When a judge has sustained an opponent’s objection to your evidence, you waive any appellate error unless you make a proper offer of proof. Lawyers know this in the abstract, but often fail to preserve error in practice. Sometimes trial lawyers feel that an offer of proof will draw attention to a losing ruling. Not only does this thinking squander a potential victory on appeal, it actually sends the court the wrong message. Judges rarely begrudge a professional offer of proof, and if the court knows you will present effective offers, the court may give second thought to the pending ruling or later rulings.
The basic formula requires the following words: “Your honor, we understand that the court has ruled that the objection stated by opposing counsel to the testimony that we have just presented outside the presence of the jury will be sustained. We offer the testimony as our offer of proof, and request that the court note on the record that if the testimony had been offered before the jury, that the same objection and ruling would have been made and the court would have sustained the objection, so that it is not necessary for us to repeat this offer and obtain that ruling in the presence of the jury.”
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