 All right, now let's turn our attention to Article 5, which deals with the subject matter of privileges. And as you can see, it consists of a single rule of evidence, Rule 501. That is the only rule that made it through Congress dealing with the subject matter of a privilege of a witness not to testify. And you can understand how they had this problem, had a very difficult problem dealing with the subject matter of the spouse's privilege, attorney-client privilege, doctor privilege, priest-confessor privilege, news reporter, accountants' privilege, identity of informers, state secrets, trade secrets, and the like. Some philosophies emerged dealing with the subject matter of these privileges, which Congress could not resolve and still produce by 1975 the federal rules of evidence. Consequently, Congress opted for a compromise solution, which is found in Rule 501. 501, indeed, is no solution at all. 501 simply tells us what body of law to turn to. It doesn't solve the problem. It tells us where to go to solve the problem of privilege. 501 says, where you are eerie-bound, where you are dealing with cases where the principle of Irrevy-Tumpkins applies to you, then you resolve all questions of privilege under the law of your state. That's the first thing that 501 tells us. Eerie-bound cases, look to the law of your state to resolve questions of privilege. 501 then says, in all other cases, look to the federal common law to resolve questions of privilege. You remember in presumptions, in 301 we were told where you are eerie-bound, looked at the state law, but where you are not eerie-bound, here's how you do it. Well under the matter of privilege, we're not even told that. We are told in privilege, where you're eerie-bound, look to the state law, where you're not eerie-bound, look out there in the vast federal common law. All right, we have just completed Article 5. You'll recall, we discussed at the beginning, there are only 11 articles in the federal rules of evidence. We have covered half of the articles. I also mentioned that there were 63 rules of evidence. We have now covered 22 of those 63 rules. We've covered a third of the federal rules of evidence, and really high-intimidating are they, not at all. Really in final analysis, they have told you nothing more than what you knew as an attorney instinctively, almost, as to how to conduct a court. Now let's look at Article 6. Now has, over the years, been a growing tendency to convert most competency questions to questions of credibility, and Rule 601 completes that trend, except where state substantive law is being applied, with only minor exceptions. The Article 6 rules, Rule 601 through 615, provide that every person is competent to be a witness, if he or she has a demonstrated personal knowledge of the matter about which he or she is to testify, and everything else in competency is turned into credibility. Let me state that again, because that is the gist of the Article 6 rule. Every person, where you're not irrebound, is competent to testify if he or she has shown, has demonstrated that he or she has a personal knowledge as to the matter about which he or she is about to testify. This proviso, if he or she has a demonstrated knowledge, is the result of Rule 602. Look at 602 for just a moment. 602 is one of what I perceive to be the major rules of exclusion. It should be a rule, if you require lawyers to cite rule numbers in your court. It should be one of the rules that would be most often cited. Most often the lawyer should be saying, your honor, I object under 602 because it is not evident that this person has personal knowledge about that which he is going to testify. The question of competency of a person to testify, and incidentally, incidentally, let me go back to the demonstrated personal knowledge. That demonstrated personal knowledge can even be the statement of the witness himself says, yes, I know what I'm talking about. Anything at all that satisfies you, the judge, that the witness does, in fact, have personal knowledge about which he is testifying is sufficient to satisfy Rule 602. This is because under Rule 104, you remember, 104A, we learned or reminded ourselves that the judge decides competency questions, not the jury, and that in deciding those competency questions, we also learned that the judge is not bound by the federal rules of evidence. These preliminary questions about the competence of a witness to testify are preliminary questions, and the judge decides that and the judge decides it with or without regard to the federal rules of evidence, and so anything that satisfies the judge, that the witness has personal knowledge, is sufficient to pass muster under Rule 602. But if you can't pass muster under Rule 602, then 602 will prevent a person from testifying because he or she lacks personal knowledge. All right, so much for personal knowledge. Rule 603, don't even bother to look at it. It says that a witness has got to have an oath it ministered to him. You knew that. 604 says an interpreter has to have an oath it ministered to the interpreter. So much for that. 605 says the judge should not testify at the trial over which he's presiding. You didn't need a rule of evidence to tell you that. Fact of the matter is 28 USC section 455 mandates that you as a judge recuse yourself in a case where you may be a witness. You really didn't need 455 either. You know that. Rule 606 deals with the competency of a juror to testify, and it says the obvious. You didn't need a rule to tell you this. You can't call a juror at the box to testify on a trial in which he's serving as a juror. Now, there's some other problems associated with the 606 competency of a juror to testify however. 