendant was on trial. While possibly relevant on an issue of self-defense, it is not relevant to carrying a concealed weapons case.⁴²

A similar deficiency in the offer was found in a robbery case, where defendant's offer of proof as to how he came into possession of a concealed handgun failed to explain the reason for his possession, alleged self-protection in a high-risk neighborhood.⁴³ His separate offer that defendant was on pension and didn't need to commit a robbery for money failed because there was no offer as to how much he received on pension monthly.⁴⁴

Materiality and relevance was clearly displayed by defendant's offer of a videotape of the crime scene made during trial after testimony from the arresting officer that he saw the defendant in possession of drugs through a window of an abandoned house. Defendant's videotape showed that the window was boarded up, and defendant's offer contained evidence from witnesses that the videotape accurately depicted the crime scene at the time of the arrest.⁴⁵

In sum, if the offer contains sufficient and detailed information to show how the evidence is material and relevant to a particular issue in the case, it is probative on the issue, and it would be prejudical to the party's case to deny the offer. If the offer doesn't succeed in convincing the trial court to admit the testimony, you will likely obtain a new trial on appeal.⁴⁶

VI. Proper Method to Make Offer

The preferred method for an offer of proof is testimonial; a question and answer session with the witness before the court out of the jury's presence should be used when possible.⁴⁷ If you are unable to provide a testimonial offer, or if the court doesn't allow it, a narrative offer of proof by counsel may suffice as long as it is specific, doesn't contain just counsel's conclusions, and sets forth facts showing admissibility of the proposed evidence.⁴⁸ However, the danger of a narrative offer includes a great risk that it will contain "conclusions of counsel" as counsel attempts to present a detailed account of the proposed testimony of a witness.⁴⁹ An exception to a specific offer of proof exists for cross-examination,⁵⁰ or where the question asked clearly indicates relevance and materiality of the answers expected.⁵¹ However, if counsel's cross-examination question indicates knowledge to support the reason for and relevance of the information sought to be obtained by the question asked, failure to provide it in an offer of proof will defeat the issue on appeal.⁵²

VII. More is Not Always Best

It is not uncommon, when seeking to preserve matters for attorneys, to fire off the "preservation shotgun," spewing forth constitutional provisions like candy out of a broken piñata, hoping that a pellet might hit its mark. While never good practice, it can be fatal with an offer of proof to include too much in the offer. In State v. Nettles,⁵³ defendant sought to adduce evidence that two other individuals actually committed the shooting for which Nettles and his co-actor,⁵⁴ Mark Boyd, were charged. While defendant's offer of proof contained admissible evidence to support an admission against penal interests,⁵⁵ it also contained "numerous other items of evidence that are inadmissible under any circumstances. Thus, the entire offer of proof fails."⁵⁶

Counsel bears the burden to sever good or relevant testimony from bad or inadmissible evidence in an offer of proof.⁵⁷ Thus, when defendant's rambling offer as to why her employer might falsely accuse her in a forging case was "replete with inadmissible hearsay,"⁵⁸ the trial court properly rejected the entire offer containing admissible as well as inadmissible evidence.⁵⁹ And this duty of counsel includes redacting inadmissible from admissible information in a document and resubmitting only the admissible information in the offer of proof.⁶⁰

Finally, it is extremely important to never rely on a pre-trial ruling that may have overruled your offer of proof. You must follow up on any and all pre-trial rulings⁶¹ by attempting to present the excluded evidence at the appropriate time during the trial, and renew the offer of proof at that time.⁶²

VIII. Offer of Proof Checklist

• Try to introduce evidence at trial; do not merely rely on pre-trial rulings.

• Make offer at time of objection; don't wait until later in trial.

• Try to adduce evidence by question/answer of witness; testimonial offers are best.

• If the court refuses to let a witness testify, then you may make narrative summary. If you use a narrative, then you must:

• Be specific and detailed

• Don't include any non-relevant matters in the offer. Have the narrative outlined and ready to read into the record before the time to admit it.

• Keep out conclusions of counsel. Be factual in the narrative.

• If the court refuses to let you make your offer, then either obtain an affidavit by the witness (preferable) or make a verified motion with your detailed narrative offer that the court wouldn't let you make at the time of trial, and get this in the record.

• Mark as exhibits to offer any affidavits, taped statements (video or audio, etc.), or other matters. Do not merely describe what is in these items in the narrative.

• Make sure the proper foundation is laid to support the evidence that is the subject of the offer of proof (i.e., business record exception, prior inconsistent statements, etc.).

