Chapter 8

• Jurisdiction: United States

Chapter 8 Evidentiary Predicates

"For our purposes, the most important procedural rule is that the proponent of an item of evidence must ordinarily lay the foundation before formally offering the item into evidence."

Edward J. Imwinkelried,

Evidentiary Foundations 3,

(Carolina Academic Press) (10th ed. 2018)

A. Overview

This chapter discusses evidentiary law pertinent to either introducing visuals into evidence or having them shown to the jury for illustrative purposes. Further, the chapter offers case examples involving common trial visuals and of pattern predicate questions that can be used to lay proper foundations. It examines trial techniques that can be used to facilitate the introduction of visuals into evidence. Also, this chapter provides legal authority for the admissibility of most types of trial visuals from a photograph to electronic communications. Finally, this chapter is supplemented by Appendix 8.1 found on this book's companion website http://www.fastcase.com/visuallitigation that contains an extensive outline of cases nationwide that have addressed some of the most common evidentiary issues regarding visual evidence, and this list includes not only published but also unpublished appellate opinions.

We refer to the Federal Rules of Evidence throughout the chapter because forty-two states have adopted them, sometimes with variations.

B. Laying an Evidentiary Foundation

Generally, before a trial lawyer can introduce anything, including visuals, into evidence, the lawyer must lay an evidentiary foundation. For example, if a lawyer wants to introduce a contract into evidence, the lawyer must establish that the contract was authentic and that it was relevant to the lawsuit. The trial judge under Federal Rule of Evidence 104(a) decides the preliminary question of admissibil-ity. Fed. R. Evid. 104(a) states: "The court must decide any preliminary question about whether . . . evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege." While the judge decides the admissibility question, the jury decides what weight to give to the piece of evidence.

An exception to the proposition that the lawyer must lay an evidentiary predicate before an exhibit is admitted occurs when the judge exercises discretion and admits the evidence subject to counsel later completing the proof of the foundation. Often evidence is admitted before the full foundation has been established when the evidence is not readily identifiable and requires a chain of custody be established by multiple witnesses. Faced with the predicament that the witness on the stand cannot supply all the links in the chain and yet counsel wants the witness to testify about the exhibit and does not want to recall the witness later, counsel may offer the exhibit. If opposing counsel objects, the proponent of the exhibit informs the judge, "I'll tie it up later, Your Honor." If the court allows the exhibit into evidence at this juncture and there is a later failure of proof, the court may instruct the jury to disregard what they saw and/or heard. On the other hand, if the damage that was done by admitting the evidence is significant, the court may be compelled to declare a mistrial.

C. The Fundamentals

Before any visual exhibit is admitted into evidence, the proponent must lay a foundation by establishing three fundamentals. First, the exhibit must be relevant. Second, the exhibit must pass the requirements of Federal Rule of Evidence 403. Third, the exhibit must be authentic.

1. Relevant

Whether a visual exhibit is relevant is governed by Federal Rules of Evidence 401 and 402. Fed. R. Evid. 401 provides: "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Fed. R. Evid. 402 states, "Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible."

2. Rule of Evidence 403

Even if an exhibit is relevant, it may be excluded from evidence if it does not pass the tests stated in Fed. R. Evid. 403 that provides: "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."

In laying a foundation for a visual, counsel should make every effort to alleviate any of the possible concerns expressed in Rule 403. For example, if counsel wants a jury to view a PowerPoint presentation prepared by an expert and is concerned that opposing counsel could object on the grounds that the slideshow would waste the court's time and present cumulative evidence, counsel could elicit testimony from the expert that the slideshow will assist in explaining the technical field and that it does not repeat what the expert has or will testify to.

3. Authentic

The proponent of a visual must establish that the visual, which could be a photograph, a document, diagram, and so on, is authentic. Federal Rule of Evidence 901(a) states what the lawyer must establish in order to authenticate an exhibit, as follows: "To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is."¹

Fed. R. Evid. 901(b) provides these examples of sufficient evidence that comply with the Rule. The following are examples that apply to visuals:

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
(2) Nonexpert Opinion About Handwriting. A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.
(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.
(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
. . .
(7) Evidence About Public Records. Evidence that:

(A) a document was recorded or filed in a public office as authorized by law; or
(B) a purported public record or statement is from the office where items of this kind are kept.

(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:

(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 20 years old when offered.

(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

If no witness can readily identify the exhibit—say it is what the proponent claims it is—you must develop through witness testimony a chain of custody. By proving the chain of custody, you establish for the court the ultimate fact you that the real evidence is what it is claimed to be.

Some visuals are self-authenticating, such as a certified copy of a public record. When the visual is self-authenticating, counsel need not produce extrinsic evidence of authenticity, such as by eliciting testimony from a witness as to the exhibit's authenticity. Rather, if the visual is relevant and passes Fed. R. Evid. 403 tests, counsel merely offers the exhibit into evidence. Fed. R. Evid. 902 provides that the following evidence is self-authenticating:

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

(1) Domestic Public Documents That Are Sealed and Signed.
(2) Domestic Public Documents That Are Not Sealed but Are Signed and Certified.
(3) Foreign Public Documents.
(4) Certified Copies of Public Records.
(5) Official Publications.
(6) Newspapers and Periodicals.
(7) Trade Inscriptions and the Like.
(8) Acknowledged Documents.
(9) Commercial Paper and Related Documents.
(10) Presumptions Under a Federal Statute. A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic.
(11) Certified Domestic Records of a Regularly Conducted Activity.
(12) Certified Foreign Records of a Regularly Conducted Activity.
(13) Certified Records Generated by an Electronic Process or System.
(14) Certified Data Copied from an Electronic Device, Storage Medium, or File.

D. Hearsay and the Original Writings Rules

When the visual exhibit contains words, such as documentary evidence (a will, contract, and so on), the hearsay and/or the original writings rule can come into play when laying an evidentiary foundation. Hearsay is defined in Fed. R. Evid. 801, and exceptions to the hearsay rule are listed in Rule 803. Federal Rules of Evidence 1001-1004 specify that a duplicate of the original may be admitted into evidence provided that neither a genuine question is raised as to the document's authenticity nor would it be unfair to admit the duplicate.

E. Real Evidence

1. Authentic

Real evidence, also referred to as "physical evidence," is evidence that was involved in the case. If the exhibit is readily identifiable by a witness (the witness's wallet containing the witness's driver's license and credit cards), rather than a fungible exhibit—one that is able to be replaced by another identical item (a dollar bill if the witness did not know the serial number on the bill), then counsel only needs that witness to authenticate the exhibit. Under Fed. R. Evid. 901(a), counsel need only elicit testimony that the witness can identify it to establish authenticity. For example, Mr. Miller, the victim of a robbery, testifies: "That's my wallet that was taken...