Exhibit Foundation Basics

Laying the proper foundation is the rock upon which you build your entire case.

"Peru - Cusco 014b - Inca wall" by mckaysavage is licensed under CC BY 2.0

Preparing Each Exhibit

Being able to lay the proper foundation for an exhibit starts well before the hearing. To be able to use something in court, ask yourself:

Does the exhibit support your theory of the case?
Does the exhibit add to, subtract, or muddy your argument?
Is the exhibit duplicative?
Has it been disclosed pursuant to applicable rules?
Are there hearsay concerns that need to be addressed?
What format is the evidence? Will it require something specific to present it, such as a television?
Would it be appropriate to file a motion in limine regarding the admission of the exhibit?

Witnesses

Once you have an exhibit that you want to use, you will then need to identify how to get the exhibit into evidence. In the courtroom, this will be through witness testimony. You will need to select the proper witness you will be calling to have lay the foundation for the exhibit based on your questions. Think about your witnesses and who may have the best personal knowledge of the exhibit. For example, if you are trying to use a photograph, an ideal witness to have lay the foundation for the photograph would be the person who took the photo.

Think about the exhibit itself. How do you want to present it? How must you present it? Will you need special equipment? Are you familiar with the courtroom you will be using? Calling the clerk and asking to spend a little time using the tech setup in the specific courtroom you'll be using is time well spent. You can walk through presenting the exhibit, and notice any presentation differences or issues to address. I remember a trial I had where I wanted to present an audio recording of the opposing party attacking my client. It was great evidence but when I played it in the courtroom, the audio became less dramatic due to an outdated sound system in use. It was really useful to know this ahead of time because I was able to plan better questions asking about the audio and what each important sound was.

If you are going to present a video or audio recording, one way to make your life much easier on the day of court is to have the recording transcribed and then send a copy to the opposing party with a request for them to admit or deny that the transcript is a true and correct transcription of the recording. This takes time and planning ahead but having that written transcript will allow you to use it instead of fumbling with audio or whatnot in court.

Ask yourself if presenting the evidence to a jury as opposed to a bench trial with a Judge changes anything in how you are presenting the exhibit.

Whatever your exhibit is, make sure you have high quality and correct copies, premarked if/how the court wants them, and a separate copy for the Judge in a binder to follow along as allowed by the court.

Practice the Dance

Getting an exhibit admitted into evidence is a process but, luckily, it is a process that you can learn and teach to your witness. Much like a dance, you can lead but you will need your partner to be familiar with the time, steps, and what happens when.

The admission dance for an exhibit can be broken down as follows:

Have the exhibit marked by the clerk (or use your pre-marked exhibit);
Show the exhibit to the opposing counsel or party if pro se;
Ask the court, "Your honor, may I approach?";
Show the exhibit to the witness;
Question the witness in order to lay the foundation for the exhibit (see below);
Offer the exhibit into evidence by saying "Your honor, I move that [exhibit letter or number] be entered into evidence";
Address any objection if requested by the Judge;
(If using a jury) ask if you may show/read the exhibit to the Jury allowing them to examine it;
Use the exhibit (e.g. tell me about the cut on your cheek here on the picture).

Practice this courtroom dance with your witness. Pretend you are in the courtroom. Walkthrough the process step by step, handing them the exhibits the same way you will be doing the day of court.

Captain Obvious and the In-Court Process

For every exhibit you use, you must show (1) the competency of the witness you are using to get the exhibit into evidence, (2) that the witness has the requisite personal knowledge to lay the proper foundation for the exhibit, and (3) the exhibit is relevant to the case.

Foundation questions for any exhibit can be broken down into three basic questions:

Do you know what that is?
What is it?
How do you know that?

Memorize these. If you are ever in a bind, start there.

You should expand these questions as needed. For example, if you are laying the foundation for a photograph, it might look something like this:

Lawyer: Do you know what that is?

Witness: Yes

Lawyer: What is it?

Witness: It is a selfie I took after the fight.

Lawyer: What do you mean by selfie?

Witness: I mean I took a picture of myself with my phone.

Lawyer: How do you know that is a selfie you took after the fight?

Witness: Because I took the picture and I am the one in the picture.

Lawyer: How do you know that is the selfie you took after the fight?

Witness: Because I have a swollen eye and a cut on my check that happened during the fight.

Lawyer: Do you remember the day that you took this picture?

Witness: Yes the day of the fight, September 27th.

Lawyer: What time of day did you take this picture?

Witness: It was after I had arrived back at my house after the fight, so around 11:00 pm.

Lawyer: Where did you take this picture?

Witness: I was in my bathroom.

Lawyer: How do you know that?

Witness: Because I remember taking the picture in the bathroom and I recognize the room behind me in the picture as my bathroom.

Lawyer: And how did we come to have a copy of this picture:

Witness: I printed it off my phone and gave it to you as part of my discovery answers.

Lawyer: Is this picture a true and accurate depiction of how you looked after the fight?

Witness: Yes.

Lawyer: Do you have any reason to believe that this picture has been altered or tampered with in any way?

Witness: No.

Lawyer: To the best of your knowledge, is this a true and accurate copy of the picture you took of yourself after the fight?

Witness: Yes.

Lawyer: Your honor, I move that Petitioner's Exhibit A be admitted into evidence...

Sometimes when you are laying the foundation for an exhibit, you may feel like you are asking Captain Obvious sort of questions. How do you know that picture of you is you? Or How do you know that you signed that check? But Captain Obvious questions are the exact type of questions you should be asking. Take nothing for granted when laying the foundation for an exhibit. If it is not clear that the witness knows the exhibit is what you are presenting it as then it won't be admitted.

Foundation is Essential

If you can learn to lay a rock-solid foundation for your exhibit, your case will be built on the strength of your evidence and difficult to topple. You will feel confident in your arguments and use of your exhibits when there is no doubt that the exhibit is what you say it is. You will get better outcomes and grow respect with the court.