ELEMENTS OF AN OFFER OF PROOF

An offer of proof contains the following elements:

1. The proponent asks for permission to approach the bench or for an out-of-court hearing.

2. The proponent states that he or she intends to make an offer of proof.

3. The proponent states what the witness would have testified to if the judge had permitted the proponent to pursue the line of

inquiry. “This entails disclosing the specific evidentiary facts to be proved; it is insufficient merely to refer to conclusions,

summaries, or ultimate facts.” Heafey § 5.10, at 50; People v. Brady, 129 Cal. App. 4th 1314, 1332, 29 Cal. Rptr. 3d 286, 301 (2005) ;

People v. Schmies, 44 Cal. App. 4th 38 n.9, 51 Cal. Rptr. 2d 185, 195 n.9 (1996) (“an offer of proof ... must set forth the actual

evidence to be produced and not merely the facts or issues to be addressed and argued”). In the offer, the proponent should

predict the witness' probable answer to the question. United Sav. & Loan Ass in v. Reeder Dev. Corp., 57 Cal. App. 3d 282, 129 Cal.

Rptr. 113 (1976) ; 1 Jefferson, § 20.8, at 296. See also People v. Eid, 31 Cal. App. 4th 114, 36 Cal. Rptr. 2d 835, 841 (1994) (although

an offer of proof must be specific, it need not meet the higher standard demanded of a showing of relevancy under Penal Code §

866(a)).

4. The proponent states the purpose for which he or she wanted to offer the testimony. The proponent explains the testimony's

logical relevance.

5. If the judge sustained the objection on the ground of a competence doctrine such as hearsay, the proponent explains why the

evidence is admissible. The proponent should identify the nonhearsay theory of logical relevance or the pertinent hearsay

exception. If the proponent of hearsay evidence fails to inform the court that the evidence falls under a hearsay exception and fails

to lay the foundation for that exception, he cannot invoke the exception on appeal. People v. Livaditis, 2 Cal. 4th 759, 9 Cal. Rptr.

2d 72, 831 P.2d 297 (1992) , cert. denied, 507 U.S. 975 (1993) .