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You have to make a proffer

Same song, only a slightly different verse.

Eddie Nelson Ray wanted to call his mother to testify in his trial on charges of obtaining money by false pretenses and uttering a false bank note. The judge said no, and there was no proffer as to what Momma might have said.

Not surprisingly, the Virginia Court of Appeals said it couldn’t consider Ray’s assignment of error on the exclusion of her testimony without a proffer as to what her testimony would have been.

Ray tried to get around the well-established general rule by contending that the exclusion amounted to “structural error.” The court said structural error generally applies to such unusual circumstances as the denial of a right to a public trial or representation  by counsel.

No court in Virginia has ever extended the concept to the exclusion of a witness, the court said, and it isn’t about to start now.

By Alan Cooper

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