• Follow up on the offer and the court's refusal to admit the evidence in the new trial motion.

IX. Conclusion

The purpose of this article is to outline how to make an effective offer of proof, and to point out some of the pitfalls that can defeat or doom your offer of proof. The need for a good offer of proof is clear: If your offer contains specific, detailed material relevant to the issues in the case, you will either convince the trial judge to reconsider his or her ruling and admit the evidence, or you may get your client a second bite of the apple by a successful appeal. Making an effective offer of proof is, quite simply, good lawyering, and what you, as an advocate for your client, should do.

Footnotes

¹ At the time of his death, Lew A. Kollias was the division director for the Appellate/Postconviction Division of the Missouri State Public Defender System, a position he held since 1983. Before that, he served under John Ashcroft as an Assistant Missouri Attorney General. He graduated from the University of Missouri-Columbia School of Law in 1979. He was an editor for the Courts and CLE Bulletin for The Missouri Bar for more than 20 years, and served as a presenter and wrote numerous articles for educational and training functions for The Missouri Bar, the Missouri Association of Criminal Defense Attorneys, and the Public Defender System.

² Thomas v. Wyrick, 687 F.2d 235, 239 (8th Cir. 1982); State v. Jordan, 699 S.W.2d 80, 83 (Mo. App. E.D. 1985).

³ Moore v. Parks, 458 S.W.2d 344 (Mo. 1970).

⁴ State v. Broussard, 57 S.W.3d 902 (Mo. App. S.D. 2001).

⁵ For instance, in State v. Bowlin, 850 S.W.2d 116 (Mo. App. S.D. 1993), the defendant and his witnesses were not allowed to testify, since their religion purportedly prevented them from swearing or affirming an oath, even though defendant clearly informed the trial court of this and assured the court the witnesses would acknowledge the necessity, under penalty of perjury, to testify truthfully. While the defendant failed to make any offer as to the nature of the excluded testimony, since the Sixth Amendment allows a defendant to call witnesses in his or her defense, there is a rebuttable presumption that refusal to allow defendant to present witnesses is prejudicial, and the State, which did not even file a brief on appeal, failed to rebut the presumption of prejudice. Bowlin, 850 S.W.2d at 118. Obviously, this is the exception to the rule that a defendant bears the burden of making a sufficient offer of proof to obtain appellate review.

⁶ Moore v. Parks, 458 S.W.2d at 348 (Mo. banc 1970).

⁷ 925 S.W.2d 840 (Mo. banc 1996).

⁸ Section 491.230, RSMo Supp. 2005.

⁹ Call v. Heard, 925 S.W.2d at 846.

¹⁰ Wood v. Wood, 709 S.W.2d 143, 146 (Mo. App. S.D. 1986).

¹¹ Thayer v. Sommer, 356 S.W.2d 72 (Mo. 1962).

¹² Poston v. Clarkson Constr. Co., 401 S.W.2d 522 (Mo. App. W.D. 1966).

¹³ Poston, 401 S.W.2d at 528. See also Lodjic v. Ketterlin, 562 S.W.2d 378, 383 (Mo. App. W.D. 1978), where an issue that the trial court erred by not awarding certain claims under contract was rejected on appeal since the contract was not made part of the record on appeal. And remember that the appellate court will not search state departmental manuals and documents, nor take judicial notice of them. Rather, the appellant must include them in the record if the assertion of error is the trial court's refusal to admit it as an exhibit. See, State ex rel. Missouri Highways and Transportation Comm'n v. Legere, 706 S.W.2d 560, 566 (Mo. App. S.D. 1986).

¹⁴ 587 S.W.2d 907 (Mo. App. W.D. 1979).

¹⁵ Id. at 910.

¹⁶ Id. at 915.

¹⁷ Id.

¹⁸ Broussard, 57 S.W.3d at 911.

¹⁹ Id.

²⁰ Id.

²¹ 968 S.W.2d 123 (Mo. banc 1998).

²² Id. at 131.

²³ State v. Evans, 639 S.W.2d 820, 822 (Mo. 1982).

²⁴ State v. Vincent, 785 S.W.2d 805, 808 (Mo. App. S.D. 1990).

²⁵ 839 S.W.2d 584 (Mo. banc 1992).

²⁶ Id. at 592.

²⁷ Id.

²⁸ Id.

²⁹ Section 491.015.3, RSMo Supp. 2005.

³⁰ 659 S.W.2d 330 (Mo. App. W.D. 1983).

