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.
Witnesses
- Competency
- Establishing credibility
- Attacking credibility
- Rehabilitation
Authentication
- Writings
- Oral statements
- Recordings
- Real or physical evidence
- Demonstrative evidence
Hearsay
- Admissions
- Declarations
- Records
- Excited utterances
- Present sense impression
Opinion
- Lay witnesses
- Experts
Privileges
- Waiver
- 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 32 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 34 sections that have been updated with 70+ case notes of recent significant federal and state decisions.
Some of the topics covered include—
Rule of Completeness
- When otherwise inadmissible evidence is offered to satisfy rule of completeness.
Impeachment by Prior Bad Acts
- Sexual assault allegations to rebut a fabrication defense.
- Civil judgments in criminal case arising from same facts.
- Past retention of classified documents in prosecution for similar new offense.
Impeachment by Prior Convictions
- Conviction for tampering with evidence as dishonest act under Rule 609(a)(2).
- Judge reverses ruling and allows prior conviction in when defendant is in middle of testimony.
Lay Opinion Evidence
- Testimony of business owners, officers, and executives about business operations and projects.
- Testimony of police sergeant on speed of vehicle based on accident reconstruction calculations.
Expert Opinion Evidence– Daubert Consideration
- Expert opinion on class action requirements; reliance on data and information provided by third parties.
- Expert opinion on class action requirements; reliance on data and information provided by third parties.
Authentication
- Phone calls by defendant from jail.
- Video recordings between drug traffickers and defendants.
- Copies of harassing emails from father to daughter.
- Text messages between man and ex-wife.
- Facebook posts.
- Victim’s transcriptions of text messages from defendant.
- Text messages retrieved from cell phone by forensic techniques.
- Types of circumstantial evidence that will corroborate identity of sender of electronic communications.
Hearsay and Hearsay Exceptions
- Text messages offered to show mother’s awareness of daughter’s molestation.
- Requirements for forfeiture by wrongdoing doctrine.
- Evidence of flight requires extrinsic evidence of guilt.
- Requirements for adoptive admissions by silence.
- Declarant must be identified before his statement can be admissible as vicarious admission.
- Rule 36(b)(6) testimony is an evidential, not judicial, admission.
- Assessing context and trustworthiness of statements against interest.
- Terminally ill declarant’s affidavit accepting criminal liability was self-serving.
- State-of-mind exception not applicable to statements of memory or belief to prove the fact remembered or believed.
- Historic cell site analysis evidence not admissible as a business record.
- Bolivian government reports not admissible either as business records or public records, or under the residual exception.
- Sexual assault as a startling event for purposes of excited utterance exception.
Attorney-client and work product privilege
- Privileged documents required to be produced as discovery sanction were not admissible at trial.
Subsequent Remedial Measures
- Evidence of subsequent remedial measures to show control over construction site.
Character Evidence
- Evidence of intemperate habits as proof of drunkenness in accident cases.
- Evidence of the medical examiner’s administrative shortcomings and lack of candor with superiors to impeach credibility.
And More!
ABBREVIATED TABLE OF CONTENTS
1. INTRODUCTION TO EVIDENTIARY FOUNDATIONS
2. TRIAL PROCEEDINGS AND MOTIONS
3. WITNESSES
4. OPINION
5. AUTHENTICATION
6. HEARSAY
7. PRIVILEGES
8. OTHER EVIDENCE RULES
APPENDIX A: QUICK REVIEW FOUNDATION CHECKLISTS
QUICK REFERENCE CARD
INDEX
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.
