No formal exceptions need be taken to any ruling or action of the court to make the ruling or action a ground for review.16

Prior to ruling on an objection, a judge may request, or a party may seek to make, an offer of proof whereby the proponent of the evidence informs the court of the substance of the proffered evidence.17 If the objection is sustained, the offer of proof will preserve for the record what was sought to be proved by the evidence kept out by the court’s ruling. Such an offer may be from counsel, or the court may require it from the witness in question and answer form.18 To avoid inadmissible evidence from being heard by the jury, counsel should announce a desire to make an offer of proof so that the offer will be made outside of the hearing of the jury.19

Failure to make an offer of proof may prejudice the ability to argue on appeal that the ruling of the trial court on the objection was erroneous.20 Counsel will then be in a position of having to argue that the substance of the evidence was apparent from the context in which the question was asked.21

16. Ch. Ct. R. 51; Super. Ct. Civ. R. 46; Super. Ct. Cr. R. 51; Comm. Pls. Ct. Civ. R. 46; Comm. Pls. Ct. Cr. R. 51.

17. See D.R.E. 103(a)(2).

18. D.R.E. 103(b).

19. D.R.E. 103(c).

20. D.R.E. 1.3(a).

21. D.R.E. 103(a)(2).

© 2010  David L. Finger