When and how must one &quot;lay a foundation&quot; to introduce evidence? Two lawyers in an administrative hearing suggested that I would have to "lay a foundation" in order to introduce an email as evidence. Is this a general rule of evidence? If so, could someone explain when it applies, and what in particular is necessary to satisfy the rule?
Two lawyers in a (administrative) hearing suggested that I would have to "lay a foundation" in order to introduce an email as evidence. Is this a general rule of evidence? “Laying the foundation” is a term of art used to explain the process of meeting the requirements for having particular types of evidence admitted. Most courts, administrative bodies, and other tribunals require that all evidence they admit be relevant and authentic. This applies to all types of evidence including oral testimony and to physical pieces of evidence that a party is trying to admit (such as printed e-mails). The rules of evidence that most states have adopted are modeled after the Federal Rules of Evidence. These rules are a codification of evidence law principles designed to only have relevant and authentic evidence admitted in hearings. So, as general rule, you must ask a witness questions to show how his testimony is relevant and authentic. For example, to meet the relevance requirements, a prosecutor in a DUI case would ask a police officer questions that showed he was the one who pulled over the person accused of drunk driving. His testimony about why he pulled over the suspected drunk driver is relevant because “it has [a] tendency to make a fact more or less probable than it would be without the evidence; and the fact [he is testifying about] is of consequence in determining the [case].” Fed. R. Evid. 401 (the test for relevant evidence). This evidence would meet the authenticity requirements in evidence law by having the witness: 1. Be competent to testify. Fed. R. Evid. 601. 2. Take an oath to testify truthfully. Fed. R. Evid. 603. AND 3. Testify about what they personally observed and not speculate. Fed. R. Evid. 602. There are more specific foundational rules for: hearsay evidence (see Fed. R. Evid. 801 through 807) and physical pieces of evidence such as voice recordings, documents, and e-mails (see Fed. R. Evid. 901 through 1008). If so, could someone explain when it applies, and what in particular is necessary to satisfy the rule? As you explained in the comments to your question, this hearing is a special education impartial hearing in New York State. According to New York State Regulations of the Commissioner of Education § 200.5(j)(3)(xii)(c), the rules of evidence do not apply. This regulation explains that a more relaxed standard applies: The impartial hearing officer may receive any oral, documentary or tangible evidence except that the impartial hearing officer shall exclude evidence that he or she determines to be irrelevant, immaterial, unreliable or unduly repetitious. The impartial hearing officer may receive testimony by telephone, provided that such testimony shall be made under oath and shall be subject to cross examination. (Emphasis added.) Therefore, to admit your e-mails under this standard, you only need to show the administrative law judge that the evidence is relevant, material, reliable, and not unduly repetitious. A much easier standard task than having those e-mails admitted under the Rules of Evdience. The best thing to do would be have the person who received or sent the e-mails present at your hearing and able to testify as a witness. Then, do the following: Before the hearing, have your witness print a paper copy of the e-mails. Provide a copy of the e-mails to the opposing side at least 5 business days before the hearing. See § 200.5(3)(xii) (“Each party shall have the right to prohibit the introduction of any evidence the substance of which has not been disclosed to such party at least five business days before the hearing.”). Mark the e-mails with an exhibit number or letter (usually the plaintiff uses numbers and the defense uses letters). At the hearing, call your witness and have him/her sworn in. Ask to the judge/hearing officer to approach the witness, and give a copy to the e-mails to him. Also give a copy to the judge/hearing officer and opposing counsel. Show the e-mails to the witness. Ask the witness if he recognizes the exhibit you handed him. Have the witness explain how he recognizes it. His testimony should explained the following: That these are e-mails he printed. When and how he printed them. Who they were sent to and sent from. Who the e-mail addresses belong to (many times this is indicated in a person's e-mail signature). What the e-mails are about and why they are important at the hearing--to show that they are relevant.
