OFFERS OF PROOF How to Protect Your Appeal

Cornelius C. Demps, Esq. The Demps Law Firm PLLC DISCLAIMER

•This presentation is for informational purposes only. No statement should be considered legal advice. Counsel of your choice should be consulted prior to making any decision that may impact your legal rights. AGENDA

I. What is an Offer of Proof (“Proffer”) ? II. Legal Authority for Proffer? III.Why do Proffers Even Matter? IV.How to Make a Proffer. V. Three Methods of Making a Proffer. VI.General Proffer Caselaw. VII.Questions & Answers What is an Offer of Proof

• When you believe a trial judge has erroneously sustained an objection, to preserve the point for appeal, you must make an Offer of Proof of what the offered evidence would have been if allowed by the trial judge.

• Offers of Proof are sometimes referred to as “Proffers” Legal Authority for Proffers

Florida Courts Federal Courts • Florida Statute § 90.104 (1)(b) • Federal Rule of Evidence 103(a)(2)

• A court may predicate error, set aside or • A party may claim error in a ruling to admit reverse a judgment, or grant a new trial or exclude evidence only if the error on the basis of admitted or excluded affects a substantial right of the party and evidence when a substantial right of the if the ruling excludes evidence, a party party is adversely affected and when the informs the court of its substance by ruling is one excluding evidence, the an offer of proof, unless the substance substance of the evidence was made was apparent from the context. known to the court by offer of proof or was apparent from the context within which the questions were asked. Proffers Apply in Both Civil and Criminal Cases

Florida Rule of Civil Procedure Florida Evidence Code 1.450 90.104 Why Do Proffers Even Matter?

• If the trial court excludes evidence, the person challenging the ruling MUST make a proffer that makes the excluded evidence part of the record on appeal, if the substance of the evidence was not apparent from the context. How to Make Proffer

By Short Presentation • A party generally makes an offer of proof by short presentation describing the evidence to the court and explaining why it is admissible. • Whether the evidence was truly admissible will be the main issue on appeal. Three Methods of Making a Proffer

• Have the witness answer the question on the record but out of the presence of the jury.

• An offer may also be made by including in the record an oral or written statement of the anticipated answer to the court disclosing the answer which is made on the record.

• When documents or other exhibits are excluded by the court's ruling, they should be marked for identification and made a part of the record on appeal. Proffer Caselaw • A trial court commits error by refusing to allow a proffer of excluded evidence. Pasha v. State, 225 So. 3d 688, 714 (Fla. 2017)*.

• For the appellate court to consider whether a trial court erred in excluding evidence, the party seeking to introduce the evidence must timely proffer a foundation that would have established the relevance of the excluded evidence. Palos v. State, 45 .Fla. L. Weekly D1569 (Fla. 3d DCA July 1, 2020).

• A sufficient offer of proof of the excluded testimony is all that is required. Taylor v. State, Dept. of Transp., 701 So. 2d 610 (Fla. 2d DCA 1997).

• The trial court has discretion over the method of making an offer of proof. Porro v. State, 656 So. 2d 587, 587 (Fla. 3d DCA 1995) Questions THANK YOU!

Cornelius C. Demps, Esq. [email protected] 813-602-1126