AN APPEAL TO REASON

When you are trying to admit evidence during trial, and the other side wants to keep it out and the trial court is leaning or has ruled in favor of exclusion, then you have to respond with an offer of proof. You need to let the trial and appellate courts know what the evidence might reveal and how important it is to your case.

The offer of proof shows what the evidence would have been, who the witness is, and to what issue it is relevant. “Normally the exclusion of evidence will not be considered on appeal unless the substance, purpose and relevance of the excluded evidence was made known to the trial court,” unless the court has clearly stated it is excluding an entire area of evidence. (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1142; Evidence Code § 354 [the offer of proof should include “the substance, purpose, and relevance of the excluded evidence . . .”].) “Merely setting forth the substance of facts to be proved does not constitute compliance with Evidence Code section 354, subdivision (a).” (Semsch v. Henry Mayo Newhall Memorial Hospital (1985) 171 Cal.App.3d 162, 168 [The offer of proof should include the specific testimony to be elicited, its purpose, and the person giving the testimony.]

A judgment cannot be set aside on this ground unless “the substance, purpose and relevance of the excluded evidence were made known to the court by an offer of proof or by other means (Evid. Code, § 354, subd. (a).)” (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1113.) However, if an entire class of evidence has been declared inadmissible or the trial court has indicated it will not receive evidence on a particular issue, then an offer of proof is not a prerequisite to raising the question on appeal, and the offer, if made by counsel, may be “broad and general.” (Pacific Gas & Electric Co. v. Zuckerman, supra, at p. 1142.)