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Foundation and Testimony

During the trial process it is important that we have a solid understanding as to how evidence is to be presented for the fact finder, whether that be a judge or jury. Generally speaking, in order for an item of evidence to be admissible there must be some kind of assurance that this item is what you purport it to be. In other words, there should be a showing as to the authenticity of the proposed evidence be for it is deemed admissible. Generally speaking, we call this the foundation for the evidence. This goes for both physical evidence as well as witness testimony. For instance, if we want to introduce an item of evidence, say a medical chart for example, into evidence then we first need to provide some type of proof as to the medical chart's authenticity before we the chart can be admitted.

The normal rule is that we should lay a foundation for an item of evidence, to demonstrate its authenticity, before offering that item into evidence. However, this is not a hard and fast rule. The trial judge typically has discretion as to whether foundation should be provided to the court before the item is admitted into evidence or alternatively whether the foundation can be submitted at a later time in trial after the evidence has already been submitted. Judges are sometimes reluctant to allow subsequent foundational proof of authenticity as the judge, by doing this, takes the risk that the offering attorney will not be able to make good on his or her word in doing so later in trial. If counsel fails to subsequently provide foundation, after the judge has allowed the introduction of such evidence, then the judge must instruct the jurors to disregard the evidence previously presented. This of course is a fallacy as jurors can't remove an item of evidence from their knowledge after perceiving the evidence. The other option is that the judge grant a mistrial, something that a judge would rather avoid.

Just as an item of physical evidence requires a foundation before being admitted the same rule applies for oral testimony. Thus if a witness is going to testify, as to certain facts, it is best to lay a foundation for this witness's knowledge of the facts before inquiring as to the nature of the facts themselves. For instance, you may want to ask the witness how they are aware of the facts they are about to testify to. Where was the witness? When did this occur? These types of questions lay a foundation for the witness's personal knowledge of the subject matter. If you are about to present an expert witness then you could conduct similar questioning of the witness so as to demonstrate that your expert is in fact qualified to speak on the subject. You would thus ask questions about the expert's education, past work experience, and other qualifications, in order to demonstrate to the court that the expert in fact has the expertise to opine on the subject matter.

Generally speaking, when conducting direct examination of a witness, you as trial counsel are required to use non-leading questions. This is an evidentiary rule but it is also a rule to follow so as to provide the best direct examination possible. Use open ended questions on direct so that the jurors see that your witness is answering freely without any influence from you, his or her attorney. However, this rule which prohibits leading questions on direct has some exceptions. One of the most commonly applied exceptions is that leading questions are generally allowed for the purpose of presenting preliminary matters. This means that you can use leading questions to establish foundation. This is not a bad idea as using leading questions on direct for foundational purposes moves the trial along rapidly and gets you to your more important line of questioning. Moreover, leading questions on foundational matters don't typically arouse skepticism in the jurors. Another important exception to the rule is that counsel may use leading questions to refresh a witness's memory. Of course the trial judge had discretion as to the amount of leading to allow of you here so don't lead any more than necessary for purposes of getting your witness back on track.

Judges and jurisdictions vary with regard to how strictly you need to follow the evidentiary rules when laying a foundation. That being said, unless you are thoroughly familiar with your opposing counsel and your court, you should error on the side of strict conformance with the rules. The reason for this is that you want to present an uninterrupted direct examination. Occasionally you will run across obstinate opposing counsel who will make a point of objecting to your laying of foundation if he or she doesn't feel that you technically live up to the evidentiary rules. Even if the trial judge overrules the objection you have now created in interruption in your direct examination. The jurors now have to orient their attention again so as to follow your examination. Thus, if you know that opposing counsel will not interrupt your presentation you can be a little lax when laying foundation, but if you don't know this for sure then error on the side of strict adherence to evidentiary requirements.

Ordinarily you may want to lay your foundation on direct examination so as to avoid any challenges from your witness. That being said, you should be aware that you can lay the foundation on cross examination so that you can then introduce evidence on cross. That being said, some judges incorrectly believe that you're introducing evidence on cross is forbidden. This is not correct. Physical evidence may be introduced on direct examination or on cross examination at the trial judge's discretion. Where it can get tricky is when you call your hostile witness on cross examination before a direct examination has been conducted. Although cross-examination is restricted to the matter of direct examination, most trial judges in my experience allow you to get away with this technique.

When conducting cross examination it is generally taught that you should always use leading questions. I personally adhere to this rule. That being said, I know that many of the best plaintiff's trial lawyers in the country to not adhere to this rule. The benefit of the leading question is that it allows for supreme control of the witness on cross. The drawback is that when the jurors see you using leading questions they can observe your tool for control. The best cross examinations are a result of leading without the appearance of leading. To this end always be friendly on cross examination. Never be argumentative with your witness on cross, unless the witness has earned the disdain of the jurors, in which case you can do so. Be as friendly as possible to a hostile witness as you will get more from your witness this way while at the same time presenting your examination so as to appear that you are not controlling your witness, when in fact you are doing just that.

Lastly, when conducting your cross examination avoid blatantly pointing out inference, to be made from the witness's testimony, to your jurors. You can point out these inferences in closing but you shouldn't so prior to that. Always allow the jurors to reach conclusions on their own. When jurors make inferences on their own, without your telling them to do so, they then become much more solidified in their opinions. That being said, when you conduct cross examination do so in a way that you make the inference very clear to the trier of fact without coming out and saying it directly. A good way to do this is to begin each of your cross examination chapters with a strong headnote which tells the jurors or judge where you are going with your line of questioning. You then walk the witness down a line of questioning which requires the witness to testify to everything you are seeking from them, just short of an inference of conclusion. As much as you want to ask that last question of the witness, where the witness has no choice but to admit the inference to you, avoid doing so.

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