When it exists, it’s surplusage (hoop-jumping).
One (of a few) remnants that remains in Texas:
If I want to put on evidence in the form of a certain line of questioning, and the judge excludes it, I have to make what is called an “offer of proof” or “bill of exception”. After the witness is done with the rest of his/her testimony, I ask that the judge excuse the jury from the courtroom so I can “make my bill”. Then I ask the witness what I wanted to ask, i.e., the question about gang colors. The court reporter is recording it, opposing counsel is there, etc. The judge is supposed to be listening, but more often he’s reading his newspaper.
Now, at the end of all this, I must formally offer the testimony as a bill of exception or offer of proof, and must formally get the judge to – again – refuse to allow the jury to hear the questions and answers. Is there any doubt? I mean, has any lawyer ever gone through all this and then decided “oh, well, that testimony wasn’t really that exciting, I don’t care whether the jury hears it”? Of course not. Everyone in the courtroom knows the drill as soon as it starts.
But if I don’t make that second offer, and get a second ruling refusing to let it in, I’ve waived my error and the whole episode is a non-issue on appeal.
For this reason, I’ve seen judges actually leave the courtroom (no offense meant or taken) during the making of the “bill”. They are called back just so that we can go through the re-offer, re-reject procedure.
So, this is a real-life example of this sort of thing. Again, there is a real reason, in theory: it gives the judge a chance to hear the testimony and reconsider. (Remember, at first, all the judge heard was the lawyer arguing what the testimony would be, when the other side starts objecting to the line of questioning). But in practice, it’s just some hoop-jumping . . .
JohnW77707, Esq.