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Evidence
University of Mississippi School of Law
Rychlak, Ronald J.

Paul Watkins
Evidence – Fall 2004
Prof. Rychlak
 
I. Introduction
 
In the Courtroom
Know the elements of your cause of action.
Find whether there’s evidence to prove/disprove them.
Find whether the evidence is admissible.
 
Motions in Limine are pre-trial motions outside the presence of the jury asking the judge to exclude some kind of evidence. They are important in resolving evidentiary issues presented by a trial, primarily because attorneys want to be able to tell the jury want they want to prove in their opening statements.
 
Jury Selection is conducted primarily by submitting questions to the trial judge, who asks potential jurors. In state court, lawyers are a lot more involved. You have unlimited challenges for cause and limited peremptory challenges (which can’t be used discriminatorily).
 
Opening Statements should explain to the jury what the evidence will show. They should not involve argument (that’s saved for closing arguments). They should show the jury the “cover of the jigsaw puzzle.”
 
Presenting Evidence – in direct examinations, the focus should be on the witness; there’s no leading. You can lead on cross-examination; the focus is on the lawyer instead of the witness. Don’t ask a question unless you know the answer.
 
Closing Arguments are the only part of the trial in which argument is appropriate. Tell the jury why the evidence supports your case. Focus on your strengths, address your weaknesses, force your opponent to address his weaknesses.
 
Evidence, in the context of this course, is what the rules of evidence say it is.
 
II. Preliminary Matters
 
A. Judicial Notice
 
Varcoe v. Lee – Court took judicial notice that Mission St. is in a business district in San Francisco.
 
FRE 201 – Judicial Notice of Adjudicative Facts
 
Fact must be either:
1)      generally known in the territorial jurisdiction of the trial court, or
2)      capable of accurate and ready determination by sources whose accuracy can’t reasonably be questions (almanac facts)
 
Judicial notice is a shortcut – it’s a way to get around an evidentiary hearing. It’s when there’s an element that needs to be proved and, rather than taking evidence to that effect, the judge takes judicial notice and accepts a given fact. Note that it does not matter that a judge knows a fact personally; a fact of which judicial notice may properly be taken must be known generally in the community.
FRE 201(g) says that a jury is permitted, but not compelled, to accept a fact of which judicial notice has been taken in a criminal prosecution. On the civil side, it becomes a settled fact.
Court Records – a judge can take notice of previous judicial activity, such as if a prisoner has filed 100 suits against the State.
General Acceptance Test/New Science Rule (Frye) – until new technology becomes generally accepted, it has to be proved in the courtroom each time it is to be used as evidence. (Graham – radar is OK for notice; Rock – hypnosis is not); lie detector results could be admissible if you make a good enough case for them. This is no longer dispositive under Daubert
 
Judicial Notice of Legislative Facts
FRE 201 doesn’t speak to judicial notice of legislative facts, as the Advisory Committee wanted the courts to have latitude to deal with that the way they wanted to. These are facts courts rely on to decide what the law will be.
The Brandeis Brief in Muller v. Oregon showed that the Court can take notice of the existence of facts to meet low scrutiny. To meet strict scrutiny, you can’t use judicial notice; you have to go into the facts.
 
B. Formal Proof
 
Real Evidence – this is “the real thing.” It’s generally admissible, but must be authenticated. Authenticate through chain of custody or unique markings (serial numbers).
Demonstrative Evidence – shows or demonstrates something; photographs, models, etc. Authenticate photos with testimony from someone who knows the area; accurate depiction; can also self-authenticate.
Testimonial Evidence – from witnesses; most issues arise from this.
 
FRE 103 – Rulings on Evidence
 
Rule 103 says that an admission/exclusion can’t be grounds for error unless “a substantial right of the party” and a timely, specific objection has been made to an admission, or an offer of proof of the substance of the evidence was made.
The only change between the old and new versions is that you don’t have to formally note an exception on the record in order to be able to appeal it.
 
