Generally speaking, before a proponent of evidence can offer an item into evidence that proponent should lay the foundation for such evidence. The foundation is proof of a fact or event predicate to the admission of evidence. There are times when a judge may choose to admit the evidence subject to subsequent proof of foundation. However this is not the best idea as if the proponent fails to lay a proper subsequent foundation the Judge will be a position of having to either instruct the jury to disregard the evidence or grant a mistrial.
When laying a foundation try to abide by three rules. Keep your questioning simple, brief, and be well prepared. When we say that you should keep the questioning simple what we mean is that you should always use an easily understood term in lieu of more difficult terms. The reason for this is that you want the jury, which is composed of the general population, to be able to follow your questioning. Secondly, if the testifying individual can’t understand your question then your flow of questioning is going to be thrown off by your having to re-state your questions. Finally, keep your words simple to avoid being “on code”. Jurors are skeptical of trial attorneys as is. Don’t do and look like what jurors might stereo type as a trial attorney. Be an every-day Joe.
Keep your questions brief. The reason for this is the same. If you want the jury to follow your questioning then make the sentences short. Comprehension drops off with longer sentences. This is all the more important on cross examination. The reasons for this will be explained in a later blog where cross examination is discussed at length.
Finally, be prepared. As trial counsel work with your witness prior to trial. Go over the contemplated testimony with your witness and rehears it at least once if not more. You want to have good flow and rhythm while in front of the jury so as to keep the Jurors attention and to preserve creditability.
When laying the foundation apply the fundamental rules of questioning on direct and on cross. So when laying a foundation on direct examination use open ended questions as opposed to leading questions. Of course, the examiner may use leading questions on preliminary matters such as a witness’s occupation or the setting of a scene.
Abide by the technical evidentiary rules whenever you can. There will be times when local law permits you to disregard those rules while laying the foundation. Despite the local rules best practice dictates that you continue to abide by the technical rules. The reason for this is that your examination will run smoother if it is not consistently interrupted by opposing counsel’s objections. Even if you prevail on these objections the flow of your examination will still be thrown off. Thus, the best practice is to abide by the technical requirements so as to avoid interference by opposing counsel.
The rules governing laying of a foundation apply with even greater force on cross-examination. The Judge will be less likely of allowing evidence in without prior presentation of the foundational proof on cross. On cross be extra sure to apply the rules of clarity and brevity. You don’t want to give the witness any room for misinterpretation.