A “foundation” is the minimum amount of facts needed to demonstrate that a particular piece of evidence is authentic enough and relevant enough that it can be admitted at trial. In a way, the foundation of a piece of evidence is like the first paragraph of a news story. It provides the basic “who, what, and why” of the evidence, so that the jury and other people in the courtroom can understand why that evidence is being presented and what the party offering it is trying to prove by presenting it.
A foundation is typically required for all pieces of evidence, including testimony, real evidence, and demonstrative evidence. A foundation for testimony is usually included in the first few questions a party or attorney asks a witness. Questions like “what is your name?,” “what do you do for a living?”, and “how do you know the plaintiff (or defendant)?” all provide a foundation for the witness’s testimony by showing who the witness is, what her perspective is, and why she is giving testimony.
Since these questions typically lead naturally into the “meat” of the witness’s testimony, it’s not always easy to separate the foundation for testimony from the testimony itself. Also, it’s not usually necessary. Even though testimony that is foundation versus testimony that is “evidence the party who called the witness wants the jury to hear” can be hard to tell apart, it’s obvious when a party tries to introduce testimony that has no foundation: the witness just starts talking, without any background questions about her name, job, or involvement in the case. Since this confuses everyone in the courtroom, however, it rarely happens in practice.
Pieces of evidence that are not testimony usually have more complicated foundation requirements. For instance, a piece of real evidence (also known as (physical evidence) used in a case cannot be considered by the jury until the party that wants to use the evidence demonstrates, by laying a foundation, that the evidence is what that party says it is.
In order to lay a foundation for a piece of real or physical evidence, a party or attorney will typically ask four questions. Usually, the attorney or party will ask these questions of a witness with personal experience dealing with that piece of real or physical evidence.
For example, suppose that in a products liability case, the plaintiff was injured while loading a defective washing machine. The repair person who examined the washing machine immediately after the accident found that the thermostat inside the machine had broken, causing it to heat the wash water nearly to boiling (and scalding the plaintiff). The plaintiff’s attorney wants to admit the broken thermostat into evidence. Here are four sample questions the attorney might ask to create a foundation for the thermostat, along with sample answers the repair person might give in court:
1Q. Do you recognize this object?
1A. Yes, I do.
2Q. What is it?
2A. It’s a thermostat from a Superwash Model 00ps washing machine, the one I took out of Mrs. Injured-Plaintiff’s washer.
3Q. How can you tell it’s THE thermostat from Mrs. Injured-Plaintiff’s washing machine?
3A. When I took it out of the machine, back on October 22, I scratched my initials into the casing, right there. See?
4Q. Let the record show that the witness pointed to the initials “RP” scratched on the upper left of the casing of Exhibit A. …Does this thermostat appear to be in the same condition as it was when you took it out of Mrs. Injured-Plaintiff’s washer?
4A. Yes. Nothing’s changed as far as I can see.
At this point, the hypothetical attorney would likely ask the court to admit Exhibit A, the broken thermostat, into evidence. If there are no objections, the judge will likely admit the object.
If a foundation is not properly laid, the opposing party or his attorney may object to the evidence. The party trying to create the foundation may then either explain why the foundation is fine and the objection is inappropriate, or she may decide to ask additional questions to try and get enough information about the evidence to “beat” the other party’s objection.
Even a perfect foundation, however, will only defeat an objection based on an improper foundation. For instance, if a defendant objects to evidence based on the fact that it is hearsay, creating a better foundation can’t change the fact that the evidence is hearsay. Since any number of objections can be raised when a particular piece of evidence is introduced for the first time, it’s important to specify which objection is meant when it is made.