Objections should be made quickly, before a witness can answer the objectionable question. Absent plain error, objections are waived if not timely made.
Offer of Proof is a request to create a record for the court above. You can: 1) make a verbal summary by counsel; 2) introduce the evidence into the record; 3) submit an affidavit.
 
C. Basic Conditions of Admissibility
 
Relevance and Materiality
 
Evidence is relevant if it makes the proposition more or less likely to be true. To be relevant, evidence has to be probative of the proposition at which it is directed and that proposition must be provable in the case.
Evidence is material if it relevant and “goes to the substantial matters in dispute, or has a legitimate and effective influence or bearing on the decision of the case.”
 
FRE 401 – Definition of “Relevant Evidence”
401 collapses materiality and relevance by saying that relevant evidence makes the existence of a fact more or less probable than it would be without the evidence.
 
FRE 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
            The test is whether the probative value is substantially outweighed by the prejudicial value. It also applies to confusion or waste of time, but these are rarely seen.
Competence
 
FRE 601 – Everyone is competent except for as provided. State law controls in diversity.
FRE 602 – You can’t testify without personal knowledge.
FRE 603 – There’s a requirement that witnesses take an oath/affirmation.
FRE 604 – Interpreters have to be competent as far as expert status and taking an oath.
FRE 605 – The presiding judge is incompetent.
FRE 606 – Jurors have to be competent.
 
Under FREs, all convicted felons can testify; MS still bans some.
Children can be competent or incompetent. Judges usually voir dire them to answer three questions:
1)      Is the child intelligent enough to understand?
2)      Can the child respond intelligibly?
3)      Can the child understand the importance of telling the truth?
 
Authentication
 
FRE 901 (and additions) – Requirement of Authentication or Identification
Authentication is satisfied by “evidence sufficient to support a finding that the matter in question is what its proponent claims.”
There are 12 “illustrations” in the Rule, 11 & 12 aren’t in the supplement; see pp. 64-5.
 
D. Preliminary Questions of Fact
 
FRE 104 – Preliminary Questions
(a)    Admissibility – the court determines these matters; also qualification of a witness and the existence of a privilege; preponderance of the evidence.
(b)   Conditional Relevance – Relevancy conditioned on fact – the jury determines the existence (or lack thereof) of the facts at issue. Judge decides whether there’s evidence sufficient to support a finding of the fulfillment of the condition. That can be a lesser standard than preponderance of evidence.
 
III. The Examination of Witnesses
 
A. Testimonial Competence
 
Spousal Incompetency
Hawkins – judicial notice that spousal testimony breaks up marriages. Trammel – judicial notice that spousal testimony indicates that the marriage is on the way out, anyway.
In MS, spousal incompetence is an issue only if they’re on the same side of a case. They can testify against each other, but not on the same side. A spouse can’t be called as a character witness.
Today, either spouse can usually waive the privilege. You’re not required to testify, but you’re not incompetent.
Confidential communications between spouses with an expectation of privacy are privileged – this privilege extends beyond marriage. You can testify to what you saw, but not what was privately told to you.
 
Dead Man’s Statutes
If a survivor has a transaction with a decedent, the survivor can’t testify about it. MSSC has said that only it has the authority to pass rules of evidence, so it does not recognize the legislature’s evidence rules. We have a dead man’s statute, but it was effectively repealed by the MSSC. DMSs still exist in most jurisdictions; not federally.
Ward v. Kovacs – got around DMS by reading sworn deposition.
 
Infamous Crimes
 
These rules prevented felons from testifying; it’s been done away with because prosecutors hated it. Perjury convictions keep you from voting. Some jurisdictions use it as a bar to testimony, but not all.
 
Juror Competence
 
Theme – We’ll explore evidence, but not the thought process.
 
