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 31 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 29 sections that have been updated with 80 case notes of recent significant federal and state decisions. Some of the topics covered include—
Witness Competency and Credibility
- Character trait of untruthfulness.
- Prior convictions.
- Prior inconsistent statements.
Lay opinion of law enforcement personnel on:
- Nature of marks on a child’s body.
- Fitness to operate a motor vehicle.
- Meaning of slang terms.
- Expert opinion on false confessions.
- Cell phone calls.
- Photos, posts, comments, and messages from Facebook accounts.
- Text messages.
- Printouts of social networking sites.
- Twitter posts.
Hearsay and Hearsay Exceptions
- Implicit assertions in out of court statements.
- Out of court statements not offered to prove the truth of the matter asserted.
Testimonial vs. non-testimonial statements made:
- In ongoing emergencies and 911 calls.
- Before a beth din (rabbinical court).
- By a crime victim to EMT and doctor in emergency room.
- Forfeiture by wrongdoing
- Adoptive admissions by silence.
- Co-conspirator’s statements in furtherance of the conspiracy.
- Declarations to show declarant’s state of mind.
- Admission of National Precursor Log Exchange records as business records.
- Testimony about the absence of a public record.
- Timeliness requirement for a record of a regularly conducted activity.
- Past recollection recorded and present recollection refreshed.
- Excited utterances.
- When a defendant opens the door for prosecution to introduce character evidence.
- When a defendant can introduce evidence of victim’s aggressive character.
- Questioning witness about credibility of witness’s prior testimony as improper character evidence.
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.