Columns

Evidentiary foundations

 

by James A. Johnson   |   Michigan Bar Journal

 

Evidence is the means to ascertain the truth in a lawsuit at trial. To get to the truth, information and documents must be offered and admitted into evidence. The proponent of an item of evidence must lay a foundation or predicate before formally offering the item into evidence. Foundations lurk everywhere, waiting to trip you up.

Experienced trial lawyers will tell you that witness qualification heads the list. There is a basic requirement that any fact witness must be shown to have firsthand knowledge about the matter to which he or she is about to testify.1 It is important to lay this foundation of personal knowledge at the beginning of any witness testimony. In fact, Michigan Rule of Evidence (MRE) 602, which is nearly identical to Federal Rule of Evidence (FRE) 602, states that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.2 This rule is subject to the provisions of MRE 703 — akin to FRE 703 — relating to opinion testimony of expert witnesses.

AUTHENTICATION

To authenticate an item of evidence, the proponent must present proof that the item is what he or she claims that it is.3 By way of example, MRE 901, almost identical to FRE 901, requires the proponent to present sufficient evidence to support a rational jury finding that a signature on a letter4 is genuine or that a photograph5 is an accurate depiction. You do not need the photographer to lay the foundation for introducing a photograph; any witness who has personal knowledge of the photo is sufficient.6 Similarly, the predicate or foundation to authenticate a signature on a letter is established by any witness who is sufficiently familiar with the author’s handwriting.7 This rule permits nonexpert opinion as to the genuineness of handwriting based upon familiarity not acquired for purposes of litigation.

RELEVANCY

With authentication comes the necessity to show that the evidence is relevant — i.e., it has some rational tendency to prove a fact in issue.8 MRE 401, which defines relevant evidence, and FRE 401 are nearly identical. If a document’s terms are in issue, the proponent will have to comply with the best evidence rule which generally requires that original documents be provided as evidence.9 The rule only applies to proving the contents of a document. Secondary evidence, such as a duplicate original, is admissible if the original is properly accounted for with an adequate excuse for non-production of the original.10 Importantly, and pursuant to MRE 1004 regarding admissibility of other evidence of contents, which is nearly identical to FRE 1004, originals are not required if they are lost, destroyed, otherwise unobtainable, in the possession of the opponent, or if the evidence is not closely related to a controlling issue.

HEARSAY

Hearsay is an assertive statement other than one made by the declarant while testifying, offered to prove the truth of the matter asserted.11 The rule against admitting hearsay protects confrontation and the fundamental right to cross-examination.12 The test for determining hearsay is determined by who you want to cross-examine. If cross-examination of the witness on the stand is an adequate test of the reliability of the evidence, the out-of-court statement is not hearsay. However, if testing the offered evidence would additionally require cross-examination of the person who originally made the statement, it is hearsay.13 We are interested in the declarant’s credibility only when the out-of-court statement is being used to prove the truth of the assertion.

However, even if a statement falls within the definition of hearsay, that statement may be admissible. There are numerous exceptions to the hearsay rule set out in MRE 803, 803A, 804, and 805 and

FRE 803, 804, 805, 806, and 807. The exceptions are based mostly on a showing that the statement is trustworthy. For example, the foundation for the excited utterance exception is a showing that at the time of the statement, the declarant was in a state of excitement caused by a startling event.14

One of the most common exceptions to the hearsay rule used at trial is the business records exception.15 This exception is referenced in subsection (6) of MRE 803 regarding hearsay exceptions and availability of declarant immaterial – which is similar to FRE 803 – and specifically admits evidence of certain acts, events, conditions, opinions, and diagnoses. The following are suggested procedural steps to lay the foundation:

  1. Put the custodian of the records or employee who is familiar with the recordkeeping on the stand.
  2. Have the business record marked for identification and show it to opposing counsel.
  3. Have the witness identify the record of which he has custody.
  4. Have the witness explain his duties.
  5. Establish the witness’s general familiarity with the business routines.
  6. Establish that it is the business custom to make records at the event or shortly afterwards.
  7. Establish that the record was made in the ordinary course of business and that the record relates to that business.
  8. Have the witness tell who provided the information on the record and that it was his duty to gather the information and pass it on to the witness or the person who made the record.

