Appendix A: quick review foundation checklists

• Author: Gordon P. Cleary
• Pages: 647-664

A-1

APPENDIX A

Quick Review Foundation Checklists

These checklists provide a quick review of the foundational requirements for various types of evidence. You may

want to include them as part of your trial notebook.

AUTHENTICATION

ORAL STATEMENTS AND RECORDINGS

CHECKLIST: ORAL TELEPHONE OR RECORDED VOICE [§§540, 550]

CHECKLIST: AUDIO RECORDING [§550]

COMPUTER GENERATED EVIDENCE

CHECKLIST: VIDEO RECORDING [§560]

CHECKLIST: E-MAIL [§560C]

HEARSAY

PRIOR STATEMENTS

CHECKLIST: PRIOR INCONSISTENT STATEMENT BY WITNESS – RULE 801(d)(1) [§621]

CHECKLIST: PRIOR CONSISTENT STATEMENT – RULE 801(d)(1) [§621]

CHECKLIST: PRIOR STATEMENT OF IDENTIFICATION – RULE 801(d)(1) [§621]

CHECKLIST: FORMER TESTIMONY – RULE 804(b)(1) [§622]

ADMISSIONS

CHECKLIST: ADOPTIVE ADMISSION – RULE 801(d)(2)(B) [§632]

CHECKLIST: VICARIOUS ADMISSION – RULE 801(d)(2) [§633]

DECLARATIONS

CHECKLIST: STATEMENT AGAINST PENAL INTEREST – RULE 804(b)(3) [§641]

CHECKLIST: STATEMENT AGAINST PROPRIETARY INTEREST –RULE 804(b)(3) [§641]

CHECKLIST: EXISTING CONDITION – RULE 803(3) [§642]

CHECKLIST: STATE OF MIND – RULE 803(3) [§642]

CHECKLIST: STATE OF MIND TO PROVE FUTURE CONDUCT – RULE 803(3) [§642]

CHECKLIST: STATEMENT FOR PURPOSE OF MEDICAL DIAGNOSIS OR TREATMENT – RULE

803(4) [§643]

APPENDIX A A-2

CHECKLIST: DYING DECLARATION – RULE 804(b)(2) [§644]

RECORDS

CHECKLIST: RECORDS OF A REGULARLY CONDUCTED ACTIVITY – RULE 803(6) [§651]

CHECKLIST: DOMESTIC PUBLIC DOCUMENTS UNDER SEAL – RULE 902(1) [§651.1]

CHECKLIST: CERTIFICATION FOREIGN PUBLIC DOCUMENTS – RULE 902(3) [§651.1]

CHECKLIST: CERTIFICATION DOMESTIC PUBLIC DOCUMENTS– RULE 902(2) [§651.1]

CHECKLIST: SELF-AUTHENTICATING CERTIFICATES UNDER RULE 902(11) [§651.1]

CHECKLIST: PUBLIC RECORDS AND REPORTS– RULE 803(8) [§652]

CHECKLIST: RECORDS OF VITAL STATISTICS – RULE 803(9) [§652.1]

CHECKLIST: ABSENCE OF ENTRY – RULE 803(7) [§652.2]

CHECKLIST: ABSENCE OF PUBLIC RECORD OR ENTRY– RULE 803(10) [§652.2]

CHECKLIST: STATEMENTS IN DOCUMENTS AFFECTING AN INTEREST IN PROPERTY– RULE

803(15) [§652.6]

CHECKLIST: STATEMENTS IN ANCIENT DOCUMENTS – RULE 803(16) [§652.8]

CHECKLIST: MARKET REPORTS, COMMERCIAL PUBLICATIONS – RULE 803(17) [§652.9]

CHECKLIST: PAST RECOLLECTION RECORDED – RULE 803(5) [§654]

CHECKLIST: PRESENT RECOLLECTION REFRESHED – RULE 612 [§655]

CHECKLIST: LEARNED TREATISE – RULE 803(18) [§656.1]

EXCLAMATION & IMPRESSION

CHECKLIST: EXCITED UTTERANCE – RULE 803(2) [§660]

CHECKLIST: PRESENT SENSE IMPRESSION – RULE 803(1) [§670]

AUTHENTICATION

ORAL STATEMENTS AND RECORDINGS

CHECKLIST: ORAL TELEPHONE OR RECORDED VOICE [§§540, 550]

Foundation

 The witness knows the speaker’s voice.

 The witness explains how he or she knows the speaker’s voice from recent or long-standing face-to-face interaction.

 The witness heard a voice speaking over the telephone on a particular occasion, or the witness has heard a

tape recording involving one or more speakers.

 The witness recognized the voice on the telephone or on the tape recording.

 The witness recognized the voice as the speaker’s voice.

 

CHECKLIST: AUDIO RECORDING [§550]

Foundation

 The witness operated the recording equipment at a particular time and recorded a particular conversation.

 The operator has experience using the recording equipment and was experienced with the equipment the day

the recording was made.

 

 The witness tested or checked the recording equipment just before the conversation was recorded.

 The equipment was operating properly.

 The witness ran the equipment properly and recorded the described conversation.

 The recording represents a fair and accurate reproduction of the conversation recorded.

 The witness knows the recording is fair and accurate because the witness reviewed the recording shortly after

the conversation.

 The recording has not been altered in any manner since the day it was made.