FRE 606 – Competency of Juror as Witness
(a)    Jurors can’t testify as witnesses to the other jurors
(b)   To impeach the verdict, jurors can’t testify as to anything in the deliberations except for 1) extraneous prejudicial information or 2) outside influence
 
The intrinsic/extrinsic distinction is crucial to this inquiry. Intoxication is not w/in the exception (Tanner). Courts err on the side of exclusion. Jurors can testify as to outside influence and its effect on them, then the court uses a reasonable juror test to decide the prejudicial impact.
 
Judicial Competence
 
FRE 605 – Competency of Judge as Witness
      Judges aren’t allowed to testify in trials over which they are presiding.
 
General Competence
 
Common Law competence requirements (COMPetency)
1)            Perception
2)            Memory
3)            Oath
4)         Communication
 
These elements are still reflected in the FREs today. Judges determine whether there’s sufficient evidence of COMP; juries decide what to believe. If there’s anything that might be helpful to the jury, it’s probably competent. These determinations are usually reviewed for abuse of discretion.
FRE 601 – Everybody’s competent except as excluded by other FREs.
FRE 602 – Personal Knowledge req’d to be competent
FRE 603 – Oath or Affirmation req’d to be competent.
FRE 604 – Interpreters must be competent; expert and oaths
           
Rock v. Arkansas – hypnotically induced testimony not automatically incompetent.
Children can be competent or incompetent; memory is important; judges usually voir dire them to answer three questions:
1)      Is the child intelligent enough to understand?
2)      Can the child respond intelligibly?
3)      Can the child understand the importance of telling the truth
 
B. The Presentation of Proof: Basic Limitations
 
Direct Examination
            You want your witnesses talking to the jurors
–          Use the witness to influence the jury.
–          Opening statement established a theme for the trial.
–          Some lawyers want to get their important stuff in first.
–          Break the evidence up into small segments that are easy for the jury to digest
–          Make sure that you listen to the witness and engage them;
–          If you do have bad evidence, bring it in the middle when the jury’s asleep
–          Make sure you anticipate opposing counsel’s objections
–          As counsel, you have an obligation to make yourself understood by the witness
–          Narrative Answers can sometimes catch opposing counsel off guard; they’ll miss an objection
 
Leading Questions
      FRE 611(a) – Judge has discretion over the form of interrogation of witnesses.
      (FRE 611(b) – Cross-exams limited to subject of direct, credibility of witness)
FRE 611(c) – No leading questions on direct examination except as necessary. Leading questions are usually OK for 1) cross-examination, 2) hostile witnesses, 3) adverse parties, or 4) witnesses identified with adverse parties.
 
Questions that suggest their answer are leading. (“Yes/No”, “Isn’t it true?”) Exceptions to the direct examination rule are: 1) preliminary questions; 2) transitional questions; and 3) nervous witnesses.
Questions can’t assume facts that aren’t in evidence. You can’t ask how two things are different if there’s not already evidence that they were different.
 
Forgetful Witnesses
Always prepare (horseshed) your witnesses; go over their testimony and tell them to tell anyone who asks that they talked to you about it.
           
1) Present Recollection Revived (Present Memory Refreshed)
This process involves showing a document that refreshes the witness’ memory, then taking it away. These documents are not necessarily evidence; they don’t have to be entered, but you can admit it if you want it.
 
Foundation
a)      Witness knows the facts, but has had a lapse
b)      Witness knows that their memory will be refreshed
c)      Witness’ memory is refreshed
d)     Document is not referenced again.
 
FRE 612 – Writing Used to Refresh Memory
Opposing counsel is allowed to have a refreshing document produced, to cross about it, and to have it introduced into evidence.
 
2) Past Memory Recorded
Offering documentation of some past memory; it is entered into evidence and becomes an exhibit. This has to be an exception to hearsay because it is an out-of-court statement offered for the truth of the matter asserted.
 
