Avowal

Overview

An avowal is a declaration made by an attorney during the trial process. This is an open declaration by an attorney representing a party in a lawsuit, made after the jury has been removed from the courtroom, that requests the admission of particular testimony from a witness that would otherwise be inadmissible because it has been successfully objected to during the trial.

An avowal serves two purposes.

  1. It enables an attorney to have the court learn what a witness would have replied to a question had opposing counsel not made an objection to the question sustained by the court. 
  2. It provides the interrogator with an opportunity to offer evidence that contradicts the disputed testimony. If, upon appeal, an appellate court decides that a witness should have been allowed to respond to such questions before a jury, an avowal will be a record of the witness's response.

Typically an avowal can be stated either orally or in writing, however, some courts have a preference for an oral avowal. 

Federal Rules of Evidence

In Gates v. U.S., 707 F.2d 1141 (1983), the Tenth Circuit held that an avowal is sufficient to preserve error, only when the attorney also cites to Rule 103(a)(2) of the Federal Rules of Evidence

Further Reading

For more on avowal, see this Loyola Law Review article, and this Vanderbilt Law Review article.