Conduct of Trial - Offer of Proof - What is it?
An offer of proof is a presentation of evidence for the record (outside of the jury's presence, if there is a jury) usually made after the judge has sustained an objection to the admissibility of that evidence, so that the evidence can be preserved on the record for an appeal of the judge's ruling.[1] It may be made to demonstrate the relevancy of challenged evidence, to clarify or specify the purpose or justification for a line of questioning on cross-examination, and to justify reopening the case after the close of evidence to allow presentation of additional evidence. In New York, the common law provides the principal authority for making an offer of proof. [2]
An offer of proof, which may be used to persuade the court to admit the evidence, consists of three parts: (1) the evidence itself, (2) an explanation of the purpose for which it is offered (its relevance), and (3) an argument supporting admissibility. Such an offer may include tangible evidence or testimony (through questions and answers, a lawyer's narrative description, or an affidavit). [3]
Where there is an objection to an offer of evidence, the proponent of the evidence must take advantage of an opportunity to make an offer of proof in order to demonstrate the relevance of disputed evidence.[4]
[1] Black's Law Dictionary (8th Ed. 2004).
[2] Prince-Richardson on Evidence, Eleventh Ed [Farell] §1-204.
[3] Black's Law Dictionary (8th Ed. 2004).
[4] People v Billups, 132 AD2d 612, 518 NYS2d 9 (2d Dept 1987).
An offer of proof is a presentation of evidence for the record (outside of the jury's presence, if there is a jury) usually made after the judge has sustained an objection to the admissibility of that evidence, so that the evidence can be preserved on the record for an appeal of the judge's ruling.[1] It may be made to demonstrate the relevancy of challenged evidence, to clarify or specify the purpose or justification for a line of questioning on cross-examination, and to justify reopening the case after the close of evidence to allow presentation of additional evidence. In New York, the common law provides the principal authority for making an offer of proof. [2]
An offer of proof, which may be used to persuade the court to admit the evidence, consists of three parts: (1) the evidence itself, (2) an explanation of the purpose for which it is offered (its relevance), and (3) an argument supporting admissibility. Such an offer may include tangible evidence or testimony (through questions and answers, a lawyer's narrative description, or an affidavit). [3]
Where there is an objection to an offer of evidence, the proponent of the evidence must take advantage of an opportunity to make an offer of proof in order to demonstrate the relevance of disputed evidence.[4]
[1] Black's Law Dictionary (8th Ed. 2004).
[2] Prince-Richardson on Evidence, Eleventh Ed [Farell] §1-204.
[3] Black's Law Dictionary (8th Ed. 2004).
[4] People v Billups, 132 AD2d 612, 518 NYS2d 9 (2d Dept 1987).
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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