You don't say who is telling you that you need to do these things, and it does matter. Educational institutions are required to maintain a discrimination-free environment, so if a student makes inappropriate remarks to another student, they have to address the matter (if they ignore it, saying "Boys will be boys", they can get sued). They will have previously spelled out procedures for addressing such accusations, which probably include giving a good talking-to to the guilty party, and maybe some harsher sanction like suspension. The school district might then have in mind a parent-teacher conference, with the underlying threat being to turn the matter over to the police: did the letter come from the school district? A minor can commit a crime, such as assault or threatening: in Oklahoma, this includes Ok. Stat §21-1172, which makes it a crime to send a message that is obscene, lewd, lascivious, filthy, or indecent, and a first violation of the law is a misdemeanor. For an adult, the penalty can be a year in prison and $500 fine, but that is unlikely for a minor. There may be a hearing in Juvenile Court with some disposition, and if the charges are proven then the court has wide latitude in meting out punishment. Did the letter come from the juvenile court system? The Oklahome law regarding children and juveniles is here. When the Office of Juvenile Affairs engages in "the intake process", they are investigating the case to make a recommendation to the DA. "Intake" is defined as a mandatory, preadjudicatory interview of the juvenile and, if available, the parents, legal guardian, or other custodian of the juvenile, which is performed by a duly authorized individual to determine whether a juvenile comes within the purview of the Oklahoma Juvenile Code, whether nonadjudicatory alternatives are available and appropriate, and if the filing of a petition is necessary Since "intake" is juvenile justice jargon, I assume this is a legal proceeding, not a parent-teacher conference. An actual criminal charge might result from the hearing, which is brought about by a referral. Because detention is a real possibility, consulting an attorney is wise. Whether or not it is a good idea to have the attorney present for the proceeding is something only your attorney can say (in his professional judgment). There is really no way to know in advance what they already know.
Carl may not do this, as he would be prohibited from making this argument at trial. At trial, evidence must be relevant, meaning that it makes a fact of consequence more or less likely to be true. Because the trial is meant to determine whether Carl is or is not guilty, his promises of future philanthropy have no bearing on the matter. And even if they somehow did, Carl still would not be able to tell the jury about them because they would be blocked under Rule 403, which excludes evidence because its probative value is substantially outweighed by its risk of biasing or confusing the jury. If Carl attempts to make these statements anyway, he risks a mistrial, which means he has to start over with with a new jury. In some jurisdictions, Carl may, however, be permitted to make this argument during the sentencing phase, where the court can properly consider the societal effects of whatever punishment it imposes. At this point, though, it's obviously a little late for Carl, as it presumes he has been convicted.
There isn't an automatic exclusion rule for all forms of improperly acquired evidence in the UK. I can't find the exact quote but there was a judgement from a senior court that said in terms: &quot;it's not the court's job to discipline the police but to see that justice is done.&quot; However, judges have the discretion to disallow individual pieces of evidence if they think the interests of justice require it. Section 78 (1) of PACE (1984) has: In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. Senior judges have been reluctant to lay down general guidelines, holding the trial judge best placed to make these decisions (although of course, subject to appeal). The foundational principle is the accused's right to a fair trial, so in principle one could appeal to the ECtHR under Article 6. However it generally takes a similar line to courts in the UK: It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence - for example, unlawfully obtained evidence - may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. PACE Section 78(2) is: Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence. The general principle in 78 (1) does not override specific prohibitions: for instance, intercept evidence is never admissable under the Regulation of Investigatory Powers Act 2000.
The most innocent of your scenarios is "against the rules", so less innocent acts fair worse. The idea behind researching legal theory and precedent (presumably not presidents) is that surely it is good for a juror to know what the law is. But that thinking is wrong. The judge will instruct you as to what the law is, and will also instruct you that "the law" is limited to what he says it is. I will draw on the instructions for an antitrust case, Best Buy v. Toshiba, HannStar. The core instruction is: It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. The preliminary instructions (the pattern instructions for California civil trials) say the same basic thing: At the end of the trial, I will explain the law that you must follow to reach your verdict. You must follow the law as I explain it to you, even if you do not agree with the law. The judge instructs the jury that: When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true. Your research might find alternative statements of the law out there, which seem entirely plausible. That doesn't matter: you have to set aside whatever ideas (about the law) that you've gotten from anybody besides the judge. In fact, if the judge makes a (serious) mistake and rules against a party in a manner that is contrary to established law, and you know this (it doesn't matter how), you are supposed to apply the law (including rulings during trial as to admissibility) as given to you by the judge. As for a case of a juror knowing that the judge was mistaken (specifically, knowing based on his pre-existing knowledge of statutes and case law – not based on forbidden research during a trial), we can get the "should" from the absolute instruction to follow the judges instructions. Additionally, if you read transcripts of voir dire (not a trivial task), you can observe judges probing attorneys who happen to be in the prospective pool, asking questions to determine whether that person can just do as they are told. But it would be difficult to establish a "hard rule". There never will be an instruction that says "You must follow my orders even if you know for a fact that my orders are wrong" – jury instructions never admit the possibility of judicial error.
