What does It Mean to Proffer?

Proffer is a term used in a legal proceeding to offer something into evidence that may be questioned by the opposing side. This can take place in a preliminary hearing or other hearing prior to a trial, or may take place during a trial. In cases where it takes place during a trial, a proffer usually is something that takes place outside the presence of the jury. Then, a judge will determine whether the jury will actually get a chance to hear the evidence.

In cases where a proffer is made during trial, a judge may talk to the attorneys privately in chambers, or at the bench, to determine whether the evidence is legally admissible. If the judge needs to hear what a witness will be saying before making a decision, then the jury may be excused in order for the judge to hear exactly what the testimony is expected to be. During this time, the attorneys will proceed questioning the witness as usual and then at the end of the questionable testimony, the judge typically makes a determination on the legality of the testimony.

In most situations, a judge prefers to take care of as many of these legal issues as possible prior to the trial. That may not always be possible as some witnesses may not be available or strategies may change a little at the last minute. Before the trial, a proffer may be made through the form of a deposition or official hearing. Typically, an objection must be made or testimony will generally be regarded as being admissible. It is only when a specific objection is made that a judge makes a ruling on admissibility.

Even if a proffer is made and rejected by the judge, a witness still may try to offer testimony that is inadmissible. In such cases, the opposing attorney will usually object and, if that attorney thinks the witness is purposefully attempting to inappropriately influence the jury, he or she may ask the witness be admonished, which is a warning. Further violations could result in a contempt of court charge. In the most serious cases, a mistrial may result from inadmissible evidence introduced to a jury that was rejected after being proffered.

If the judge admits the testimony after a proffer has been made, an opposing attorney may still make an objection for the record. The objection may be specific during the testimony, or may be a standing objection that applies to the testimony as a whole. This does not change the fact that the testimony has been admitted, but could make the issue a subject for an appeal.