Foundation requirements -- the steps that must be taken during the laying of a foundation -- are extracted from rules of evidence., from legal rules -- rules of evidence -- that lay out the requirements for the admissibility of evidence.

This doesn't mean that the foundation that must be laid prior to the submission of evidence to the jury is the same every time. It is true that there are certain requirements -- such as the requirement of personal knowledge -- that apply to practically all evidence, at least to practically all testimonial evidence. So the foundation for practically all testimonial evidence must include evidence of the witness's first-hand knowledge.

But the personal knowledge requirement is not the only rule that constrains the submission of evidence to the jury. There are other rules of evidence, there are other exclusionary rules, and each such rule has its own set of requirements for admissibility, for submission of punch line evidence to the jury.

Not every rule of evidence applies to every offer of evidence: some rules of evidence to some offers of evidence but not to others. So the kind of foundation that has to be laid depends on the kind of evidence that is being offered and on the rules of evidence that apply to that kind of evidence.

The rules of evidence and their associated factual requirements for admissibility vary widely. Consequently, the kind of foundation that must be laid to get punch line evidence admitted, to get evidence before the jury, also varies widely.

In one way, rules of evidence resemble criminal prohibitions: like crimes, rules of evidence have essential elements.

Most of those essential elements are factual requirements, or conditions. This is why the trial judge must be given evidence that the requirements for admissibility have been satisfied.

It is generally the job of the proponent of evidence for the jury to give the trial judge evidence of the proponent's compliance with such “preliminary conditions” (as they are sometimes called).

But sometimes -- e.g., in the case of privileges -- the opponent of an offer has the burden of showing that the factual requirements necessary for exclusion exist; i.e., the proponent in these instances does not have to show that facts exist that remove the barriers to admissibility imposed by some rule or rules of evidence.

• The requirements for admissibility are called “preliminary” conditions both because (i) evidence of such matters (ordinarily) precedes the submission of punch line evidence to the jury and because (ii) the judge determines whether the factual requirements for admissibility have been satisfied.

Offers and Objections:

Offers of Evidence

The business of laying an adequate foundation for the submission of evidence to the jury can be rather intricate. The proponent of evidence often has to perform an elaborate minuet. I have described some parts of this dance. But I have not yet described all of the steps that sometimes have to be taken.

The additional steps I have in mind are usually mentioned in connection with talk about the requirements of an "offer of evidence."¹ These additional requirements generally come into play when a party objects to an attempt to submit evidence to the trier of fact.

As you now know, to make an adequate offer of evidence you must, to be sure, lay a foundation showing that the factual requirements -- the factual predicates -- for submission pf your evidence to the jury are there. But that is not always enough.

Suppose your opponent makes an objection.

[Look, below, at OBJ]

TrJ

JJ C__I__O__B__F------->PLQ__OBJ__?____SUBMIT (e.g., PLA) -------->

Jy

------->

time

That OBJ, you will observe, typically occurs after you have gone through the business of laying a foundation. If your opponent does make an objection, you and your opponent might very well have a little conversation, a dialogue, an argument, about the question of the validity of the objection and the admissibility or inadmissibility of the punch line answer. Since this conversation, this argument, involves material that the jury might in the end not be allowed to see, the trial judge will sometimes call the lawyers to the bench to have a little private tete a tete out of the hearing of the jury, or what lawyers call a sidebar or a bench conference {depending on how the courtroom is configured]. Sometimes the jury will just be removed from the courtroom so that the lawyers can speak loudly without any fear that the jury might overhear the argument and hear of evidence whose admissibility remains in doubt.

When you have such a discussion about the admissibility of evidence, you have to keep in mind -- i.e., the proponent or offeror must keep in mind -- his or her obligation to make an adequate offer of evidence. To make an adequate offer, you may have to explain to the trial judge, during a bench conference or otherwise,

(i) the relevance and purpose of the evidence you want the jury to see or perceive

(ii) the legal authority supporting the admissibility of the evidence you are proffering;

and, if not already apparent,

(iii) the nature, substance, or content of the evidence you wish the jury to hear, see, etc.

This duty of an offeror to provide the trial court with legal authority supporting admissibility is not clearly stated in FRE 103(a)(2). But the offeror has this duty at common law and the federal courts routinely impose this common law requirement.

BTW: The common law rules of evidence are not yet entirely dead. For one thing, although the vast majority of states have adopted codes patterned after the Federal Rules of Evidence, a few jurisdictions have not yet fully codified their rules of evidence. New York is one very important example. Furthermore, all codifications, including the Federal Rules of Evidence, make heavy use of common law concepts, principles, practices, and terminology.

