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PRESERVATION OF THE RECORD
SUP. CT. R. CRIM. P. 26: Evidence
Record of Excluded Evidence. In an action tried by a jury, if an objection to a question propounded to a witness is sustained by the court, the examining attorney may make a specific offer of what he or she expects to prove by the answer of the witness. The court shall require the offer to be made out of the hearing of the jury. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. In actions tried without a jury the same procedure may be followed, except that the court upon request, shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any ground or that the witness is privileged.
State v. Brennan, 526 A.2d 483 (R.I.1987). An offer of proof can be made on either direct or cross-examination. The court can require an offer of proof on cross-examination when defense counsel seeks “to open up new avenues of inquiry concerning the possible [ability and] motive of a third party to commit the crime of which the defendant is accused.” Id. at 488.
State v. Martinez, 824 A.2d 443 (R.I. 2003). Defendant in a rape case was precluded from cross-examining state’s forensic scientist and forensic serologist about whether DNA testing (that was not performed) might have excluded defendant and implicated the person defendant claimed was responsible. R.I.S.C. affirmed.
Defendant made no offer of proof that the complainant engaged in sexual intercourse with someone else; therefore, the line of questioning regarding DNA analysis was too speculative to be allowed.
State v. Wright, 817 A.2d 600 (R.I. 2003). Defendant in a felony murder was precluded from cross-examining a witness regarding other parties shown on a video surveillance tape. R.I.S.C. affirmed.
Defense counsel failed to make an offer of proof “showing the third person’s opportunity to perpetrate the crime and a proximate connection between that person’s presence on the scene and the actual commission of the crime.” Id. at 610.
State v. Gomes, 881 A.2d 97 (R.I. 2005). Defendant in a murder trial was precluded from offering evidence intended to show that the police were biased against defendant and that someone else had a motive to commit the murder. R.I.S.C. affirmed.
“To be admissible, evidence of another person’s motive to commit the crime with which a defendant is charged must be introduced in conjunction with other evidence tending to show the third person’s opportunity to commit the crime and a proximate connection between that person and the actual commission of the crime.” Id. at 111 (quoting State v. Gazerro, 420 A.2d 816, 825 (R.I.1980)).
State v. Peoples, 996 A.2d 660 (R.I. 2010). Unable to produce any evidence or even the identity of an alleged third-party perpetrator, defendant was not able to make a satisfactory offer of proof necessary to present the defense at his trial on child molestation charges. The trial justice, therefore, prohibited defense counsel from asking the victim’s aunt whether any other men spent the night at the apartment she shared with the child. R.I.S.C. affirmed.
Whether the court can require an offer of proof on cross-examination in other circumstances is unclear. Compare State v. Doctor, 690 A.2d 321 (R.I. 1997) (defense counsel should have made an offer of proof on cross-examination so as to assist the trial judge), to State v. Plunkett, 497 A.2d 725 (R.I. 1985), and State v. DeBarros, 441 A.2d 549 (R.I. 1982) (Rule 26(b) reversible error for trial judge to require an offer of proof on cross-examination).
When making an offer of proof on either direct or cross examination, be as specific as possible as to the grounds for the question, the foundation for the answer, and the need for such evidence as to your theory of defense.
If the judge excuses the jury from the courtroom and the witness remains on the stand, try and get the offer of proof under oath from the witness (as SUP. CT. R. CRIM. P. 26 allows in a bench trial) especially if he/she is favorable to the defense.
State v. Cote, 691 A.2d 537 (R.I. 1997). In a child molestation case, defense counsel sought to offer testimony as to the complaining witness’s reputation for truthfulness within the community. The trial judge refused to allow the evidence, ruling that it was inadmissible hearsay. R.I.S.C. ruled that while such evidence is admissible under Rule 608, defense counsel failed to establish the necessary foundational elements in his offer of proof.
“.it remained the obligation of defendant either to provide all the necessary elements of foundation in his offer of proof or to have requested a voir dire examination of Chagnon outside the presence of the jury. In this case counsel fulfilled neither obligation. Since the offer of proof was inadequate, we cannot fault the trial justice for having rejected it. In instances when the offered testimony suggests or poses a question about its materiality or competency, the offer of proof must indicate the facts on which relevancy or admissibility of the testimony depends.” Id. at 541-42.
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