³¹ Id.,at 333-34.

³² State v. Smart, 907 S.W.2d 275, 277-278 (Mo. App. W.D. 1995). See also State v. Culkin, 791 S.W.2d 803, 808 (Mo. App. E.D. 1990), where the offer of proof was insufficient to show that other named individuals may have been the actual culprits who abused the victim.

³³ State v. Ball, 733 S.W.2d 499, 501 (Mo. App. E.D. 1987).

³⁴ 636 S.W.2d 956 (Mo. banc 1982).

³⁵ Id. at 958-59.

³⁶ State v. Douglas, 797 S.W.2d 532, 534-36 (Mo. App. W.D. 1990).

³⁷ State v. Foster, 854 S.W.2d 1, 4 (Mo. App. W.D. 1993).

³⁸ State v. Edwards, 918 S.W.2d 841, 845-46 (Mo. App. W.D. 1996).

³⁹ State v. Strughold, 973 S.W.2d 876, 885 (Mo. App. E.D. 1998).

⁴⁰ State v. Rentschler, 444 S.W.2d 453, 457 (Mo. 1969). See also, State v. Browner, 587 S.W.2d 948, 959 (Mo. App. E.D. 1979).

⁴¹ State v. Baker, 598 S.W.2d 540 (Mo. App. W.D. 1980).

⁴² State v. Binnington, 978 S.W.2d 774 (Mo. App. E.D. 1998).

⁴³ State v. White, 835 S.W.2d 942, 947 (Mo. App. E.D. 1992).

⁴⁴ Id. at 948. See also State v. Kelley, 674 S.W.2d 216, 219-20 (Mo. App. S.D. 1984), discussing how offers on defendant's income tax returns showing money made in a year, etc., may be rejected as collateral matters well within the discretion of the trial court to control.

⁴⁵ State v. Richardson, 838 S.W.2d 122, 124-25 (Mo. App. E.D. 1992).

⁴⁶ Id,; State v. Baker, 598 S.W.2d 540.

⁴⁷ State v. Fleer, 851 S.W.2d 582, 595 (Mo. App. E.D. 1993); State v. Comte, 141 S.W.3d 89, 93 (Mo. App. S.D. 2004).

⁴⁸ Stipp v. Tsutomi Karasawa, 318 S.W.2d 172, 175 (Mo. 1958).

⁴⁹ State v. Townsend, 737 S.W.2d 191, 192 (Mo. banc 1987).

⁵⁰ State v. Powers, 613 S.W.2d 955, 960 (Mo. App. S.D. 1981), citing to Cohen v. Cohen, 27 S.E.2d 28, 30 (Ga. 1943), since counsel will not have sufficient information to know what answer may be given.

⁵¹ See Rogers v. St. Avit, 60 S.W.2d 698, 699-700 (Mo. App. E.D. 1933), where plaintiff's counsel asked relevant question designed to uncover clear bias on the part of defendant's expert, but the court refused to permit the witness to answer.

⁵² State v. Powers, 613 S.W.2d at 960.

⁵³ 10 S.W.3d 521 (Mo. App. E.D. 1999).

⁵⁴ Boyd's conviction was affirmed at 992 S.W.2d 213 (Mo. App. E.D. 1999).

⁵⁵ Chambers v. Mississippi, 410 U.S. 284 (1973).

⁵⁶ State v. Nettles, 10 S.W.3d at 525.

⁵⁷ State v. Malicoat, 942 S.W.2d 458 (Mo. App. S.D. 1997).

⁵⁸ Id., at 460.

⁵⁹ Id. See also Biermann v. Gus Shaffar Ford, Inc., 805 S.W.2d 314, 324 (Mo. App. S.D. 1991).

⁶⁰ State v. Harvey, 641 S.W.2d 792, 802-803 (Mo. App. W.D. 1982).

⁶¹ For instance, overruling a motion to suppress statements or evidence preserves nothing for appeal absent a timely objection to the introduction of the statement or evidence at the time of trial. Anglin v. State, 157 S.W.3d 400, 402 (Mo. App. W.D. 2005). The same is true if the court grants the state's motion in limine to exclude certain defense evidence; an attempt must be made to actually introduce the evidence at trial, or where a defense motion in limine is granted pre-trial, the objection must be renewed at the time the state seeks to introduce the evidence at trial. State v. Oliver, 729 S.W.2d 560, 563 (Mo. App. E.D. 1987).

⁶² State v. Boyd, 992 S.W.2d at 218.