FOUNDATION (LACK OF) (F)

FRE 602

Before any evidence can be admitted, the proper foundation for that evidence must be laid. An objection based on Lack of Foundation indicates that it MIGHT be possible for the witness to potentially know the answer, but additional predicate questions must be asked first. All foundation must be established by the witness’s own testimony, or, in the case of an out-of-court statement being offered in court, by inference from the nature of the statement and the surrounding circumstances (See U.S. v. McGrath, 613 F.2d 361 (2d Cir. 1979)).

Examples

• “Ms. Hale, what is the weather like today in London?” (and evidence/testimony has not been introduced to prove that Ms. Hale was in London earlier that day)
• “Mrs. Lincoln, let’s unpack that a little. How long was your husband comatose before he died?” (and evidence/testimony that Mr. Lincoln was in a coma had not yet been introduced)
• “Upon arrival, why did you proceed directly to the reserved viewing box?” (and evidence/testimony of the witness going to the reserved viewing box had not yet been introduced)
• “Why was the viewing box reserved for you?” (and no evidence/testimony of the viewing box being reserved had been introduced)
• “What did the person say in Latin?” (and no evidence/testimony of the person actually speaking in Latin had been introduced)

FRE 602. Need for Personal Knowledge

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.

Summary

A witness may not testify to any matter unless he/she has personal knowledge of the matter. If the witness does not have personal knowledge of the matter, then an objection for lack of foundation may be appropriate. An objection based on a lack of foundation is a general objection that applies to a variety of different evidentiary issues, such as failure to authenticate a document, failure to establish that a document qualifies as a business record, failure to establish that a witness is qualified to give an opinion, lack of foundation to impeach a witness, and lack of first-hand knowledge.

The bar for admitting testimony under Rule 602 is low. Because most knowledge is inferential, personal knowledge includes opinions and inferences grounded in observations or other first-hand experiences. Absolute certainty of observation or of recollection is not required to establish personal knowledge.

Foundation is required for all pieces of evidence, including testimony, real evidence, and demonstrative evidence. For testimony, an attorney might ask a witness the following questions to lay foundation:

• “Hi, Mr. Smith. Can you please introduce yourself and spell your last name for the court?”
• “What do you do for a living?”
• “How do you know the defendant?”
• “What is your relationship like with the defendant?”

For an exhibit, an attorney might ask a witness the following questions to lay foundation for entering the exhibit into evidence:

• “Mrs. Smith, do you recognize this document?”
• “What is this document?”
• “How do you know the note was from the Defendant?”
• “Please take a look at the note and let the jury know, does this document fairly and accurately reflect the note and the condition it was in when you received it from the Defendant?”
• (To the Judge) “Your Honor, at this time, the Prosecution requests that the document be entered into evidence, as its authenticity and accuracy has been shown.”

Case Law (Lack of Foundation)

• De La Torre v. Merck Enters., 540 F. Supp. 2d 1066, 1075 (D. Ariz. 2008) (personal knowledge can be established through physical senses or when a witness testifies based on rational observations or experience)
• Ege v. Yukins, 485 F.3d 364, 376 (6th Cir. 2007) (“In this case there was no evidence offered to support the expert's conclusion regarding the probability that the defendant made the [bite] mark. In other words, the expert did not testify that he had identified particular features of the bite mark that had a known rate of occurrence. Neither did the expert did [sic] testify that he had multiplied these values to reach his conclusion.”)
• Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1200 (10th Cir. 2006) (an affidavit attempting to be introduced into evidence cannot be admitted if no sufficient foundation can be laid to show that the witness actually perceived or observed that which he testified to in the affidavit)
• Hilgraeve, Inc. v. Symantec Corp., 271 F. Supp. 2d 964 (E.D. Mich. 2003) (personal knowledge may be proved by witness’s own testimony but he must still set forth a factual basis for his claim of personal knowledge)
• PAS Communications, Inc. v. Sprint Corp., 139 F. Supp. 2d 1149 (D. Kan. 2001) (inferences and opinions must be grounded in observation or other first-hand personal experience; they must not be flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from that experience)
• U.S. v. Joy, 192 F.3d 761 (7th Cir. 1999) (portion of 911 call referring to burglaries was supported by sufficient circumstantial evidence to make caller's inference reasonable)
• U.S. v. Cantu, 167 F.3d 198 (5th Cir. 1999) (witness could testify that defendant was boss of drug operation based on her personal observations of his interaction with others)
• Bohannon v. Pegelow, 652 F.2d 729 (7th Cir. 1981) (witness who observed arrest could testify she believed it was motivated by racial prejudice)