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OFFERS OF PROOF [FED. R. EVID. RULE 103(a)(2)]

Where the prosecutor’s objection to your question or proposed testimony is sustained and the evidence excluded, Counsel must make an offer of proof setting out the substance of the evidence that was not admitted, unless same is apparent from the context within which questions were asked. FED. R. EVID. Rule 103 (a)(2.; US v. Winkle, 587 F.2d 705 (5th Cir. 1979) (holding Fifth Circuit “will not even consider the propriety of the decision to exclude evidence if no offer of proof was made at trial”); Espino v. City of Kingsville, 676 F.2d 1075 (5th Cir. 1982); US v. Cutler, 676 F.2d 1245 (9th Cir. 1982).

It has also been held that a party cannot argue new theories of the relevancy of evidence on appeal which were not presented to the trial court until post-trial motions; US v. Lara- Hernandez, 588 F.2d 272 (9th Cir. 1978). See also US v. Artega-Limones, 529 F.2d 1183 (5th Cir. 1976); US v. Sims, 617 F.2d 137 (9th Cir. 1980); US v. Pugliese, 713 F.2d 1574 (2nd Cir. 1983).

Rule 103(c) further provides that in order to prevent inadmissible evidence from being suggested to the jury by any means such as making statements, offers of proof or asking questions within the hearing of the jury, that such proceedings should be conducted out of the hearing of the jury. FED. R. EVID. Rule 103(c); US v. Miller, 594 F.2d 1085 (6th Cir. 1979) (holding prosecutor should have made offer of proof outside hearing of jury before asking question as to witnesses’ “gay” relationship to physician on trial for controlled substance violation).

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