Introduction to evidentiary foundations

• Author: Gordon P. Cleary
• Pages: 15-54

INTRODUCTION TO

EVIDENTIARY

FOUNDATIONS

1-1

1. INTRODUCTION TO

EVIDENTIARY

FOUNDATIONS

Tactics

§100 In General: Laying a Foundation

§100.1 Miscellaneous Tools for Foundations (Documents, Discovery Responses and Prior Testimony)

§100.2 Inapplicability of the Federal Rules

§100.3 Purpose and Construction of the Rules

§101 Witness Preparation

§102 Witness Preparation Checklist

§110 Direct Examination

§111 Judicial Control Over Presentation of Evidence

§112 Judicial Control Over Jury’s Right to Interrogate Witnesses

§113 Judicial Control Over Structuring Admission of Evidence

§120 Cross-Examination

§121 Judicial Control of Cross-Examination

§122 Request for Admissions

§130 Trial Tactics

 

 

§132 Objections

§132.1 Responding to Objections

§132.2 Remedial Actions

§132.3 Objections Based on Prejudicial Evidence

 

§133.1 Plain Error Doctrine

§134 Rule of Completeness

§135 Harmless Error Doctrine

§136 Constitutional Error

§140 Practice Pointers

INTRODUCTION TO

EVIDENTIARY

FOUNDATIONS

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INTRODUCTION TO

EVIDENTIARY

FOUNDATIONS

1-3 TACTICS §100.1

§100 In General: Laying a Foundation

-

stantive law of evidence and the procedural rules governing evidence require as a condition precedent to the admission

of an item into evidence that the item’s predicate, or foundation, must be laid. For example, a writing must be shown to



to allow the court to receive the writing into evidence. When the law of evidence requires that a fact or event be a

condition to the admission of evidence, that fact or event becomes part of the foundation necessary for the admission

of that evidence.

There are various ways to lay a foundation for the admission of a particular piece of evidence:

• The foundation can be laid through direct examination or the cross-examination of a witness;

• The foundation can be supplied through responses to requests for admissions; or

• The foundation can be supplied through documentary evidence, answers to interrogatories, and the prior

testimony of a witness in another proceeding or in a pretrial deposition.

The following sections discuss how the general rules for laying foundations apply to direct examination and

cross-examination, respectively, and also explain how to anticipate and overcome poten tial foundation objections through

the use of requests for admissions. Finally, a discussion of other miscellaneous ways to lay a foundation, including

foundations established through use of documents, other dis covery responses or prior testimony, is addressed below.

§100.1 Miscellaneous Tools for Foundations

(Documents, Discovery Responses and Prior Testimony)

The law of evidence generally requires that a fact or event be a condition to the admission of certain evidence; and

that fact or event then becomes part of the foundation necessary to admit the evidence. How that fact or event can be

established is often limited only by the imagination and creativity of the lawyer who serves as its proponent.

Although the foundation to admit evidence generally will be established through direct examination (§110), through

cross-examination §120), or through a request for admission (§122), do not be limited unnecessarily by those three

foundation devices. Rather, con sider how best to establish a foundation both in terms of the simplici ty of presenting



of ways to lay a foundation for the admission of a document that is favor able to your client’s position and harmful to

your opponent’s. Consider how best to lay the foundation by asking some of these questions:

• Who is the author of the document?

• Who are the recipients of the document or any copies of the document?

• What is the document’s purpose?

• How, and under what circumstances, do you want the document to be admitted into evidence?

• What conclusions do you want the trier of fact (judge or jury) to draw from the document’s contents?

Once you have asked and answered these questions, you will be able properly to plan a strategy on how to lay the

foundation and admit the document into evidence. For example, you may want to have a damaging document admit-

ted during the cross-examination of an adverse party who authored it rather than having it admitted during the direct

    



On the other hand, you may want to have the document initially admitted into evidence as simply as possible

through the direct examination of your client or some other friendly witness who will establish the document’s authen-

ticity. Once the document is in evidence, it can be used virtually for any purpose, including the cross-examination of

an adverse party—potentially for impeachment purposes as well as substantive evidence.

Additionally, consider conventional ways to lay a foundation for the admission of evidence when there appear to be

barriers. Consider this example: The testimony of an adverse party or hostile witness is needed to lay a foundation for

the admission of a particular document, and the witness is being recalcitrant on the stand while being examined. Think

about whether the foundation can be laid through a prior answer to interrogatory signed or adopted by that witness, which

then can be read into the record, to lay the foundation for the document’s admission. Any prior testimony of a witness

