Muldoon, Getz & Reston

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The Offer of Proof
by Gary Muldoon
Muldoon & Getz
Rochester, New York
www.muldoongetz.com

The generally accepted meaning of the term "offer of proof" is to summarize the substance or content of the evidence. People v Williams, 81 NY2d 303, 313 (1993). The term is found in two sections of the Criminal Procedure Law, 290.10(3) (trial order of dismissal) and 60.42(5) (rape shield law). The offer is made outside the jury’s presence.

In essence, the propounding party states to the court what the witness would have said in response to questioning, and what that response would prove. See People v Williams, 81 NY2d 303 (1993).

For example, after an objection to a question has been sustained, an offer of proof is appropriate to demonstrate the relevance of the witness or questioning. People v Mejia, 221 AD2d 182 (1st Dep't 1995); People v Billups, 132 AD2d 612 (2d Dep't 1987).

The offer of proof should be made clearly and unambiguously, People v Williams, 6 NY2d 18 (1959); People v Breheny, 270 AD2d 926 (4th Dep't 2000), so that the adversary can make a timely objection. The offer also provides the trial judge with an opportunity to consider the appropriateness of the objected-to evidence.

Where the admissibility of certain testimony is expected to be disputed by the other side, counsel should be prepared to make an offer of proof. This may consist of a "proffer" by the attorney that summarizes the expected testimony and why it is relevant and admissible. Or the offer of proof may involve the witness actually testifying, both direct and cross, outside of the jury's presence.

When an offer of proof is proper, the trial court should permit it to be made. After making the offer of proof, counsel should renew the request that the court admit the testimony into evidence.

Preservation

If counsel fails to make a specific offer of proof for the admissibility of evidence after an objection to it has been sustained, the issue is unpreserved for appeal. People v Rivera, 281 AD2d 155 (1st Dep't 2001); People v Zambrano, 114 AD2d 872 (2d Dep't 1985). Similarly, failure to make a sufficient offer of proof will not preserve the error. People v McDonald, 231 AD2d 647 (2d Dep't 1996).

In some situations, rather than merely having a question objected to, it may be necessary for defense counsel to seek a ruling from the court so as to preserve the issue.

In one case, where disclosure of an informant's identity was at issue, defense counsel's failure to first seek a ruling regarding disclosure was insufficient. People v Pena-Martinez, 244 AD2d 899 (4th Dep't 1997).

Where a pretrial motion in limine that includes an offer of proof has been denied, it may be necessary to renew the motion at trial in order to preserve the issue for appeal. See People v Parkinson, 268 AD2d 792 (3d Dep't 2000); People v McClain, 250 AD2d 871 (3d Dep't 1998); People v Warrick, 11 AD3d 901 (4th Dep't 2004).

An offer of proof also serves to make a more precise trial record, enabling an appellate court to understand more completely the nature of the evidence offered, and to judge more precisely the appropriateness of the ruling on the objection.

"Right to present a defense"

The testimony of a defense witness should never be prospectively excluded as irrelevant unless the offer of proof reveals that the evidence is offered in palpable bad faith. See People v Bull, 218 AD2d 663 (2d Dep't 1995); People v Hepburn, 52 AD2d 958 (2d Dep't 1976); see also, People v Hanley, 5 NY3d 108 (2005) (offer of proof); People v Washington, 52 AD3d 271 (1st Dep't 2008) (overwhelming evidence, harmless error).

The defense has a due process right to call witnesses and introduce evidence that another person committed the crime. "Few rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers v Mississippi, 410 US 284, 302 (1973); Holmes v South Carolina, 547 US 319 (2006); cf. People v Aska, 91 NY2d 979 (1998); People v Chin, 3 AD3d 427 (1st Dept 2004) (criminal record of third party, propensity only established).

When the defense seek to show that another person committed the offense, mere suspicion is insufficient, but a "clear link" is not required. The trial judge should evaluate the evidence by weighing the probative value against countervailing risks. An offer of proof may be appropriate as the initial method of presentation. People v Primo, 96 NY2d 351 (2001); see also People v Schulz, 4 NY3d 521 (2005); People v Ortiz, 39 AD3d 423 (1st Dep't 2007).

Defendant was not denied the right to present a defense with another person who resembled the defendant, where there was no connection between the other person and the crime charged. People v Johnson, 6 AD3d 226 (1st Dep't 2004). See also People v Schulz, 4 NY3d 521 (2005); People v Morris, 21 AD3d 830 (1st Dep't 2005).

Nor was the right to present a defense denied by the court's failure to compel witnesses, where defendant failed to permit the court to assess the merits of his application by disclosing the expected content of witness testimony. People v McMath, 54 AD3d 566 (1st Dep't 2008); People v Brink, 57 AD3d 1484 (4th Dep't 2008).

Some attorneys, in opposing a line of questioning, may repeatedly request an offer of proof. Where this happens, the proponent attorney should point this out to the trial judge and object. An opposing attorney is not entitled to preview every witness or every line of inquiry, and may be acting in bad faith.

© 2012 by Gary Muldoon