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The Perfect Proffer

Appellate Practice

“But because counsel failed to properly preserve this issue for review, we are compelled to affirm” — one of the most frustrating phrases in the practice of law. You’ve done everything possible for your client, conducted a professional hearing or put on a tremendous effort at trial, and, yet, somehow left the appellate court wanting for more. One of the ways to keep this from happening is by making an appropriate proffer to preserve an appellate court’s ability to review any unfavorable evidentiary rulings. The perfect proffer requires…well before we get to that, let’s start where all good stories should — the beginning.

A proffer is a presentation of excluded evidence. In essence, when a trial court makes a ruling that excludes evidence, the party seeking to present that evidence must make the substance of the excluded evidence known through a proffer, unless the substance of the evidence would be apparent from the context.1 There are three basic purposes of a proffer: 1) to give the trial court the full picture of the evidence and an opportunity to reconsider its prior evidentiary ruling;2 2) “to include the proposed evidence in the record so that the appellate court can determine whether the trial court’s ruling was correct”;3 and 3) to demonstrate that the error is real, not “imaginary or speculative.”4 Without a proffer, it is often impossible for the appellate court to determine the existence and effect of any error made by the trial court in excluding evidence,5 and the appellate court will not consider arguments as to whether the exclusion was improper.6

Stylistically, proffers come in three flavors — perfect, good enough, and those delivered on a wing and a prayer. Within each of these categories, context, clarity, and relevancy all play an important role in determining whether a proffer will permit reversal or just be wasted effort. The burden of making a proffer rests squarely on the shoulders of the party seeking to have the proposed evidence admitted,7 but the trial court has the discretion to establish the method by which counsel can make a proffer.8 This article illustrates three proffer styles and points out common pitfalls that derail otherwise good lawyering on appeal.

The Perfect Proffer: Actual Testimony or Documents
The safest way to proffer is to offer the actual testimony sought to be entered into evidence.9 This entails having the witness answer questions on the record, but outside the presence of the jury,10 and should give the appellate court a complete perspective on the questions and answers, to permit a proper review.11 Note, the process is the same for nonjury trials because judges are presumed to disregard inadmissible or proffered evidence.12

For example, in Taylor v. State, Dep’t of Transportation, 701 So. 2d 610 (Fla. 2d DCA 1997), a property owner claimed severance damages as part of an eminent domain proceeding.13 The Department of Transportation successfully argued a motion in limine excluding all expert testimony in support of the property owner’s severance damages.14 The property owner ultimately proffered the testimony of four separate experts, revealing the factual support for the severance damages claimed.15 On appeal, the Second District Court of Appeal reversed and remanded for a trial on the property owner’s severance damages, based on the proffered testimony of the four experts.16 Other courts have similarly reversed trial courts after relying on the duly proffered testimony of witnesses.17

During this type of proffer, objections are permitted, but the trial court should permit the question to be answered18 and counsel should continue to ask questions in order to create a complete record for appellate review.19

In the case of documentary evidence, the party seeking to have the document admitted into evidence must ensure the document becomes part of the trial record, even though it is excluded from evidence. Brantley v. Snapper Power Equipment, 665 So. 2d 241 (Fla. 3d DCA 1995), established the best practice for ensuring a document is made part of the record for the purposes of appellate review.20 The documents should be offered to the court outside the presence of the jury.21 The documents should be marked and fully described on the record and left with the clerk to become part of the record.22 Other district courts of appeal have also followed this procedure.23

While having documents placed in the record may be a fairly simple procedure, convincing a trial court to put the proceedings on hold to permit the full testimony of several witnesses may be difficult, particularly because the statute permitting proffers does not require actual testimony,24 and courts have the discretion to determine the method of making a proffer.25 Under these circumstances, an attorney may have no choice but to try for a good enough proffer.