FRE 803(5) – Hearsay Exceptions – Recorded recollection
 
1)      Must relate to witness’ firsthand knowledge
2)      Must have been prepared while events were still fresh on their mind
3)      Must accurately reflect knowledge and perception at the time
 
You can’t ask the other side to identify the crucial issues in the case for you; selected documents from discovery are protected work product under FRCP 26(b)(3). (Sporck)
 
Best Evidence Rule
Rychlak says that this should be the “Original Writings Rule.” It’s often misunderstood, misapplied, and placed on evidence and bar exams. BRE hardly applies anymore because of all the exceptions.
If the issue is what was said at the hearing, a witness can testify to it. If the issue is what the transcript said, the transcript is the best evidence (Myers). BER applies to admissibility, and, since most stuff comes in, it doesn’t exclude much. Modern codes don’t prioritize the next “level” of evidence.
 
FRE 1001 – Definitions
1)      Writings and recordings
2)      Photographs
3)      Original – includes the document and any counterpart intending to have the same effect on the person executing or issuing it; also, every photo made from a negative is an original.
4)      Duplicate – “ … accurately reproduces the original … “ Any manipulation of an original; enlargements or reductions are duplicates.
 
FRE 1002 – Requirement of Original
      To prove the content of a writing, recording, or photograph, the original document is required.
 
FRE 1003 – Admissibility of Duplicates
      Duplicates are OK unless 1) authenticity is doubted or 2) it would be unfair to admit duplicate instead of original.
 
FRE 1004 – Admissibility of Other Evidence of Contents
      Other evidence is OK to show contents if:
1)      Originals are lost or destroyed (as long as not destroyed in bad faith)
2)      Original is not obtainable
3)      Original is in the possession of opponent
4)      Collateral matters – if the issue is tangential, you don’t need the best evidence
 
FRE 1005 – Public Records
            Public records can be proved by copy; don’t take it out of the hands of the public.
 
FRE 1006 – Summaries
      Voluminous writings that can’t be conveniently examined in court can be summarized.
 
FRE 1007 – Testimony or Written Admission of Party
      Contents of writings can be proved by testimony or deposition of the party against whom the evidence was offered.
 
FRE 1008 – Functions of Court and Jury
      Court determines the fulfillment of a condition of fact. Factfinder decides a) if writing existed; b) whether another writing is the original; c) whether the evidence correctly reflects the contents.
 
Duplicate Originals – faxes and stuff
 
Non-Opinion Rule
      Common Law rule that said juries shouldn’t hear non-expert opinion. There’s now a “Lay Witness Exception” in the Rules, but it’s redundant with other Rules and the overall FRE goal of liberalizing evidence.
      Cox – Intuition is not perception for purposes of 701.
 
      FRE 701 – Opinion Testimony by Lay Witnesses
      Opinion or inference testimony by non-experts is limited to those which:
a) are rationally based on the perception of the witness;
b) are helpful to a clear understanding of the witness’ testimony;
c) is not using specialized knowledge
 
Expert Witnesses
 
Admission of Expert Testimony
FRE 702 – Testimony by Expert
      Helpfulness standard – If “scientific, technical, or other specialized knowledge” will assist the trier of fact to understand evidence or determine an issue, an expert by “knowledge, skill, experience, training, or education” can testify if it’s:
1)      based on sufficient data;
2)      based on reliable principles and methods;
3)      applied those principles and methods to the facts of the case.
 
Frye standard — General Acceptance
 
Daubert standard — trial judge is the Gatekeeper
1)      Evidence must be helpful to the jury
2)      Evidence must amount to scientific knowledge; must be supported by appropriate scientific validation – six factors
a.       Is the proposition testable?
b.      Has it been tested?
c.       Has it been subjected to peer review and publication?
d.      Does it have a known error rate?
e.       Are there standards for using the methodology?
f.       Is the proposition generally accepted? (still impt, not conclusive)
 
Kuhmo – Daubert applies to all expert testimony, not just scientific
 
–          Pot expert; he’s smoked a lot of pot. (Johnson)
–          Mob expert; he’s tracked them (Locascio)
–          Fiber analysis expert; he’d run hundreds of thousands of them (Williams trial)
–          Wood expert; no foundation except that he said he was qualified (Lindbergh trial)
–          Subject matter must be appropriate for expert testimony; the law usually is not.
 
