February 21, 2019 Articles

Tips for Using the Foundational Voir Dire

Learn to use an overlooked tool to keep bad documents out in criminal cases

By John McNichols and Joshua Tully

Every litigator has had the unpleasant experience at trial of watching his or her opponent move into evidence a document that the litigator wishes did not exist. Part of the reason this experience is common—besides the unfortunate fact that unhelpful documents exist in nearly every case—is that the standards for admission of evidence are, intentionally, quite low. Assuming that a document is relevant and not hearsay (or subject to a hearsay exception), the only major obstacle to getting it into evidence is authentication. This is colloquially referred to as “laying a foundation,” and, under Federal Rule of Evidence 901, it consists of nothing more than showing that the document “is what the proponent claims it is.”

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