When and how must one "lay a foundation" to introduce evidence?

Question

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?

Answer 1

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).

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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:

1. Before the hearing, have your witness print a paper copy of the e-mails.

2. 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.”).

3. Mark the e-mails with an exhibit number or letter (usually the plaintiff uses numbers and the defense uses letters).

4. At the hearing, call your witness and have him/her sworn in.

5. 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.

6. Show the e-mails to the witness.

7. Ask the witness if he recognizes the exhibit you handed him.

8. Have the witness explain how he recognizes it.

9. 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.