Ultimate Issue
      At Common Law, experts could not testify to the essential dispositive issue in the case because it would encroach on the jury function. This overlooks the power of cross-examination and the difficulty of determining when something has gone to the ultimate issue.
 
FRE 704 – Opinion on Ultimate Issue
The Rule permits expert testimony about ultimate issue of facts, but not ultimate issues of law. It’s the trial judge’s responsibility to define legal terms for the jury, and the jury is solely responsible for applying them to the facts of the case.
Testimony that goes to an issue of fact is admissible; the legal conclusion that flows from such a factual determination is barred by 704.
 
–          Experts shouldn’t couch their testimony/opinions in applicable legal terms like “conscious indifference” (Berry)
 
Addition of 704(b)
      The Rule was amended after Hinckley was found NGRI following the Reagan assassination attempt. Experts can’t testify as to the mental states of a party. This was clearly directed toward insanity defenses, but “mental states” are much broader.
 
Hypothetical Questions
Their use used to be required because experts don’t usually have first-hand knowledge of any of the relevant events. They’re not required, but some lawyers still use them b/c it allows to you summarize arguments and can be persuasive.
 
FRE 705
      Experts may testify in terms of opinion or inference and give reasons without testifying to the underlying facts and data. This info can be brought out on cross-examination.
 
Bases of Expert Opinions
      Experts can give an opinion based on facts outside the record. This is generally OK and the jury is not usually shown this information unless a court lets it in as to reliability and provides a limiting instruction.
 
FRE 703 – Bases of Opinion Testimony by Experts
      Facts or data upon which experts base opinions are those “perceived or made known” and “reasonably relied upon by experts in the particular field in forming opinions or inferences.”
      The facts and data that are otherwise inadmissible shouldn’t be disclosed to the jury unless the court determines that their probative value substantially outweighs their prejudicial value.
 
C. Impeachment, Cross-Examination, and Related Problems
 
            The right of opposing counsel to cross-examine a witness is absolute.
The key to cross-examination is to never ask a question unless you know the answer (or unless you can prove the answer.)
 
Impeachment
            You always want to look for some inconsistencies, re-commit the witness to their testimonial statement, then pull out the impeaching document. Then, you need to resist the urge to ask them to explain it. You want to be brief; three questions is OK. Wrap it up with a good, safe ultimate impeachment question.
 
The Voucher Rule
            The Common Law approach was that, when you call a party to testify, you were vouching for the veracity of his testimony, so you couldn’t cross or impeach your own witness. The Voucher principle didn’t prevent you from contradicting your own witness.
 
FRE 607 – Who May Impeach
      Anybody can attack the credibility of any witness.
 
Scope of Cross Examination
A second C/L limitation was that cross examination couldn’t exceed the scope of direct. It was because of the necessity of an orderly method of presenting the truth.
 
FRE 611(b)
            The scope of cross is limited to: 1) the subject matter of direct and 2) matters affecting the witness’ credibility. Court has discretion to allow further examination as if on direct; it’s like your witness.
 
* Mississippi allows wide open cross-examination. This is one of the few differences between the FREs and the MS rules; something to remember when you’re talking about removal.
 
 
Commandments of Cross
1)      Be brief
2)      Ask short questions using plain words
3)      Leading questions
4)      Only ask questions you know the answer to do (that you can prove up the impeaching source)
5)      Don’t just let witness repeat their direct testimony
6)      Don’t let the witness explain themselves
7)      Listen carefully to the witness’ answers
8)      take the language directly from the impeaching source
9)      Don’t argue with the witness; save it for closing
10) Don’t ask one too many questions
 
Younger’s Modes of Impeachment
 
1)      Competence Factors
a.       Perception
b.      Memory
c.       Oath
d.      Communication
2)      Credibility Factors
a.       Bias, Interest, Prejudice, Corruption
b.      Prior Crimes
c.       Prior Bad Acts
d.      Prior Inconsistent Statements
3)      Special Factors
a.       Ch

dge the testimony of the witness.
            The character witness is not asked just about some bad act; it’s an arrest. Ordinarily, you can ask about bad acts, but not arrests (in the first category). That’s true with PCE, too.
Michelson forms the basis for our current 405; once the door is open, the prosecution can go into all kinds of stuff with only the possible application of 403 to stop it. The prosecution must also have a good faith basis to ask every question.
 
