Advanced Objection Techniques: Making an Offer of Proof

I keep hammering the point that objection arguments are about the connection between the law and the facts. Sometimes that connection will depend on facts that haven’t been put into the record yet. For instance, if your witness was going to say “She yelled, ‘Stop! He has a gun!” but got cut off by the objection at “she yelled,” you need the wording of the statement to establish the hearsay exception you intend to use. Remember that you as an attorney do not get to testify. You’re not a witness, and that means you can’t just assert facts that aren’t on the record yet. You also shouldn’t accept opposing counsel doing so (more on that later). You employ facts which aren’t on the record using what’s called an “offer of proof.” An offer of proof is a request to the judge to hear your assertions about what facts will come into evidence if the witness is allowed to continue testifying. You make an offer of proof simply by asking to do so. So the example we started with earlier would look like:
Witness: “She yelled-”
Opposing counsel: “Objection, Your Honor, Hearsay.”
You: “Your Honor, may I respond?” [judge nods] “May I make an offer of proof?” [judge nods]. “Your Honor, if allowed to testify the witness will state that she yelled ‘Stop! He has a gun!’ The first portion, ‘Stop!’ is not hearsay because it is not a statement. The second, ‘He has a gun,’ falls under the present-sense impression exception to hearsay.”
You in that example followed the correct procedure by simply asking, “May I make an offer of proof?” Notice that you also gave the judge some context for the facts you’re alleging will come in when you said “if allowed to testify, the witness will state...” Sometimes you’ll need to make offers of proof citing evidence that won’t come in for a few questions yet; you’ll need to give the judge context for that too, usually by saying “Your Honor, this line of questioning will provide evidence that...” You provide that context for two reasons. First, it ensures the judge knows what to expect. If they’re expecting the fact you just asserted to come in immediately, your credibility is hurt if it in fact takes a few questions. Opposing counsel might re-object, and this time they might succeed. Second, it makes your assertion more believable. You’re promising that the witness will testify to something. If you tell the judge not only what the witness will say but when they’ll say it, the judge is more likely to believe that promise.
The example we’ve worked with so far assumed that the offer of proof was given on direct examination. It would seem in theory harder to use it on cross examination. After all, the witness is hostile. How can the cross examiner guarantee what the witness will say? In practice that’s not a serious concern. The judge knows full well you’ve prepared your questions from the deposition and other available documents: your belief about what the witness will say is at least as credible as opposing counsel’s. Opposing counsel would also look a bit silly making the “the cross examiner can’t guarantee the answer” argument if the witness then proceeds to give the answer the crosser said they would. Moreover, many judges wouldn’t stand for that kind of indirect argument: they’d flat-out ask opposing counsel if they believe the witness will say something else. Here’s an idea of how that would play out:
Opposing counsel: “Your Honor, as the cross examiner here, Counsel can’t know what the witness will say- his offer of proof isn’t meaningful.”
Judge, to opposing counsel: “Is it your assertion then that Counsel is wrong about what the witness will testify to? The witness will say something else?”
Opposing counsel: “It  is our contention that Counsel’s belief about what the witness will say isn’t pertinent because this is cross-examination.”
Judge: “Is his belief incorrect?”
At this point, assuming you’re right in your offer of proof, opposing counsel has two options. They can say “We don’t know,” and look like idiots for not understanding their own witness’s testimony. Or they can say “no,” and... look like idiots for affirming what they’ve been fighting against.
Of course, there will be times when the judge isn’t going to do that work for you and you’ll have to defend yourself against that argument by yourself. You can’t turn it into an issue of whether you’re right or wrong quite as easily as the judge can- ignoring opposing counsel’s argument and directly questioning them is a prerogative only the judge gets. I’d suggest directly responding to opposing counsel’s point by making the “preparation” argument I sketched out earlier and then turning it into an issue of whether you’re right. So you’d say something like: “Your Honor, may I respond?” [Judge nods] “Your Honor, this offer of proof is based on the witness’s prior sworn statements, the same basis Counsel would have for a similar offer on direct examination. Further, it refers to testimony the witness is about to give- if the witness does not give the answer I expect, Counsel is free to renew her objection.”
So the only concern on cross-examination is being sure you’re right about what the witness will say and making offers of proof won’t be a problem.
Offers of proof are, broadly speaking, tools for using evidence that hasn’t yet been entered in objection arguments. Next time we’ll talk about instances in which you need to use that sort of evidence, but don’t have an offer of proof available as a straightforward option.