JANUARY 2025 | 31 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. help avoid logistical preservation issues, whether the issues were obvious or nonobvious as they sprang up during trial. In addition to being complete, the record should also be clear. A clear record is one that successfully captures the experience as if the appellate court were physically present for the trial. Considering that the court reporter’s transcription (and not an audiovisual recording) is how the appellate court reviews what happened below, it behooves counsel not only to speak clearly but to also meta-narrate what might otherwise escape transcription. Clarifying a witness’s “uh-huh” as either a “yes” or “no” response can have a big impact on appeal. Being precise when referring to “Defendant’s Exhibit 3” as opposed to “this exhibit” avoids future confusion. Describing nonverbal actions that occur at trial – such as a witness’s gesture about the size of an object or their behavior in winking, laughing, crying, making facial expressions or looking to opposing counsel for approval – ensures all relevant underlying circumstances at trial are preserved in the record. ADDITIONAL ISSUESPECIFIC PRESERVATION REQUIREMENTS AND BEST PRACTICES In addition to the three cardinal rules set forth above, there are a variety of additional issue-specific preservation rules that often come up at trial. From voir dire through final jury instructions, counsel should be familiar with and prepared for how to appropriately object and preserve their objections for appeal in these commonly seen areas as well. Voir Dire Jury selection has its own set of appellate issues. One nuanced aspect to be aware of relates to preserving contested challenges for cause. “In order to properly preserve an objection to a denial of a challenge for cause,” a party must show it “was forced over objection to keep an unacceptable juror.”36 To do so, counsel should 1) use a peremptory challenge to excuse the challenged-for-cause juror,37 2) exhaust all peremptory challenges,38 3) request additional peremptory challenges39 and 4) after the conclusion of the challenges but before the jury is empaneled, make a record of who else counsel would have excused and why.40 Motions in Limine With limited exceptions, rulings on motions in limine generally preserve nothing. In Oklahoma, rulings on motions in limine are “advisory until finally determined at trial.”41 “Consequently, liminal rulings are not appealable, and only evidentiary rulings during trial remain subject to review.”42 At the federal level, the 10th Circuit has carved out a limited exception to this rule where the trial court makes “a definitive, well-thought-out pretrial ruling on a subject that will not be affected by the evidence that comes in at trial.”43 But Oklahoma state courts have not followed this trend, sticking with the traditional rule requiring a party to make a renewed objection or offer of proof at trial.44 Whether in state or federal court, “[p]rudent counsel [should continue to] renew objections at trial,” given “the inherent risk that the appellate court might find that the objection was of the type that must be renewed and that the party, by relying on the motion in limine, has waived the objection.”45 Offers of Proof If a ruling excludes evidence, the proponent of the evidence must make an offer of proof.46 An offer of proof is the procedure whereby excluded evidence is placed in the record.47 Its purpose is not only to enable “the trial judge to make informed decisions based on the substance of the evidence,” but also to create “a clear record that an appellate court can review to ‘determine whether [excluding the evidence] was reversible error.’”48 But “merely telling the court the content of proposed testimony is not an offer of proof.”49 Instead, “the proponent must, first, describe the evidence and what it tends to show and, second, identify the grounds for admitting the evidence.”50 In doing so, specificity is key: As courts have acknowledged, “[s]pecificity and detail are the hallmarks of a good offer of proof” and “conclusory terms, especially when presented in a confused manner, mark poor ones.”51 When it comes to witness testimony, there are four ways to make an offer of proof: 1) Examine the witness on the record outside the presence of the jury, 2) Have counsel dictate the substance of the witness’s testimony into the record, 3) Have counsel put a written statement of the witness’s testimony into the record or 4) Have the witness submit a signed statement of their testimony into the record.52 Of these methods, the 10th Circuit has described the first as the “most desirable” and the second as the “least favored,” observing that narrative summaries are
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