EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, May 12, 2010

No Foundation: Seventh Circuit Opinion Reveals Lack Of Need To "Lay A Foundation" In American Evidence Law

When I reach the authentication portion of my Evidence classes, students usually ask whether authenticating a piece of evidence is the same thing as laying a proper foundation for its admission. My response is that there is no such thing as laying a foundation in American evidence law (despite what we are told by legal movies and TV shows). This point was recently recognized by the Seventh Circuit in its recent opinion in United States v. Collins, 2010 WL 1838361 (7th Cir. 2010).

In Collins, a jury convicted appellant Keith Collins of possessing crack cocaine with intent to distribute it and of conspiring to do the same. At trial, Collins' ex-girlfriend, Rokesha Johnson, testified that, during the course of their relationship, she observed him sell crack cocaine on numerous occasions.

After he was convicted, Collins appealed, claiming, inter alia, that this testimony constituted inadmissible character evidence of "other crimes, wrongs, or acts" under Federal Rule of Evidence 404(b). The Seventh Circuit disagreed, finding that

the bulk of the cocaine sales that Johnson described-those that took place between August 2002 and the time of Collins' arrest-occurred during the time frame of the charged conspiracy and are not “prior bad acts” as that term is understood.

The court then bypassed any serious analysis of cocaine sales described by Johnson which fell outside the time frame of the charged conspiracy, concluding that even if this testimony was improperly admitted, its admission was harmless error.

Collins also (implicitly) claimed that the prosecution failed to lay a proper foundation for the admission of Johnson's testimony, but the Seventh Circuit quickly dispensed with this argument as well, finding that

"no rule of evidence requires a 'foundation'" and that the rules of evidence generally make all relevant evidence admissible....This evidence of Collins' active crack cocaine distribution during and just before the time of the alleged conspiracy was relevant to show his involvement in the conspiracy. It is theoretically possible that Collins' sales observed by Johnson were entirely separate from his admitted conspiracy with McNeal, but that theoretical possibility did not prohibit admission of this evidence.



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Who am I to argue with the 7th Circuit or a Law Prof but, like most questions in the law, isn’t this a matter of semantics? Granted, not all evidence will require “foundation,” but it appears to me that at least some evidence will require it:

Under FRE 602, a witness must have personal knowledge for the testimony to be admissible. The 700 series sets out requirements for the admissibility of (some) lay and expert witness testimony. And 901 provides rules and examples relating to the need to authenticate evidence for admission.

As I understand it, and I hope the Professor will correct me if I am wrong, the evidence required to comply with these rules is referred to as “foundation” or “foundational evidence.” If the proponent of evidence (being objected to) cannot provide this “foundational evidence,” then under the FRE, the objection should be sustained and the initial evidence excluded.

Posted by: mahtso | May 13, 2010 9:21:19 AM

You are right that this is a matter of semantics, but semantics can be very important with evidentiary rulings. If the prosecution seeks to introduce testimony by a witness without personal knowledge, supposedly expert testimony, or a confession note allegedly written by the defendant, and defense counsel objects, merely saying, "The prosecution failed to lay a proper foundation," the judge is likely to overrule the objection. And on appeal, the appellate court is likely to find that the defendant failed to preserve the issue for appellate review.

Posted by: Colin Miller | May 13, 2010 10:26:50 AM


But, but, but, your headline and your initial comment say that there is no need to "lay a foundation" in American Evidence Law. Then you seem to change that into, "A 'lack of foundation' objection will not preserve an objection to the failure to lay a proper foundation, whatever is needed in the particular context." Apples and oranges? I strongly disagree with your first proposition and (strongly) agree with your second.


Posted by: Fred | May 17, 2010 12:35:58 PM

Fred, thanks for the comment. I guess what I was trying to say is that there is no such specific thing as laying a foundation. You may need to authenticate evidence/testimony. You may need to establish relevance/conditional relevance. But an attorney does not need to "lay a foundation" before admitting evidence/testimony, and opposing counsel can't merely object that the other attorney "did not lay a foundation." I probably should have worded the post more clearly.

Posted by: Colin Miller | May 17, 2010 3:31:35 PM

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