The Three Questions

Evan Dennis I IN3cvEjg Unsplash

San Diego Superior Court Judge Frank Devaney teaches a straightforward method for laying foundation. While there are many variations on foundation procedures for myriad types of evidence, Judge Devaney teaches that there are three questions on which every type of evidentiary foundation is ultimately based:

  1. Do you recognize what has been marked for identification as Exhibit A?
  2. How do you recognize it?
  3. Is it true and accurate?

If you memorize these three questions, make them part of your DNA, you will be able to meet 80% of foundation objections. A mnemonic for the three questions can be constructed using the haiku format:

  1. -Do you recognize?
  2. How do you recognize it?
  3. Is it accurate?

These prompts, laid over almost any situation requiring authentication of a piece of evidence, will guide you. 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 members of the jury.

— This article was written by Lilys McCoy, past president of the San Diego Inn of Court

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