By Hon. Lilys D. McCoy
One of the most critical trial advocacy skills is the ability to lay proper foundation for the admission of evidence. While important, it is often, and surprisingly, overlooked until the moment it is most needed. Standing in the courtroom and hearing the judge sustain a “lacks foundation” objection is stressful if you don’t know how to overcome it. In fact, a sustained foundation objection can cause even the most seasoned advocates to freeze as they try to picture in their mind’s eye a hazy, few pages of questions in a long-forgotten law school textbook. Adding to this frustration is the knowledge that there are many nuances to laying proper foundation depending on the particular evidence being proffered. Indeed, lengthy books have been written about myriad types of evidence and the different questions required to lay proper foundation for each of them.
But there is one set of questions that forms the basis for every type of foundational inquiry. The solution to most foundational problems starts with a witness who can vouch for the basic legitimacy of the evidence. This set of four simple questions will help you get unstuck if you are having trouble laying foundation for a piece of evidence. These questions—which have been at the core of the evidence seminars taught at the San Diego Inn of Court by San Diego Superior Court Judges Robert Trentacosta and Frank Devaney—are straightforward:
- Do you recognize what has been marked for identification as Exhibit A?
- What is it?
- How do you recognize it?
- Is it true and accurate?
If you memorize these four questions—make them part of your trial advocacy DNA—you will be able to meet 80% of foundation objections. For more advanced foundational issues, these prompts can serve as scaffolding to brace yourself as you construct the more intricate questioning needed for specialized pieces of evidence. Adding a few specific questions to these four key questions can provide what you need to lay foundation for business records, body-worn camera footage, and more.
Just keep the four questions in the front of your mind as you work through identifying and admitting evidence and you will see your confidence and comfort in the courtroom grow. Once you can dispatch foundation objections with ease, you will be able to stay focused on the larger battle of connecting with and persuading the jury.