This article is one in a continuing series that will focus on preservation of error for appeal. Each month, Boyd & Jenerette’s appellate attorneys will analyze a specific topic and advise how to properly preserve any issues or arguments for appeal.

If you have any questions about a topic, would like to discuss any article, or would like to refer a case, please feel free to reach out to our appellate attorneys. We would also be happy to provide continuing education courses on any of the topics to adjusters or attorneys.

PRESERVATION OF ERROR BY PROFFERING EVIDENCE

Ordinarily, proper preservation of error for appellate review requires the protesting party to do three things: (1) make a timely, contemporaneous objection at the time of the alleged error; (2) state a legal ground for the objection; and (3) raise the same legal ground on appeal. Aills v. Boemi, 29 So. 3d 1105, 1108 (Fla. 2010).

However, when a trial court excludes evidence, the party seeking its admission may also need to make a proffer of the contents of the excluded evidence to preserve the issue for appellate review. See Blackwood v. State, 777 So. 2d 399, 410-11 (Fla. 2000) (“In order to preserve a claim based on the court’s refusal to admit evidence, the party seeking to admit the evidence must proffer the contents of the excluded evidence to the trial court.”). A proffer, or an offer of proof, is necessary to demonstrate to an appellate court that the complained of error is real and not imaginary or speculative. Holmes v. Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1191 n.1 (Fla. 4th DCA 2005) (citations omitted); see also  Jacobs v. Wainwright, 450 So. 2d 200, 201 (Fla. 1984) (“The purpose of a proffer is to put into the record testimony which is excluded from the jury so that an appellate court can consider the admissibility of the excluded testimony. Reversible error cannot be predicated on conjecture.”).

Moreover, without a proffer, it may be “impossible for the appellate court to determine whether the trial court’s ruling was erroneous and if erroneous what effect the error may have had on the result.” Finney v. State, 660 So. 2d 674, 684 (Fla. 1995); see also Lucas v. State, 568 So. 2d 18, 22 (Fla. 1990) (“The defense did not proffer what the witness would have said if allowed to answer the question. A proffer is necessary to preserve a claim such as this because an appellate court will not otherwise speculate about the admissibility of such evidence.”).

Although a proffer may be made by giving an oral summary of the excluded evidence, it is best to provide the actual evidence, i.e., testimony or documents. See Holmes v. Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1191 n.1 (Fla. 4th DCA 2005). This ensures the record will clearly show the alleged erroneously excluded evidence.

In the absence of fundamental error, the failure to make a proffer of excluded evidence can be fatal to an appeal. See, e.g., Bogle v. State, 213 So. 3d 833 (Fla. 2017) (finding that the alleged exclusion of mitigation evidence was unpreserved where counsel for the defendant did not make, or offer to make, a proffer to the trial court); Calhoun v. State, 138 So. 3d 350 (Fla. 2013) (affirming a defendant’s conviction where the defendant failed to make a proffer of the specific statements he had sought to admit at trial and where the alleged error was not fundamental); Lucas v. State, 568 So. 2d 18 (Fla. 1990) (finding that a claim was unpreserved where the defense failed to proffer what a witness would have said if the witness had been allowed to answer a question).

Proper preservation of error is crucial to obtaining appellate review of a trial court’s ruling on the admissibility of evidence. Ensuring that a proffer of excluded evidence is made will provide the appellate court with a clear record and the information it needs to make a decision on the alleged error. Our appellate practice group is available to provide guidance to ensure that the issues in your case are properly preserved for appeal.

If you have any questions about this article, preservation of error, or would like to refer a matter, please contact our appellate attorneys.

About the Author:

Toni-Ann S. Brown is an Associate with Boyd & Jenerette, P.A., practicing in the Boca Raton office. She focuses her practice on appeals and general civil litigation support. Before joining the firm, Toni-Ann clerked for the Honorable Carole Y. Taylor at the Fourth District Court of Appeal.

Toni-Ann graduated cum laude from the University of Florida Levin College of Law in 2016. While in law school, she served as a Notes Editor and Assistant Editor-in-Chief for the Journal of Technology Law & Policy. Toni-Ann also served as a Certified Legal Intern with the Gator TeamChild Juvenile Law Clinic, where she represented juveniles in dependency and delinquency cases.

Toni-Ann is an active member of the Palm Beach County Bar Association, serving on the Committee for Diversity and Inclusion and the Professionalism Committee. She is also a member of various other voluntary bar associations in the Palm Beach County legal community.