How to Lay and Oppose Evidentiary Foundations
Remembering all the elements required to lay a proper foundation can be difficult. Take the simple admission of a letter. First you have to authenticate the document, then demonstrate that it complies with the best evidence rule if its terms are in issue, then show that it is not hearsay if you intend to use its contents. Trial Evidence Foundations is a quick-reference solution. Here is a handy courtroom guide that will keep you from overlooking any required foundational elements, and point out when your opponent has. Cleary and Tarantino’s Trial Evidence Foundations contains the rule, elements, tactics, and key cases for most foundations.
- Establishing credibility
- Attacking credibility
- Oral statements
- Real or physical evidence
- Demonstrative evidence
- Excited utterances
- Present sense impression
- Lay witnesses
- Specific privileges
Designed for use when time is short, the book is formatted for quick reference. Each foundation is tightly covered in three or four pages. Frequent headings and key words are emphasized with bold type, and case citations and descriptions are condensed with small type. 20 sturdy divider tabs, each printed with a foundation category and color-coded, quickly direct you to the correct page. The book is small enough to fit into a trial case and designed to be taken to the courtroom.
Use Mr. Tarantino’s helpful guidance to keep you from overlooking any required foundational elements, and point out when your opponent has. Trial Evidence Foundations provides step-by-step instructions for laying objection-proof foundations. The well-organized format makes it easy to quickly find the information you need. For each foundation, the book provides in three or four pages:
- The Rule. A concise statement of the scope, application and rationale of the rule underlying each foundation.
- Elements. The heart of the book, this section lists each fact which must be established to build a proper foundation.
- Tactics for the proponent: anticipating and avoiding the possible objections to your foundation, meeting any objections made, alternative admission procedures, expected judicial reactions, and tactics of the opposition.
- Tactics for the opponent: supporting your objection, alternative arguments, effect on the jury, judicial preferences, and protecting the record.
- Key cases. The names, citations, facts, and holdings of significant state and federal cases are listed. This section gives you fast, on-the-spot citations for the court, something any judge is sure to appreciate.
Frequent headings and key words are emphasized with bold type, and case citations and descriptions are condensed with small type. 20 sturdy divider tabs, each printed with a foundation category and color-coded, quickly direct you to the correct page. The book is small enough to fit into a trial case and designed to be taken to the courtroom.
Also included a 26-page quick reference guide, which has been thoroughly revised and updated for 2013. This handy guide covers, in detail, each type of evidence foundation.
REVISION 33 HIGHLIGHTS
This handy courtroom guide will keep you from missing any of the elements required to lay a proper foundation and alert you to when your opponent has. The latest edition features 33 sections that have been updated with 75 new case notes of recent significant federal and state decisions. Some of the topics covered include—
JUDICIAL CONTROL OVER PRESENTATION OF EVIDENCE
• Discretionary ability of judge or magistrate to questions witnesses
• Establishing defense on grounds of insanity
• Burden of proof in competency hearings
• Competency to testify
THE EMPTY CHAIR DOCTRINE
• Court denial of request for missing witness charge
• “Missing Witness” Rule and failure to call available witnesses
• Court failure to issue missing witness instruction
• 911 recordings
• Text messages
• Instagram posts
• Machine-generated reports
• Substitutes for verbal expression
• Hearsay within hearsay
• Prior witness statements and testimony
• Forfeiture by wrongdoing
• Excited utterances
• Adoptive admissions
• State of mind
• Email as business record
• “Opening the door” doctrine
• Relevancy of evidence
• Evidence of uncharged crimes
ABBREVIATED TABLE OF CONTENTS
1. INTRODUCTION TO EVIDENTIARY FOUNDATIONS
2. TRIAL PROCEEDINGS AND MOTIONS
8. OTHER EVIDENCE RULES
APPENDIX A: QUICK REVIEW FOUNDATION CHECKLISTS
QUICK REFERENCE CARD
ABOUT THE AUTHOR
Gordon P. Cleary is a trial attorney and a principal of Vetter & White, Providence, Rhode Island. Mr. Cleary speaks and writes frequently on discovery and deposition techniques, trial evidence, and trial practice and procedure, and has served as a faculty member of the Massachusetts Continuing Legal Education/Massachusetts Law Institute Trial Advocacy Program. For many years, he has been an annual contributing editor of the Product Liability Desk Reference (Aspen Publishers).
Mr. Cleary earned a Bachelor of Arts with High Distinction from the University of Rhode Island, and a J.D. with High Honors, Order of the Coif, from the George Washington University National Law Center. He is a member of the American Bar Association (Litigation and Trial Evidence Committees), the Rhode Island Bar Association (Federal Bench/Bar Committee), the Federal Bar Association, the Rhode Island Trial Lawyers Association, the Defense Counsel of Rhode Island, the Defense Research Institute, and the Maritime Law Association.