 If you will look at 801-D, the rule is structured to say that the matters under 801-D are not hearsay. I suggest to you that by definition, everything they've got under 801-D is in effect hearsay, and the rules should have said these are excluded from hearsay. Because everything they list there in 801-D really is a statement made by a person other than one made while the person is testifying all for the evidence to prove the truth of the matter asserted. If you will think of 801-D as exceptions to the hearsay rule, it will be easier to understand the hearsay rule. Notice that nearly every one of those statements, every one of those exceptions that are hearsay under 801-D have some element of trustworthiness once again. And therefore they are properly viewed as exemptions or exceptions to the hearsay rule. The most troublesome one of those exemptions under 801-D is of course in the criminal area where you are dealing with an 801-D2E statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy. Most courts formally said it was for the jury to determine if the prerequisite for use had been satisfied and it was for the judge to instruct the jury that it was their function to determine the prerequisite for the consideration of a statement by a co-conspirator being received and considered by the jury. But federal rule of evidence 104A and B which we discussed earlier and the cases that have been decided there under have changed this rule entirely. In other words, today in order for a co-conspirator statement to be admitted over objection that it does not qualify under rule 801-D2E the court, not the jury, must be satisfied that the statement actually falls within the definition of the rule. This is a preliminary question of fact that must be resolved by the court under rule 104A as the Supreme Court recognized in Beaujolais v. United States which is cited in your materials. So let's take a look at the requirements of rule 801-D2E to see exactly what the court must find as a preliminary matter before it can admit a statement under the co-conspirator exception. The rule says a statement is not hearsay if it is offered against a party and it is a statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy. So for a statement to be admissible as a co-conspirator statement, the court must find that one, there was a conspiracy in existence. Two, the declarant was a member of that conspiracy. Three, that the defendant against whom the statement is offered was a member of that conspiracy. Four, the statement was made during the course of that conspiracy. And five, the statement was made in furtherance of that conspiracy. As I said, the court makes findings regarding these preliminary questions of fact under rule 104A. Notice, however, that the federal rules of evidence do not define the standard of proof the court must observe in resolving these questions. But the Supreme Court also resolved that issue in the Bourgillais case. Bourgillais held that when the preliminary facts relevant to admissibility of an alleged co-conspirator statement under rule 801-D2E are disputed, the offering party must prove them by a preponderance of the evidence. Now at one time most circuits held that in determining whether an alleged co-conspirator statement was admissible, the court could not take into consideration the proposed statement itself. But Bourgillais reversed those rulings and held that a trial court can take into consideration the content of the alleged co-conspirator statement itself in determining whether that statement should be admitted as a co-conspirator statement. In other words, in deciding these preliminary facts, whether there is a conspiracy, whether the defendant participated in it and so forth, you can consider the alleged co-conspirator statement itself. The very hearsay statement sought to be admitted. Another way to say it is that the hearsay statement at issue may be considered by you in determining whether or not the preliminary facts necessary for its admissibility have been established by a preponderance of the evidence. You should evaluate the probative value of the statement in this regard along with any independent evidence tending to qualify the statement under rule 801-D2E and give it such weight as in your judgment it is entitled to. And finally in this regard note that the court in Bourgillais left open the question whether you can rely solely on the proposed co-conspirator statement in determining that the statement is admissible as a co-conspirator statement. Bourgillais is of course the seminal case in this area and I commend it to you for further study. Alright, let's look at 803 for a moment. I don't intend to go over all of the 24 exceptions indeed. I don't intend to go over but one of the exceptions but I want you to remember that 803 does list 23 specific exceptions to the hearsay and that each one of those exceptions is based upon some degree of trustworthiness but you don't even have a hearsay problem until by definition the matter, the out-of-court statement being offered is being offered to prove the truth of the matter asserted therein. That is the first question you ought to always ask yourself before you ever start trying to look to see if you have an exception to the hearsay rule that will let you receive the statement your first inquiry ought to be is it being offered to prove the truth of the matter asserted because if it's not you don't have to look for an exception you don't have a hearsay problem. It's only if the truthfulness is the