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(1) Objection. In the case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

(b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

(c) Hearing of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d) Plain error.

Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

ELEMENTS

A. Error to warrant reversal must affect substantial rights.

B.

C.

1. Timely objection must be made to evidence admitted.

2. Specific ground must be stated or apparent from context.

3.

If evidence is excluded, offer of proof must be made,

4. Unless apparent from the context within which questions

were asked.

Court may add comment or statement on objection or exception.
1. Offer of proof.

a. Must clarify proffered evidence.

b. May be supported by points and authorities.

C. Court may direct that offer be made in Q. and A. form.

Proceedings on offers of proof in jury cases should be conducted

out of the hearing of the jury to prevent inadmissible evidence
from being suggested to the jury.

(Note: Request that jury be excused, if offer or proof will be

protracted.)

D. Plain error affecting substantial rights may be recognized although

COMMENTS

not brought to court's attention.

The purpose of 103(a) is to provide a mechanism by which the Court may

be alerted to problems in the proof and which will allow the offering counsel to take the necessary steps to repair any defects in his proof.

ILLUSTRATION

Assume counsel offers the following testimony through his witness:

Counsel: Dr. Williams, do you know where the sample
marked exhibit F was collected?

Witness: John Doe told me that he picked it up near
the pipe outlet overlooking the stream.

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In the above exchange, the opposing counsel should have stated: "Objection, Your Honor. The answer constitutes hearsay and should be stricken". In that situation, the Court could have addressed the hearsay issue and if the court sustained the Objection, the offering party could have undertaken

corrective measures, including calling John Doe to testify as to the location from which he collected the sample.

Where the testimony is excluded, an offer of proof under 103(a) is

appropriate :

Counsel: Mr. Williams, what would be the cost of
installing the equipment in your plants?

Opposing Counsel: Objection, your Honor. Counsel
has not demonstrated that the witness is qualified
to testify relative to installation costs for

a

Court: Objection sustained.

Counsel: Your Honor, may I make an offer of proof?

Court: You may.

Counsel: Your Honor, if I am allowed to proceed, the
witness will testify that he has sought estimates
from ... and has contacted ... Consequently, your
Honor, the witness is familiar enough with the
costs of a
to testify relative to its
installation costs.

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In the above exchange, the offering counsel was able to state to the Court the basis of his proof and accordingly was allowed to proceed. It is not an error for the Court to reject an offer of proof where the proffer:

a) Does not disclose the evidence's relevance or materiality;

b) Is vague and not sufficiently specific; and

c) Does not include competent evidence.

Rule 103(b) allows the Court to supplement the record for the purpose

of explaining what occurred before it. Under this Rule, the Court may set

forth the testimony the witness would have given had the Court not excluded

it.

Rule 103(c) requires all statements, objections or proffers which may include inadmissible evidence to be made out of the presence of the jury. Where a jury hears inadmissible evidence, a cautionary instruction from the Court may not completely erase the information from the juror's minds. Accordingly, where an objection contains matters which counsel believes are inadmissible, that objection should be made out of the presence of the

jury.

ILLUSTRATION

Counsel: Mr. Williams, would you tell the jury what
the defendant asked you when you saw him on May 1,
1981?

Witness: He told me

Opposing Counsel: Objection, your Honor. May counsel
approach the bench?

Court: You may.

(Counsel proceed to the bench)

Opposing Counsel: Your Honor, the defendant objects
to this testimony inasmuch as the witness is about
to relate to the jury an offer my client made to
him in order to settle the case.

Court: Objection sustained. Counsel may return to
the well of the Court.

Court: Ladies and gentlemen of the Jury. You are to
disregard the question and the answer, to the extent
it was given. The Court has sustained the objection
of Counsel.

Rule 103(d) allows the appellate court to consider errors involving funda

mental rights even though no objection or proffer was made at the time the evidence was admitted or excluded.

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(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.

(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition or fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

(c) Hearing of jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, if he so requests.

(d) Testimony by accused. The accused does not, by testifying upon a preliminary matter, subject himself to cross-examination as to other issues in the case.

(e) Weight and credibility. This rule does not the limit the right of a party to introduce before the jury evidence relevant to weight or credibility.

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