Evidence Submission: Laying The Foundation

laying the foundation

In all trials, there are generally two types of evidence presented to the court: testimonial and exhibits.

Testimonials are what a witness says in court, while exhibits refer to physical objects that are brought into the court to prove some point. These include writing, photographs, text messages, weapons or anything else which is tangible.

However, before an exhibit can be offered into evidence, you must prove to the court that it is authentic, which is known as laying the foundation. This simply means that you must demonstrate to the court that you have the knowledge sufficient to prove that the exhibit is authentic.

Laying the foundation is often one of the most overlooked and intimidating aspects of trial. If you do not properly lay the foundation, the court will not allow you to enter your exhibit into evidence, which can have grave implications for your case.

The first step to laying the foundation is figuring out who can prove that the exhibit is authentic, meaning you must have testimony of a witness with knowledge of the matter and that testimony must be sufficient to prove actual knowledge.

The witness’s testimony can cover the authenticity of a document the witness actually saw being executed, the identification of an object and the identification of photographs. This includes pictures taken by someone else so long as the witness can testify to the accuracy of what is being depicted in the photo.

Once you understand how to properly lay the foundation, the introduction of exhibits is a fairly mechanical exercise:

  1. Show the proposed exhibit to the opposition. Generally, the opposition will have already seen the exhibit, but it is good practice to double check.
  2. Ask the court’s permission to approach the witness. At this time, the court will either allow you to hand the object to the witness or have the bailiff facilitate the transfer. It is good practice to offer a copy of the exhibit (if possible) to the judge. An important practice note is that many courts require anyone presenting evidence to have multiple copies — one for opposing counsel, one for the witness, one for the judge and one to keep for yourself.
  3. You want to show the exhibit to the witness. This generally done by stating, “I have handed you what has been marked as exhibit __”
  4. Now you want to lay the foundation to prove that the exhibit is authentic. There are several questions you can ask a witness about an object, but a basic framework for the introduction of a photo follows:
    1. Witness, can you please look at what has been marked as Exhibit 1?
    2. Do you recognize what this is?
    3. Can you tell the court what this is?
    4. Did you take this picture? If not, do you know who took this picture?
    5. Do you recognize what is depicted in this picture?
    6. Is this picture an accurate representation of the object or location?
    7. When was the last time that you personally saw the object or location depicted in this picture?
    8. Is there anything about this depiction which is not accurate?
  5. Once you have laid the foundation, you ask the court to admit the exhibit into evidence. At this time, the opposition may object claiming that you have failed to lay the proper foundation.

Cordell & Cordell understands the concerns men face during divorce.

While this may sound simple, sometimes your witness will not cooperate or there is just no way that you can properly lay the foundation necessary to authenticate your exhibit.

In these rare cases, it is important to remember that exhibits are generally used for one of two things: Either you are using your exhibit to prove something, or you are using it in an attempt to disprove something.

When you are trying to use an exhibit to contradict the opposition’s testimony, it is called impeachment. Impeachment evidence is “[a]ny evidence which would tend to convince the jury [or judge] that the witness’s perception, memory, or narration is defective or that his or her veracity is questionable is relevant for the purposes of impeachment” Charles E. Friend, The Law of Evidence in Virginia 128 (6th ed. 2003).

The rules of evidence are much more lax for impeachment evidence, so an exhibit that you are unable to introduce because of an inability to authenticate may be able to be used for impeachment purposes.

An example of impeachment evidence would be pictures of the opposing party smoking after they testify they no longer smoke.

If you are unable to use your exhibit for impeachment purposes, there may be one final way to make sure that the judge still sees the object. I already referenced bringing multiple copies of your exhibit to the court — one for the opposing counsel, one for the witness, one for the judge and one for yourself.

If you make sure the judge has the exhibit while you are trying to lay foundation, it is likely that he or she will look at the document. Although you may not be able to get the exhibit into evidence, the judge has seen the exhibit and it may still have an impact on your case.

Exhibits are very important to the litigation process. It is imperative to not only have your exhibits ready, but to also understand how to get those exhibits into evidence or at the very least into the judge’s hands.

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