Litigants Should Get a Chance to Make an Offer of Proof; Bedolla v. State of Indiana

Sometimes courts rule against you. And those rulings may prevent you from presenting evidence at trial or in a hearing. Most lawyers in this situation know to make an offer of proof, so that the record can show what you would have introduced but for the adverse order. And this case provides a good example of what to do when the court does not let you make that offer.

Espinoza was shot and killed in March 2009 outside of an Indianapolis nightclub. Multiple witnesses placed Bedolla at the scene, and one of them identified Bedolla as the killer. Bedolla was found guilty of murder and is serving a 45-year sentence.

While serving his sentence, Bedolla briefly shared a cell with Barragan-Lopez. Barragan-Lopez told Bedolla that he knew the witness who identified Bedolla as the killer, and that she told Barragan-Lopez that her old boyfriend shot and killed Espinoza, not Bedolla. Bedolla told his attorney, who investigated.

Bedolla’s attorney arranged to have Barragan-Lopez testify at an evidentiary hearing in post-conviction proceedings. But Barragan-Lopez was transferred to a prison in Kentucky a week before the hearing.

Counsel then was granted leave to depose Barragan-Lopez. But after the State’s first objection, Barragan-Lopez said he did not want to continue without his attorney present. His attorney was on vacation and unavailable, so they did not complete the deposition.

One week later, the parties appeared at a status hearing, at which Bedolla informed the trial court of the difficulty in taking Barragan-Lopez’s statement. After hearing the State’s argument that any evidence from Barragan-Lopez would be inadmissible, the court said “we’re done” and closed the evidence on Bedolla’s post-conviction hearing. Bedolla’s counsel asked for a chance to make an offer of proof, but the trial court would not let her do so. When Bedolla’s counsel insisted, the trial court threatened her with contempt and said, “If you have a difficulty with that, then you can always go to the higher court.” She did.

On appeal, the Court of Appeals affirmed, finding that Barragan-Lopez’s testimony could not constitute newly discovered evidence that would afford post-conviction relief to Bedolla. But on transfer, the Indiana Supreme Court found that it was premature to address this issue.

Rather, the dispositive issue here, in our view, is whether the postconviction court abused its discretion in closing evidence without allowing Counsel to make an offer of proof and thus foreclosing enforcement of a valid subpoena to secure a deposition.

And the Court found that the trial court abused its discretion. The Court noted that “fundamental fairness” dictates that trial judges “hear with deliberation” the evidence and arguments of the parties.

By making evidentiary decisions, controlling the proceedings, and maintaining courtroom discipline, Indiana’s trial judges play the pivotal role in ensuring litigants receive fundamentally fair proceedings.

This means that trial courts must “certainly” give litigants an opportunity to make “necessary offers of proof.”

A valid offer to prove must explain three points: (1) the testimony’s substance; (2) the testimony’s relevance; and (3) the grounds for admitting the testimony. … Offers of proof, thus, help assure parties receive fundamental fairness at both the trial and appellate levels. So when a party asks to make a legitimate offer of proof, the trial court should grant that request. [A]bsent clear abuse by a party, offers of proof should be allowed.

The trial court in this case did not meet this test because “after hearing only the State’s argument, [it] refused to listen to Counsel’s offer of proof and warned that a deputy would remove her if she did not yield her spot at counsel’s table.”

[A] court cannot ensure fundamentally fair proceedings that “promote discovery of truth” without listening to arguments from both parties. Although “[w]e afford trial judges ample ‘latitude’” in controlling the proceedings and “[w]e even tolerate a ‘crusty’ demeanor towards litigants so long as it is applied evenhandedly,” we cannot affirm the court’s decision here. The post-conviction court’s refusal to hear further argument and its intemperate demeanor amount to an abuse of discretion—they even undermine the fundamental fairness the Indiana Constitution demands.

The Court then went on to conclude that Bedolla could proceed with the deposition of Barragan-Lopez.

Justice Slaughter concurred in part and dissented in part. While he found the trial court’s refusal to allow Bedolla “the opportunity to make a modest offer of proof” was “heavy-handed,” he wrote separately because he thought the majority went too far in granting Bedolla the ability to take Barragan-Lopez’s deposition.

The Court thus says, in effect, it doesn’t matter what the trial court might conclude on remand after hearing Bedolla’s offer of proof. Bedolla gets to take the deposition no matter what.

It appears that he would remand the matter so that Bedolla could make his offer of proof, so that the trial court could first decide whether the deposition was warranted.


  1. A valid offer to prove must explain three points: (1) the testimony’s substance; (2) the testimony’s relevance; and (3) the grounds for admitting the testimony.
  2. Absent clear abuse by a party, a trial court should allow offers of proof.
  3. Trial courts can abuse their discretion if they do not give a party an opportunity to make a modest offer of proof regarding any excluded evidence.
  4. “Part of a judge’s job is to listen.”

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