606B says that a juror is not competent to testify as to matters which took place during the course of the jury's deliberation. This is a projection of the concept that a jury should not be able to impeach its own verdict. And consequently, 606B says that a juror is just not competent to testify as to who said what during the proceedings or how they went about resolving or reaching a verdict in the jury room. Note, however, that there is an exception to this prohibition, this lack of competency of a juror to testify as to what took place in the jury room. 606B provides that a juror may testify on the question of whether extraneous, prejudicial information was improperly brought to the jury's attention or whether any outside influence improperly was brought to the jury's attention or had any influence upon that deliberation. Very narrow exception, but there are some examples that would help. Threats by a neighbor to a juror when he or she went home at night would be the type thing that 606B would say a juror is competent to testify to. Statements that are made by the U.S. Marshall or Bailey or any other people in the hallways that jurors might have heard as they were moving from one place to another or other areas that a juror can testify to is a competent witness to testify. Presidents in the jury room of prejudicial information, newspapers, textbooks, dictionaries, medical dictionaries or anything that was not actually received during the course of the trial is evidence which might be prejudicial and which was in the jury room is something that a juror could testify with regard to. But these are limited exceptions and the general principle as you know is that a juror is just not competent to testify to impeach his own verdict. All right, Rule 607, who may impeach? The credibility of a witness may be attacked by any party including the party calling him. You will recall the common law rule that a party who called a witness thereby vouched for that witness's credibility. That rule is abolished by Rule 607 of the Federal Rules of Evidence. Right or wrong, good or bad, a party now may impeach his own witness. All right, you will still however get a lot of objections. I object, John, that he's impeaching his own witness. My response to that usually is yes, he is trying to anyway. Well here council, because it's not about an objection any longer. In fact, the matter is I think that the first question out of the box sometimes could impeach a person's witness. Nothing wrong with that. Now under Rule 607, impeachment evidence like and I'm now looking at Rule 608, impeachment evidence like evidence of bias or prejudice is always relevant. Let me say that again because I think that's important to keep in mind. Impeachment evidence is always relevant. Now you might decide to keep it out under Rule 403 for some reason or under some other rule but it is always relevant at least. Evidence of bias is always relevant. Evidence of prejudice of a witness is always relevant. Rule 608 resolves that conflict over whether opinion on credibility is better or worse than reputation on credibility similar to the one we discussed earlier and it resolves that credibility by allowing both. The witness can either give his own opinion as to the credibility of a witness or as to the witnesses, his opinion is to the witnesses truthfulness or can testify as to what he perceives to be that witness's reputation in the community as to the trait of character for truthfulness or veracity. Rule 608B generally permits specific instances of conduct of a witness on the issue of credibility only by way of cross-examination. This is really a delicate area to walk in. This is the area where on cross-examination lawyers will say have you heard and in following your opinion is to the credibility of this witness. Did you know that he had and playing to have you heard or did you know is a dangerous game and it occurs most often in criminal cases. You got to be awfully careful to make certain that on cross-examination in playing to have you heard or did you know with regard to specific instances of claimed misconduct or claimed or lack of truthfulness the lawyer is being honest and could in fact back up the information that's implied in the question did you know or have you heard. It's a very delicate area to walk in all right I mentioned that evidence of bias or prejudice of a witness is always relevant the rules don't say that but that is inherent in the rule and keep that in mind that that goes to credibility and consequently evidence of bias or prejudice is always relevant with regard to a witness. Now let's look at rule 609 it contains definitive rules relating to the use of prior convictions for impeachment and I suggest to you that rule 609 will cause you in a criminal case about as much trouble as any other federal rule of evidence and I commend further study of that rule to you after today in civil cases and in criminal cases where the witness to be impeached is not the defendant rule 609 is not particularly troublesome but in criminal cases where the witness to be impeached is the defendant 609 really creates some problems if the prior conviction involved dishonesty or false statement it can be received without regard to the penalty and without without even trying to balance the probative value versus unfair prejudice or what constitutes a conviction for dishonesty or false statement is not always easy to resolve but the legislative history associated with rule 609 suggests that the drafters intended it to cover things such as fraud, embezzlement, deceit and perjury areas like that the drafters of the rule at least envisioned when they use the word convictions for dishonesty involving dishonesty or false statement where you do not have a conviction that you classify as one for involving dishonesty or false statement the prior conviction must have been punishable by imprisonment for over one year and more importantly you must first determine the probative value of admitting the prior conviction outweighs the unfair prejudicial effect on the defendant you have to make that determination before