Trial of Seeger
            Charge was refusal to testify before HUAC. * You have to tie the testimony to a pertinent character trait that is relevant to the charge at hand. Maybe stubbornness or flexibility would be relevant, but not integrity.
 
C. Other Examples of Legal Relevance
 
Habit Evidence & FRE 406
            If it’s a habit, it’s more likely to be indicative of something that happened on a certain date at a certain time. Habits are something that a person regularly does. Institutions can have habits; there’s mail delivery at the law school twice a day.
 
FRE 406 – Habit; Routine Practice
            Evidence of a habit or a routine habit of a person or institution, whether corroborated or not, is substantively relevant to show that the conduct of an entity was in conformity with the habit or routine practice.
 
FRE 407 – Subsequent Remedial Measures
            Evidence of SRMs not admissible to prove negligence or culpability. It may be admissible to show other things, such as ownership, control, feasibility of precautionary measures (if controverted), or impeachment. Special application of 403 w/ presumption of inadmissibility; this restriction limits how you can argue evidence to the jury at closing
 
FRE 408 – Compromise or Offers to Compromise
FRE 410 – Inadmissibility of Pleas, Plea Discussions, and Related Statements
            Evidence of settlements and pleas is inadmissible because it would provide a disincentive to make and take them.
 
            You can get this kind of evidence in if a settlement was offered to someone else involved in the case; it goes to credibility.
 
FRE 411 – Liability Insurance
            Evidence of insurance inadmissible on question of negligence or culpability; not probative. It can come in for agency, ownership, control, bias, prejudice (impeachment).
 
Critical Distinction
            In the 400s b/c it’s a type of relevancy. This is character in terms of a substantive issue; propensity evidence; evidence of other crimes. The 600s have rules about character evidence for the impeachment of witnesses.
 
FRE 404(b) – Other Crimes, Wrongs, Acts
            Not admissible to show action in conformity therewith. It may be admissible for motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The list is not exclusive.
 
            The fact that a person’s done something bad doesn’t mean that he did it on the occasion in question. Sandoval said that bad acts would sometimes be admissible; that’s this.
            Evidence that a guy who got hit by a car has walked outside of crosswalks on occasion is excluded under 404(b). However, if there’s a particular crosswalk that he always skips, it may be a habit. When does a couple of bad acts turn into a habit?
 
Rex v. Smith (Brides in the Bath case)
            ∆ conv’d of murdering his wife in bathtub; at trial, prosecution introduced evidence that he has killed two previous wives in the bathtub.
            ∆’s claim was that it was an accident; she slipped in the bathtub. The prosecution was allowed to introduce the prior murder evidence to rebut the claim of accident.
            Prior bad acts are not admissible to prove bad character or propensity (“the case to start with”), but 404(b) says that there may be other reasons to admit it. They become relevant when it can rebut some defense, etc. offered.
 
The Doctrine of Chances
If something happens often enough, it’s probably indicative of a pattern. The law permits jury to make an objective inference if something is happening too frequently to be attributed to chance.
            If you can make this Doctrine apply to bad acts, you’re in. It’s usually to rebut a defense such as coincidence, accident, etc. Usually, it seems pretty common sense.
 
Woods
            ∆ suffocated a foster baby. Evidence about the medical conditions of other kids in the home were admissible to rebut the assertion of accident by the defense. Another common way for bad acts evidence to come into play is to show M.O.
 
