In what circumstances will the court set aside a verdict or reverse a judgment for erroneous exclusion of evidence?

Under Evidence Code section 354, we cannot set aside a verdict or reverse a judgment for erroneous exclusion of evidence unless it appears from the record that the substance, purpose, and relevance of the excluded evidence was made known to the court. (See People v. Anderson (2001) 25 Cal.4th 543, 580-581.) In this case, the court asked several times for an offer of proof - whom the defense was going to call, what that person was going to say - so that it could evaluate the proposed testimony for relevance to the issues of the case, in particular how something that happened 24 to 48 hours before the burglaries bore on defendant's intent at the time of the burglaries. As the trial court stated, "What was [the] jury going to hear, from whom, the relevance to the issues in the case including intent and affirmative defenses and that same was essential before allowing defense counsel to present an opening statement and cross-examine[] witnesses regarding this theory with no assurance that admissible evidence to support same would be submitted." This was a prudent approach to this evidence, but counsel chose not to comply. Relying on an unexplained and inexplicable contention that compliance would require disclosing attorney work-product and privileged information, she chose to go forward with no evidence to establish the domestic abuse she wanted to show. The court gave all it could - a stipulation defendant had suffered traumatic injury to her jaw. Without any testimony or evidence to support anything more, we think the court's handling of the issue was proper.

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