January 2011 - National Labor Relations Board

10398 EXHIBITSBook.) If the ALJ refuses to hear the offer by question and answer, counsel for theGeneral Counsel may excuse the witness and present the evidence through an oralstatement on the record. Recitation of the offer of proof outside the witness’ hearinghelps avoid claims that the credibility of the witness has been compromised. The oralstatement would commence with “I offer to prove by this witness that Foreman Jonessaid to him . . .” and would contain exact or paraphrased words that the witness woulduse. Alternatively, a written offer of proof may be used where an extended line ofexamination is necessary, permitting full consideration of details and saving hearing time.Counsel for the General Counsel should ensure the record clearly reflects whenthe offer is concluded. Upon completion of an opponent’s offer, counsel for the GeneralCounsel should renew appropriate objections. If the offer is rejected, the profferedevidence is not received into the record. However, if the ALJ reverses the ruling andreceives an opponent’s evidence, counsel for the General Counsel should demand theright of cross-examination and/or rebuttal.10398 ExhibitsDocuments and records, if relevant to the issues, are introduced into the record asexhibits. To the extent possible, exhibits should be prepared in advance. Sec. 10338.However, confidential documents such as internal deliberative memoranda intended forintragency use should never be introduced in evidence without prior clearance from theDivision of Operations-Management. Sec. 11820.10398.1 IdentificationCounsel for the General Counsel should ask the reporter to mark a document foridentification and hand a copy to opposing counsel before approaching the witness. Thedocument is then handed to the witness through whom it is being offered and, throughquestions and answers, is identified and authenticated. It is then offered in evidence. Atthis point, an objection may be made and the relevance and authenticity of the documentargued.10398.2 IntroductionTwo copies of all exhibits must be furnished to the reporter by the party offeringthe exhibit. A copy of each exhibit should also be available for the Administrative LawJudge and copies distributed to all other parties. The ALJ may permit voir dire to explorethe authenticity of an exhibit and the competence of the witness to testify about theexhibit. Sec. 10394.5.10398.3 RejectedA party offering an exhibit may request its inclusion in the “Rejected Exhibits” ifthe exhibit has been refused admission.Revised 01/11