Though FRE 803(6)(7) puts the burden of proof of lack of trustworthiness on the party opposing admission,16 business entries have a circumstantial guarantee of trustworthiness because the entry is routine. The witness need not be the custodian of the records so long as he or she can testify to the habitual method with which the business prepares and maintains its records, nor does the witness need personal knowledge of the entry’s preparation so long as he or she can show that the record or report was made in the regular course of business. Some jurisdictions have dispensed with live witnesses and admit business records by affidavit.17 As of Sept. 1, 2001, Michigan permits properly authenticated records to be introduced into evidence without requiring a records custodian to establish authenticity.18

Keep in mind that under MRE 104 (preliminary questions) and the substantially similar FRE 104, the trial judge has the discretion to evaluate the trustworthiness of the source of information to determine whether the record is admissible. Also, the court is not bound by the rules of evidence except with respect to privileges19.

If the aforementioned steps fail, you may be able to argue that the record passes the test of admissibility as an additional exception under MRE 803(24)20 or, if in federal court, under FRE 807 (residual exception).21 However, MRE 803(24) requires advance notice of intent to offer the statement. Another possibility, again if in federal court, is to argue for admissibility under FRE 805 (hearsay within hearsay.)

ELECTRONIC EVIDENCE

With respect to authenticating electronic information, courts have uniformly held that existing rules of evidence are generally adequate. The authentication threshold of MRE and FRE 901(a) is met by evidence sufficient to support a finding that the matter in question is what its proponent claims. According to MRE 901(a)’s liberal admissibility standard, mobile phone text messages can be authenticated and admitted through direct or circumstantial witness testimony. If something more is required, MRE 901(b)(4) is not very demanding.22

Electronic evidence is affected by the Uniform Electronic Transactions Act, which has been adopted in all 50 states.23 The UETA, which establishes that “an electronic record of a transaction is the equivalent of a paper record, and that an electronic signature will be given the same legal effect, whatever that might be, as a manual signature,”24 applies to any electronic record or electronic signature created, generated, sent, communicated, received, or stored.

CONCLUSION

Trial lawyers are storytellers of the highest calling. Exhibits and testimony are the tools that make the story believable and compelling. The foundation of a good story is preparation to make the jury act in your favor. Everywhere you look in the law of evidence, there is something you must introduce first to prove what you are really after. Every exhibit must meet three basic requirements before it can be admitted into evidence — the witness must be competent to testify about it, the testimony and exhibit must be relevant, and the exhibit must be authenticated or fit within some exception.


 

“Best Practices” is a regular column of the Michigan Bar Journal, edited by George Strander for the Michigan Bar Journal Committee. To contribute an article, contact Mr. Strander at gstrander@yahoo.com.


ENDNOTES

1. MRE 602.

2. MRE 602; FRE 602.

3. MRE 901; FRE 901.

4. People v Taylor, 159 Mich App 468; 406 NW 2d 859 (1987); People v Howard, 226 Mich App 528; 575 NW 2d 859 (1987); Champion v Champion, 368 Mich 84, 88; 117 NW 2d 107 (1962).

5. People v Mills, 450 Mich 61; 537 NW 2d 909, mod, 450 Mich 1212; 539 NW 2d 504 (1995); People v Herndon, 246 Mich App 371; 633 NW 2d 376 (2001).

6. Werthman v GMC, 187 Mich. App 238, 466 NW 2d 305.

7. MRE 901(b)(2); FRE 901(b)(2).

8. MRE 401; FRE 401.

9. Steinberg v Ford Motor Co, 72 Mich App 520; 250 NW 2d 115 (1997).

10. MRE 1001-1004; FRE 1001-1004.

11. MRE 801(c).

12. Crawford v Washington, 541 US 36 (2004); People v Walker, 273 Mich App 56; 728 NW 2d 902 (2006).

13. MRE 801(c).

14. Berryman v Kmart Corp., 193 Mich App 88; 483 NW 2d 642 (1992). People v Smith, 456 Mich 543; 581 NW 2d 654 (1998); People v Straight, 430 Mich 418; 424 NW 2d 257 (1988).

15. MRE 803(6); FRE 803(6); Price v Long Realty, Inc, 199 Mich App 461; 502 NW 2d 337 (1993); Solomon v Schuell, 435 Mich 104; 457 NW 2d 669 (1990).

16. FRE 803(6)(7).

17. NC R Evid 803(6).

18. MRE 902(11).

19. MRE 104.

20. MRE 803(24).

21. FRE 807.

22. Champion, 368 Mich at 88.

23. MCL 450.831 et seq.

24. Uniform Law Commission, Electronic Transactions Act, https://www.uniformlaws.org/committees/community-home?CommunityKey=2c04b76c-2b7d-4399-977ed5876ba7e034#:~:text=The%20Uniform%20Electronic%20Transactions%20Act,removing%20barriers%20to%20electronic%20commerce. Website accessed October 16, 2023.