In Tuesday’s post, we discussed offers of proof. An offer of proof is fundamentally a tool for using evidence that hasn’t yet been entered onto the record in an objection argument. You can use it when that evidence will be coming in fairly soon in the examination you’re currently conducting. Please note that is a fairly narrow circumstance; you can’t just use an offer of proof whenever you want to use evidence that hasn’t been entered yet. Let’s look at some situations where you might want to use such evidence and can’t use an offer of proof.
The most common and straightforward such situation is when you want to reference evidence that you know your side will be putting in later, but it hasn’t yet. Let’s say that there’s eyewitness testimony that a purple car was at the scene of a murder, but that evidence hasn’t come in yet. You’re talking to a witness and trying to establish the color of the defendant’s car. Opposing counsel objects to relevance- what use is it to us what color the defendant’s car is? You don’t need to request an offer of proof in order to respond. Simply tell the judge in broad terms what evidence you’ll be putting in later, and connect that evidence to what you’re putting in now. For instance, you might say, “Your Honor, the witness just testified that the defendant owns a purple car. We will later in our case-in-chief provide evidence that a purple car was seen at the scene of the murder: evidence that the defendant has access to such a car is clearly relevant in establishing the identity of the murderer.”
Objection arguments in which you need to use an argument of opposing counsel’s that they haven’t made yet are somewhat trickier. Again, this only comes up with any frequency in relevance arguments, where the evidence you’re trying to put in is relevant only as a rebuttal to an argument you anticipate opposing counsel will make. It’s perfectly acceptable to tell the judge exactly that: that you anticipate that opposing counsel will make a particular argument and you’re offering this evidence to rebut that point. It helps to be able to point to some indication that they do in fact plan to make that argument- a quotation from their opening statement, for instance- but it isn’t necessary. It can also be useful to gently remind the judge that here, unlike in real court, rebuttal witnesses aren’t allowed, so you have to be allowed to anticipate and respond to opposing counsel’s argument. So if, for example, opposing counsel emphasized in their response that they hadn’t yet made the argument you’re anticipating, you might reply: “Your Honor, although Counsel has not yet begun to make this argument, in their opening statement they made clear their intent to do so. Since we are unable to call rebuttal witnesses at this proceeding, we are offering evidence on that point now and that evidence is relevant.” Many judges will then turn to opposing counsel and ask if they do in fact plan to make that argument. If they say yes, the discussion turns into a normal relevance objection battle wherein you debate whether the evidence you’re offering really is pertinent to the point you’re trying to make. If they say no, you’ll usually want to say “In that case Your Honor, I’m happy to pose another question,” gracefully conceding the objection argument. Sometimes it’s pretty clear that they’ve actually already begun making the argument they deny making, however. Drawing on our earlier example, if the prosecution has put in evidence about the color of the car at the scene and the color of the defendant’s car, they very clearly intend to make the argument that they’re the same car. Don’t back down if that happens- point out all the pieces of the argument that they’ve already put in and re-assert your right to rebut their point. If they haven’t, though, and deny that they will, you’re pretty safe in backing down. If they then proceed to use that argument, the judge will think one of two things: either they made a bad-faith argument and essentially lied to the presiding judge, or the attorneys on the counsel table are coordinating their arguments badly. Either way, they’ve lost more credibility making that argument than you have by not countering it. Please note that you’ll need to be sure that rebuttal evidence really is the only reason you want to make whatever point you’re trying to make. If you want it in for some other reason and are forced to back down when it’s clearly not appropriate as rebuttal evidence, you’re out of luck.
There’s one other situation in this category which is complicated enough to warrant its own discussion. That’s what we’ll be covering next time.
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