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.”
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
Typically, this is not difficult. The Federal Rules of Evidence provide various means of authentication, including an automatic route (i.e., self-authentication) in certain instances. Federal Rule of Evidence 901(b) provides several examples of evidence that satisfies the authentication requirement, the first of which is testimony from a witness with knowledge “that an item is what it is claimed to be.” Certain categories of documents, such as public records, newspapers, and official publications, are “self-authenticating” and do not require extrinsic evidence of authenticity in order to be admitted. Fed. R. Evid. 902.
In civil cases, litigants can authenticate helpful documents from their own files, and if a helpful document is from the adversary’s files, ordinary discovery techniques allow the party to compel the adversary to provide the necessary foundational information. In criminal cases, however, the situation is different. Discovery is far more limited—ordinarily, there are no depositions or requests for admission—and the government cannot make the accused testify or produce evidence at all. See U.S. Const. amend. V; Fed. R. Crim. P. 15–16.
Often in criminal cases, therefore, the government has no choice but to call a witness who knows what a particular document is. If the document is a corporate record, the government may call a custodian of records to authenticate it even if (as is usually the case) the custodian has no knowledge of the document beyond the fact that it was maintained in company files and in the ordinary course of business. But not every document is a corporate record; thus, in some cases, the government may have no option besides calling a witness who is personally familiar with the document.
It will come as no surprise that witnesses in criminal cases are often reluctant to testify, and those who are called to authenticate important documents often testify equivocally if their connection to a document is tenuous and their personal involvement in the underlying events may subject them to scrutiny. As a result, exchanges on matters of authentication often go something like the following:
Government: Mr. Smith, please turn to Government Exhibit 4. Do you recognize Government Exhibit 4?
Witness: It looks familiar. I’ve probably seen something like this before, but whether I’ve seen this particular document, I can’t be sure.
Government: Your Honor, we move Government Exhibit 4 into evidence.
Obviously, if the document is harmful to the accused, defense counsel should object to the admission of the document on grounds of lack of authentication. But counsel’s effort to prevent the document from coming into evidence need not, and should not, stop there. The witness’s answer leaves much to be desired, and the court would benefit from additional information when ruling on the objection. The vehicle to obtain the necessary information to sustain the defense’s objection is the foundational voir dire.
Although voir dire most commonly refers to the pretrial examination of potential jurors to determination their impartiality, it can, in fact, refer to any preliminary examination of a witness, by the court or counsel, to obtain an initial determination on a threshold issue of fact or law. See Charles B. Gibbons, Federal Trial Objections § V20 (6th ed. 2017) (Voir dire can be used to establish the basis for an objection to “[a]uthentication or identification.”). Perhaps the most widely known example from popular culture is the hilarious exchange in My Cousin Vinny in which the prosecutor interrupts Vinny’s direct examination of his fiancé for a limited voir dire concerning the basis for her claim to expertise in automobile mechanics:
Government: Miss Vito, what’s your current profession?
Witness: I’m an out-of-work hairdresser. . . .
Government: Now, in what way does that qualify you as an expert in automobiles?
Witness: It doesn’t.
My Cousin Vinny (20th Century Fox 1992).
Although the necessary foundation for a witness to authenticate a document is different from that to qualify as an expert—personal knowledge is all that is required, rather than expertise in a particular field—a mid-examination voir dire is no less available as a mechanism to assess and challenge that foundation. The typical foundational voir dire goes as follows:
Government: The government offers [Exhibit] 675.
Defense: Objection.
The Court: Basis?
Defense: May I have a brief voir dire, your Honor?
The Court: Yes.
Defense: [Mr. Witness], Exhibit 675, are you telling us that you know that you’ve seen this exact version of the [PowerPoint] presentation?
Witness: No.
Defense: You have no idea whether you have actually seen the [PowerPoint] presentation that is in front of you as Exhibit 675. Is that right?
Witness: Correct. I’ve seen something similar maybe.
Transcript of Trial at 1265–66, United States v. Robert Coplan, No. 07-CR-453 (S.D.N.Y. Mar. 16, 2009).
The court may, of course, allow the government an opportunity to further develop the foundation for the document before ruling on the objection. See id. at 1266. But even so, the defense has at this point cast significant doubt on the witness’s familiarity with the document, particularly if the document is of a type that typically goes through multiple iterations before being put in final form. If fewer than all versions contain the element that the government is focused on—say, a misrepresentation on a single bullet 12 slides deep in a PowerPoint—the fact that the witness does not know which version is at issue should be sufficient to keep the document from coming into evidence. Even if it is not, the voir dire examination may bolster the record for an appeal. Cf. United States v. Corey, 207 F.3d 84, 99–101 (1st Cir. 2000) (Torruella, C.J., dissenting) (relying on testimony developed during voir dire to support the position that expert testimony should not have been admitted).
Equally important, the voir dire examination has primed the jury to be skeptical of the witness’s familiarity with—and, hence, testimony about—the document, before his or her substantive testimony about it begins. Depending on the circumstances of the case, that approach may be preferable to waiting until cross-examination to establish that the witness may not, in fact, have the base of knowledge that the government has suggested. Even if cross-examination provides a basis to renew the defense’s objection (and perhaps obtain a limiting instruction), the jury will already have heard the evidence. Voir dire, by comparison, presents an early opportunity for the defense to strengthen an objection to the admissibility of a document before any damage has been done.
To be sure, voir dire will not always be an appropriate or effective tool. Chain of custody is an exceptionally low bar to clear; thus, if the basis for the witness’s knowledge is that the document was taken from a laptop or cell phone seized through a valid warrant—or, as noted above, kept in corporate records in the ordinary course of business—the fact that the witness did not create the document or receive it as part of his or her job duties will not defeat authentication. And, of course, the rule works both ways: The government may seek a voir dire examination to challenge the foundation of a document that the defense moves to introduce. See, e.g., Transcript of Trial at 1359, United States v. Robert Coplan, No. 07-CR-453 (S.D.N.Y. Mar. 16, 2009). Nevertheless, given where the burden of proof lies in criminal cases, lack of foundation is more often the friend of the defense, and the foundational voir dire can be a powerful tool to show exactly that.
John McNichols is a partner and Joshua Tully is an associate at Williams & Connolly LLP in Washington, D.C.
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