The Offer of Proof

October 1, 2011

Perhaps the broadest discretion enjoyed by trial judges is in the admitting or excluding of evidence at trial.  Much of the protection afforded a trial court judge in making evidentiary rulings is found in Rule 103 of the Texas Rules of Evidence, which clearly provides that an erroneous evidentiary ruling, standing alone, is not enough to get a case reversed on appeal.

First, as the rule makes clear, a bad evidentiary call isn’t even error unless it affects a “substantial right” of a party.  In other words, even if the appellate court disagrees with the judge’s evidentiary ruling, if the ruling did not affect the “substantial rights” of a party, there will be no error on appeal. The second, and perhaps most significant reason why trial courts are rarely reversed on appeal for evidentiary rulings is because most errors are waived.  Whether admitted or excluded by the court, Rule 103 provides the guideline on how to preserve error on the ruling. 

If the error is one of admitting evidence, then the steps for preserving error are fairly simple.  The party seeking its exclusion must make a timely and specific objection or motion to strike.  The two essential components of this rule are that the objection be timely and include specific grounds, unless apparent from the context. 

If the error is one of excluding evidence, then preservation of error becomes a bit trickier.  In most circumstances, Rule 103 requires that the proponent of excluded evidence make an “offer of proof” in order to preserve any error on appeal. 

An “offer of proof” is an informal bill of exception, and its purpose is two-fold:  (1) to give the trial court a second chance to look at the evidence before finally ruling on its admissibility, and (2) to complete the record on appeal so that it is clear to the appellate court exactly what was excluded at trial.

With offers of proof, timing is key.  Rule 103 provides that an offer of proof must be made before the jury is charged.  This deadline makes sense.  After all, if one rationale for requiring an offer of proof is to give the trial judge a second chance to make the correct ruling, it would make no sense for an offer of proof to occur after the time for introducing evidence has passed.

Trial courts have broad discretion in directing when the offer of proof can be made, but it is the attorney’s duty to make sure it’s timely.  What this means is that if the trial court directs an attorney to wait until lunchtime, or the end of the day, or some other time to make the offer, it will be incumbent upon the attorney to remember to make the offer at the appropriate time.  However, if the trial court refuses to allow an attorney to make the offer prior to the jury being charged, then reversible error has occurred.  4M Linen & Uniform Supply Co. v. Ballard, 793 S.W.2d 320 (Tex. App. – Houston [1st Dist.] 1990). 

Once the jury has been charged, the time for making an offer has passed.  Tempting though it may be, it is inadvisable for the parties to “agree” to postpone the making of offers until after the jury has begun deliberations.  While arguably a valuable time-saving device, this would thwart one of the primary purposes of the offer.  After all, what would happen if the court actually decided to admit the evidence which the parties agreed to offer while the jury was deliberating?

Furthermore, an attorney should never make a late offer when the trial court has refused to allow a timely one.  In this circumstance, the trial court has committed reversible error, and in the event of an adverse verdict, a new trial is guaranteed.  Why make a late offer and risk satisfying the appellate court that the trial court’s ruling was correct after all?  Id.

The mechanics of making an offer of proof are straight-forward.  The proponent simply needs to demonstrate the nature of the evidence with enough specificity so that the appellate court can determine its admissibility.  This can occur in one of two ways, both of which occur outside the presence of the jury. 

The easiest way is for the attorney to summarize the substance of the testimony.  Most attorneys and judges prefer this method because of its simplicity and expediency.  The second method is to call the witness to the stand and elicit the testimony in question-and-answer form.  While this approach is less convenient and more tedious, a question-and-answer format is mandatory if the other side demands it. 

For tangible evidence, simply mark the evidence as an exhibit and request its inclusion in the record on appeal.  (The same thing can be done for deposition testimony which has been excluded.)

Always keep in mind that an offer of proof is just that – an offer.  Therefore, at the conclusion of the recitation or presentation of the evidence, the proponent of the evidence should re-urge its admission.  As with any other offer of evidence, a ruling must be secured in order to preserve error.  In other words, after giving the court a second chance to consider the evidence, the attorney should secure a final ruling on admissibility.

