From the former practice of preserving testimony with an avowal to the KRE 103 proffer of expected testimony, a trap is laid for the need for specificity and clarity falling short of the actual avowal of the testimony of yesteryear being abandoned for the cause of convenience and time. Here the judge made a clearly erroneous trial ruling excluding testimony but for want of a good enough proffer of the expected testimony the error remains. Practitioners be forewarned, and do not let time and inconvenience thwart your efforts to preserve the error, even in the midst of the trial because after the trial there is the appeal.
Historical marker for the “Great Dissenter”, Justice John Harlan, outside the Boyle County Court House in Danville, KY.
Evidence, KRE 103 Offer of Proof, Bad Acts Evidence, and Preservation of Issue for Appeal
Eric Henderson vs. Commonwealth of Kentucky
SC Published 8/21/2014; Opinion by Minton Affirming
Questions Presented: Criminal Law. KRE 103. Issues include whether defendant’s proffer of evidence was sufficient to preserve his argument on appeal under KRE 103.
Appealing to the Court of Appeals, Henderson challenged the trial court’s exclusion of prior-bad-acts evidence and hearsay testimony. Regarding the prior-bad-acts evidence, the Court of Appeals—while acknowledging the trial court erred by excluding the evidence—concluded Henderson did not properly preserve the issue for appellate review under Kentucky Rules of Evidence (KRE) 103(a)(2). Specifically, the Court of Appeals held it could not determine with any degree of certainty what the content of the excluded testimony would have been, making it impossible to assess the impact of the error. Going further, the Court of Appeals held Henderson similarly failed to preserve his challenge to the trial court’s ruling excluding Harris’s hearsay testimony but noted that, in any event, the excluded hearsay testimony would have been cumulative. The Court of Appeals affirmed the judgment.
We accepted discretionary review of this case primarily to consider whether, in light of the trial court’s adverse evidentiary ruling excluding proposed testimony, Henderson’s counsel’s use of imprecise, general language satisfied KRE 103(a)(2)’s offer-of-proof requirement sufficiently to preserve this issue for appellate review. We affirm the decision of the Court of Appeals because we agree that counsel failed to make an adequate offer of proof.
Before this Court, Henderson raises two allegations of error: (1) the trial court erroneously excluded testimony of Henderson’s prior altercation withHarris and, additionally, the Court of Appeals improperly held the issue was unpreserved for review under KRE 103(a)(2); and (2) the trial court improperly excluded Harris’s hearsay testimony regarding turning Henderson in to thepolice. Because of these errors, Henderson argues he was denied the opportunity to present a complete defense. Of course, the Commonwealth agrees with the holding of the Court of Appeals that the initial issue wa sunpreserved and, moreover, argues any error associated with Harris’s excluded hearsay testimony was harmless. For the reasons stated below, we agree withthe Commonwealth and affirm the Court of Appeals.
At trial, Henderson attempted to testify about an altercation he had with Harris approximately two weeks before the club incident. The Commonwealth timely objected, and the trial court excluded the evidence because Henderson had not provided notice of the prior-bad-acts evidence to the Commonwealth as required by KRE 404(c). At the outset, we should be clear: this ruling was erroneous. By its plain language, KRE 404(c) requires notice to be provided only by the Commonwealth, not the defense.3 Our caselaw’s mandate that only the Commonwealth provide notice is manifest. 4That being said, we are unable to determine the extent of the trial court’s error because of Henderson’s vague characterization of the excluded testimony.
Historically, to preserve for review a trial court’s ruling excluding evidence, a party was required to present avowal testimony. 5From the stand, outside the presence of the jury, the witness would provide the testimony he would have given had the trial court allowed it. Of course, this provided a clear record for review; but perhaps more importantly, as much as the practice was justified for sake of clarity, it was equally cumbersome and time-consuming. nd the practice of presenting avowal testimony was out of step with both the federal courts and the vast majority of state courts.
In 2007, this Court amended several of our evidentiary rules, 6with the explicit purpose of bringing the rules into uniformity with their federal counterparts. The case before us today revolves around the alteration made to KRE 103(a)(2). In its current state, the entirety of KRE 103 reads:
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and
(1) Objection. If 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. If 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.
Read as a whole, to preserve a trial court’s ruling for appeal, a substantial right7of the party must be affected and, relevant to the present case, the substance of the excluded testimony must be provided to the trial court. Notably, KRE 103(a)(2) now allows an offer of proof rather than requiring “the witness  make a specific offer of his answer to the question.” An offer of proof, generally described as a lawyer “adducing what that lawyer expects to be able to prove through a witness’s testimony[, ]” 8serves dual purposes. First, the offer of proof provides the trial court with a foundation to evaluate properly the objection based upon the actual substance of the evidence. And, of equal importance, an offer of proof gives an appellate court a record from which it is possible to determine accurately the extent to which, if at all, a party’s substantial rights were affected.
The problem with Henderson’s offer of proof and his reliance on Weaver is the absence of any meaningful description of the content of the excluded testimony. 14By name, an offer of proof must contain some modicum of proof Here, Henderson’s counsel simply made vague references to the general theory of defense but did not highlight what Henderson would actually say if given the chance to testify.
Generally speaking, an offer of proof must not be “too vague, general, or conclusory.” Typically, the context of questioning adequately indicates the substance of the excluded testimony in situations where the answer to the question is known, e.g. defense asks the defendant whether he was at the scene of the crime on a particular night, or where testimony has been received, but subsequently stricken.
In its current form, KRE 103(a)(2) is intended to be flexible but that flexibility does not diminish the fact that its compliance is mandatory. A proper offer of proof is vital, not only to the trial court, but also in providing the opportunity for sound appellate review. To this end, Henderson’s offer of proof highlights why KRE 103(a)(2) requires what it does. As we stated before, the trial court undoubtedly erred in excluding the testimony on the specified grounds. Sympathetic as we may be to Henderson’s plight, we are left with little indication of how this error affected Henderson’s trial because the recordfails to show what the other-altercation evidence would have been. As a result,we are simply unable to determine if the error is reversible, harmless, orotherwise.