you can receive the prior conviction which does not involve dishonesty or false statement in some circuits if not in all circuits and I suggest that it probably is true in all circuits this determination must be an on-the-record determination you need to recite in the record specifically why you feel that the receipt of this prior conviction outweighs the unfair prejudicial effect to the criminal defendant before you can receive it matters which the court may consider in making this on-the-record determination include the importance of a defendant's testimony for example how important is the defendant's testimony how important was it how important is the issue of credibility in the case because after all you're receiving it to attack the the defendant's credibility how important is that issue of credibility how long ago was the conviction what was the conviction for these are things that you have to take into account in this balancing process and I suggest to you it is not something that you can do in lemony defense lawyers rightly will ask you from time to time before their client takes the witness stand judge are you going to let this prior conviction in give me a ruling because if you are I may not put him on the stand it is extremely hard for you in advance of the defendant himself taking the stand to honestly balance the need of the government to impeach him versus unfair prejudice to him if this conviction comes in because you've got to first hear what he says you've got to first understand the nature of the defendant's testimony and then balance the nature of that testimony against the evidence that the government already has in to see how critical the defendant's denial of guilt was to the government's case and it's a balancing process that is extremely difficult to do in lemony and you can try to do it but it's hard and you will constantly have lawyers asking you to do it and there may be some cases where you can clearly say I've got to let it but there's some other cases where you can't really give an advance ruling note that there's a 10-year time limit in 609b a conviction that is over 10 years old except in certain circumstances cannot be used for impeachment purposes the 10-year limit however begins to run either from the date of conviction or the date of release from custody whichever is the later so don't just arbitrarily look and see when was the person convicted find out if the person actually went into the penitentiary and if so the 10-year limit begins to run from the time that he or she was released from the penitentiary notice also the fact that a conviction is on appeal has nothing to do with whether or not it is admissible for impeachment purposes under rule 609 now I know I said last time around that in civil cases and in criminal cases where the witness to be impeached is not the defendant rule 609 is not particularly troublesome well that statement remains true but the rule has been amended with respect to impeachment of those witnesses and we should note that change the 1990 amendment to rule 609a1 affects all witnesses other than the defendant and here I mean witnesses called in civil cases and witnesses called by either the government or the defense in criminal cases it incorporates the general balancing test of rule 403 into rule 609a1 to protect all of these witnesses against unfair impeachment so 609a1 now reads in pertinent part evidence that a witness other than an accused has been convicted of a crime shall be admitted subject to rule 403 if the crime is punishable by death or imprisonment in excess of one year under the law under which the witness was convicted the amendment recognizes that the danger of prejudice from the use of prior convictions is not confined to criminal defendants it requires you to apply the balancing test of rule 403 when you are assessing the admissibility of prior convictions for impeachment of any witness other than a criminal defendant if the conviction is for a crime punishable by more than a year in prison and as you'll remember rule 403's balancing test provides that evidence shall not be excluded unless its prejudicial effect substantially outweighs its probative value now with respect to the defendant 609a1 remains unchanged that is evidence that the defendant has been convicted of a crime punishable by death or imprisonment in excess of one year shall be admitted if but only if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused so you still have the balancing test I discussed before and make no mistake about it whenever a prior conviction is used to impeach a testifying defendant the danger the defendant faces is that the jury will despite your cautionary instruction use the impeachment evidence as propensity evidence that's why under the rule the court must determine that the probative value of a conviction as impeachment evidence outweighs its prejudicial effect and I've already covered the factors you should take into account in making that determination but let me stress once again that it's important you hold a hearing on the record on this matter then make an on the record finding based on the specific facts and circumstances of the case that the probative value of the impeachment evidence either does or does not substantially outweigh the danger of unfair prejudice the 1990 amendment to rule 609a makes one other change to the rule it removes from the rule the requirement that prior convictions may only be elicited during cross examination as a practical matter as you all know lawyers commonly bring out the prior convictions of their witnesses on direct examination rather than cross examination in order to take the sting out of the impeachment and the amendment recognizes this practice and the result is that prior convictions may now be elicited on either direct examination or cross examination under the rule rule 610 simply eliminates religious beliefs as a ground