Materials about offers of evidence often say the same thing. For example, suppose that in an automobile accident case involving a collision between Peter Pedestrian and David Driver at 5th & 12th on August 1, 2009, at 1:00 p.m., you put a witness on the stand and after the witness is sworn and identifies herself, this happens:

Q. Ms W, were you at the intersection of 5th Ave & 34th Street on August 1, 2009 at about 12:40 p.m.?
A. Yes. It was exactly 12:40 p.m.
Q. Were you facing the intersection?
A. Yes. I had an unobstructed view. I have perfect eyesight.
Q. What did you see?

Te judge calls you up to the bench and asks you, "Where are you going with this, counsel," you reply, "Well, I can't tell you that, your Honor. The relevance of this line of questioning will become apparent soon enough." The trial judge responds, "Objection, sustained."

Later you make a satisfactory offer of proof.

But you lose at trial. You appeal on the ground that had the witness been allowed to answer, she would have testified that she saw D's car there and that she saw that D's car had a shattered windshield, with hundreds of thousands of cracks in the windshileld,. You argue that her testimony was plainly relevant to the question of whether D was negligent when he barreled through the intersection at 5th & 12th twenty minutes later and ran into the Pedestrian.

If this were the only basis of your appeal, you would lose on appeal. And hornbooks and other such sources would tell you that you would lose because offers of evidence, like objections, have to be specific. You failed to describe for the trial court the evidence you wished to introduce through the witness, the relevance of that evidence, and the legal authority for the admissibility of evidence. You would be told, in short, that you would lose on appeal because your offer of evidence was general rather than specific.

But I am here to tell you that your casebook editors and just about everyone has been lying to you about objections and offers of evidence. Yes, lying, lying, lying!

Courts and commentators say that objectors and offerors have to be specific. But that's only a half truth.

Parties don't have to make specific objections or specific offers when the trial court is willing to go along with the uninformative and general objector or offeror.

I tell you this and I illustrate this point in the handout you see below.

The following stipulation applies to the six problems that follow:

"A general offer of evidence" is one in which the offeror does not explain the relevance or purpose of the evidence, and "a specific offer" is one in which the nature of the proffered evidence is made apparent to the trial court and the offeror does give a specific explanation (whether accurate or inaccurate) of the relevance and purpose of the evidence.

PP makes a general offer of evidence.
DD makes a general objection.
The trial court sustains the objection.

For example:
P asks W, “What did you see?”
D states, “I object.”

Court: {addressing P:} What’s purpose of this evidence, counsel?

P: I think the relevance and purpose of this evidence are obvious.

Court: Objection sustained.

Verdict and judgment are for DD.
PP appeals.

Answer: P will lose. The appellate court will say that P failed to make an adequate offer of evidence because (s)he failed to explain the relevance and purpose of the evidence. It matters not whether the evidence was or was not admissible. The appellate court will invoke and apply the rule that a general offer that is rejected will not avail the offeror on appeal. (Countless decisions affirm this principle.)

PP makes a general offer of evidence.
DD makes a general objection.
The trial court overrules the objection.

For example:

P asks W, “What did you see?”
D states, “I object.”

Court: {addressing D:} What’s basis of the objection, counsel?

D: I think the defect in the question is obvious.

Court: Objection overruled.

Who wins?

Does it matter whether PP's evidence was admissible?
Answer: D will lose. The appellate court will say that D made a general objection and it will invoke the maxim that a general objection overruled will not avail the objector on appeal. It matters not whether the evidence was or was not admissible. The opponent of the evidence failed to give the trial court the information it needed and wanted.

PP makes a specific offer of evidence.
But PP's explanation of the relevance and purpose of the evidence is incorrect.
DD makes a general objection.

Example:

In a negligence action – for negligent loss of entrusted property – P offers to show that D once embezzled money from his employer. P argues that this evidence is admissible as a prior similar fact. However, that explanation is incorrect; the prior act is not very similar. But, as it happens, the embezzlement can be used to attack the credibility of D. But P fails to mention this last point.

The trial court sustains the objection.
V & J are for DD.
PP appeals.