matter that you then are confronted with trying to find an exception. The most critical exception and the most often used exception to the hearsay rule is 803.6 the old business record exception and I think I can in just a moment go over that one exception and demonstrate very clearly what I'm trying to get across about how critical the definition of hearsay is and how critical the opportunity to cross-examine is in understanding whether or not you have a hearsay problem in the first place and in understanding whether or not you have an exception to the hearsay rule. Alright let's look at 803.6 for just a moment records of regular conducted activity and it makes as an exception to hearsay a report of events made at or near the time by or from information transmitted by a person with knowledge if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make the report if you think about that definition you will quickly realize that many misconceptions of what is or is not a business record exist. For example that definition does not embrace letters that are received by a business from unrelated people simply because I as a business keep a file of all income in mail and I regularly keep a file of all income in mail does not mean that those letters that I receive fall into the category of an 803.6 business exception to the hearsay rule. The records that the 803 is talking about has to be records generated internally by people with knowledge whose business it is to generate such internal records and then of course to regularly retain those recorded statements as a part of the business activity. More importantly simply because a document fits the 803.6 business record exception does not and I emphasize not mean that the entire record can come in because there may be hearsay within that hearsay the document itself is hearsay and it may contain hearsay. We see in the rule that hearsay within hearsay is not objectionable per se but if you have an exception to each tier of the hearsay you can receive it but if you don't have an exception to each tier you can't. I can illustrate this I think best and emphasize how this works by giving you an example. Let's assume that a police department regularly makes a report of investigations of accidents and there's an accident and policeman Jones goes out to the scene of the accident. He measures the skid marks of the car and he writes that down on his report. He goes up to driver A and he says driver A tell me what happened and driver A says I didn't see the traffic light and he writes that down. He looks up and he sees that it's sun shining and he looks down and sees that the roads dry so he checks the block on the report sun shining road dry. He goes over to the porch of a house and there's a lady sitting down on the porch and he asked her what happened lady and she tells him how she saw the accident and he writes that down on his report precisely verbatim as she told it to him and then he goes back into the police office and he turns in his report. That is the type report that 8036 is describing. It is a report generated by a person with knowledge whose business it was to generate that report in a business that regularly receives that report and records it and keeps it and it fits 8036. But the business record exception really is saying you don't have to have the officer come testify we'll use this report. That's all that the business record exception is saying and so in deciding what part of that report that you're going to receive in evidence you should mentally picture the policeman on the stand and that is the best way I can tell you to think of how to apply the business record exception is to picture the author of the business record on the stand and then allow that much of the business record into evidence as you would allow the generator of that business record the officer to testify to if he was physically present in your courtroom. Now as I said the police report here does fit this 8036 business record exception but let's see how much of that report we would let into evidence because just because the record fits 8036 is not the end of the inquiry. Alright first thing the policeman Jones did he measured the skid marks. Well you would let that part of the report in why because you'd let Officer Jones if he were in your courtroom testify the skid marks were 23 feet and why because he had personal knowledge he had done it so you would let that part of the report in. The report also said driver A said I didn't see the traffic light that's hearsay that is hearsay within the definition of our hearsay but you would let it in because there is an exception to the hearsay rule in 801D that would fit that. So you would let the officer testifies to what the driver said to him so let's let that part of the report come in also. Alright the report also says son was shining road was dry let that come in too because you'd let the officer if he was sitting there on the stand testified of that therefore let that part of the report in. Finally the report also contained a description by the lady on the porch as to how the accident happened. You cannot receive that in the evidence why because you would not let that officer testify if he were present you would not let that officer testify as to what she said was the way the accident happened. Why because that's hearsay it's patent hearsay it's only relevance is to prove how the accident happened it's only relevance is to prove the truth of what she said and there is no exception to the hearsay