Evidentiary Foundations, Tenth Edition

Covering all major evidentiary doctrines, the text provides a blueprint for introduction of evidence at trial. It enables the student to convert a sentence in the Federal Rules of Evidence into a line of questioning to be used at trial. A useful companion to a coursebook in Evidence or Trial Practice, Evidentiary Foundations , enables the student to picture the manner in which the rules of evidence operate in court. After a brief narrative discussion, the book dissects each major evidentiary doctrine into a list of foundational elements. The book then sets out an illustrative foundation, establishing all the predicate elements. This foundation gives the student a more concrete understanding of the evidence rule to which the foundation relates. The Tenth Edition covers the latest amendments to Rules 801 and 902, including a detailed treatment of the new self-authentication provisions in 902(13) and 902(14). It also updates the foundations for social media postings, scanned writings, automated surveillance cameras, and the impact of Williams v. Illinois on expert testimony. Over the years, the various editions of Evidentiary Foundations have been used as a required or recommended supplementary text at over 140 law schools. Title Page 3 Copyright 5 Dedication 7 Acknowledgments 8 Contents 9 CHAPTER 1: INTRODUCTION 22 § 1.01 INTRODUCTION 22 § 1.02 LAYING A FOUNDATION—IN GENERAL 24 § 1.03 LAYING A FOUNDATION ON DIRECT EXAMINATION 26 § 1.04 LAYING A FOUNDATION ON CROSS-EXAMINATION 29 CHAPTER 2: RELATED PROCEDURES 32 § 2.01 INTRODUCTION 32 § 2.02 PRETRIAL MOTION IN LIMINE BY THE OPPONENT 33 § 2.03 OBJECTIONS AT THE TRIAL BY THE OPPONENT 37 § 2.04 MOTIONS TO STRIKE AT TRIAL BY THE OPPONENT 40 § 2.05 REQUEST BY THE OPPONENT TO TAKE A WITNESS ON VOIR DIRE 42 § 2.06 OFFER OF PROOF BY THE PROPONENT 45 CHAPTER 3: THE COMPETENCY OF WITNESSES 48 § 3.01 INTRODUCTION 48 § 3.02 THE VOIR DIRE OF A CHILD BY THE WITNESS'S PROPONENT 50 § 3.03 THE QUESTIONING OF A LAY WITNESS BY THE PROPONENT TO DEMONSTRATE PERSONAL KNOWLEDGE 53 § 3.04 THE OPPONENT'S PRESENTATION OF PSYCHIATRIC TESTIMONY ATTACKING A PROSPECTIVE WITNESS'S COMPETENCY 55 § 3.05 THE WITNESS SPOUSE 59 § 3.06 DEAD PERSONS' STATUTES OR SURVIVORS' EVIDENCE ACTS 62 CHAPTER 4: AUTHENTICATION 65 § 4.01 AUTHENTICATION IN GENERAL 65 § 4.02 THE AUTHENTICATION OF PRIVATE WRITINGS 71 § 4.03 THE AUTHENTICATION OF BUSINESS WRITINGS 86 § 4.04 THE AUTHENTICATION OF OFFICIAL WRITINGS 132 § 4.05 THE AUTHENTICATION OF ORAL STATEMENTS 134 § 4.06 AUDIO RECORDINGS 147 § 4.07 DEMONSTRATIVE EVIDENCE 153 § 4.08 THE IDENTIFICATION OF REAL OR ORIGINAL PHYSICAL EVIDENCE 157 § 4.09 THE VERIFICATION OF PHOTOGRAPHS 163 § 4.10 THE VALIDATION OF SCIENTIFIC EVIDENCE 191 CHAPTER 5: RULE 403 AND LEGAL IRRELEVANCE LIMITATIONS ON CREDIBILITY EVIDENCE 223 § 5.01 OVERVIEW 224 § 5.02 THE STAGES OF CREDIBILITY ANALYSIS 226 § 5.03 PRIOR IDENTIFICATION 228 § 5.04 FRESH COMPLAINT 231 § 5.05 BAD ACTS THAT HAVE NOT RESULTED IN A CONVICTION 233 § 5.06 PROOF OF THE CHARACTER TRAIT OF UNTRUTHFULNESS 236 § 5.07 PROOF THAT THE WITNESS HAS FAILED A POLYGRAPH EXAMINATION 239 § 5.08 PROOF