for impeachment or conversely as a basis to enhance credibility 610 just simply says that the evidence of a person's religious belief uh are not admissible for purposes of impeaching the witness or enhancing his credibility notice how elbow that this rule does not eliminate religious belief as a basis for bias or prejudice if in fact it is relevant for that particular purpose rule 611a is only common sense the court shall exercise control over the mode and order of interrogation of witnesses that's common sense rule 611 b is nothing but common sense normally a cross examination should be limited to subject brought out on direct and affecting of course credibility which because credibility is always relevant but notice that the judge can in its discretion or allow cross examination to go far beyond the scope of direct and oftentimes you should be free in allowing this certainly it makes no sense to to let a witness sit around for another day or two in the witness room simply because on cross examination the person wanted to cover a short subject that was not dealt with on direct if if the attorney wants to go forward by way of cross examination at that time and deal with it it's probably not a real good idea to try and force lawyers to go beyond direct they tactically may prefer to present to you in a coherent orderly fashion their case later and they may not want to discuss out of turn certain aspects of their case by way of cross examination but rather would like to hold back and wait until they are ready to present their case and I think that in our adversary system perhaps you should be liberal in allowing them to so arrange the presentation of their case rule 6 11 c deals with leading questions and it also is common sense easy to apply and it just simply says that normally you shouldn't allow leading questions on direct and normally leading questions are permissible on cross examination as you can see rule 6 10 and 6 11 uh should create no more problem for you then do the rules that say you swear witnesses wear interpreters and so forth rule 6 12 concerns the availability to opposing counsel of notes that were used by a witness while he or she was testifying or before he or she came to the witness stand to testify under rule 6 12 an attorney as a matter of right may see and use during cross examination notes used by an adverse witness while that witness was testifying where the notes are relevant to that aspect of the person's testimony and also in the court's discretion and I suggest this is a hard discretion to exercise in the court's discretion notes which are used by a witness prior to coming to court to testify to prepare himself as a witness also can be seen by the attorney about to cross examine the witness that is a discretionary matter and is something that is subject to abuse if you're not careful all right rule 6 13 establishes the procedure for examining a witness with regard to a prior statement and under 6 13 a lawyer can do this without without showing the statement to the witness but he is required to show that statement to opposing counsel rule 6 13 be is only fair play it simply says that you cannot introduce extrinsic evidence of a prior inconsistent statement unless the witness will have an opportunity to explain it or deny it this opportunity to explain it or denied can either be before or after the offer of the extrinsic evidence but the opportunity must necessarily be valid therefore you've got to be careful in excusing witnesses to be certain and certainly lawyers should be careful and agreeing to excuse witnesses if they have and a prior inconsistent statement that they want to introduce and if they have not shown it to the witness while the witness was there take this scene a witness testifies opposing counsel has an inconsistent statement but does not present it to the witness while he or she testifies because he for tactical reasons wants to bring it up later in the case if he agrees to have that witness excused and he never presented that out of court statement that was contradictory to it then he cannot introduce it later in the trial but if the witness is still around still available has not been excused and still will have the opportunity to explain it or deny or comment on it then when whenever the attorney wants to he can proceed to introduce the extrinsic evidence as long as the witness is still there later to come back in to explain it 614 is nothing more than a combination of common sense and common law a and b are existing common law the court can call a witness the court can interrogate a witness c is nothing more than common sense objections to the calling of a witness by the court or to interrogation of a witness by the court can be made by the attorney outside the presence of the jury at the next available opportunity you can see the reason for that just remember that that anytime you start interrogating a witness you should at the next recess be receptive to any objections as to your questions that the attorneys want to make and you should not require them to have to stand up in front of the jury and take you on by objecting to your questions once again that's nothing but common sense you would never do otherwise rule 615 exclusion of witnesses the benefits of excluding or sequestering witnesses have long been understood and 615 merely provides for that exclusion notice that rule 615 merely says that the witnesses are to be excluded so that they cannot heal the testimony of other witnesses i suggest to you that if you're going to give the purpose of this rule any meaning you should also instruct the witnesses that they should not discuss their testimony either before or after they give it with one another the rule doesn't say that the rule simply says that they should be excluded so they cannot heal each other testify but the purpose of that rule certainly is served by a further instruction by you the