Published in Litigation, Volume 49, Number 4, Summer 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may
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Four Rules to Establish That Your
Evidence Is Legit
GENE ROSSI
The author is a shareholder at Carlton Fields, Washington, D.C.
For very young (and sometimes seasoned and highly experienced)
trial lawyers, the anxiety and fear of not being able to introduce
a key exhibit, be it drugs, a gun, a cell phone, computer data, a
recording, or a business record, cannot be overstated. I must
confess that worries (large and small) about establishing the
“foundation” for the admissibility of evidence have never left my
mind over more than 30 years of preparing for trials.
The Federal Rules of Evidence
There are many gifts to help you navigate the turbulent trial wa-
ters. Where can you find those precious gifts to keep your pulse
and blood pressure at reasonable levels? The Federal Rules of
Evidence, which, in my humble view, are written with a slant
toward allowing evidence to be presented to a jury.
The biggest gift of all, and something that I stressed to hun-
dreds of baby prosecutors whom I had the honor and privi-
lege to train during my close to 30 years with the U.S. Justice
Department, is Rule 1101(d). That rule states that the Federal
Rules of Ev idence—“except for tho se on privileges— do not ap-
ply to... the court’s determination, under Rule 104(a), on a pre-
liminary question of fact governing admissibility.” Under Rule
1101(d), there are numerous circumstances when a trial attorney
can safely say to the court that it does not need to pay particular
care about the Rules of Evidence. Subsection (d) can be liberat-
ing for prosecutors in particular, because it allows hearsay and
otherwise inadmissible evidence to be considered in grand jury,
bond, preliminary, sentencing, and probation revocation hear-
ings, and in affidavits in support of arrest and search warrants.
When a court puts on its admissibility hat, curious questions
are in order. I have always been amazed, if not befuddled, that in
light of subsection (d), why did I care to take an evidence class in
law school? When there are so many matters to which the rules
do not apply, why is evidence even on the bar exam? My skepti-
cism is somewhat exaggerated, of course. However, subsection (d)
often reminds me of the famous quote by Ralph Waldo Emerson:
“A foolish consistency is the hobgoblin of little minds.”
The referenced Rule 104(a) states in part:
The court must decide any preliminary question about whether
a witness is qualified, a privilege exists, or evidence is admis-
sible. In so deciding, the court is not bound by evidence rules,
except those on privileges.
For trial attorneys, subsection (a) is the evidentiary life raft
of all life rafts. If the court properly follows the permissiveness
of (a), then establishing the foundations for the admissibility
of evidence should be far less than a Herculean task. In my
