finding that the trial court’s preclusion of appellant’s proffer was not harmless error
How later courts described this case
- finding that the trial court’s preclusion of appellant’s proffer was not harmless error
- “An accused has a right to cross-examine prosecution witnesses to show bias or motivation and that right, when not abused, is absolute. The right emanates from the constitutional right to confront one’s accusers.”
- finding the right to cross-examination, "when not abused, is absolute"
- witness' testimony only evidence identifying or implicating defendant as perpetrator
Written by the judges who cited it.
The opinion
*466 JUSTICE KEENAN,
with whom JUSTICE LACY joins, dissenting.
The majority opinion erodes the well-established principle that it is the duty of counsel to present the appellate court with a record sufficient to permit review of errors assigned on appeal. In effect, the majority imposes a duty upon the trial court to remind counsel to make a proffer after evidence has been excluded.
After Brown’s counsel noted his objection to the trial court’s evidentiary ruling, he was required to proffer the substance of the anticipated testimony. Whittaker v. Commonwealth, 217 Va. 966, 968-69 , 234 S.E.2d 79, 81 (1977); Scott v. Commonwealth, 191 Va. 73, 78-79 , 60 S.E.2d 14, 16 (1950); Owens v. Commonwealth, 147 Va. 624, 630-31 , 136 S.E. 765, 767 (1927). However, he made no attempt to do so following the trial court’s ruling that this type of evidence was inadmissible for purposes of impeaching the witness.
The trial court did not refuse to allow counsel to make a proffer. Rather, when counsel failed to make a proffer and apparently had nothing more to say on the subject, the trial court simply stated, “All right, move on.” This statement by the trial court does not constitute a refusal to allow a proffer. The majority’s strained interpretation to the contrary creates confusion as to who bears the ultimate responsibility to complete the record for appeal. A standard that requires the trial court to remind counsel to make a proffer suggests a retreat from our long-established rule placing responsibility for the record on counsel.
Since the record before us does not contain the substance of Daniel Sydow’s anticipated testimony, and since the substance of that testimony is necessary for review of the error assigned, I would affirm the trial court’s judgment.