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VOLUME 16 | NUMBER 5 | AUGUST/ SEPTEMBER 2016

PRACTICAL EVIDENCE TIPS—Preparation, Brevity, Simplicity and Offers of Proof

Lawrence E. Leone

Editor's Note: Mr. Leone is a Certified Family Law Specialist and past Chair of LACBA's Family Law Section. He is the new editor for the Family Law E-News.

There is no family law exception to the hearsay rule. The rules of evidence are designed to exclude unreliable forms of evidence – not the truth. Always consider that all evidence must be probative of an issue in dispute to be admissible and it must be reliable. The language of litigators (including the court) includes the Evidence Code, the Code of Civil Procedure and Court Rules as a kind of syntax and vocabulary. As you learning the language your communication skills will increase. The Court in Elkins(i) reminded us that our system of justice is based on the rule of law and that the application of our Evidence Code is mandatory. With the exception of Sorrell Trope, trial lawyers are not born litigators; they learn their craft by efforts and practice. It is hoped that notes such as this, intended to assist practitioners working with evidence, will become a regular part of this publication. (ii)

GENERAL RULES – P B S

When drafting declarations, considering live testimony, arranging an argument, planning objections or a line of questioning one must consider the PBS rule. Preparation, Brevity and Simplicity. A variation on this theme is: less is more. Be acutely conscious that if you are the proponent of an item of evidence you have a burden of persuasion and the judicial officer reading or listening to your presentation has scarce time or attention to for matters that do not advance a story line. The potential for persuasion is a function of clear, cogent and concise (CCC) work. On the preparation side of the equation consider; A) What is your burden of proof, B) What are the elements of proof, C) what is the available evidence and D) What is the simplest way of getting it into evidence? Where foundation or hearsay issues might increase the specter of unreliability, being forewarned is being forearmed. When considering offering evidence always consider the potential negative implications. For example, an item might raise one inference in your favor but open the door or expose your case in other areas caution is called for. The drafting of a declaration or effective examination is ultimately a test of communication skills and when the popcorn stops popping, stop.

OFFERS OF PROOF

One of the most useful and least understood doctrines in a litigator's toolbox is the Offer of Proof. (iii) To make a valid offer of proof the proponent is required to state the 1) substance, 2) purpose and 3) relevancy of evidence the offering party seeks to have an item of evidence admitted or excluded. Evid C § 354. Judicial officers often will rule on objections summarily, without hearing argument. In response you may request permission to show the substance, purpose and relevancy of your evidence or why some exception to admissibility applies. A second reason to make an offer of proof is to avoid a waiver of the right to appeal by failure to make an offer of proof or objection. In sum, you must set forth the facts supporting your offer AND establish a probative link of the evidence in a particular form to an issue in dispute. It is also helpful to articulate why admission or exclusion of the evidence will be prejudicial such that a miscarriage of justice will occur.

It is important that your record reflect that you have given the trial judicial officer a reasonable opportunity to make an informed decision. You have an obligation to: a) bring errors to the attention of the court, b) correct errors when you can and c) if the court disagrees leave a record showing you have in a polite, courteous, clear, cogent and concise way tried to help the court on a point of evidence while also reminding the court of the cost any exclusion may have in the quest for justice and truth. Always be ready to show the exclusion or admission of an item of evidence will be important (potentially prejudicial). Note that an offer of proof is defective if it does not contain all the elements and you may object to the offer once it has been completed.

WHEN TO MAKE AN OFFER OF PROOF:

  1. After opposing counsel has interposed an objection and before a ruling.
  2. A motion to strike has been made and before a ruling.
  3. A privilege has been asserted and before a ruling.
  4. A ruling has been made in a summary fashion, before you have had an opportunity to make a statutory offer of proof.

REQUIREMENT EXCUSED DURING CROSS EXAMINATION

While the Evidence Code excuses making an offer of proof during cross examination or re-cross examination some judicial officers, after an objection, will ask counsel to state the purpose of the question or line of questioning. Notwithstanding the black letter law, you are requested and required to remain courteous and responsive to the court. Carefully suggest that answering and setting forth the purpose and implications of your cross-examination may improperly alert the witness as to the nature of the impeachment or your intention to elicit other facts that will be probative.(iv) If this is an important area you may wish to have the witness excluded while argument is had on this issue, perhaps at the sidebar, and request that opposing counsel not discuss the purpose of the question or line of questions with the witness. Always consider your record. If challenged by an objection or indicated ruling by the court, to protect your record, even on cross examination, make sure the judicial officer has the context and theory you are advancing by offering your proposed evidence. Generally, if the evidence is not changing the persuasion equation why take the court's time? Always consider what your ultimate audience (the court) is thinking. If the court has not grasped the logical implications of your evidence take simple and clear steps to establish what and why you are doing it without alerting a witness to potential damage. Generally, wide latitude is granted to impeaching the credibility of a witness. Note that impeachment may be made on a collateral matter, is not limited to the scope of direct examination, may include prior inconsistent statements and should be permitted without showing the statement to the witness.(v) But this freedom has logical and attention span limitations. Further, latitude may be tempered by Evidence Code section 352 and reason.

EXCUSED WHERE FUTILE

Where a Judge has ruled that a class of evidence or area is inadmissible the proponent should make a clear and concise record that that further offers would be futile but that there is no waiver of grounds for appeal. Consider requesting that a continuing objection to preserved where necessary. Evidence Code §354(b)

AVAILABILITY AND SPECIFICITY

To meet the statutory requirement for an offer or proof the proffered evidence must be available at trial either in the form of an identified and disclosed document or a witness. An objection to an offer of proof may be made where a document has not been produced or a witness not identified. Further, to simply state that "other witnesses" will testify as to "x" does not meet the specificity required, namely: "Mr. W will testify that...".

Again an offer of proof may be defective if it fails to set forth sufficient information to enable counsel and the judicial officer to determine if the evidence is admissible. If it is defective you need to point out the error to the court. The test is whether the evidence is specific enough that opposing counsel could object to the substance of the proffered evidence.

In a practical sense, if the court, when considering some action in a case, may ask counsel to make an "offer of proof". Consider the court may be asking; "Where are you going?" or "Why should I take the time to do this or that?" In this context, statutory specificity may not be required.



i. Elkins v. Super. Ct. (Elkins) (2007) 41 Cal.4th 1337, 63 Cal.Rptr.3d 483, 163 P.3d 160

ii. Any requests for topics or questions of interest to be explored in subsequent editions may be sent to lelcfls@aol.com.

iii. Evidence Code §354 - A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that:(a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the question asked, an offer of proof, or by any other means;(b) The rulings of the court made compliance with subdivision (a) futile; or (c) The evidence was sought by questions asked during cross-examination or recross-examination.

iv. See Evidence Code §769 -   In examining a witness concerning a statement or other conduct by him that is inconsistent with any part of his testimony at the hearing, it is not necessary to disclose to him any information concerning the statement or other conduct. See Evidence Code §770 Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or (b) The witness has not been excused from giving further testimony in the action.

v. Evidence Code §§769, 780, 770


                                                                                                                                                                         
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