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The Virginia Appellate Lawyer’s Court of Appeals of Virginia Blog

Failure to Make a Sufficient Proffer has Sunk Many Appeals . . . But What Makes an Proffer Sufficien

Updated: Nov 22, 2022

When testimonial evidence is excluded by a trial court, it is essential that the party who want to introduce that evidence makes a “proffer” of what the evidence would have been.  Without a proffer, an appellate court will rarely consider reserving a judgment based on the trial court’s decision to exclude the evidence as there is no way of knowing how it would have impacted the trial.  Perhaps the witness would have claimed ignorance, or perhaps would have said the exact opposite of what the appellant wanted.

Now when a court excludes documentary evidence, making a proffer is easy.  You simply produce the documents and have them entered into the record.  Generally, the court will not even require you to authenticate them since they are not being considered.  But testimonial evidence is not that easy to proffer for several reason.  First, the court isn’t likely to allow you to proffer it through live testimony.  Whether it is a bench trial or a jury trial, this will take time, and in the case of the former, there is the added difficulty that the judge, who is also the trier of fact, will have to be present when the testimony is proffered, but ignore it later when making determinations of fact.  Judges often say, “You can make your proffer after the evidence is in,” but this requires 1) that you remember to do it, and 2) that the witness is going to be available at the end of the trial.  There are also times when you are being asked to proffer testimony of a witness who is not present, or to proffer the expected testimony rather than have the witness testify.

The making of a proffer must be sufficient to allow the appellate court to determine if its exclusion was error, and that is the issue that controls the result in today’s only published opinion from the Court of Appeals, William O. Flannagan, Jr. v. Commonwealth of Virginia. Flannagan was charged with and convicted of 1st degree murder and use of a firearm in that crime. It was not disputed that on the day of the murder Flannagan had been drinking at a gathering and over the course of several hours got into repeated arguments with Jason Ferguson, at times recklessly brandishing a pistol.  Eventually, Flannagan and Ferguson were both asked to leave.  Shortly thereafter a gunshot was heard and Ferguson was shot and killed.  Although Flannagan was standing nearby with the gun in his hand, apparently no one actually saw Flannagan fire the pistol.

Flannagan walked away from the scene and was apprehended a short time later.  The officers who found Flannagan administered a preliminary breath test (PBR).  A PBT is generally used to detect the presence of alcohol in a person’s breath, but is not recognized as scientifically accurate to provide the precise concentration of alcohol.  In most cases, a PBT is used to establish probable cause that a person is intoxicated so that a more accurate test can be be ordered, but by statute, the result of the test is not admissible to establish the blood alcohol level (BAL) of a defendant during the guilt phase of a trial.  This rule normally benefits the defendant in a DUI case or for some other offense where a precise BAL is required to be shown for some purpose, but it applies to both the prosecution and defense — so, for example, the defense cannot seek to introduce the result of a PBT to rebut a BAL established by scientifically accurate means.

The use of PBR results in other contexts is less certain.  Certainly, if the result is to be introduced to show that the person to whom the test was administered had some alcohol in his blood stream, for example to show that he had been surreptitiously been given an alcoholic beverage,  it could be argued that the test was sufficiently accurate to prove this.  Attempts have been made to have PBR tests admitted in both criminal a civil cases where the issues was not the test’s ability to show a precise BAL, but only to show that some alcohol was present.  In such cases, the courts have generally based the admissibility on two factors: 1) Is the particular PBR test accurate when properly calibrated and administers and 2) that it was properly calibrated and administered in the particular case.

Now you are probably wondering (unless you know a lot about homicide law) why the result of Flannagan’s PBT would have been relevant in this case.  He was charged with first degree murder, not DUI.  The answer lies in a peculiar facet of criminal law in Virginia, which is that voluntary intoxication is not a defense to negate or mitigate the existence of an intent to commit a crime except to negate premeditation as an element of first degree murder.

Flannagan wanted to question the officers who administered the test about the specific result of the test, that is, the approximate BAL that the test indicated was in his system just shortly after the killing.  While the evidence would establish that Flannagan had been drinking, that was probably not enough to show that he was intoxicated to the point that his ability to premeditate the killing of Ferguson would be called into doubt.  Flannagan obviously wanted to put some number to his level of intoxication to bolster his defense, and the Commonwealth just as obviously wanted that evidence out.

When the Commonwealth objected to Flannagan’s first question to the officer about the PBT, Flannagan said that he would present expert testimony regarding what the result meant with respect to his level of intoxication.  His counsel proffered that the officer who administered the test would say that it had been calibrated just five days before and would also authenticate the calibration logs for the test.  The circuit court then asked how that “establish[ed] the reliability of the test overall.” Citing Santen v. Tuthill, 265 Va. 492 (2003) as well as an Attorney General opinion, Flannagan maintained that the proper calibration of a PBT device was sufficient to establish its reliability.

The court seemed doubtful of this proposition and asked if the expert would state that she could render her opinion based on the device being properly calibrated because the test was “reliable for establishing the blood alcohol content.”  Following a brief recess, Flanngan’s counsel reported that the expert was not prepared to say that the device was “reliable for establishing the blood alcohol content.” The court ruled that the evidence of the result of the test, and the testimony of the expert based on that result, were not admissible, but permitted Flannagan to proffer the expected testimony, which was that the the device was properly calibrated and administered, that the PBT showed a BAL of 0.189%, and that this level of intoxication would have affected Flannagan’s “judgment, attention, motor coordination, and reaction time.”

The issue on appeal was whether the proffered evidence should have been admitted.  More specifically, Flannagan argued that the proffer that the device was properly calibrated and the test properly administered was all that was required to establish the reliability of the result.  In an opinion by Judge AtLee, joined by Judge Causey and Sr. Judge Haley, the Court of Appeals disagrees.  Setting aside for a moment that Santen is a civil case, so probably not the best precedent for admissibility of this kind of evidence in a criminal trial, the Court points out that the circumstance in this case is the mirror image of that in Santen. In Santen the proffer was that the device was scientifically accurate, but no proffer was made that it had been properly calibrated and administered.  Here, the proffer was that the device was calibrated and the test administered properly, but not that the test itself was scientifically reliable.  As mentioned above, the general rule before admitting such evidence is that you must show both prongs — and Flannagan’s proffer didn’t.

Now, one could wonder (indeed, I’d be surprised if you aren’t wondering now), how can one expert testify in one trial that a test is scientifically accurate and another then not be able to do so in a different — for clearly that was the problem here.  There are several possibilities.  First, it could be that Flanngan’s expert simply wasn’t prepared to say this — that doesn’t mean that she could not have done so had she studied the literature or performed tests on the machine, just that she wasn’t able to say so on the day of trial.  Another possibility is that this could be an issue on which there is genuine scientific disagreement, because where some process is so widely accepted in the scientific community that there is no debate about its accuracy anymore, the courts will accept that fact without expert support.  In the case of the various types of PBTs, however, there is no consensus as to their precision of reliability — that is, while it is agreed that they can detect the presence of alcohol in the breath, unlike more sophisticated devices, the ability to accurately determine BAL is far from certain.

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