If you start to offer evidence and, before you can get it before the
court, the other side objects and the judge sustains your opponent's
objection, you must move the court to allow you to make clear on the record what your evidence was and what it would tend to prove! This is called making an offer of proof.
Your opponent may do this, too, so read on to learn how it works ... or risk losing needlessly!
Offers of proof may be made at a trial or at any hearing when
your opposing party objects to your "evidence" and the judge sustains
your opponent's objection.
An offer of proof shows the court on the record:
What the offered evidence is and
What the evidence tends to prove
Failure to get your evidence admitted will destroy your chances of winning! If you donâ€™t get your evidence admitted and don't make an offer of proof, you'll have nothing to appeal if you lose!
You must keep the judge aware that you are prepared to reverse him on appeal, if he foolishly chooses to make appeal necessary by ruling against you!
If you don't make an offer of proof, the record will not show what
the evidence would have been, and there'll be nothing in the record for
the appellate court to review! If the appellate court has no way of
knowing what evidence the judge excluded, you cannot win on appeal.
Appellate courts will not examine evidence that wasn't made part of the
record at the trial level.
You can't introduce evidence for the first time on appeal.
Like the baseball umpire says, "Them's the rules!"
When your attempt to get evidence into the record is prevented by
the court's sustaining the other side's objection, do what my course
teaches and tender an offer of proof.
Show the court on the record:
what the offered evidence is and
what the offered evidence would tend to prove if admitted
It's not enough to show what your evidence is. You must also explain on the record what the evidence would tend to prove if admitted. In this way, you show the judge what the appellate court will review if the judge rules against you. And, if the judge knows your evidence should be admitted, he may decide to let it come in rather than risk being reversed on appeal.
Get your evidence in ... or else you have no "evidence".
If you can't get your evidence in, you lose!
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