rule. And that hearsay statement even though contained in the business record cannot come into evidence so the fact that well I can show you how it might could if it were to fit the excited utterance. Let's say that he went over there and said lady what happened she said my God his head came off and blood was gushing and or whatever it might fit on excited utterance you might get an exception to the hearsay rule. But normally that statement would not be received because it's patent hearsay and there's no exception. So the point is this that where you've got a business record that clearly fits the business record exception to the hearsay rule that is not the end of the inquiry. You have to look at the business record look at the part that's coming in or either the lawyer at least objecting if he objects you've got to look at it to see if there are in fact parts of that business record that in fact must be excluded because they are otherwise objectionable. And the police report illustration which I've just given to you clearly demonstrates within an admitted business record that there can be objectionable evidence that you have the obligation to keep out if there's a valid objection made to you. And which then necessarily requires that you look at these documents before you receive them. Alright 803 as I indicated lists 23 specific exceptions to the hearsay rule all rooted in trustworthiness and 803 24 is an omnibus one. And then you turn to 803 correction 804 and you find in 804 five additional exceptions to the hearsay rule under the added condition that the declarant is not available. While these here they happen to be five exceptions that Congress could not quite come to grips with to include in 803. And so Congress added the additional condition that the declarant be unavailable. And if the declarant is unavailable then these also would be exceptions to the hearsay rule. It was just a matter of working them through Congress they could almost as easily have been listed under 803 or they could have been left out entirely as an exception to the hearsay rule rather the committee opt for a compromise which said we will let these be additional exceptions but we're going to put one more condition on them and that is they will not be an exception unless the declarant is unavailable. Alright so much for 801 2 3 and 804 805 as I indicated a moment ago says that there is nothing wrong with hearsay within hearsay provided of course there is an exception to the second tier hearsay also. So if you find an exception to the first tier and find an exception to the second tier then you can receive it. If you can't find an exception to one of the tiers then it can't be received. Rule 806 in essence says that the credibility of hearsay really the credibility of the declarant the credibility of the person out of court making the statement. The credibility of hearsay may be attacked or if attacked supported generally in the same manner as any other witnesses credibility. It just merely says that if you've got an out of court declarant who is providing the jury evidence of the truth of what that declarant is saying that that jury ought to be able to hear about a prior conviction of that declarant to impeach that declarant the same as if the declarant were in trial testifying live. Alright I don't have time to go over hearsay anymore this is an overview of the rules of evidence but I seriously believe that if you have only five days to study the federal rules four of those five days ought to be devoted to the article eight rules. They are that important and I suggest that I urge you to spend some time getting familiar with the hearsay rules. This is merely an overview. Alright let's look at the article nine rules authentication and identification. As you are keenly aware before the monstrative evidence including writings of course and photographs and all of the other things is admissible the evidence must be authenticated. This simply means and means only that a sufficient foundation must be laid so that there can be a determination that the evidence is what it is purported to be. That's all authentication means that a sufficient foundation has been laid so that there can be a determination that the evidence is what it is purported to be. Most often that determination involves a question of competency of the evidence and thus is a preliminary decision for the judge alone to make under rule 104A. Rule 901A simply sets forth the general rule that something has been authenticated where there is evidence sufficient to support a finding that it is what it is purported to be. And 901B merely gives illustrations of how 901A works. Thus without even bothering yourself with the 901B illustrations if you the judge are satisfied that the documentary evidence is what it purports to be. That's the end of the inquiry. If somebody says judge we would like to introduce an evidence or have marked as an exhibit the December 7, 1941 New York time. I object you honor him but authenticate it. You say fine let me see that doc let me see that paper a minute. And it's yellow and frayed and it says it has the mask of the New York Times on it and it has December 7, 1941. That's all it takes. That's sufficient for you to determine that is what it purports to be the New York Times. The question of authentication is ended. The document is authenticated. There's no set rule for determining when it's authenticated. You decide 901B just gives you some illustrations as to how that can be decided by you. 902 gives