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THE ADVOCATE
LAYING EVIDENTIARY FOUNDATIONS
When Necessary – “Whenever Evidence law makes proof of a
fact or event a condition to the admission of an item of evidence,
that fact or event is part of the foundation for the evidence’s
admission.” Criminal Evidentiary Foundations, Imwinkelried &
Blinka, Lexis, 1997, p. 2.
Pretrial Hearings and Motions in Limine – Some questions
involving the admissibility of evidence require a judicial finding of
fact before the evidence is admissible. KRE 104(a). These types
of foundations involve preliminary questions of law. Some of
these questions must be argued outside the presence or hearing of
the jury. KRE 104(c), RCr 9.78. The court is not bound by the
rules of evidence, except that it may not hear privileged information.
Laying a Foundation in Front of a Jury – In other instances,
what is necessary for an item of evidence to be relevant is the
establishment of another fact. KRE 104(b). This is often called
“conditional relevancy.” In those cases, the jury hears both the
foundation fact and the primary fact and can use one to weigh the
credibility of the other. Typical examples of these kinds of
foundations include authenticating documents or objects, etc., under
KRE Article IX, establishing that a lay witness has personal
knowledge of what she is about to testify to, and reviewing an
expert’s credentials relevant to his expert testimony. Foundational
facts must be proven with “evidence sufficient to support a finding
of the fulfillment of the condition,” KRE 104(b). The standard is
preponderance of the evidence. See, e.g., Bourjaily v. U.S., 483
U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). What follows
are some guides to laying foundations in those cases.
EXHIBITS, GENERAL PROCESS:
1. Mark the exhibit.
2. Show it to the prosecutor.
3. Ask the court to approach the witness.
4. Show the witness the exhibit.
5. Lay the proper foundation for the exhibit (including
authentication if necessary).
6. Move that the exhibit be admitted into evidence.
7. If applicable, request permission to publish the exhibit to
the jury and publish it to the jury.
AUTHENTICATION, KRE 901:
Business records
The witness can identify the documents.
They were prepared in the course of regularly conducted business
activity.
The documents were stored and witness has personal knowledge
of the business’ filing system.
She properly removed a record from this filing system.
She recognizes the exhibit as the record she removed from this
system.
How does she recognize it as that record?
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Volume 30, No.1 January 2008
Computer records
The witness has personal knowledge of the business’ filing system.
The business uses a computer.
The computer is reliable.
The business has a procedure for inputing records into this
computer.
This procedure has specific safeguards to ensure reliability and
accuracy.
The computer is properly maintained.
She used the computer to obtain certain records.
She followed proper procedures to obtain these records.
The computer was functioning properly at the time she obtained
these records.
She recognizes the exhibit as these records.
How does she recognize it as the records?
If the records contain any unusual symbols, have the witness
explain them.
Copies
Witness is familiar with the original.
The original was copied.
The original was lost or destroyed.
A thorough search has failed to locate the original.
She believes that the exhibit is a “true and accurate” copy of the
original.
Documents, witness observed formation
When did she observe the formation?
Who was there?
How was the document formed?
Does she recognize the exhibit as this same document?
How does she recognize it?
Documents, witness familiar with author’s handwriting
Does she recognize the handwriting on the writing?
How is she familiar with the author’s handwriting style?
What is her familiarity based upon?
Letters, sent by witness
Witness authored/prepared a letter to another person.
She signed the original letter.
She knows the letter was properly mailed.
She recognizes the exhibit as that letter.
How does she recognize it?
Letters, received by witness in reply to earlier letter
Witness authored/prepared the first letter.
She addressed it to the author of this letter and properly mailed it.
She received a letter in reply.
The letter arrived through the mail system.
The reply letter was either responsive to her first letter or
references her first letter in its own text.
The reply letter had the name of whomever wrote it.
She recognizes the exhibit as the reply letter.
How does she recognize the exhibit as the reply letter?