Saturday, March 25, 2006

Must Offers of Proof Include Rule 104(a) Material?

You are defense counsel in a criminal trial. You want to introduce expert testimony from an engineer who developed an animated re-enactment of the crime. The trial judge shuts you down, because: (a) you didn't fully comply with discovery requirements; (b) the judge thinks the expert is unqualified; (c) the judge thinks the testimony is unreliable; and (d) the judge thinks the animation could mislead or confuse the jury, because it doesn't match up with the factual evidence offered at trial.

You decide to preserve the evidentiary issues for appeal. So you make an offer of proof. You offer the animation and some stills from it. You also offer the expert's CV. And you say:
"I merely proffer that we have the engineer here outside the courtroom, that he would testify, if permitted, that he analyzed the coroner's report, talked to the defense investigator in this case, and he presented a piece of demonstrative evidence that's on this tape, Defendant's Exhibit A, and also B through E, which are stills coming from the tape which would demonstrate, if permitted, the testimony of the investigator as to his theory of what happened in this case."
At least you've now preserved the record, right?

Not in Ohio, you haven't. See State v. Conway, 108 Ohio St. 2d 214, 842 N.E.2d 996 (2006) ( ΒΆΒΆ 111-123). The Conway court concluded that this proffer did not contain sufficient information to establish the expert's qualifications, the substance of his testimony, or the reliability of the evidence.

In support of its ruling, Ohio's high court invoked Ohio R. Evid. 104(A) (scroll down), which tracks Fed. R. Evid. 104(a). Both versions of Rule 104 provide that in ruling on admissibility, the trial court is not bound by the rules of evidence. That is, the court may consider information bearing on admissibility even if that information would not itself be admissible in evidence.

Ohio's rule on offers of proof also tracks the federal version. Compare Ohio R. Evid. 103(A)(2) (scroll down) with Fed. R. Evid. 103(a)(2). Both versions of Rule 103 provide that to preserve error when evidence is excluded, the proponent must make "the substance of the evidence" known to the trial court. No doubt defense counsel in Conway thought he was doing precisely that. But in this context, "the substance of the evidence" includes not only the substantive testimony, but also the factual predicates for its admissibility under Rule 104(a). That's now the rule in Ohio, at least, and although a formalistic quibble could be raised (the Rule 104(a) material needn't be admissible in "evidence"), the Conway rule makes a certain amount of sense. How else is the appellate court supposed to decide whether the trial court's ruling should be reversed?

The moral? Make a very thorough proffer. If you're worried that doing so will tax the trial court's patience, write the proffer down. Be sure to tender the expert's report as part of that proffer. But be sure not to assume that the report, or the expert's CV, are enough to do the job by themselves.

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Fed. R. Evid. 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.