a few express areas where things are self authenticated. And if the matter comes within the area described there in 902 the documents are self authenticated. I suggest to you that you might want to read 902 sometime but it's not of great significance because every one of those things described in 902 would automatically have caused you under 901 to have concluded they are what they purported to be. And therefore just using the general rule that you the judge must decide if the document is what it purports to be and if you decide it is it's authenticated is about all the rules you need to know about authentication. Alright 903 which is the only remaining rule in the article 9 series requires only the passing comment that no longer do you have to call or account for a subscribing witness to a document before proving the execution of that document. It's a very limited rule that has very little application. I suggest that the article 9 rules on authentication are about the easiest rules to apply in all of the federal rules of evidence. They are just common sense rules. You start with the basic rule that if something's not authenticated you can't receive it but it's authenticated if you are satisfied it is what it purports to be. And that's the end of the inquiry under rule under the article 9 rules. Now let's look at the second most troublesome area in the federal rules or what may be viewed as the second most troublesome area and that's the article 10 rules. The best evidence rule if you will. As you know the best evidence rule is applicable only where contents and I want to emphasize very very much the word contents. As you know the best evidence rule is applicable only where the contents of the writing, recording or photograph are sought to be proved. Look at rule 1002 where contents of a document are not sought to be proved. The article 10 rules and the best evidence rule have no application. Whether or not a person is trying to prove contents of a document is sometimes quite elusive. Watch how it works. Question to the witness how much did you pay for the car? Object your honor we've already heard evidence that he paid by a check and the check is the best evidence of how much he paid for the car. Overrule. Why do you overrule? Because the proponent of that question was not trying to prove how much the check was written for. The proponent was not trying to prove the contents of the check. The proponent asked this witness how much did you pay for the car? And this witness is perfectly competent to say if he knows how much he paid for the car not withstanding the fact that he paid for it by a check. Why? Because he's not trying to say what's on the face of the check. He's not trying to prove the contents of the check and therefore the best evidence rule has zero application. I think that well illustrates that the contents of the document is the critical inquiry in the resolving best evidence questions. If the proponent is not trying to prove contents then the best evidence rule has no application. Another illustration of that is something like this. Mr. Jones, here's a picture. Does that reflect the scene of the action as you saw it? Object. The picture is the best evidence of the scene of the action. Overrule. You're not trying to prove the contents of that picture. The proponent is trying to find out if this witness, what this witness thinks about that picture, and this witness is free to comment as whether he thinks that picture correctly portrays what he saw out there. And you're not trying to prove the contents of the picture. And so you don't have a best evidence problem. And I suggest that many perceived best evidence problems are not best evidence problems at all because the proponent is not trying to prove the contents of a writing, photograph, or recording. So your first inquiry, whenever a best evidence objection is made, is to ask yourself, are the contents really being tried to be established? If not, you have no best evidence problem. If so, then you turn to the best evidence rule to see what happens. And what happens? We have a very, very liberal best evidence rule in the federal rules of evidence unless there is some significant question, some genuine issue as to authenticity, a duplicate can be used as readily as the original. You don't even have to account for the original. A duplicate is perfectly acceptable. I'm not going to belabor at this point in time the mechanics of how that works because you will in your courtroom cell have honest, sincere questions of genuineness of documents. So as to really have to have the original in your courtroom or find that it's in the opposing party's possession or account for it as having been destroyed. The rule does mechanically provide for alternatives. I think the central issue under the best evidence rule is to remember that you don't have that problem if you're not dealing with contents. And if you are dealing with contents, in most instances there's no problem because any copy that's produced by nearly any means can be used as freely as the original unless there's some really genuine issue raised with regard to the copy. Now I want to call your attention particularly though to rule 1006 which offers a practical procedure for proving contents of a large volume of documents. A chart or a summary of the contents of these writings are prepared. The chart of course must be authenticated under rule 901. That is some foundation must be laid. That is the person who made the chart must come in and tell you