The Good Enough Proffer: Oral or Written Summary
A good enough proffer is an oral or written summary of the proposed evidence and, if done correctly, is sufficient to preserve the evidentiary exclusion for appellate review.26 “Counsel may accomplish this by stating with specificity what he or she anticipates will be the witness’ testimony.”27 This type of proffer can range from simply indicating the line of questioning to be pursued28 to describing in detail what the witness’ proposed testimony would be.29 There are three keys to making a good enough proffer truly good enough. First, the attorney must be clear he or she is making a proffer.30  Second, the attorney must be aware of the context in which the proffer is being made — what evidence is already before the court and what has not yet been revealed — in order to determine if additional context should be included in the proffer.31 Finally, the attorney must make clear the purpose and relevance of the proffered evidence.32 Before venturing down this path, it is advisable to attempt to proffer the actual witness testimony first.33

Regarding clarity, the attorney should specifically state he or she is making a proffer — simply requesting a sidebar, without expressing that the purpose of the sidebar is to proffer, is insufficient.34 Further, a good enough proffer cannot be mere conclusions about a general topic or type of testimony to be provided.35 It must be specific, include relevant facts, and permit the court to determine the exact nature of the testimony or evidence at issue.36 For example, submitting a copy of a witness’ deposition is insufficient as a proffer, unless there is also an explanation on the record of what portions of the deposition mirror the excluded testimony and the relevance of those portions.37 Similarly, submitting a copy of an expert report is insufficient without an explanation as to the specific portions of the report that were excluded by the trial court.38

In Johnson v. Moore, 493 F. Supp. 1236 (M.D. Fla. 2007), the court described an ideal good enough proffer as follows:

The proffer by defense counsel of Pernell Davis’s prospective testimony at Johnson’s trial in the present case was detailed and encompassing, received by the trial court without reservation, and overheard by the prosecution without objection. All participants at trial and throughout the course of this action have understood with particularity the content of the proffered testimony. Defense counsel’s proffer was not merely sufficient; it was exemplary.

In Mungin v. State, 458 So. 2d 293 (Fla. 1st DCA 1984) (en banc), the appellate court reversed and remanded for a new trial after the trial court excluded evidence, and defense counsel gave the following proffer:

When the same objection was made by the state to testimony by Mungin on the subject of recent prior disputes with Williams, a proffer of the following facts was made by defense counsel outside the jury’s presence: On December the tenth, Mungin saw Williams harassing his friend, another inmate named Stark. In an attempt to end the dispute, Mungin told Williams that he had money and would pay the debt. Williams’ response was to stab at Mungin twice with a knife, missing both times. Mungin testified that the attempted assault upset him greatly because he had nearly died of a stab wound to his throat, inflicted a month earlier. Fearful of another such attack, he tried, unsuccessfully, to obtain an apology from Williams and settle the matter. The following day, as Mungin entered the day-room, Williams stood up, approached him, reached under his shirt and seized a knife, which he used again to attack him. During the ensuing scuffle, and while Williams’ friends were throwing chairs at Mungin, the knife was dropped and Mungin retrieved it. At that point Correctional Officer Smith came in and subdued Williams. Mungin at first refused to surrender the knife until the other hostile inmates were removed.

This proffer permitted the appellate court to consider whether the trial court improperly excluded evidence relevant to inmate Mungin’s defenses of self-defense and necessity.39

While a good enough proffer can certainly get the job done, for a variety of reasons, there may not be time or the permission of the trial judge to put forth a full proffer. Under those circumstances, an attorney is left to pin his appellate hopes on a wing and a prayer.

The “Wing and a Prayer” Proffer: Context from the Question
The wing and a prayer proffer isn’t actually a proffer at all. It essentially counts on the appellate court to reverse on appeal because the substance of the excluded evidence is clearly apparent from the context and the questions asked.40 For example, no proffer was required in a child custody proceeding when the questions were about the father’s relationship with the child and home environment.41 The purpose of the proceeding was to determine the extent of the father’s custody, and the questions clearly would have shed light on evidence relevant to that purpose.42 Further, a proffer of an expert’s actual testimony was unnecessary when the already admitted testimony revealed that the expert was properly qualified and it was evident what the topic of the remaining questions would be.43 Further, when the questions were clearly related to one of the defendant’s defenses, the lack of a proffer was not fatal to his appeal because the substance of the testimony was obvious.44

However, questions about an officer’s past disciplinary investigations were insufficient to reveal the relevance of the testimony sought, when the questions did nothing to indicate whether the information sought was about recent investigations or investigations in the distant past.45 The appellate court refused to guess as to what the potential relevance could be.46 As you can see, there is but a razor’s edge separating cases in which the questions were sufficient to avoid the need for a proffer and those in which the questions were insufficient. Context and relevance are the touchstones of any successful proffer, but are the most critical when the appellate court will only have the question to review and not the proposed response.

