Laws & Jurisprudence
TENDER OF EXCLUDED EVIDENCE
7:44 PM
When an attorney is not allowed by the court to present testimony which he thinks is competent, material and necessary to prove his case, he must make an offer of proof. This is the method properly preserving the record to the end that the question may be saved for purposes of review. (Caraig, Revised Rules of Evidence 2004 ed., p. 337)
On how tender of excluded evidence is made:
1. As to documentary or object evidence
It may have the same attached to or made part of the record.
2. As to oral evidence
It may state for the record the name and other personal circumstances of the witness and the substance of the proposed testimony.
Following are the purposes of tender of excluded evidence:
1. To allow the court to know the nature of the testimony or the documentary evidence and convince the trial judge to permit the evidence or testimony; and
2. To create and preserve a record for appeal. (Riano, Evidence: A Restatement for the Bar, p. 477, 2009 ed.)
OFFER OF PROOF/TENDER OF EXCLUDED EVIDENCE is resorted to if admission is refused by the court for purposes of review on appeal. While OFFER OF EVIDENCE refers to testimonial, documentary or object evidence that are presented or offered in court by a party so that the court can consider his evidence when it comes to the preparation of the decision .
Offer of evidence is made under the following instances:
1. Before the court has ruled on the objection, in which case its function is to persuade the court to overrule the objection or deny the privilege invoked;
2. After the court has sustained the objection, in which case its function is to preserve for the appeal the evidence excluded by the privilege invoked;
3. Where the offer of proof includes the introduction of documents, or any of the physical evidence, the same should be marked for identification so that they may become part of the record. (Herrera, Vol. VI, p. 344)
Offer or proof is not required under the following instances:
1. When the question to which an objection has been sustained clearly reveals on its face the substance, purpose and relevancy of the excluded evidence;
2. When the substance, purpose and relevancy of the excluded evidence were made known to the court either in the court proceedings and such parts appears on record;
3. Where evidence is inadmissible when offered and excluded, but thereafter becomes, it must, be re-offered, unless the court indicates that a second offer would be useless. (Herrera, Vol. VI, p. 344-345)
DISCLAIMER: The author is not lawyer nor an authority on this topic. It is a product of humble research and study of law. It should not be used as sole basis in filing a case, instead, consult your lawyer for proper legal advice.
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