Objections

Once a party has made an offer of evidence by, for example, asking a question, something else can happen: an opponent can object to the admission of the evidence that the proponent offers, an opponent can object to the submission of the proffered evidence -- the punch line evidence -- to the jury.

TrJ

JJ C__I__O__B__F------->OFF (e.g., PLQ) __OBJ__?____SUBMIT (e.g., PLA) -------->

Jy

------->

time

A reprise of some basic rules about objections:

1. Necessity for objection. The first rule -- the most basic rule -- is that if a party wants to keep evidence from going to the jury -- if it wants evidence to be excluded -- it must (ordinarily!) object. Subject to a rarely-applied damnable exception, the rule is that a party who does not object waives or forfeits any potential claim it might otherwise have been able to make later that the trial court erred in admitting the evidence in question.

Exception to need for objection:

FRE 103(a)(1). Cf. FRE 103(d) (plain error rule, which is rarely applied in civil litigation; the plain error rule is usually applied only in criminal cases only in favor the accused, and courts say, roughly, that the error must be palpable, or clearly apparent, and particularly egregious)

2. Timeliness of objection. That's simple enough, isn't it? But now things get a bit more complicated. There is another basic requirement that applies to objections: an objection must be timely. See FRE 103(a)(1).

This requirement of timeliness has two sides; it has a Goldilocks flavor or quality. An objection can't come too soon. But it also can't come too late. The timing of the objection must be just right.

Let's first consider the problem of premature objection articulation. If an objection is made too soon, it will be condemned as "premature"; the objection can be ignored and overruled for that reason alone. The judge will frown at you and say, "Counsel, your objection is premature. Overruled."

But when is an objection premature? The answer (subject to some damnable objections) is that an objection made during the laying of the foundation is premature. A party is not permitted to object to the answer to the punch line question -- to the PLA -- while the foundation for the punch line question PLQ is being laid. (See diagram below.)

Furthermore, a party cannot object to the giving of the punch line answer in the presence of the jury until the punch line question is asked (or, in the case of tangible evidence, until the proponent says, "Your Honor, we offer exhibit #26"). So the OBJ cannot be made either during F or during PLQ, but only after PLQ.

TrJ

JJ C__I__O__B__F -----> OFF (e.g., PLQ) __OBJ____SUBMIT (e.g., PLA)

Jy

------------->

time

But, as I told you, the requirement that an objection be timely is has a Goldilocks quality, it is a two-sided sword.

The timing of an objection must be just right.

The converse of the principle that an objection must not be premature is the principle is that an objection must not be made too late, it must not be made belatedly.

If the objection is made too late, if the objection is belated, a hard-nosed judge is entitled to say -- and sometimes will say -- that the party making the belated objection has forfeited or waived its right to object. The judge may well frown and say, "Counsel, I am overruling your objection as unseasonable. You did not make your objection in a timely fashion."

But when, precisely, is the right time to make an objection? How long can you wait before it is too late?

The answer is, "Not long." Subject once again to those execrable exceptions that the law is so fond of, the more precise answer is this: In the case of both testimonial evidence and tangible evidence the opponent must object immediately after the offer of evidence. In the case of testimonial evidence, this means that the opponent must object before the witness answers. In the case of tangible evidence, this means that the opponent must make its objection before the trial judge gets around to saying, "Admitted," before the trial judge rules favorably on the offer of tangible evidence.

The rule that an objection must be made before the witness' answer (or, in the case of tangible evidence, before the judge rules on the offer) -- this rule is called the contemporaneous objection rule.

The contemporaneous objection rule is one of the many reasons why trial lawyers tend to develop ulcers and drink to excess. For, as you can see, the trial lawyer who wishes to keep evidence from the jury has just this little interval -- the little space between PLQ and PLA -- in which to lodge an objection. So trial lawyers literally have to be quick on their feet -- or, at least, they have to speak quickly (often before they know what they will say). [Rise to object and start thinking.] Trial lawyers can't afford to have a bad day; they can't afford to nod off during a trial. This is one reason why trial work tends to be a young person's game. Older folks ... etc. [I speak here as a geezer. - pt]

3. Motion to Strike. But the law is at least occasionally sensible, even charitable. (Yes, sometimes it really is that.) The law’s treatment of the contemporaneous objection requirement actually exhibits a measure of common sense. Consider this scenario:

You are the lawyer for David Driver. He is the defendant in an automobile accident case. Peter Plaintiff's complaint avers that Plaintiff was injured on June 1, 2001, as a result of Driver's negligent driving. You have denied everything: your answer says (a) Driver didn't do it; Driver didn't drive through the intersection or against the red light; and (b) Driver was forced to do it; he was forced by Perky Passenger to drive through the intersection at an excessive rate of speed and against the red light).