court to the witness that the witnesses are not to discuss the nature of their testimony with one another while they are in the witness room all right that completes the article 6 rules let's turn our attention now to article 7 the article 7 rules deal with opinion evidence and they are relatively short and relatively clear 701 merely says that a lay witness can testify in the form of an opinion where his opinion is rationally based on his perception that's really going back to the personal knowledge type situation if a lay witness has an opportunity to perceive something then 701 says he is permitted to express an opinion provided he can satisfy you that that opinion is rationally based on his perception this is nothing but restating as i say the 602 personal knowledge rule where the witness is qualified as an expert in your opinion the witness can give his opinion even on the ultimate issue in the case from facts and from data provided him either before or excuse me at the trial the expert is not required to make known the underlying facts or the underlying data during direct examination but he may be required to disclose them on cross examination notice that under rule 706 the court can also appoint an expert witness all right the article 7 series the expert testimony as i say is relatively short i do commend to you a little bit further study in the field of the expert witness but i think i have briefly at least summarized for you the mechanics of how they work the lay person can give his opinion if it is rationally based on perception the expert witness can give his opinion even as to the ultimate fact and he doesn't have to make known prior to giving his opinion those underlying data on which it is predicated he can just haul off and start giving his opinion but on cross examination normally he can be required to give his opinion to to provide the underlying data let's take a closer look at rules 702 through 705 rule 702 testimony by experts says that whether or not the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trial of fact the rule says if scientific technical or other specialized knowledge will assist the trial of fact to understand the evidence or to determine a fact in issue an expert witness may testify there too the reverse of this is also true an expert's opinion is only admissible if you conclude the opinion will assist the trial of fact no particularly that rule 702 defines an expert rather broadly it refers to scientific technical or other specialized knowledge that will assist the trial so an expert is not defined narrowly an expert can be any person with specialized knowledge such as a banker an architect or an accident investigator whose testimony is relevant to the issue to be decided and also note that rule 702 permits the expert to testify in the form of an opinion or otherwise thus the expert may simply give testimony explaining certain scientific principles relevant to the case and leave it to the jury to apply those principles to the facts that is leave it to the jury to draw the appropriate inference the expert does not have to give an opinion of course the rule also permits the expert to give his or her opinion that is to take the further step of stating the inference he or she has drawn after applying the specialized knowledge to the facts rule 703 says that the facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing if of a type reasonably relied upon by experts in the particular field informing opinions or inferences upon the subject the facts or data need not be admissible in evidence all right the expert's opinion may be based on facts or data derived from three possible sources first from personal observation for example the personal observations of a treating physician second from facts or data made known at the trial for example in the form of a hypothetical question to the witness at trial and third from the presentation of data to the expert outside of court and by means other than by the expert's own observation and the example here is that of a physician basing his or her opinion on such information as statements by the patient hospital records or x-rays now according to the advisory committee this third basis for expert opinions in rule 703 is designed to broaden the basis for expert opinions and to bring the judicial practice into line with the practice of the experts themselves when not in court you may be asking what's to prevent the expert from going to fall and relying on information or tests or hearsay statements that are not trustworthy in reaching his or her opinion well the rule provides a mechanism by which the court can evaluate the trustworthiness of the underlying data on which the expert relies it requires that the facts or data relied upon be of a type reasonably relied upon by experts in the particular field informing opinions or inferences upon the subject in other words what is necessary is that the expert arrive at his or her opinion by relying on methods that other experts in the field would reasonably rely upon informing their opinions and to ensure that that is the case you will have to make a preliminary determination under rule 104a that the underlying data relied upon by the expert is of that nature now let's examine rule 704 rule 704a allows an expert to state an opinion or draw an inference on the ultimate issue to be decided by the trial of fact in the case the exception to that rule is found in rule 704b which says that in a criminal case no expert witness can state an opinion or draw an inference as to whether or not the defendant had a mental state or mental condition constituting an element of the crime charged or a defense there too those types of ultimate issues are in a criminal case for the trial of fact only but when 704b doesn't apply an expert may be permitted to give an opinion on the ultimate issue provided of course that the opinion will be helpful to