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.