Skip to content

The Concept of “Foundation”

June 21, 2011

“Foundation” is one of the central concepts of the art of evidence.  In order to understand this critical concept, let’s go back to the starting point for all evidence analysis:

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided … by these rules … . Evidence which is not relevant is not admissible.

If evidence is determined to be relevant, then an experienced trial lawyer next analyzes whether there are any other evidentiary issues associated with the evidence.  This is the “what is it?” question I called “the second level of authentication.”  No matter what we call it, it’s the next thing a trial lawyer or judge does, after considering relevance, in analyzing the admissibility of a piece of evidence.  If this next step leads to an argument that the evidence should be excluded, and if that lawyer makes the argument well enough, then the judge might be inclined to keep the evidence out.

But the judge can’t exclude it just yet!  Whenever there is a rule excluding relevant evidence, the rule almost always allows the possibility of the evidence being admitted despite the rule.  We talked about this in “Thinking Through the Structure of Evidence.”  For example, if an out of court statement meets the definition of hearsay under Rule 801(c), then Rule 802 excludes it.  But, three are twenty-nine exceptions to the rule against hearsay, so that if one of them applies the statement can still come in.  This gives rise to a third question: what has to happen in order for a trial lawyer to get the judge to admit the evidence?  The answer is:

The lawyer must lay the foundation!

What is that?  In general, laying the foundation for the admissibility of evidence means to do whatever is necessary to get the trial judge to admit the evidence.  In some situations, laying the foundation for evidence may involve demonstrating that it’s relevant.  Sometimes the evidence must be authenticated as an element of its foundation.  Many times, the task to be accomplished in laying the foundation is to avoid the exclusionary effect of some rule such as the hearsay rule.  We’ve talked a lot about relevance and a little about authentication, and we’ll talk more later about each later.  For now, let’s talk about “foundation” in terms of avoiding the exclusionary effect of some rule. 

Foundation for Hearsay Exceptions

Since we started with hearsay, let’s keep going.  Recently we discussed a hypothetical automobile accident at the corner of Meeting Street and Mary Street, just outside the law school building.  One of you was on the sidewalk enjoying a break from class and heard a crash, and then you heard some bystander exclaim: “the blue car ran the red light!”  The lawyer representing the driver of the green car calls you to the stand at trial and asks “did you hear anyone say anything, and if so what did the person say?” 

The lawyer for the driver of the blue car makes an objection.  We analyze the problem like this:

Is it relevant?  We know the answer is going to be a statement about who ran the red light, so we can easily see the evidence is relevant. 

What is it?  The objection is that it is an out of court statement offered to prove the truth of the matter asserted, and thus excluded by the rule against hearsay.  In analyzing whether it is hearsay, we examine the statement, consider the words, and determine what is asserted in the statement.  We then look to see whether the statement is offered to prove the truth of what is asserted in the statement.  The assertion is that the blue car ran the red light.  Since it is offered in evidence by the driver of the green car to prove that the blue car ran the red light, it is offered to prove the truth of the matter asserted, and Rule 802 excludes it. 

Can we get it in anyway?  The lawyer for the driver of the green car argues the “excited utterance” exception found in Rule 803(2) applies.  In order to get the statement admitted into evidence using the excited utterance exception, the lawyer must lay the foundation for that exception, which is:

Foundation for 803(2)—Excited Utterance

  • Statement relates to a startling event or condition
  • Declarant was still under the stress of excitement caused by the startling event or condition

In some other scenario, a party might offer the testimony of a doctor or nurse that a patient made a statement.  Even though that statement is offered to prove the truth of what the patient said, it may be admissible under the “statements for purposes of medical diagnosis or treatment” exception found in Rule 803(4).  Like all exceptions, with some variability from court to court as to its elements, the exception has a foundation which must be established in order to get the statement admitted into evidence:

Foundation for 803(4)—Statements  for purposes of medical diagnosis or treatment

  • Statement made for the purpose of
  • Medical diagnosis or treatment
  • Declarant had personal knowledge of what is asserted in the statement
  • Statement is describing medical history; or past or present symptoms, pain, sensations; or Inception or general character of the cause or external source thereof
  • Insofar as reasonably pertinent to diagnosis or treatment

Foundation for Expert Opinion

In the next class we begin covering experts.  As we stated earlier in the “why” blog, the foundation for the admissibility of an expert’s opinion is:

  • The expert must be qualified
  • The opinion must assist the trier of fact
  • The science the expert used in reaching the opinion must be reliable. 

In order to admit an expert opinion into evidence, the proponent of the opinion must establish these three elements of the foundation.  We’ll cover that foundation in much more detail shortly. 

The point here is to understand the role of foundation in the admissibility of evidence.  For the next few weeks, we are going to be discussing how to understand and prove the foundation for numerous pieces of evidence.

Advertisements
No comments yet

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: