Defense attorneys with appellate experience know the importance of making the record for appeal. Of course, it would be ideal to always win at trial. But since that does not always happen, a trial attorney should know how to make objections and preserve legal arguments in case there has to be an appeal.
What is the “Record On Appeal” in a case in Missouri?
Missouri Rule 81.12 sets out what is included in the Record on Appeal, but basically, it is the Transcript from the trial, Exhibits entered into evidence at the trial, and the Legal File. The Legal File consists of things like the information charging the defendant with the crime, any important motions argued before trial, and jury instructions.
That means that if something was not presented to the trial court by the defendant’s trial attorney, the defendant’s appellate attorney cannot talk about it on appeal. For example, if a defendant tells his trial attorney that he has a phone recording that could help his case and the trial attorney does not try to admit the phone recording into evidence, the appellate attorney cannot tell the Court of Appeals about the phone recording.
Sometimes, a trial attorney tries to get evidence such as phone recording into evidence but the trial court will not admit the evidence. In a jury trial, that means that the attorney wants to play the recording for the jury but the trial court won’t let the attorney play it for the jury. If that happens, the trial attorney needs to make an offer of proof.
What is an offer of proof?
“An adequate offer of proof must establish (1) what the evidence will be; (2) its purpose and object; and (3) each fact essential to establishing its admissibility. State v. Molina, 272 S.W.3d 476, 478 (Mo. App. 2008) (citing State v. Lingle, 140 S.W.3d 178, 187 (Mo. App. 2004)). “An offer of proof serves two important purposes: ‘First, it allows the trial judge to further consider the claim of admissibility after having ruled the evidence inadmissible. Second, it preserves the evidence so an appellate court can understand the scope and effect of the questions and proposed answers in considering whether the trial judge’s ruling was proper.’” Molina, 272 S.W.3d at 478 (quoting Lingle, 140 S.W.3d at 187).
What does this mean in non-lawyer language?
This means that if the defense attorney wants to play the recording to the jury and the prosecutor objects, the defense attorney needs to fully explain to the trial court why the evidence is allowed under the rules of evidence (i.e., why the evidence is admissible). Then if the trial court rules that it will not allow the recording to be played, the attorney needs to make an offer of proof by marking the phone recording as an exhibit and asking the trial court to make it a part of the record even though the jury won’t hear it. That way the Court of Appeals can listen to the recording as part of the appeal and decide if the trial court was wrong when it did not let the attorney play the recording for the jury. Remember if it is not part of the trial record, the Court of Appeals cannot listen to it or consider it.
Another example of an offer of proof is if the defense attorney wants to ask a witness some questions that the prosecutor finds objectionable. If the trial court will not permit the defense attorney to ask the questions, then the defense attorney needs to tell the judge that the attorney needs to make an offer of proof. The jury will be given a break and once they are out of the room, the defense attorney will ask the witness all of the questions that the defense attorney wanted to ask in front of the jury. That way the Court of Appeals will know exactly what the attorney would have asked and exactly what the witness would have answered.
An appeal is not a second chance to redo the trial in front of a higher court. The Court of Appeals reviews the record for errors but can only do so if the record is made. And that is why it is important to hire a trial attorney who is experienced at making the record.