One last pointer for those who successfully argued for exclusion:  If the excluded evidence could have been impeached or discredited through cross-examination, then it is a good idea to request a question-and-answer format during the offer of proof, followed by a request for brief cross-examination.  On appeal, an effective cross-examination may demonstrate that there was no harm in the trial court’s exclusion of the evidence, even if such exclusion was erroneous.

– Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas


The Non-Responsive Objection

June 14, 2011

One of the most common trial objections is “Objection, non-responsive,” an objection which is often followed up by a motion to strike or to instruct the jury to disregard.  Yet, conspicuously absent from the Texas Rules of Evidence is any rule providing that non-responsive answers are inadmissible or subject to exclusion. 

The fact is, many non-responsive answers may be properly received into evidence, and when a court declines to exclude or strike a non-responsive answer, oftentimes no error is committed.  Because there is no wholesale bar to admissibility of non-responsive answers, one must look to other rules for guidance to determine admissibility in specific circumstances.

Texas Evidence Rule 402 provides that relevant evidence is generally admissible.  Rule 103(a)(1) provides that if the ground for objection is not apparent from the context, an attorney has the duty to enlighten the court as to why it is inadmissible.  Reading the two rules together suggests that a court may allow non-responsive testimony into evidence if it is relevant and no other objection is lodged or apparent from the context.  However, TRE 611(a) confers authority to the court to exclude that evidence as well:

“The court shall exercise reasonable control over the mode and order of interrogating a witness and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.”

Provided the court’s exercise of control is “reasonable,” in the quest for truth, efficiency and fairness, whether to admit or exclude non-responsive answers is left to the discretion of the trial court when no other ground of objection is lodged or apparent from the context.

In practical terms, when an attorney makes a “non-responsive” objection to evidence which otherwise appears to be admissible, the trial court has several permissible options.  If an answer is completely non-responsive to the question posed, then a judge is very likely to sustain the objection.  After all, attorneys are entitled to receive answers to questions properly propounded. 

However, the outcome becomes less predictable if, after responding to the question, the testimony takes a non-responsive turn.  In that situation, a judge might sustain a non-responsive objection on the basis that the additional testimony is repetitious.  An objection might also be sustained to avoid a rabbit trail which the judge believes would result in ineffective presentation of the evidence.  But a judge might also overrule the objection, especially if the testimony, albeit non-responsive, serves to clarify, explain or provide further details about the responsive portion of the answer in an effective and efficient manner.  Finally, there is nothing to prevent a judge from applying a very rigid approach, requiring strict adherence to responsive answers in Q & A form at all times, sustaining all valid non-responsive objections raised.  All of these approaches are well within the discretion of the trial court.

For that reason, a trial attorney should not rely on a “non-responsive” objection, especially when considering the preservation of error.  Instead, attorneys should focus on whether non-responsive answers are objectionable on other grounds.  Assuming other grounds exist to exclude the evidence, then the trial court’s discretion to admit or exclude the non-responsive answer can be substantially limited by combining another valid objection with the non-responsive objection. 

If a non-responsive answer contains hearsay, for example, then a hearsay objection should be included, e.g., “Objection — non-responsive, hearsay,” or simply “Objection — hearsay.”  Either objection will apprise the court of the true reason why the answer should not be admitted into evidence, i.e., that it is objectionable hearsay.  By so doing, the court’s attention is focused toward a particular rule which would require, as opposed to simply permit, exclusion under the circumstances. 

What does this mean for trial testimony?  There is nothing inappropriate about making a non-responsive objection.  It’s a great objection when an attorney wants the court to rein in a witness who is either evading questions or simply won’t shut up.  But the court is not bound to do so.  If the real problem is what is being said, as opposed to when it is being said, then the objection needs to identify that ground of objection, e.g., “Objection — irrelevant,”  “Objection — hearsay,” “Objection — best evidence,” etc.  By so doing, the court is forced to make an evidentiary ruling which carries with it far less discretion on review.

What does this mean for deposition testimony?  Ironically, the only objection permitted to deposition answers under Texas Rules of Civil Procedure 199.5(3)(e) is “Objection, non-responsive.”  Nonetheless, since non-responsive deposition answers, if otherwise admissible, may be received into evidence, an attorney cannot rely on the “non-responsive” objection alone as a basis for exclusion of the testimony at the time of trial.  At the time of challenge to the admissibility of deposition testimony for use at trial, the attorney should focus on the substantive objection.  As with live testimony, such an objection will serve to both apprise the court as to why the evidence needs to be excluded and preserve error for later review.

- Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas


The Rule of Optional Completeness

June 9, 2011

How many times have you made the following objection in the middle of your opponent’s examination of a witness:  “Your honor, under the rule of optional completeness, may I read the remaining portion of that sentence?”  By making this objection, you are requesting permission to complete the record contemporaneously without having to wait until your turn to examine the witness.

It’s a common enough request that occurs in civil courtrooms every day.  After all, everyone knows that’s what the rule of optional completeness provides.  Right?  Wrong.

Texas Rules of Evidence 107, the Rule of Optional Completeness, provides:

“When part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence…”

Contrary to popular belief and practice, nothing in Rule 107, the rule of optional completeness, provides for a right to have the additional statement placed into evidence immediately.  It simply provides that such evidence is admissible.  And, while most judges would liberally permit a contemporaneous offer of the additional statement, it would not be error for a judge to require that such evidence be placed into evidence when the objecting party cross-examines or re-directs the witness, as with any other piece of additional evidence. 

But, wait!  Can this be right?  Isn’t there a rule allowing evidence to be admitted contemporaneously? 

Yes, there is such a rule, but it’s not found in Rule 107, the rule of optional completeness.  The rule which permits contemporaneous admission of evidence is Rule 106, Remainder of or Related Writings or Recorded Statements.  It provides:

“When a writing or recorded statement or part thereof is introduced by a party, an adverse party may at that time introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it… “

So, even though the rule of optional completeness does not contemplate a contemporaneous offer, the evidence may be admissible contemporaneously under Rule 106.  But beware — even under Rule 106, there is no guaranteed right to have every sentence read to completion, or any deposition answer fully read contemporaneously with an initial offer. 

Rule 106 provides for contemporaneous admission of evidence only when, in fairness, it ought to be considered contemporaneously with the portion previously admitted.  In other words, contemporaneous admission operates only to prevent unfairness.  Whether fairness necessitates a contemporaneous offer under the circumstances is a factual determination to be made by the trial court and reviewed under an abuse of discretion standard. 

Furthermore, case law suggests that even when fairness predominates in favor of a contemporaneous offer, Rule 106 does not actually mandate it.  Because Rule 106 was not written in mandatory terms, it would not be error for a court to require (as with Rule 107) that such evidence be placed into evidence at the time when opposing counsel is directing the witness.  Gilmore v. State, 744 S.W.2d 630 (Tex. App. — Dallas 1987).   (“Rule 106 is a narrow modification of the doctrine of optional completeness, controlling the time an adversary can introduce certain kinds of remainder evidence, [but] the language of the rule is a permissive grant and not a requirement.” Id. at 631.)

So the next time you want to have the remainder of a written document admitted contemporaneously after a partial offer has been made, forget the rule of optional completeness.  Instead, focus on the rule of remainder of writings.  A proper request should include a brief statement as to why the remainder of the statement ought, in fairness, be considered contemporaneously with the previous statement, tracking the language of the rule.  

Finally, don’t feel bad that you’ve been misstating the rule for years.  You’re in good company.  At least one frequently-cited appellate decision has confused the two.  Jones v. Colley, 820 S.W.2d 863 (Tex. App. — Texarkana 1992) (“Rule of optional completeness is that if one party introduces part of statement or doctrine, opposing party may contemporaneously introduce as much of the balance as is necessary to explain the first part,” citing Travelers Insurance Co. v Creyke, 446 S.W.2d 954 [Tex. App. -- Houston {14th} 1969].  Travelers, however, makes no mention of contemporaneousness in its explanation of the rule.)

And the next time your opponent interrupts your examination of a witness, demanding a contemporaneous reading of the remainder of a document under the rule of optional completeness, feel free to respond, “Your honor, counsel’s request is improper.  Rule 107, the Rule of Optional Completeness, does not require a contemporaneous introduction of evidence.”

If you want to be so kind as to clue your opponent in that the provisions of Rule 106 might apply, that’s your call.  Or you might decide to let your opponents read the rules for themselves.

-Judge Bonnie Sudderth, 352nd District Court of Tarrant County, Texas


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