Copyright, MCMLXXXVII, All Rights Reserved,
Charles E. Brown, Attorney at Law
Notice: This information is provided for those who wish
to learn the law in a way that teaches you the basic
principles of the law. This disk will also help you pass the
multi-state portion of the bar exam.
This disk is provided as shareware. I have spent
hundreds of hours compiling this information and provide it
for only $75. If you'd like, you may substitute information
compiled on a legal subject for the $75. Please send check
or disks to:
Charles E. Brown IV
Attorney at Law
11526 Raymond Avenue
St. Louis, MO 63138
I have other legal information--including the one
principle that is guaranteed to get you through the
multistate--available for those who are interested. Include
your name with your letter and I'll make it available to you
as a service to my brethren in the law.
I also have two other disks with legal subjects on them.
These subjects include estates, administrative law, equity,
personal property, agency, secured transactions, civil
procedure, corporations and partnerships, commercial paper,
conflicts of law, and admiralty. I will provide them free to
All relevant evidence is admitted unless there is a
specific rule which keeps it out.
FRE 802. All hearsay is inadmissible unless it
qualifies under one of the exceptions of FRE 803 or 804.
The first question is, therefore, what is hearsay? FRE
801 says that hearsay is a statement other than one made by
the witness while testifying at trial offered into evidence
to prove the truth of the matter asserted.
W = witness
D = declarant
We want to prove that it rained January 1.
W says that D said....
W says that D wrote...
W says that I said earler...
W ssys that I wrote earler...
D's statement must be offered to prove the truth of the
matter asserted. Explanation. We are talking about
D's out of court statement not the testimony of the witness
when referring to the truth of the matter asserted. There
are dozens of other uses for a statement other than to prove
the truth of the matter asserted. It is only hearsay if it
is introduced to prove the truth of the matter asserted.
Test to apply to out of court statements: Will the
offered out of court statement help a little bit to decide
the proposition it is introduced to prove even if facts
asserted in the statement are false? If so, then it is not
Three situations where courts routinely hold that the
evidence is not hearsay:
1) When declarants statement has an independent legal
effect when it was made
The legally operative statement:
In a contract case: X says I accept your offer.
In a libel case: X says Y is a thief.
2) Statement offered to show knowledge on part of
listener when knowledge on the part of the listener is an
issue in the case.
X testifies, "I heard mechanic tell defendant brakes are
General rule: If knowledge on part of the listener is
relevant issue in case any evidence is admissible including
out of court statements made by a third party.
3) Statements of declarant offered to prove sanity or
insanity is admissible if declarant's state of mind is
relevant. This is close to the state of mind exception.
Two fact situations which have caused problems:
1) Conduct: Witness wants to testify as to what
defendant did instead of what he said (putting up an umbrella
to show that it was raining outside that day).
FRE: Conduct intended as an assertion to someone else
is hearsay if offered to prove the truth of the matter
X shakes his head--yes, this is hearsay.
X puts up his umbrella--no, this is not hearsay.
2) Prior statements of witnesses themselves.
The traditional common law view is that prior
inconsistent statements are hearsay if offered to prove the
truth of the matter asserted (can be used, however, to
impeach the witness).
FRE changes the traditional view just a bit. It is non-
hearsay substantive evidence only if given under oath with
the penalty of perjury.
Bar hints...when you think you have the correct answer
on hearsay, stop and don't read another. Spot the hearsay
and go on. There are more questions on the exceptions to the
rule than on the rule itself.
Hearsay exceptions. 10 hearsay exceptions. These are
tested on the most. With respect to these ten we will divide
them into three piles:
Most important exception to rule. Must know
admissions. We will be expected to know that under FRE these
are not hearsay at all (in most jurisdictions these fit into
An admission is a statement by a party to the action
made at any previous time that is relevant to the case (even
if D has no personal knowledge of it). Two broad categories:
a) The party makes the statement;
b) Person acting on behalf makes the statement.
There can be admissions by silence:
a) Adoptive admissions. The defendant fails to
protect himself when a reasonable person hearing the
accusation would protect himself.
b) Admissions by expert evidence. The FRE makes a
sharp departure from tradition. The common law rule
was that expert's statement could only be used if
expert authorized to use the statement. FRE 801
changes this, and allows the expert's statement if
it concerns any matter within the scope of
employment and during the scope of employment.
II. Hearsay Exceptions Which Apply Whether Declarant
Available Or Not
1) Present sense impressions. Statement describing or
explaining an event or condition while D perceiving event or
conduct or immediately thereafter. Can go to the truth of
the matter asserted. Contemporaneous or immediately
2) Excited utterance. Statement made relating to
startling event or conduct made while D is under stress.
Doesn't have to come immediately after but D must have still
been under stress. Hints for stress:
a) Look for introductory phrase, "My God"
b) Look at verb that describes statement in quote,
"X shouted or screamed".
c) Look at punctuation mark!!!!!
3) Then existing mental, physical or emotional
condition of D. Statement describing D's conditiono at time
the statement was made. Also statements of intention for
future are a "then existing mental state". The MPRE tests on
this every year.
4) Statements for the purpose of medical diagnosis or
treatment. Under this exception if making statement to a
doctor the testimony can go back in time (doesn't have to be
then existing). Exceptions--what if X goes to the doctor for
the purpose of testimony? Answer--under the FRE yes, because
the witness consulted for the purpose of diagnosis.
5) Recorded recollection (relates to writing). Witness
who is recorded in the statement must testify to four things
(see earlier stuff).
6) Business records. "Regularly conducted business
activity." Anything other than a purely private matter.
Before this will be received, there must be testimony from a
competent witness that records were regularly kept in
ordinary course of business.
