For very young trial lawyers, the anxiety and fear of not being able to introduce a key exhibit cannot be overstated. I must confess that worries about establishing the “foundation” for the admissibility of evidence have never left my mind through more than 30 years of preparing for trials.
The Federal Rules of Evidence
There are many gifts to help you navigate the turbulent trial waters. Where can you find those precious gifts to keep your pulse and blood pressure at reasonable levels? The Federal Rules of Evidence. The biggest gift is Rule 1101(d), which states that the Federal Rules of Evidence, “except for those on privileges[,] do not apply to . . . the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility.” Under Rule 1101(d), there are numerous circumstances when a trial attorney can safely say to the court that it does not need to pay particular care about the Rules of Evidence. Subsection (d) can be liberating for prosecutors in particular because it allows hearsay and otherwise inadmissible evidence to be considered in grand jury, bond, preliminary, sentencing, and probation revocation hearings and in affidavits in support of arrest and search warrants.
The referenced Rule 104(a) states in part: “The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privileges.” For trial attorneys, subsection (a) is the evidentiary life raft of all life rafts. In my experience, challenges to foundation have been much easier to overcome because of subsection (a). With Rules 104(a) and 1101(d) establishing the basic ground rules, we confront the specific seminal rules for establishing the foundations for evidence: Rules 901 (authentication) and 902 (self-authentication).
Rule 901(a) states in part: “To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Rule 901(b)(1), Testimony of a Witness with Knowledge, is one example of many from an incomplete list of what constitutes sufficient authentication evidence: “Testimony that an item is what it is claimed to be.” The text of subsection (a) and the simple example of subsection (b)(1) are missing a key ingredient: What is the burden of proof necessary for a court to make a “finding” about the item that the proponent seeks to introduce? The federal cases that discuss a precise, detailed, and clear burden of proof under Rule 901(a) are meager at best. Whether the Rule 901(a) test is preponderance, reasonable probability, or prima facie, a litigator should be prepared to meet a high standard. In my many years of litigation, I have never heard a jurist describe what the precise burden was under this rule. The courts just rule. One thing is, indeed, clear: No court has ever required a reasonable doubt or clear and convincing burden under subsection (a).
As a former assistant U.S. attorney, I tried or supervised hundreds of drug prosecutions. In nearly every case, there is a narcotic that has been seized. The narcotic seized by a person may be given to another person, who immediately seals the substance in a plastic package. The package is later delivered to a chemist for testing. The seized drug will likely have a frustratingly long “chain of custody,” under which multiple persons will have possessed or tested the drug before trial. You would be amazed at how many persons may have come into contact with the drug. The purpose of proving a chain of custody is to avoid allegations of tampering and alteration by those who have come in contact with the evidence. The goal is to show to the jurist that the drug seized is in substantially the same condition in the courtroom as when it was confiscated.
Another extraordinary foundation life raft is Rule 902. I cannot stress enough that a trial attorney should strive at all times to use self-authentication to satisfy foundation. First, the proponent removes the stress of preparing and calling a witness. Second, the court and the jury will appreciate the efforts to move the case along. Third, there will be no issue on appeal.
A pretrial stipulation is a good avenue to allay fears that a court will fail to admit evidence. In most cases, attorneys are able to work out stipulations because Rule 901(a) issues are rarely successful grounds for appeal. The stipulations help streamline a prosecutor’s case, and the defense can claim before the jury that they are being reasonable and focusing on the true issues. A stipulation should be in writing, marked as an exhibit, and read or summarized to a jury, but only after the court has allowed the stipulation into evidence.
One of the more common types of documents offered in a trial is business records, which are, of course, allowed as a classic hearsay exception, pursuant to Rule 803(6), Records of a Regularly Conducted Activity. To illustrate, the business records exception invokes subsections of each of the four key evidence rules on foundation: Rules 104(a), 901(a), 902(11), and 1101(d). The business record exception requires that the record must have been made at or near the time by—or from information transmitted by—someone with knowledge. The foundation for this exception can be proven by a custodian of records or another qualified witness. It screams out for blatant hearsay within hearsay.
First, what happens when your bank’s business record was prepared 40 years before by employees who have all passed away? Second, what if your custodian was just hired by the bank within the last year before the custodian’s testimony in your trial? The amount of hearsay involved to prove that the record was kept in the ordinary “course of a regularly conducted activity” is enormous. However, Rules 104(a) and 1101(d) are there to help you. When you have your rookie custodian on the stand, you should be allowed some leeway on leading questions. The custodian will understandably have relied on multiple layers of training by others, who also relied on hearsay in what they conveyed to the rookie about the 40-year-old documents, how they were kept, and who kept them. Thus, for purposes of Rule 901(a), you should have little difficulty in proving the foundational facts for admissibility of the business records, regardless of whether the court employs a preponderance, reasonable probability, or prima facie test.
When you are losing hours of sleep to anxiety over the rough seas of evidentiary challenges ahead, calm those trial nerves a bit. You do not need to swim without assistance. Remember that you have those four life rafts of Rules 104, 901, 902, and 1101 to support you.
ABA Litigation Section
This article is an abridged and edited version of one that originally appeared on page 52 of Litigation, Summer 2023 (49:4).
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