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FreeQuick bite 01.02.01 · Library 01 · Evidence Fundamentals & Hearsay

What foundation actually means

Foundation is a green light

Evid. Code §§ 702, 1400 · FRE 602, 901

Three questions, always in the same order. Ask them and the objection never arrives.

GO “Do you know…?” Establishes that knowledge exists at all. DEFEATS: LACKS PERSONAL KNOWLEDGE “How do you know…?” Names the source. Saw it, heard it, kept the file. DEFEATS: SPECULATION · NO FOUNDATION “What…?” The answer you actually wanted. Now it is admissible. THE TESTIMONY You do not reach the third question until the first two are answered.

Scroll the diagram sideways →

Plate 01.02.01 Foundation is three questions in order. Every foundation you will ever lay, for a witness or a document, is a version of these three. The red line is the objection each one pre-empts.
§ Where the requirement comes from
What must be shownFederalCalifornia
A witness knowsPersonal knowledge.
Federal
FRE 602
Evidence sufficient to support a finding of personal knowledge. May be the witness’s own testimony
California
§ 702
Same requirement; the objection is “lack of personal knowledge”
A thing is what you sayAuthentication.
Federal
FRE 901(a)
Evidence sufficient to support a finding that the item is what the proponent claims
California
§§ 1400, 1401
Authentication is a condition precedent to admitting a writing
The judge decidesOn what standard.
Federal
FRE 104(b)
Enough for a reasonable juror to so find
California
§ 403
Preliminary fact; evidence sufficient to sustain a finding
In the courtroom
The threshold is low FRE 104(b) · § 403You are not proving the fact. You are producing enough that a reasonable juror could find it.
Order mattersFoundation is step two of the working order, after relevance and before hearsay. A document can clear foundation and still be hearsay.
Application

Foundation objections are sustained far more often than they are won, because the lawyer laying it treats the first two questions as throat-clearing. They are not. They are the whole thing: the third question is only admissible because the first two happened.

The same three questions work on a document. Do you recognize Exhibit 12. How do you recognize it. What is it. A witness who can answer those three about a contract has authenticated it, and you have not said the word “authenticate” once.

How it sounds

The witness“Were you at the intersection that morning? Where were you standing? What did you see?”

The document“Do you recognize Exhibit 12? How do you recognize it? What is it?”

When they object mid-sequence“I’m laying the foundation now, Your Honor.” Then finish the sequence instead of arguing.

Three traps
  • Jumping to the third question.The most common sustained objection at trial, and it is self-inflicted.
  • Confusing foundation with admissibility.Foundation gets you past step two. Hearsay is a separate door and the exhibit still has to walk through it.
  • Arguing instead of asking.When the objection comes, the answer is usually two more questions, not a speech.
Where to go deeper
Quick bite 01.05.09Spontaneous statements

Foundation for an excited utterance.

CourseEvidence 101

Step two of the working order.

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