Proffer Pitfalls
Despite these three discrete categories of proffers, trials and hearings are rarely such clear cut affairs with flashing signs pointing out the need for a proffer. Proffer caselaw refers to “the shifting sands of a trial in progress” and the impact those shifting sands can have on an evidentiary ruling.47 Counsel must be nimble to avoid the pitfalls that can turn an otherwise sufficient proffer into just wasted breath.

The most obvious pitfall, and yet the hardest to avoid, is remembering to make a proffer. Florida law is full of cases holding, “because counsel failed to proffer, this issue is not preserved for repeal.”48 Further, proffers must be offered at the right time in a proceeding. In Persaud v. State, 755 So. 2d 150 (Fla. 4th DCA 2000), the trial court sustained an objection to a line of questioning regarding whether a driver was intoxicated at the time of an automobile accident.49 At the time, the only evidence before the court was that the driver and another driver had been drag racing.50 Following a proffer, the court continued to sustain the objection.51 Later, the second driver testified that he had not been drag racing and that the first driver had in fact been driving erratically.52 Yet, once this new evidence was before the court, counsel failed to attempt to reintroduce evidence of the first driver’s intoxication.53 Accordingly, despite a seemingly correct initial proffer, the timing of the proffer, before the relevance of the proffered testimony was clear, precluded reversal on appeal.54

Further, a trial court must be given an opportunity to rule on the evidence at issue in order for a proffer to be timely. Explaining what the testimony would have been for the first time in post-trial proceedings55 or in an appellate brief56 is too late. Notably, though, one court indicates that the parties and trial court may be able to agree to permit a late proffer.57

In addition to timing, the trial court’s ruling must be definitive. This issue primarily arises in the context of motions in limine. If a definitive ruling is obtained, then there is no need to later renew an objection or proffer evidence to preserve the claim for appeal.58 One must only make sure that the evidence excluded by the motion was sufficiently described in the motion or in the hearing transcript.59 But when a judge, particularly on a motion in limine, has indicated a willingness to reconsider testimony during trial, the evidence should be brought up again at trial and proffered if it is again excluded.60

Finally, even a perfect proffer cannot salvage an appeal that is otherwise doomed. For instance, if the exclusion of the evidence was harmless error, then a proffer will not require the appellate court to reverse.61 This is also true if the proffered evidence is merely cumulative to other properly admitted evidence.62 With planning and forethought, though, many of these pitfalls can be avoided.

No Proffers Allowed
What happens when the trial court flatly refuses to permit a proffer? It is reversible error for a court to refuse a proffer or cut short a proffer,63 even when the court believes that counsel is merely engaged in a fishing expedition.64 It is also reversible error for a court not to permit a witness to completely answer questions asked as part of a proffer.65 Appellate courts will generally presume that the exclusion of the evidence was prejudicial when the trial court prohibits a proffer.66 Still, a trial court is not required to permit a proffer about an issue that is wholly irrelevant or not before the court, such as an unpleaded defense.67

Further, proffers are unnecessary when they would be useless ceremony or unavailing.68 These circumstances usually arise when a trial court has definitively indicated it will not accept testimony on a particular topic. For instance, it is unnecessary to proffer the testimony of each proposed witness when the court has already indicated it would limit the testimony of a certain class of witnesses.69 Or when the trial court flatly refuses to permit the testimony of a witness.70 However, courts are permitted to control the timing and order of hearings or trials, and in at least one case, a judge’s indication that there would be only 10 minutes reserved for further testimony was not an indication that the testimony would be unavailing or useless ceremony.71 Under those circumstances, counsel’s failure to proffer the remaining testimony failed to preserve the evidentiary issues for appeal.72

At bottom, when a trial court excludes relevant evidence, some form of a proffer must be made to preserve every option for an appeal. At least one case indicates that there can be flexibility in the timing and format of a proffer with the agreement of the parties and the court.73 Counsel should not only look for the need to proffer, but also the opportunity to do so in a strategically beneficial way through the agreement of the trial court and other parties. The key is to ensure that the context and relevance of the proffered evidence are clear and provide the appellate court with the tools needed to craft the reversal sought.

