The concept of Foundations is much simpler than the daily experiences of our courtrooms would suggest. For a witness, this means being qualified to testify (MRE/FRE 601, 602, 701, 702). Show that a lay witness has first hand knowledge. Show that an expert has special knowledge or training that will actually help.
The foundation for a document requires:
1. Authentication (MRE/FRE 901, 902)–The thing is what it purports to be.
2. Relevance (MRE/FRE 401, 402, 403)–The probative value of the evidence goes to an issue in the case and outweighs whatever prejudicial effect it might have.
3. “Best evidence rule” (MRE/FRE 1001-1007)–When proving the contents, produce the original or account for its whereabouts.
4. Hearsay rule (MRE/FRE 801-804)–When offering evidence of an out of court statement, show either: that you are not offering it for its truth; or that it is relevant for some other purpose; or the foundation for an exception.
Some rules require prior notice or action by one party to the other (613—confrontation with prior inconsistent statement; 404(b)—notice by prosecutor) or a triggering by the other party (801—prior consistent statements).
The “magic words” for foundations are:
1. Authentication
–“Can you identify Exhibit __?” “What is it?”
2. Photographs
–“fair and accurate depiction of”
3. Tangible items
–if distinctive: “do you have a way of knowing that this ___ is the one?”
–if fungible: [trace the chain of custody]
4. Tape-recorded conversations/transcripts
–“listened to the recording?” “fair and accurate recording of”
5. Books & records
–“a record required to be made and recorded in the usual and ordinary course of business?” “made by someone with knowledge at about the time of the events described?”