what he did. Judge I took this chart. I took these documents. I put in column one all of this information, column two all of this information, column three all of this information and that chart correctly reflects all of that information. The chart is authenticated. All right. But that's not the end of the inquiry. You don't receive the chart simply because it has been authenticated. It cannot be received if the underlying writings could not have been received. You can't bootstrap into evidence by use of a chart writings and summaries of writings which themselves could not have been received. So keep in mind that the underlying documents must have been themselves able to be received before you can even think about using a chart. All right. If you've got a large volume of documents that could themselves have been received and if a chart of those documents is properly prepared and authenticated then rule 1006 merely provides that the chart itself can come in provided. I understand I've already given you a lot of provisos. The underlying documents had to be receivable. The chart has to be authenticated. Now I'm giving you the final proviso under 1006. The chart itself then can be received provided. The underlying documents have been available to the opposing party prior to the trial or are present in the courtroom available at that time to opposing counsel. So the underlying documents have got to be available to the other side. They've got to themselves be able to be received into evidence if they were offered and then some chart has to be authenticated satisfying you that it correctly extracts the parts of the chart of the documents that are otherwise admissible. In that event 1006 says you can receive summary. All right. I'm not going to go on with the other article 10 rules. They are simple and plain and I see no reason to take up further time on that. The best evidence rule really will provide you not nearly as many problems as you think or as you perceive it might provide you if you really first understand that initial inquiry of whether the proponent of the document or writing or recording a photograph is trying to prove contempt. It's the same basic inquiry you remember that I emphasized that you should make under hearsay 801 that if the proponent is not trying to prove the truthfulness of the out-of-court statement and if it is relevant for the fact that the statement was made then you don't even have a hearsay problem. The same holds true in the best evidence except you the inquiry is whether or not the proponent is trying to prove contents of the document. The final article in the federal rules of evidence article 11 contains several miscellaneous rules. We really covered those earlier when we were talking about the applicability of the federal rules of evidence to you. Suffice it to say that to the district court the federal rules of evidence applied to all proceedings in your court save the limited exceptions that are specified in 1101 and I emphasized three of those earlier this morning to you. One is probation revocation. They do not apply in probation revocation. Two, they do not apply in dealing with privileges of witnesses to testify. And three, they do not apply in dealing with the rule 104A determination of whether or not to admit evidence. They permit you to go outside the application of these rules in determining admissibility of evidence. But those are very limited exceptions narrow exceptions and by and large you would almost be safe in assuming that the federal rules of evidence govern all proceedings in your court. Now I want to emphasize as we close that this presentation has been designed only as an overview of the federal rules of evidence only as an introduction to the federal rules of evidence. I really hope that in looking at these 63 rules in the summary fashion that we have done so you can see that what I said at the beginning is true. That about 20 of these rules need never be looked at again by you. Rules like they govern you, construe them fairly, give the oath to the witness, give the oath to the interpreter. You the judge can't testify, you the juror can't testify. Those type rules need never be looked at again by you. There's another third of these rules about 20 of them or more that while you might have to turn to them from time to time they are nothing more than common sense. They are things that you have grown up with as an attorney. And they really don't take any study and they virtually never present a real problem in the courtroom. And finally there are some 15 or 20 of these 63 rules that are troublesome. Rule 404B, character to prove motive, is a troublesome area. 800 series hearsay, very troublesome area. Use of prior convictions in a criminal case to impeach the defendant himself as a witness. Very troublesome area. And I commend those areas for you for further study. Finally keep in mind that some of these rules do not solve the problem. You will recall that in the area of privileges, presumptions and competency of witnesses to testify through 301, 501 and 601 we are told by those rules that there is no solution in effect but go to the common law. Either the state law when we are irrebound or the federal law if we are not irrebound. One of those rules does have a specific guideline on competency in the federal courts but still in the state courts we do have to look to the state law to even resolve matters of competency of witnesses. Keep in mind then that this is merely an overview of the federal rules of evidence.