1 F la. Stat. §90.104(1)(b) (2014); Fla. R. Civ. P. 1.450.

2 Id.

3 Fehringer v. State, 976 So. 2d 1218, 1220 (Fla. 4th DCA 2008); Rozier v. State, 636 So. 2d 1386, 1387 (Fla. 4th DCA 1994).

4 Johnson v. Moore, 493 F. Supp. 2d 1236, 1239-40 (M.D. Fla. 2007).

5 Baker v. State, 71 So. 3d 802, 816-17 (Fla. 2011); Finney v. State, 660 So. 2d 674, 684 (Fla. 1995); Ketrow v. State, 414 So. 2d 298, 299 (Fla. 2d DCA 1982).

6 Phillips v. State, 351 So. 2d 738, 740 (Fla. 3d DCA 1977).

7 Haager v. State, 90 So. 812, 815 (Fla. 1922); Phillips, 351 So. 2d at 740.

8 Id.

9 Holmes v. Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1191 (Fla. 4th DCA 2005).

10 Johnson, 493 F. Supp. 2d at 1240; Charles W. Erhardt, Florida Evidence §104.3 (2014).

11 Id.

12 Petion v. State, 48 So. 3d 726, 730 (Fla. 2010).

13 Taylor v. State, Dep’t of Transportation, 701 So. 2d 610, 611 (Fla. 2d DCA 1997).

14 Id.

15 Id. at 611-12.

16 Id. at 612.

17 See, e.g., Pa. Threshermen & Farmers’ Mut. Cas. Ins. Co. v. Koltunovsky, 166 So. 2d 462, 462 (Fla. 3d DCA 1964).

18 Musachia v. Terry, 140 So. 2d 605, 607-608 (Fla. 3d DCA 1962).

19 Francis v. State, 308 So. 2d 174, 176 (Fla. 1st DCA 1975) (noting that the trial court’s sustaining of an objection to proffered testimony as hearsay did not prevent counsel from continuing the proffer and counsel should have proceeded).

20 Brantley v. Snapper Power Equip., 665 So. 2d 241, 242-43 (Fla. 3d DCA 1995).

21 Id. at 243.

22 Id.

23 See, e.g., Gen. Portland Dev. Co. v. Stevens, 291 So. 2d 250, 251 (Fla. 4th DCA 1974); Wood v. State, 654 So. 2d 218, 219 (Fla. 1st DCA 1995).

24 See Fla. Stat. §90.104(1)(b).

25 Johnson, 493 F. Supp. 2d at 1240; Porro v. State, 656 So. 2d 587, 587 n. 1 (Fla. 3d DCA 1995).

26 Charles W. Erhardt, Florida Evidence §104.3 (2014); Holmes, 891 So. 2d at 1190-91; Marshall v. State, 68 So. 3d 374, 376 (Fla. 5th DCA 2011).

27 Johnson, 493 F. Supp. 2d at 1240.

28 Williams v. State, 424 So. 2d 148, 149 (Fla. 5th DCA 1982) (summarizing a line of voir dire questioning).

29 See, e.g., Mungin v. State, 458 So. 2d 293, 294-95 (Fla. 1st DCA 1984) (summarizing defendant’s testimony); Orlando/Orange Cnty. Expressway Auth. v. Latham, 643 So. 2d 10, 11 (Fla. 5th DCA 1994) (summarizing the testimony of two experts); Johnson, 493 F. Supp. 2d at 1239-40 (summarizing witness testimony).

