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

§131 Deficiencies

§131.1 Effects of Erroneous Rulings

§132 Objections

§132.1 Responding to Objections

§132.2 Remedial Actions

§132.3 Objections Based on Prejudicial Evidence

§133 Offers of Proof

§133.1 Plain Error Doctrine

§134 Rule of Completeness

§135 Harmless Error Doctrine

§136 Constitutional Error

§140 Practice Pointers

§100 INTRODUCTION 1-2

InGeneralLayinga

Foundation

Before you can offer something into evidence,

you must lay a proper foundation for its admission.

Both the substantive law of evidence and the proce-

dural rules governing evidence require as a condi-

tion precedent to the admission of an item into evi-

dence that the item’s predicate, or foundation, must

be laid. For example, a writing must be shown to be

authentic before it can be offered into evidence.

Without that showing of authenticity, there is no

foundation present 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 exam-

ination 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 docu-

mentary 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.

MiscellaneousToolsforFoun-

dationsDocumentsDiscovery

ResponsesandPriorTestimony

The law of evidence generally requires that a

fact or event be a condition to the admission of cer-

tain evidence; and that fact or event then becomes

part of the foundation necessary to admit the evi-

dence. 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 gen-

erally will be established through direct examina-

tion (§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 pre-

senting the evidence, as well as the effect the evi-

dence will likely have on the trier of fact. For exam-

ple, there may be a number of ways to lay a founda-

tion 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 evi-

dence?

• What conclusions do you want the trier of

fact (judge or jury) to draw from the docu-

ment’s contents?

Once you have asked and answered these ques-

tions, 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 admitted during the cross-ex-

amination of an adverse party who authored it rather

than having it admitted during the direct examina-

tion of a friendly witness. It may have more dramat-

ic effect if the “damaging document” is admitted

while an adverse witness is on the stand, particular-

ly if the document can be used effectively to

cross-examine that witness.

On the other hand, you may want to have the doc-

ument initially admitted into evidence as simply as

possible through the direct examination of your client or

some other friendly witness who will establish the doc-

ument’s authenticity. 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 recal-

citrant on the stand while being examined. Think

1-3 TACTICS §100.1

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 either in a deposi-

tion or at a prior hearing may also serve as a suffi-

cient foundation to admit the proffered evidence.

NOTE: The manner or method used to lay a

foundation is not as important as the fact that a

foundation has been laid. How you best accomplish

the laying of a foundation for the admission of a

particular piece of evidence will depend upon the

facts and circumstances of the case, the evidence

available to you, the nature, intelligence and avail-

ability of witnesses to call and testify to lay the

foundation, documentary evidence that can be used

to lay a foundation and the like. Never have a closed

mind about how best to lay a foundation for the

admission of a particular piece of evidence. Rather,

know the Rules of Evidence; be prepared to lay

traditional foundations for the admission of the evi-

dence when they are available; and, finally, be ready

to create and redesign alternative ways to lay a

foundation where “traditional ways” for one reason

or another simply won’t work.

NOTE: There are other ways to deal with foun-

dation problems. For example, in civil cases, in

addition to requests for admissions under F. R.

C. P. 36, many courts’ pretrial orders also provide

for mechanisms requiring the parties to stipulate, if

possible, to the admission of evidence or to raise at

a pretrial proceeding or in any pretrial memoran-

dum any objections to the introduction of proffered

evidence. Where this occurs, generally there will be

a preliminary determination made by the trial court

under F. R. E. 104. As mentioned previously,

under certain circumstances depositions will want

to be used substantively, or, at a minimum, to pro-

vide a foundation for the admission of other evi-

dence. In criminal cases, see F. R. C. P. 16,

26-32 concerning depositions and authentication of

depositions, and F. R. C. P. 17.1 concerning

testimony of witnesses with knowledge.

Finally, there may be a final fallback position:

If there can be no reasonable challenge made to the

authenticity of an exhibit, it should be admitted into

evidence. See United States v. Mangan, 575 F.2d 32

(2d Cir. 1978) (the defendant could offer no expla-

nation of who else could have written certain docu-

ments; accordingly, it was proper for the govern-

ment’s expert to use the body of the defendant’s

income tax returns and forms from the defendant’s

personnel file as handwriting exemplars that meet

the requirements of F R. E. 901 even though

no witness actually testified that the defendant pre-

pared these documents).

Cases

Bury v. Marrietta Dodge, 692 F.2d 1335 (11th Cir.

1982), reh’g denied, 701 F.2d 947 (11th Cir.

1982). The Federal Rules of Evidence are not

intended to be the sole methods of supplying

foundation and authentication of evidence. Rea-

sonable methods of authentication, even though

not specifically prescribed by the Rules, are

allowed and may suffice.

United States v. Brown, 688 F.2d 1112 (7th Cir.

1982). The production of a requested item by a

party or his agent may support a finding of

authentication and serve as a foundation to

admit the document; a document turned over to

the grand jury by the attorney pursuant to a

subpoena supported a finding of authentication.

Banghart v. Origoverken, 49 F.3d 1302 (8th Cir.

1995). The contents of photographic evidence

under certain circumstances can be admitted as

evidence independent of any testimony of a

witness regarding the events depicted so long as

it is demonstrated that the photographs accurate-

ly depict the scene at the time they were taken.

United States v. O’Connell, 841 F.2d 1408 (8th Cir.

1988), cert. denied, 108 S. Ct. 2857 (1988).

Admission of evidence from tapes on a tele-

phone answering machine was allowed where

there was corroboration of accuracy of conver-

sations by documents and testimony that was

unrelated to the tape’s seizure; where it had

been established that there was integrity of the

recordings through testimony of their custodi-

an; where there had been adequate identifica-

tion of speakers through other witness testimo-

ny; and where there was a showing that the

conversations were voluntary and in good faith.

United States v. Segines, 17 F.3d 847 (6th Cir. 1994).

Under certain circumstances a transcript of a tape

recording may be admitted into evidence; howev-

er, it was improper to use a transcript of a tape

recording without a stipulation regarding its accu-

racy. Rather, parties to the tape recording should

have testified concerning their recollections of the