Whether evidence is admissible in court or not doesn't depend on whether it conforms to any standard, compliance, or certification. Those factors may affect how strong the evidence is (i.e how convincing it is), but those factors don't determine whether the evidence may be used at all. Different jurisdictions have different rules, but in most places, as long as the evidence is relevant to the case in trial, then it is admissible. There are usually rules which may render evidence inadmissible, such as if it was obtained illegally, or if it would have such a prejudicial effect on proceedings that it would undermine the fairness of the trial. If you are wondering if evidence is relevent or not, an easy way to determine so is asking yourself: does this evidence help a party's case? Does this evidence undermine a party's case? If yes to either question, then it is relevant.
Laws are different around the world and you didn't bother to state your location, but typically no- this is not how the system works. What would be the point? There's no defendant. You, the plaintiff would argue against thin air and then what? The court rules in your favour, declares this illegal, and nothing happens because there's no defendant. Is it so you can use this ruling if you find out later? Pretty sneaky. Let's look into how this would actually work. You bring up a case- Jackson vs a mannequin or something. You make your arguments. The defense makes literally no defense. The judge rules in your favour, with a result of nothing as there is no defendent. Next, you find the culprit and bring a case against them. You point out that this is illegal because we came to that decision last week. What's that defendant? An argument against it being illegal? Too bad, the decision has been made. When I posted this answer, it was before the &quot;Nyah, I was ranting about government spying but was deliberately vague- aren't I clever?&quot; comment and I assumed it was against, say, a neighbour but it doesn't really matter. You cannot have a system that makes a judgement without a defendant so it can be applied later.
In law there are two different concepts: admissibility of evidence and the weight of that evidence. Your question concerns both. I will begin by discussing a little bit about what both these two terms mean. Admissibility means that this evidence may go before the trier of fact. Typically the trier of fact is the jury, however, if both parties have waived their rights to jury trials (particularly the defendant) the judge is the trier of fact as well as the law. When documents or testimony by witnesses is admissible, the trier of fact can consider it in reaching a decision. Weight of evidence is a different concept. The weight of evidence is what someone believes. For example if two witnesses who were bystanders testify that the light was red, but the defendant testifies that the light was green, most people would believe the bystanders. However, in this case the evidence by the defendant that the light was green is admissible, but the trier of fact may not afford it much weight. Now let's consider these logs. In the United States all statements made out of court, whether verbal or written, are considered hearsay (with some exceptions, a couple will be discussed later). Hearsay is generally inadmissible; however, there are many hearsay exceptions. One exception is a record of a regularly conducted activity. The requirements are (summarized, you may refer to the federal rules of evidence 803-6.) for the full text): (A) the record was made at the time of the event by someone who knew about what happened (B) the record was kept in the course of this regularly conducted activity (C) making the record was a regular practice of that activity (D) all these conditions are shown by the testimony of the custodian or another qualified witness (E) neither the opponent does not show that the source of information nor or the method or circumstances of preparation indicate a lack of trustworthiness. Now if these logs fit these requirements you can most likely use them in court. If they don't you probably will not be able to use to in court, unless one of the following applies: 1.) you are being sued by someone (or you are suing them) who made the logs and you are offering the logs against them (this is referred to in legal settings as party-opponent statements) OR 2.) the other party has offered evidence that you are lying and you are offering this logs to show you are telling the truth. Most likely the only admissible evidence would be the testimony of the employee and the employer. This leads to a he said she said scenario and the legal results will be highly ambiguous. The credibility of both witnesses will be likely assessed by the trier of fact and the trier will consider who has a higher incentive to lie. If there are more witnesses saying one thing versus another, it is likely they will be believed unless there is a reason all of them are lying. Although this is not legal advice, my suggestion for an employee in such a situation is to gather evidence that an employer asked you to commit a crime as part of your job. Print out emails, get written requests from the employer, and have witnesses present at the time of the request. Then the employee should refuse to perform the act. If as a result the employee is fired, one can sue. All these statements of the employer can be admitted as party-opponent statements. Additionally I suggest that you advocate for your company to adopt policies which require record keeping, which will satisfy the hearsay exception given above.