The Rules and Offers of Proof – Getting Evidence Into the Record for Appeal

The one thing that the legal system, including both lawyers and judges, can do to mess with a person representing themselves is use "the rules".

When handling your case in court not only do you have to worry about the motions and the hearings before the trial judge or jury, but you also have to "preserve the record" for appeal.

What do I mean by that?

Fist off, there are three sets of rules that you must familiarize yourself with:

1) The Rules of Civil Procedure; 

2) The Rules of Evidence; and

3) The Rules of Appellate Procedure.

They may be called something slightly different in your state, but these are the generally accepted names and if you run a Google search for those and your state name it will get you to the right ones.

Read them over and over and over again. Then research how they are applied in court. Of course,our book The Guerrilla Guide to Legal Research: Finding the Law for Non-Lawyers will help you to understand how to do the research.

A part of these rules deals with a topic called "Offers of Proof".

When you get to the trial, and even in some hearings, there may be evidence that you think is important for your case. despite your best efforts and explanations the judge may choose to exclude that evidence and not let you put it into evidence, even though you feel it makes a vital point.

But if the information or exhibits aren't admitted, the Court of Appeals can't consider them if it becomes necessary to appeal the case. 

That's where the offer of proof comes into play.

If the judge excludes your evidence, for whatever reason, you must ask to make an offer of proof and get the evidence into the record "for appellate purposes". I'm not one who believes that the judge is afraid you are going to reverse them on appeal, so you have to do it in a non-threatening manner.

The interaction would go like this:

Judge: Denied (or sustained or overruled, contextually whatever is going to keep your evidence out)

You: Judge, then respectfully I'd like to make an Offer of Proof for purposes of the record.

Judge: Proceed.

At that time you would do two things:

1) Offer the evidence,with an explanation of what it is. If it is a witness that has been excluded ask the judge if you can put the witness on the stand to testify for the record. If he denies that, then tell the judge what you anticipate his testimony would have been. Do no waffle! State "The witness would have testified…" not "I think he might have said…". If it is some kind of documentary evidence, offer them to the judge and ask the documents be marked for the record.

2) The second step is important as well. Explain to the judge what the evidence would prove and why it is relevant to the case.

When you finish with that, you state to the judge, "That concludes my offer of proof."

Simple as that and now the evidence is preserved for the Court of Appeals to consider should the case be appealed.