Huddleston
            Court need only determine that there’s sufficient evidence supporting a jury finding that ∆ committed the act in question. ∆ was charged with receiving stolen property and his defense was that he didn’t know the property was stolen.
            In response, the prosecution offered two other instances in which ∆ had been caught with stolen property. ∆ said that the evidence should not come in because they couldn’t prove that he was guilty those other two times. USSC had to decide what order of proof was necessary.
            ∆ said that you at least had to show preponderance of the evidence. The Court said it was a question of conditional relevancy. As long as you can show a PFC, the evidence can come in.
 
Hearst
            Patty joined the SLA and started robbing banks and stuff with them. On appeal, the court is affirming the admission of evidence of these other crimes. It’s not PCE; they’re not saying that she committed this bank robbery because she committed these other crimes.
            It comes in now under the Doctrine of Chances to show that, despite her defense, she had choices. It’s to negate her claim of duress; being offered for some purpose other than PCE.
           
Williams Trial
            Prosecution wants to introduce evidence of 10 dead people to establish an MO for ∆. ∆ claims that it’s PCE. There was a little bit of fiber evidence, but not much. The court of appeals pretty much relied on the Doctrine of Chance; you’ve been tied to so many other homicides, it’s unprobable that you’re not tied to this one; Rychlak says that this is probably an improper use of the doctrine.
 
 
 
V. Hearsay
 
Out-of-Court Statement? (OCS)
For what purpose is it being offered?
Is there an exception?
 
Queen
            Slaves suing for freedom. Claim was based on what their ancestors said and their ancestors were dead. Deposition testimony was offered, but it was excluded as hearsay.
 
* Depositions are the equivalent of a court reporter testifying.
           
Three Problems with Hearsay
1)      Lack of Oath
2)      Accuracy
3)      * Lack of Cross-Examination
 
It’s important to be able to test a witness’ truthfulness and accuracy; if you don’t have an opportunity to cross-examine the witness, those areas are wide open for mistake and abuse.
 
Declarant-oriented definition of hearsay
Hearsay is an OCS which depends, for its probative value, upon the credibility of someone who can’t be cross-examined. The credibility of the testifying witness depends upon the credibility of the person who gave the original evidence. This rule is hard to apply on your feet; we developed the FRE approach; it’s a little more user-friendly.
 
Trial of Williams
            This was an undercover cop testifying as what was said at a meeting with the corrupt mayor of Camden, N.J. The credibility of this testimony depends upon the credibility of the mayor. The mayor is an out-of-court declarant.
 
FRE approach
1)      Out-of-court statement
2)      What purpose is it being offered for? If it’s important, apply the rule. If it’s to some side issue, it’s not something to get that worried about. If the testimony is that witness was looking for a blue car because X told him to look for a blue car, it’s not offered for the matter asserted and shouldn’t be excluded.
3)      Is there an exception?
 
* If the first two (OCS+TOMA) are answered yes, it’s hearsay. Then, you look to see whether there’s an exception to determine whether the evidence is admissible anyway.
 
Hearsay Definitions
1)      FRE definition – based upon the out-of-court statement – easier to apply
2)      Focus on out-of-court person – initial definition
 
Suppose that witness says that another person said that the light was red. It sounds like hearsay, but it really only goes to Part 1; OCS. We don’t know yet whether or not the statement is offered to prove the truth of the matter asserted. It might be offered for the jury to assess the credibility of another witness.
 
Brakes Hypo
Suppose a mechanic tells a driver that his brakes are bad in front of a witness. The witness testifies that he heard the mechanic tell the driver the brakes are bad. It’s an OCS. If the issue is that the brakes are bad, it’s hearsay. The witness can testify as to the conversation if it’s about an issue related to the driver’s mindset; did the driver know that the brakes were bad?
So, if the witness is testifying as to whether the driver knew brakes were bad, it’s not hearsay. It’s hearsay if the witness is testifying as to whether the brakes were bad. 
 
FRE 801