Evidentiary Foundations

EVIDENTIARY FOUNDATIONS

Larry A. Landis – Adjunct Professor – Trial Practice – Indiana University Robert H. McKinney School of Law

I. TWO TYPES OF EVIDENCE

A. TESTIMONIAL

B. TANGIBLE

1. Real

2. Documentary

3. Demonstrative

4. Illustrative

II. FOUR GROUPS OF EVIDENCE RULES

A. RELEVANCY (IRE 401-404)

B. AUTHENTICATION (IRE 901-902)

C. HEARSAY (IRE 801-805)

D. BEST EVIDENCE RULE (IRE 1001-1004)

III. REAL (A thing involved in incident or transaction in the case).

A. RELEVANCY FOUNDATION

1. Probative and material

2. Not misleading, prejudicial, or confusing

B. AUTHENTICATION / IDENTIFICATION

1. Key issue is whether it is the thing it is purported to be.

2. Two primary methods of authenticating real evidence:

a. Readily identifiable

(1) exhibit has unique characteristics

(2) witness observed unique characteristics

(3) witness can identify object due to unique characteristics

(4) exhibit is in same or similar condition as when originally observed

b. Chain of custody

(1) If exhibit is not readily identifiable or is fungible, there must be evidence of a chain of custody to alleviate concern about tampering or mistake.

(2) Example: J.J. O’Neill’s handgun: If uniquely marked by Frank Novak, it would be “readily identifiable.” If not or nothing unique about gun, a chain of custody foundation would be required to show it was O’Neill’s gun.

IV. DEMONSTRATIVE

A. RELEVANCY FOUNDATION

1. Witness is familiar with what is depicted in exhibit.

2. What is depicted is something that witness can testify to.

3. It is relevant to issue(s) in case.

4. Exhibit is a fair, accurate, true, or good depiction or representation of what it depicts.

B. TEST FOR ADMISSIBILITY

1. Will it help jury understand testimony of witness?

2. Is it prejudicial, confusing, or a waste of time? (FRE 403, IRE 403)

3. If 1 outweighs 2, it’s admissible. If 2 outweighs 1, it’s not admissible.

4. Even if prejudicial impact outweighs probative value, exhibit may still be admissible for a limited purpose.

Example: A photograph of a bloody knife at murder scene that was moved before photograph may be offered for limited purpose of showing blood pattern on knife.

V. ILLUSTRATIVE

A. RELEVANCY FOUNDATION

1. The extent of the foundation for the admission into evidence of models, charts and diagrams depends on the function they are being offered to serve, i.e., assist the witness in giving testimony.

2. Some courts take a relaxed approach to visual or illustrative aid exhibits and require no foundation to be laid to permit their use in helping the witness testify. Other courts may, however, insist on a testimonial foundation and formal introduction of the exhibit into evidence.

B. TEST FOR ADMISSIBILITY

1. Will it help the witness in giving testimony?

C. PRACTICE TIPS

1.Offering the exhibit into evidence is recommended to have a complete record and it is necessary to allow the exhibit to be taken into the jury room.

VI. DOCUMENTARY

A. AUTHENTICATION

1. Self-authentication (IRE 902)

2. Sponsoring witness (IRE 901)

B. BEST EVIDENCE RULE (IRE 1001-1004)

C. HEARSAY (IRE 801-805)

1. Refreshing Recollection Distinguished (IRE 612)

a. Not admitted into evidence, unless by adverse party.

b. If while testifying, a witness uses a writing or object to refresh memory, adverse party is entitled to have writing or object produced at trial, hearing, or deposition in which witness is testifying.

c. If used to refresh prior to testimony, discretionary.

2. Past-Recollection Recorded Exception (IRE 803(5))

a. Witness once had first-hand knowledge.

b. Now, insufficient recollection to enable witness to testify fully and accurately.

c. Writing made by or adopted by witness.

d. When matter was fresh in witness’s memory.

e. Writing accurately states information (witness can vouch for accuracy).

f. Admission into evidence – If admitted, document should be read into evidence and not be admitted as an exhibit unless offered by opponent.

3. Business Record Exception (IRE 803(6))

a. Original entry by person with business relationship with company or organization

b. Kept in regular course of business

c. Because of a business duty

d. Recording facts (opinions) by someone with first-hand knowledge

e. Entry made at or near time of event

4. Public Records Exception (IRE 803(8)).

a. Records, reports, statements, or data compilations in any form.

(1) of a public office or agency,

(2) setting forth its regularly conducted and

(3) regularly recorded activities, or matters observed

(4) pursuant to duty imposed by law and

(5) as to which there was a duty to report

b. Factual findings resulting from an investigation made pursuant to authority granted by law.

(1)    Not within this exception:

(a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case;

(b) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party;

(c) factual findings offered by the government in criminal cases; and

(d) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case

VII.      MISCELLANEOUS

A. Establish relevancy by having witness describe object, scene, etc., before exhibit is produced. Extract testimony first.

B. Don’t let exhibit get in the way of having the witness tell the story.

C. Ask judge to give limiting instruction where appropriate. (FRE 105, IRE 105)

D. Choose sponsoring witness for impact and persuasiveness.

E. Leading questions may be used for laying foundations.

F. Use exhibits in opening statement

1. Get agreement/stipulation from opposing counsel.

2. Get permission from judge to use as visual aid only.

3. Offer to lay foundation pretrial by calling sponsoring witness.

G. Challenging foundation

1. Ask witness questions in CX style (i.e., leading) to lay a foundation for an objection.

“Your Honor, may I ask the witness a few preliminary questions to a lay foundation for an objection?”

VIII. GETTING EXHIBIT ADMITTED

A. TEN STEPS

1. Call sponsoring witness and elicit testimony on direct examination to lay relevancy foundation.

2. Ask court reporter to mark exhibit (if not pre-marked).

3. Offer exhibit to opposing counsel for inspection.

4. Ask permission to approach witness.

5. Hand exhibit to witness and identify by Exhibit No.

6. Lay foundation for admissibility.

7. Offer into evidence.

8. Pass/display to jury.

9. Retrieve exhibit and give it to court reporter.

10. Return to starting position.

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