Appendix A: Quick Review Foundation Checklists
| Author | Gordon P. Cleary |
| Pages | 617-662 |
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]
CHECKLIST: DYING DECLARATION – RULE 804(b)(2) [§644]
APPENDIX A A-2
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.
The witness identifies the particular statement in issue the identified speaker made.
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.
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The witness testifies how recording equipment operates and was set up on that day to create an accurate
recording.
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.
The exhibit is a true and accurate copy [or is the original] of the recording.
When the tape is not the original
If the tape played is not the original, the witness explains how the copy was made.
If the tape played is not the original, there is no difference between the original and copy of the recording,
and the copy is a fair and accurate recording of the conversation.
Tactics
If the quality of the recording is poor, consider using an enhancement expert.
If the quality of the recording is poor, or spotty, consider preparing a transcript of the recording that
jurors might use during presentation of the recording.
If the quality of the recording is poor, particularly at critical stages, consider a motion in limine to
preclude introduction of the recording into evidence.
COMPUTER GENERATED EVIDENCE
CHECKLIST: VIDEO RECORDING [§560]
Foundation
The witness operated the video equipment on a particular day and recorded a particular event.
The operator has experience using the video equipment and was experienced with the equipment the
day the recording was made.
The witness testifies to how the equipment operates and was set up on that day to create an accurate
recording.
The witness tested or checked the equipment just before the events were recorded.
The equipment was operating properly.
The operator ran the equipment properly while recording the event.
The video presents a fair and accurate recording of the events.
The witness knows it is fair and accurate because the witness reviewed the recording shortly after the event.
The video has not been altered in any manner since the date it was recorded.
The exhibit is a true and accurate copy [or is the original] of the recording.
The witness explains how the copy was made.
There is no difference between the original and the copy of the video, and the copy presents a fair and
accurate recording of the event.
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