Foundation Evidence, Questions and Courtroom Protocols, Fifth Edition

1. What is your name?
2. What is your present occupation? For how long have you been a member of the ________ Police Department (or state troopers, etc.)?
3. What is your present assignment?
   1. For how long have you had this assignment?
   2. What are your duties and responsibilities?
4. (If appropriate) What were your previous assignments in the ______ Police Department?
   1. For how long did you have these assignments?
   2. What were your duties and responsibilities?
5. (If appropriate) Do you have any other law enforcement experience? Describe.
6. (If appropriate) Have you received any specialized training for performing your current law enforcement responsibilities? Describe.
7. As part of your responsibilities, did you become involved in [begin to ask questions about the case] or did you become involved in the [arrest/investigation] of [defendant]? Describe.

Ask the witness the general introductory questions for police officers.

1. Describe the investigation and your participation or involvement.
2. When and where did you first see the exhibit?
   1. Describe how you found the exhibit or how it came into your possession.
   2. Describe the exhibit itself.
3. What was done with the exhibit (taken to the property clerk’s office)? Describe the vouchering process.

Have the property clerk’s voucher marked as an exhibit for identification and ask the witness to compare the voucher number on the exhibit with the number on the voucher.

4. When was the exhibit removed from the property clerk’s office?

Have the evidence marked as an exhibit for identification and ask the witness to identify it.

5. Is the exhibit in substantially the same condition now as when you first [saw/recovered] it?

Offer the exhibit into evidence.

1. Do you recall the specific [event/license plate number/phone number/etc.] about which you have just testified?

If the answer is no, continue with the following questions:

2. Did you make any notes, memoranda or record concerning this [event, etc.]? Describe the document.
3. Would it refresh your memory?
4. . . . What is it?
5. When did you prepare this document?
6. How much time elapsed between when you observed the [event, etc.] and when you prepared the document?
7. Was the [event, etc.] still fresh in your memory at the time you made the document?

If you have the document, skip the following question:

8. Do you have that document with you today?

Have the document marked as an exhibit for identification and ask the witness to identify it.

9. Direct the witness’s attention to that portion of the document which will assist him or her: “I direct your attention to . . . on page . . . of exhibit . . . and ask that you read it to yourself.”
10. Was the document prepared when your memory of the events recorded was fresh?
11. Does this document correctly represent your knowledge and recollection of the event at the time you made it?
12. Is it in the same condition now as it was immediately after you wrote down [the information]?
13. Was the document accurate when it was prepared?

Offer the document into evidence, and ask the witness to read to the jury what he or she wrote in the document.

1. Did you on [date] at [time] at [location] sign [identify the document, e.g., a criminal court complaint]?
   1. Did you swear at that time that the contents of the document were true and accurate?
   2. [Did you read/Were you instructed to read] the document before you signed it?
2. At that time, did you make the following statement concerning [the weapon used by the alleged robber/whether or not you received any injuries during the event/etc.]?

If necessary, have the document marked as an exhibit for identification, and show it to the witness to refresh his or her recollection. If the witness acknowledges that he or she signed the document and read its contents, there is no need to introduce the document or the inconsistent portion into evidence, nor is there a proper foundation or evidentiary right for doing so.

Nevertheless, ask:

3. Which of the two statements is correct: your testimony in court or the previous statement?

If the witness testifies that his or her current testimony is correct, ask:

4. Was your memory better then, shortly after [crime/event/etc.], or is it better now?

If the witness denies or does not remember making the previous statement, then a proper foundation has been laid for introducing the document into evidence at this time or on rebuttal. If the witness does not remember or denies signing the document, you may attempt to refresh his or her recollection with the document itself. In that event, have the document marked as an exhibit for identification and ask:

5. Please read the document. Does that refresh your memory as to whether you [executed/signed] it?

If the witness says it does refresh his or her memory and acknowledges that he or she did make the statement, there is no need to introduce the inconsistent statement into evidence, nor is there a proper foundation or evidentiary right for doing so. In this instance, ask the witness the follow-up questions in 3 and 4 above.

1. What is your name?
2. What is your occupation?
3. What is the name of your employer and the nature of your employer’s business?
4. What are your duties and responsibilities in your current position?
5. Were you employed at [employer] when the records that relate to this inquiry were prepared?
6. Describe the records maintained by [employer] that relate to this inquiry, their purpose, the way in which they were prepared and by whom and your familiarity with the records.

Have the records marked as an exhibit for identification and ask the witness to identify them.

7. Describe any involvement you had in preparing or supervising the preparation of the records that relate to this inquiry.
8. Are the records a correct and accurate reflection of [the transaction or events in question]?

9. Were the records made in the regular course of business of [employer]?
10. Is it the regular course of business of [employer] to make these records?
11. Were the records made at or near the time of the [transaction/event] recorded in the record?

1. What is your name?
2. What is your occupation?
3. What is the name of your employer and the nature of your employer’s business?
4. What are your duties and responsibilities in your current position?
5. Are you familiar with the filing and record-keeping system for documents kept by [employer]? Describe that system.

Have the document marked as an exhibit for identification and ask the witness to identify it.

6. Was this document removed from the file and brought to court? From which file was it removed?
7. Was the document kept in the correct file in accordance with the system described by you?

Offer the document into evidence.

1. What is your name?
2. What is your profession?
   1. What is your hospital affiliation?
   2. Prior hospital affiliation?
3. Describe your educational background: college, medical school (degrees), internships, residencies, specialties, board certifications.
4. Where are you licensed to practice medicine? For how long have you been licensed to practice medicine?
5. What books and articles have you written? What subjects did you address in each of these publications?
6. What professional organizations do you belong to?
7. What are your specialties?
8. Describe your teaching experience. What courses have you taught?
9. Have you been qualified in a court of law to testify as an expert in the general practice of medicine?
   1. How many times?
   2. When?
   3. In which courts?
   4. Have you ever been denied such qualification? Explain.

Ask the court to qualify the witness as an expert in the general practice of medicine.

10. On or about [date], did you examine _________ at [location]?
11. Describe the patient’s [condition/injury].
12. Describe the patient’s treatment, including medicines, drugs administered, operations, etc.
13. When was the patient released from the hospital?
14. Did you continue to see the patient after [his/her] release from the hospital?
    1. How often?
    2. Describe any continued treatment.
15. If left unattended or untreated, what would be the [extent of the victim’s disability/effect on the victim’s quality of life/permanency of the injuries/likelihood the victim would have died]?