Introduction to evidentiary foundations
Author | Gordon P. Cleary |
Pages | 15-52 |
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
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1-3 TACTICS §100.1
§100 In General: Laying a Foundation
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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
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