30 Rozier, 636 So. 2d at 1388.

31 Persaud v. State, 755 So. 2d 150, 152 (Fla. 4th DCA 2000).

32 Trease v. State, 768 So. 2d 1050, 1054 (Fla. 2000); A. McD v. State, 422 So. 2d 336, 337-38 (Fla. 3d DCA 1982).

33 Johnson, 493 F. Supp. 2d at 1240, n.1.

34 Greenwald v. Eisinger, Brown, Lewis, & Frankel, P.A., 118 So. 3d 867, 869-70 (Fla. 3d DCA 2013).

35 Roberts v. State, 164 So. 2d 817, 821 (Fla. 1964); Woodson v. State, 483 So. 2d 858, 858-59 (Fla. 5th DCA 1986).

36 Arrascue v. State, 42 So. 3d 927, 929 (Fla. 5th DCA 2010).

37 Adamo v. Manatee Condo., Inc., 548 So. 2d 287, 288 (Fla. 3d DCA 1989).

38 Aarmada Prot. Sys. 2000, Inc. v. Yandell, 73 So. 3d 893, 898 (Fla. 4th DCA 2011).

39 Mungin, 458 So. 2d at 295; see also in Orlando/Orange, 643 So. 2d at 11.

40 Fla. Stat. §90.104(1)(b).

41 O’Shea v. O’Shea, 585 So. 2d 405, 408 (Fla. 1st DCA 1991).

42 Id.

43 Wright v. Schulte, 441 So. 2d 660, 663 (Fla. 2d DCA 1983).

44 Pacifico v. State, 642 So. 2d 1178, 1185-86 (Fla. 1st DCA 1994).

45 A. McD, 422 So. 2d at 337-38.

46 Id.

47 Donley v. State, 694 So. 2d 149, 150 (Fla. 4th DCA 1997).

48 Finney, 660 So. 2d at 684. There are at least three dozen other cases in Florida where this issue arises. If you are interested in that list of cases, please email the author at [email protected].

49 Persaud, 755 So. 2d at 152.

50 Id. at 154.

51 Id.

52 Id. at 153.

53 Id. at 154.

54 Id.

55 Diaz v. Rodriguez, 384 So. 2d 906, 907 (Fla. 3d DCA 1980).

56 Haager, 90 So. at 815-16.

57 Johnson v. State, 494 So. 2d 311, 313 (Fla. 1st DCA 1986).

58 Fla. Stat. §90.104(1)(b); Bender v. State, 472 So. 2d 1370, 1372-73 (Fla. 3d DCA 1985).

59 Aarmada, 73 So. 3d at 898.

60 Spindler v. Brito-Deforge, 762 So. 2d 963, 964 (Fla. 5th DCA 2000); Donley, 694 So. 2d at 150.

61 Brown v. State, 431 So. 2d 247, 248 (Fla. 1st DCA 1983).

62 Stager v. Fla. E. Coast Ry. Co., 163 So. 2d 15, 17 (Fla. 3d DCA 1964); Berry v. State, Dep’t of Envtl. Regulation, 530 So. 2d 1019, 1022 (Fla. 4th DCA 1988).

63 R.J.J. v. State, 771 So. 2d 1265, 1266 (Fla. 2d DCA 2000); Pender v. State, 432 So. 2d 800, 801-02 (Fla. 1st DCA 1983); Smith v. State, 594 So. 2d 846, 848 (Fla. 2d DCA 1992).

64 Fehringer, 976 So. 2d at 1221.

65 Musachia, 140 So. 2d at 607-08.

66 Davis v. Pfund, 479 So. 2d 230, 231 (Fla. 3d DCA 1985).

67 Protective Cas. Ins. Co. v. Killane, 459 So. 2d 1037, 1038 (Fla. 1984).

68 Wright, 441 So. 2d at 663.

69 O’Shea, 585 So. 2d at 407-08.

70 Resorts Mgmt., Inc. v. Olsen, 651 So. 2d 194 (Fla. 2d DCA 1995).

71 Ketterson v. Estate of Bruns, 711 So. 2d 613, 614 (Fla. 4th DCA 1998).

72 Id.

73 Johnson v. State, 494 So. 2d 311, 313 (Fla. 1st DCA 1986).

Jason S. Lambert is an appellate attorney with Zinzow Law, which also provides legal services to the construction and real estate industries.

This column is submitted on behalf of the Appellate Practice Section, Ceci Culpepper Berman, chair; Brandon Christian, editor; and Chris McAdams and Kristi Rothell, assistant editors.

Appellate Practice