first-year law review

Just another weblog

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

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

Judicial Notice of Scientific Principle and Legislative Facts

Our discussion today focused on two cases, State v. Graham and Muller v. Oregon. State v. Graham focused on taking judicial notice of a scientific principle. In this case, Graham was convicted of going 65 mph in a 50 mph zone. He was caught by troopers using radar guns. The question on appeal was whether radar, as a device for detecting speed, a scientific principle so soundly established as to be accepted by the courts. The court held that the device, when maintained and operating within specs, measures speed accurately, and that it should be used.


Judicial notice of a scientific principle is hard because Rule 201 doesn’t tell us when a court can take notice of a scientific principle. The old standard was the Fry test which said scientific proof is admissible only if it’s generally accepted as valid by the scientific community. You’d use experts to establish the community’s view, then eventually courts would just take judicial notice of the principle. This worked until scientific advances outpaced the test. Now, before a jury can consider scientific proof, the court must determine it’s reliable, then the jury can determine what weight to give it. This protects the jury from unreliable evidence, but also allows the principle in.


The second case we looked at was Muller v. Oregon in which Justice Brandeis, before he was a justice, submitted a brief which was basically one page with a forty-five page footnote. The case was about limiting the hours a woman could work in certain industries, and the footnote included statutes and sociological research that backed that policy. The legislation referred to aren’t technically authorities, but they do represent the widespread belief that something is factual. Judicial notice is taken of all matters of general knowledge. Legislative facts are necessary in the judicial process, especially in interpreting the Constitution or other laws. When called upon to interpret a statute, courts should understand the nature of the evil the legislature was trying to correct.


The problem for judges using legislative facts is that socio-economic facts aren’t in law books. Judges can get those facts and the legislative goal however they need to. In his brief, Brandeis didn’t have to establish truth, he just said that the legislation and data support the need and the conclusion that there’s a rational basis. Again, Rule 201 doesn’t say anything on legislative facts. The standard for taking judicial notice doesn’t exist so as to provide courts with flexibility.

August 31, 2007 Posted by | Evidence | Leave a comment

Alternatives to Formal Proof: Judicial Notice

In court, some proof can be taken for granted. Ordinary language certain is taken for granted, as are ordinary ways of thinking. Additionally, judicial notice, which is a short cut for doing away with the formal necessity for evidence because there is no real necessity for it, can be taken of something commonly known. In Varcoe v. Lee, the defendant argued that the prosecution had not entered evidence that the place he hit a girl was a business district. This is important because there was a statute saying one could only drive 15 mph in a business district and that failing to do so made one liable for negligence as a matter of law. The justices said the requirements for judicial notice are: that it be well established and authoritatively settles, be practically indisputable, and that this common, general, and certain knowledge exist in the particular jurisdiction. According to Rule 201 of the FRE, judicial notice can be taken: When it’s generally known within the jurisdiction, and when it’s capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

August 30, 2007 Posted by | Evidence | Leave a comment