THAT ANOTHER WITNESS SPECIFICALLY CONTRADICTS THE TESTIMONY OF THE WITNESS TO BE IMPEACHED 245 § 5.09 PROOF THAT THE WITNESS MADE A PRIOR INCONSISTENT STATEMENT 248 § 5.10 PROOF THAT THE WITNESS HAS SUFFERED A CONVICTION 260 § 5.11 PROOF THAT THE WITNESS IS BIASED 263 § 5.12 PROOF THAT THE WITNESS IS DEFICIENT IN AN ELEMENT OF COMPETENCY 266 § 5.13 PRIOR CONSISTENT STATEMENT 269 § 5.14 PROOF OF THE CHARACTER TRAIT OF TRUTHFULNESS 272 CHAPTER 6: LEGAL IRRELEVANCE LIMITATIONS ON EVIDENCE THAT IS RELEVANT TO THE HISTORICAL MERITS OF THE CASE 274 § 6.01 INTRODUCTION 274 § 6.02 CHARACTER EVIDENCE 276 § 6.03 HABIT EVIDENCE 291 § 6.04 OTHER CRIMES OR UNCHARGED MISCONDUCT EVIDENCE 295 § 6.05 UNCHARGED MISCONDUCT EVIDENCE IN CIVIL ACTIONS 299 § 6.06 SIMILAR HAPPENINGS EVIDENCE 303 § 6.07 IN-COURT EXHIBITIONS 309 § 6.08 IN-COURT DEMONSTRATIONS 310 § 6.09 LIABILITY INSURANCE 311 CHAPTER 7: PRIVILEGES AND SIMILAR DOCTRINES 314 § 7.01 INTRODUCTION 314 § 7.02 PRIVILEGES FOR CONFIDENTIAL RELATIONS—IN GENERAL 315 § 7.03 PRIVILEGES FOR CONFIDENTIAL INFORMATION—INVOKING A PRIVILEGE 320 § 7.04 PRIVILEGES FOR CONFIDENTIAL RELATIONS—DEFEATING A PRIVILEGE BY PROVING WAIVER 322 § 7.05 PRIVILEGES FOR CONFIDENTIAL RELATIONS—DEFEATING A PRIVILEGE BY PROVING A SPECIAL EXCEPTION 325 § 7.06 THE WORK PRODUCT PROTECTION 331 § 7.07 GOVERNMENT PRIVILEGES—MILITARY AND STATE SECRETS 339 § 7.08 GOVERNMENT PRIVILEGES—MINOR GOVERNMENT SECRETS 343 § 7.09 GOVERNMENT PRIVILEGES—AN INFORMANT'S IDENTITY 349 § 7.10 SUBSEQUENT REPAIRS 353 § 7.11 COMPROMISE STATEMENTS 359 CHAPTER 8: THE BEST EVIDENCE RULE 367 § 8.01 INTRODUCTION 367 § 8.02 THE OBJECT INVOLVED IS NOT A “WRITING” 369 § 8.03 THE WRITING'S TERMS ARE NOT “IN ISSUE” 371 § 8.04 THE WRITING'S TERMS ARE ONLY COLLATERALLY “IN ISSUE” 373 § 8.05 THE EVIDENCE OFFERED IS AN “ORIGINAL” 375 § 8.06 THE EVIDENCE OFFERED IS A “DUPLICATE” 378 § 8.07 ADMISSIBLE TYPES OF SECONDARY EVIDENCE 383 § 8.08 EXCUSES FOR NON-PRODUCTION 386 CHAPTER 9: OPINION EVIDENCE 400 § 9.01 INTRODUCTION 400 § 9.02 LAY OPINION TESTIMONY 401 § 9.03 EXPERT OPINION TESTIMONY 405 § 9.04 EVIDENCE OF AN OUT-OF-COURT EXPERIMENT 420 CHAPTER 10: THE HEARSAY RULE, ITS EXEMPTIONS, AND ITS EXCEPTIONS 428 § 10.01 OVERVIEW 429 § 10.02 THE DEFINITION OF HEARSAY 431 § 10.03 THE EXEMPTION FOR STATEMENTS OR ADMISSIONS OF A PARTY-OPPONENT 446 § 10.04 IN GENERAL 462 § 10.05 BUSINESS ENTRIES 463 § 10.06 OFFICIAL RECORDS 467 § 10.07 PAST RECOLLECTION RECORDED AND PRESENT RECOLLECTION REFRESHED OR REVIVED 472 § 10.08 LEARNED TREATISES 478 § 10.09 EXCITED OR STARTLED UTTERANCES 482 § 10.10 PRESENT SENSE IMPRESSIONS OR CONTEMPORANEOUS STATEMENTS 485 § 10.11 DECLARATIONS OF STATE OF MIND OR EMOTION 488 § 10.12 DECLARATIONS OF BODILY CONDITION 492 § 10.13 IN GENERAL 500 § 10.14 THE UNAVAILABILITY OF THE DECLARANT AT TRIAL 501 § 10.15 DECLARATIONS AGAINST INTEREST 508 § 10.16 DYING DECLARATIONS 512 § 10.17 FORMER OR PRIOR TESTIMONY 516 § 10.18 FORFEITURE BY WRONGDOING 521 § 10.19 THE RESIDUAL HEARSAY EXCEPTION 523 CHAPTER 11: SUBSTITUTES FOR EVIDENCE 526 § 11.01 INTRODUCTION 526 § 11.02 STIPULATIONS 527 § 11.03 JUDICIAL NOTICE 533 § 11.04 JURY VIEWS 537 INDEX 540