first-year law review

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Evidentiary Foundations

Evidentiary foundation refers to a series of questions counsel must ask to provide a basis for the offered evidence. The necessary procedural steps for introducing exhibits into evidence are:

  • Requesting that the exhibit be marked for identification (don’t identify it)
  • Laying the foundation for the exhibit
    • Picture: ordinary fact witness
    • Models & charts: the object is an accurate reproduction for the purpose of illustrating the testimony of the witness
    • Real evidence: show chain of custody
  • Letting opposing counsel examine the exhibit
  • Offering the exhibit into evidence
  • Giving exhibit to trial judge
  • Voir dire examination of the witness, objection, and argument by opposing counsel
  • Ruling
  • Testimony concerning the exhibit
  • Giving the jury the exhibit or copies of it


Knowing what foundation to establish requires knowing which rule applies. All you need to do is transpose the elements of the rule into a series of questions.


September 10, 2007 Posted by | Evidence | 1 Comment


When a person dies intestate that person dies without a will. Further, if a will’s so poorly drafted that it disposes of only part of the probate estate, the result is partial intestacy. When a person dies intestate, the law of the state where decedent was domiciled at death governs the disposition of personal property, and where the real property is located governs the disposition of real property.


If there’s a surviving spouse, that person is always the first taker, and usually receives the largest share. The order of intestacy is as follows: Spouse, Descendants, Parents, Descendants of decedent’s parents, and finally Grandparents or descendants of grandparents. Each state has a statute that governs what goes where. Under the Uniform Probate Code, the spouse gets everything if no descendant or parent of decedent survives, or all descendants are also descendants of the surviving spouse. If there’s no descendant, but a parent survives, the spouse gets the first $200,000 plus three-fourths of the balance of the estate. If there are descendants and surviving spouse had descendants who aren’t from decedent, the spouse gets $150,000 and half of the balance of the estate. If surviving decedents aren’t descendants of the surviving spouse, the spouse gets $100,000 and half of the estate’s balance. Naturally nonprobate property is excluded from the estate prior to these figures. If there’s no taker, estate goes to the state.


In the case of simultaneous death, the Uniform Simultaneous Death Act says that if no sufficient evidence of the order of deaths, the beneficiary is deemed to have predeceased the donor. If joint tenants die simultaneously, one half is distributed as if A survived, and one half as if B survived.

September 10, 2007 Posted by | Wills & Estates | Leave a comment

Real, Documentary, and Demonstrative Evidence

Let’s deal with real evidence first. Real evidence is physical evidence (such as clothing or a knife wound) that itself plays a direct part in the incident in question. There are two types of real evidence: one which presents the thing itself, and one which presents an independent fact from which an inference can be made. The admissibility of real evidence turns on showing that the evidence is what it purports to be. The proponent has to establish that the item you’re offering is what you say it is. You have to give enough evidence for the jury to conclude that the item is authentic.


A subset of real evidence, sometimes considered it’s own set, is documentary evidence. Documentary evidence is any document having some bearing on the case is real evidence and documentary proof. It too has to be authenticated, but there are issues that have to be overcome such as the best-evidence rule and hearsay.


Demonstrative evidence is evidence that illustrates or demonstrates a real thing. In USS v. Town of Oyster Bay, the plaintiff was hit by a street sign that fell when hit the pole to which it was attached. At trial, defense counsel used a model of the pole which differed from the actual pole in several respects. On appeal, the plaintiff argued that the in-court demonstration should not have been allowed. The court held that it was within the trial court’s discretion to allow the demonstration. The dissenting opinion, however, said that the substantial similarity test should have been used. The substantial similarity test says that the demonstrative evidence must be substantially similar to the actual evidence. The test doesn’t require identity, but only the degree of similarity that will insure that the results are probative.

September 6, 2007 Posted by | Evidence | Leave a comment