III. Hearsay Exceptions Which Apply When the Declarant
When is a witness unavailable? If for any legitimate
reason we cannot get testimony of the witness, he is
1) Former testimony. Under the FRE, this applies to
the party against whom the evidence was offered against when
he was a party to 1st case and unavailable in 1st case.
Remember though that in 2nd case the witness must be
2) Declarations against interest. FRE--allows
statements against proprietary, financial, and penal
3) Dying declarations. Applies in very limited group
of cases. The common law rule:
a) The D had to die;
b) The statement had to be made at a time D was
certain death was imminent;
c) The statement must relate to circumstances
surrounding the cause of death;
d) Only admissible in criminal homicide case where
accused charge with the death of deceased.
a) Defendant does not have to die but must be
unavailable for some other reason;
b) Very important for the exam--it must say in the
facts that D believed death was imminent;
c) Statement must relate to cause of death or what
he perceived to be his impending death;
d) Can be used in civil cases and criminal cases of
Won't get much on the exam about judicial notice
General Rule: These are not admissible if declarant is
a) Former testimony
b) Declarations against interest
c) Statements made under belief of impending death
Other Evidence Notes
(these are class notes that are not as relevant for
the Multistate Exam)
--Direct and Cross
The standard objection is "incompetent, irrelevant and
immaterial". What does all this mean?
--A specific piece of evidence is able to be received
--Therefore, incompetent means that a specific piece
of evidence is not able to be received in evidence.
--The evidence has some tendency in logic to prove
what it is supposed to prove.
--Evidence must have some bearing on the case.
Reasonable men will often differ on materiality.
How do you build the model? The model is a reproduction
of the real world.
--Real evidence (not a reproduction but the thing itself).
When is real evidence admissable? When you prove that
it is the real thing. Do this any way you can.
Demonstrative evidence: Not the real thing but it
demonstrates the real thing. Demonstrative evidence is
admissable if it accurately represents what it is supposed to
How does the lawyer build the model?
1. When is a human being competent? A handful of
statusses are still left in the rules.
--Judge and juror
--Dead man's statute
--Jurors are incompetent to impeach the verdict--
interest in finality--some exceptions for obvious
2. Requirements of competence:
--Take the oath
--Witness must have perceived what he will testify
--Witness must remember what he perceives
--Some rational means of communication
3. Direct examination
--No leading questions. A leading question is a
question which suggests the answer.
b) Issues not in controversy
c) Inconsequential issues
d) When going to a new topic
e) Hostile witness. Demonstrates by his demeanor
on the witness stand his antagonism towards
f) The reluctant witness
g) The adversary
h) Poorly conversant witness
4. Credibility and Cross-Examination
--Credibility is the way the jurors assess the
reliability of the evidence.
--Rules of accrediting the witness. Rules which
make the jury more likely to believe the witness.
--On direct exam we would like to accredit the
witness. However, you may not accredit your witness
on direct exam. This is to save time. You may
accredit on redirect examination. Exceptions:
a) coerced confessions
c) when witness is the victim in a criminal case
At common law, you were forbidden to descredit your
own witness. Except that:
--If one is surprised and prejudiced by the witness.
5. How do you help a witness to remember?
a) Ask for a recess and talk to the witness.
b) Ask a leading exception to refresh recollection
c) Present recollection refreshed
d) Past recollection recorded (introduce exhibit as
6. Hostile witnesses: One who demonstrates by his
demeanor that he is hostile. You may interrogate by leading
7. Cross-examination: May sometimes by used to bring
out facts not brought out in direct examination. More often
used to impeach or discredit. "Perry Mason" phenomenon.
Brilliant cross-examinations require:
a) Technical knowledge and ability
b) Experience (twenty-five jury trials)
c) Talent (Only seven or eight have had that
8. What questions do I ask? The answer to this is
furnished by the rules of evidence. The nine ways to
discredit a witness are:
a) Use the witness' oath against him
c) Memory or recollection
e) Discredit witness by showing:
f) Impeachment by showing conviction of a crime
--Limited by the right of the prosecutor to
impeach the defendant by a crime
g) Impeach by showing that the witness has
h) Impeachment by prior inconsistent statement
The first four ways to discredit merely turn the
elements of competence around. No preconditions. Items of
competence and accrediting. The last mode of impeachment
does not take place on cross examination, but by calling
another witness. How does W-2 say that W-1 is a liar? W-2
testifies for W-1's reputation for lack of veracity in the
9. How do you ask the question on cross-examination?
a) Remember, no trial lawyer has ever made a
mistake by stopping. No professional obligation to
cross-examine every witness.
b) If we're going to go the above route, say with a
smile and with thumbs on suspenders,..."I have no
cross-examination for this witness, your honor."
10. Judge Younger's Ten Commandments of Cross-
a) Be brief. The purpose of cross-examinations is
to persuade the jury that the person you are
speaking to is not worth believing. Never try to
support more than three points on cross-examination.
b) Ask short questions using plain words. Don't
remind the jurors that you are a lawyer.
c) Always ask leading questions. Make the witness
say yes. Always control the witness on cross-
d) Ask only questions to which you already know the
--Go ahead if you don't care what the answer is
e) Don't let the witness merely repeat his direct
f) Don't let the witness explain. Insist upon yes
or no answers.
g) Listen to the witness' answers.
h) Don't quarrel with the witness. Detracts from
the artistry and elegance of the presentation.
i) Avoid the one question too many.
j) Save the argument for summation. Unsatisfied
curiosity is a great way to hold interest among the
11. Accrediting: Done during redirect examination.
Three ways to accredit:
b) Prior inconstent statement
c) Reputation for veracity
12. Three touchstones on effective witness credibility:
a) Must be tactful
b) Must be simple
c) The jurors cannot be fooled