EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, June 5, 2019

Judge Threatens to Hold Attorney in Contempt for Trying to Make an Offer of Proof of Her Client's Actual Innocence

The offer of proof is a core part of the American justice system. So, what is an offer of proof? It's proof of what a witness would say or what a piece of evidence would show despite (1) that witness/evidence being unavailable; or (2) the judge deeming the evidence or the witness's testimony inadmissible. Indeed, in this latter scenario, a party typically needs to make an offer of proof to preserve the issue for appellate review. According to Federal Rule of Evidence 103(a)(2),

A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:...

if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

So, why in the world would a judge threaten to hold an attorney in contempt for seeking to make an offer of proof regarding a witness who could prove the actual innocence of her client? That was the question addressed by the Supreme Court of Indiana in its recent opinion in Bedolla v. State, 2019 WL 2264236 (Ind. 2019).

In Bedolla, Anthony Bedolla was convicted of the murder of Erick Espinoza. Subsequently, after a post-conviction evidentiary hearing

while Bedolla sat in a Marion County Jail holding cell awaiting transport back to prison, he met Miguel Barragan-Lopez. The two cellmates struck up a conversation and Barragan-Lopez provided information that, if true, would exonerate Bedolla.

Barragan-Lopez told Bedolla that he knew Sarai Solano—the one witness that testified she saw Bedolla shoot Espinoza—and she told him that another man committed the murder. Specifically, Barragan-Lopez recounted he had a brief relationship with Solano and she confided to him that Jose Reyes (her old boyfriend) shot and killed Espinoza, not Bedolla.

Thereafter, a deposition of Barragan-Lopez was scheduled.

Shortly into the deposition, the State objected to [defense] Counsel's leading questions, calling them “totally inappropriate for a trial deposition.”...Upon hearing the State's objections, Barragan-Lopez said: “If they're not appropriate, then I want to leave.”...Counsel tried to explain to Barragan-Lopez that the State was objecting only as to the questions' form and reminded him that he was under a subpoena. After listening to the back-and-forth between the attorneys, Barragan-Lopez said he could help Bedolla, but he did not want to get into trouble. As Counsel tried to continue the deposition, Barragan-Lopez repeatedly said he wanted his attorney present because he did not trust what either the State or Counsel was telling him.  Barragan-Lopez affirmed he would eventually talk, but he wanted his attorney present.

Finally, at the post-conviction hearing, defense counsel explained what had transpired and asked for more time for a deposition, but

the post-conviction court refused to hear argument from Bedolla's attorney on this point, even denying her the opportunity to make an offer of proof. The court then ended discovery, closed the evidence, and demanded proposed findings and conclusions from the parties. When Bedolla's counsel attempted to make her case and develop a record for appeal, the court silenced her with threats of contempt.

For example, the judge said,

Counsel, if you don't move away from the table right now, I'm going to ask the deputy to put you in the back. All right. I have told you three times your case is over....If you have a difficulty with that, then you can always go to the higher court.

Defense counsel did indeed go to the higher court, the Supreme Court of Indiana, which held that 

Part of a judge's job is to listen....When a judge refuses to hear a party's offer to prove, she not only abdicates the duty to listen, but she calls into question the principle of fundamental fairness, which requires that parties, particularly those bearing the burden of proof, receive every reasonable opportunity to make their case....Today we hold that a post-conviction court abuses its discretion when it denies a party's legitimate request to make an offer of proof.

So, now, defense counsel will get another shot at a deposition, which could lead to an innocent man being set free.



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