This case and controversy goes to trial. Peter Plaintiff calls Wally Witness as his first witness. Wally takes the oath. See FRE 603. Then this happens:

Q. What is your name?

A. Wally Witness.

Q. What is your occupation?

A. On June 1, 2001, David Driver ran a red light at the intersection of Main and North Streets. Driver was traveling from west to east on Main Street at a rate of approximately 100 miles an hour. After running the red light, Driver ran into Peter Plaintiff's car. It was just an awful, bloody mess. Peter was thrown to the top of a tree at the southeast corner of the intersection.

Driver's lawyer, who was unsuccessfully trying to get the judge's and witness's attention by waving his hands, then finally blurts out:

Your Honor, we move to strike the answer of the witness. No foundation. No showing of personal knowledge.

Judge: "Are you objecting, counsel?"

D's counsel: "Yes we are, your Honor."

P's counsel: "Your Honor, D's objection comes too late, it is not timely. He should have objected before the witness answered. He didn't do that. Hence, he has forfeited his right to object."

The judge will probably say, "Come, come, counsel. The general rule is as you describe it: the objection must be made before the witness answers. But there is an exception for unresponsive answers. The reason is obvious. Opposing counsel cannot anticipate an unresponsive answer and, thus, cannot object before the answer is given. That's what happened here. You asked for the witness's occupation. There was nothing objectionable about your question or the expected answer. But the witness gave an unexpected answer. So I will sustain Defendant's objection. Proceed."

The trial judge's mini-lecture is unexceptionable. But the trial judge did make a technical mistake. The trial judge intimated that Driver should have said "objection" rather than "I move to strike." That is probably because the judge correctly viewed the motion to strike as a delayed objection, a belated objection. But in fact the normal procedure when an objection is made to testimony that the jury has been allowed to hear is for the objecting lawyer to make a "motion to strike."

However, this language -- "motion to strike" -- is, strictly speaking, anachronistic. For the answer, even if ruled inadmissible, is not literally struck from the record: all sorts of things that the jury never sees -- including oodles of inadmissible evidence -- remain in the record of a trial. The court reporter has the obligation to transcribe and record everything (insofar as practicable) that happens during a trial. The court reporter therefore keeps a record of testimony and other evidence that the trial judge has decided that the jury should not be permitted to see.

Nonetheless, if a witness gives a punch line answer before you've had a chance to objection you should say something like this, "Move to strike. Inadequate foundation. Personal knowledge not shown." Everyone in the courtroom (including the court reporter, the stenographer) will know what you mean.

Note on terminology: Objections are either sustained or overruled; they are NOT "granted" or "denied." Motions, by contrast, are either granted or denied; they are NOT "sustained" or "overruled."

The Offer of Proof

Once the proponent of evidence has made an adequate offer of evidence, the proponent, the party offering evidence, the offeror, may have to take yet another step if its attempt to persuade the trial court to admit the proffered evidence fails. If an unsuccessful proponent of evidence wishes to preserve its right to complain about the trial court’s exclusion of allegedly admissible evidence -- the trial court's exclusion of evidence that passes muster under the rules of evidence -- , the unsuccessful and disappointed proponent may have to make an offer of proof. [Following some notable Evidence scholars, I distinguish between offers of evidence and offers of proof. However, codes and cases do not expressly make this tminological distinction; it is necessary to read between the lines.] In general terms, the making of an offer of proof is nothing more than the placing of excluded evidence -- the placing of the allegedly admissible but excluded evidence -- on the record. The purpose of an offer of proof is to make it possible for an appellate court (or other reviewing court) to ascertain (by examining the record) the nature of the evidence that was excluded, allegedly improperly, by the trial court.

The proponent must make an offer of proof unless the nature of the excluded evidence is already apparent (or unless the proponent put the evidence that was later excluded on the record while making its offer of evidence).

The penalty for the failure of an offeror to make a necessary offer of proof is forfeiture of the right to appeal on the ground of improper {illegal} exclusion of the offeror’s evidence by the trial court.