Does it matter whether PP's evidence was admissible?
Answer: DD wins. The proponent of admissible evidence must give the trial court a correct explanation of the relevance and purpose of the evidence. (An explanation not tendered to the trial court – a purpose not stated at the trial – will not avail the offeror on appeal if the trial court rejects the offer.) Theory: The wrong explanation is of no help to the trial court. Bottom line in this situation: It matters not that the evidence offered was in fact admissible.

PP makes a specific offer of evidence.
But PP's explanation of the relevance and purpose of the evidence is incorrect.
DD makes a general objection.
The trial court overrules the objection.
V & J for PP.
DD appeals.

Who wins?

Does it matter whether PP's evidence was admissible?
(I think the answer to these questions is unclear. I believe that this problem is the mirror image of problem #6.)

PP makes a general offer of evidence.
DD makes a specific objection.
But DD's specific objection is incorrect.
The trial court overrules DD's objection.

For example:

P offers a document. D objects to the document as hearsay. It is not hearsay. But it is possible that the document violates the character evidence rule and it is possible that the document has not been adequately authenticated. D, however, did not mention these last two points; he objected on the incorrect ground of hearsay, and the trial court overruled the objection.

V & J for PP.
DD appeals.

Does it matter whether PP's evidence was admissible?

Answer: On appeal PP wins and DD loses. The wrong specific objection overruled does not avail the objector on appeal; a specific objection preserves objections only on grounds enumerated by the objecting party when the evidence is offered, and if the enumerated reasons for exclusions were incorrect, the objector loses on appeal. It matters not that the evidence was in fact inadmissible; it is immaterial that there was in fact a defect in the offer.

PP makes a general offer of evidence.
DD makes a specific objection.
But DD's specific objection is incorrect.
The trial court sustains DD's [incorrect] objection.
V & J for DD.

PP appeals.
Who wins?

Does it matter whether PP's evidence was admissible?

For example:

PI Case: 5th Ave & 12th Street:

Question to Wanda Witness:

Q. Didn’t you see the defendant’s car rocket through the intersection?

Objection:

Hearsay, your Honor.

In point of fact (or law): The answer sought is not hearsay. Reason: No attempt is being made to elicit testimony about an out-of-court statement. So the testimony cannot be evidence of hearsay. The trial judge nevertheless states:

Objection sustained.

PP makes an offer of proof.

J & V for DD.

PP appeals.

Answer: The answer depends on which of two rules applies in the jurisdiction in which the trial takes place.

In some jurisdictions the appellate court will invoke the rule that if the evidence was inadmissible for any reason, the ruling excluding the evidence will be upheld on appeal.

In other jurisdictions appellate courts would entertain the appeal and would order a new trial in this situation because in these jurisdictions appellate courts follow the alternative principle that when the wrong specific objection is sustained a new trial may be granted if (i) there is a substantial possibility that the excluded evidence might have led a different result and (ii) the defect in the objected-to evidence is curable.

Here a new trial would be granted because the excluded evidence is plainly important and the evidentiary defect -- the asking of a leading question -- is plainly curable.

The basic moral of the handout is that you can be as general as all getout if the trial court accepts your general and uninformative objection or offer and your opponent is as general and as uninformative as you are.

If your opponent is uniformative and general, he or she will lose on appeal because the appellate court will invoke either the maxim that a general objection overruled will not avail the objector on appeal or the maxim that a general offer overruled will not avail the objector on appeal.

The rules about offers and objections impose no penalty whatever on general offers and objections when the trial court accepts them.

What does this tell you about the purpose of the rules about general and specific offers and objections?

My answer:

It tells you that the purpose of the rules about general and specific objections and offers of evidence is not to force one party to provide an opposing party with information bearing on the question of the admissibility or inadmissibility of evidence. The law doesn't care whether your opponent does or does not provide you with that information. The rules about general and specific objections and offers of evidence are designed only to make sure that the trial judge gets the information he or she feels he or she needs about admissibility; and, furthermore, the rules are designed to allow the trial judge to choose which party who will be required to provide that information.

This is the American adversary system at work. The trial court has great power to make the life of a trial lawyer miserable and onerous and to lighten the load of an opposing trial lawyer. This is true to such an extent that you don't have to know nuttin' about the law of evidence if you opponent is equally ignorant about the law of evidence.