the trial of fact under rules 701 and 702 and will not be cumulative or waste time and therefore run afoul of rule 403 now let's look again at rule 705 it simply says that unless the court requires otherwise the expert may state his or her opinion without disclosing the underlying facts or data the opinion is based on but the rule also says that in any event the expert may be required to disclose the underlying facts or data on cross examination remember that the opinion of an expert need not be hypothetically informed but that it can be all right let's look at article eight hearsay because i personally believe that the single most important feature without a doubt in the federal rules of evidence is article eight the hearsay rule if a judge does not have a clear understanding of the hearsay rules over 50 percent of his evidence problems will be a problem but if a judge really does understand article eight and how it operates at least 50 percent and probably more of the evidence problems that are presented to him will be easily solved rule 801 sets the stage for an understanding of hearsay by its definitions and we're going to go over those definitions in just a moment but first let's take a look at the general organization of the article eight rules after the 801 definitions you will see that 802 merely says hearsay is not admissible unless you find an exception and then 803 lists 23 specific exceptions to hearsay and then rule 804 contains five more exceptions to the hearsay in the limited area where the declarant is unavailable all right notice 801 defines hearsay and we come into back that in a minute 802 says that hearsay is not admissible unless you can find an exception 803 gives us 23 specific exceptions to the hearsay rule and 804 gives us five more exceptions to the hearsay rule the basic rule for excluding hearsay is generally viewed to be the lack of the opportunity of cross examination or stated perhaps a better way the basic rule for excluding hearsay is because hearsay has no guaranteed trustworthiness or certainly does not have a sufficient guarantee of trustworthiness to allow it to be received and if you look at 803 for a moment you will see that every single one of the exceptions that are listed via in 803 are probably exceptions because there is some minimum guarantee of trustworthiness for example look at 803 too excited utterance the reason that's an exception to the hearsay rule is because it is normally considered that a person under excitement will tell it like it is it has some guarantee of trustworthiness look at 8034 statements are for purposes of medical diagnosis of treatment it is generally believed that persons will tell their doctors and physicians things correctly and therefore statements told to the doctor have some degree of trustworthiness and therefore it is an exception to the hearsay rule look at 8036 the business record exception which we will discuss shortly in more detail its basic premise is the fact that businesses will so conduct themselves internally as to reflect correctly what is going on in their company and therefore internal records generated from sources where the person generating them has knowledge is viewed as having a sufficient basis of trustworthiness to justify an exception to the hearsay rule and to demonstrate further that trustworthiness is really the by word of exceptions to the hearsay rule look for just a moment at 803 24 the final omnibus exception under 803 803 24 says other exceptions and it says a statement not specifically covered by these former 23 that we've listed but having equivalent circumstantial guarantees of trustworthiness can be an exception to the hearsay rule under these specific mechanical procedures spelled out there in 803 24 so keep in mind that the as we go through our discussion of hearsay that hearsay is objectionable primarily because there's no degree of trustworthiness to it and anytime that you can find some real basis to conclude that there is a certain degree of trustworthiness to hearsay then in all likelihood you're going to find an exception to the hearsay rule specifically contained in either 803 or 804 exceptions to the hearsay rule or in the exclusions under 801 D all right to understand hearsay you must understand the 801 definition and I want us to look at 801 if you will and I want you to first look at 801C hearsay is a statement let's pause there because statement is defined up in 801A as an oral or written assertion or a nonverbal conduct of a person if intended by him as an assertion so we now go back to 801C and find that hearsay is a oral or written assertion is a statement other than one made by the declarant now let's look at the declarant declarant is a person who makes a statement coming back to 801C definition other than one made by the declarant while testifying at the trial all foot in evidence to prove the truth of the matter asserted and I suggest to you that phrase all foot in evidence to prove the truth of the matter asserted is the most least understood aspect of the hearsay rule the statement which is made out of court is not being offered to prove the truth of the matter asserted it is by definition not hearsay an awful lot of lawyers or of the opinion that any statement made out of court is hearsay or more importantly or under the misconception that if one of the parties in litigation was present out of court when the statement was made is not hearsay both of these are misconceptions they have nothing to do with what is or is not hearsay hearsay under 801C is a statement made out of court offered to prove the truth of the matter being said question what did she say to you out there on the street she said help that's not all foot to prove the matter asserted the truth of the matter asserted that's all foot to prove the fact that she said help and there is ample trustworthiness for that because the person who's testifying is in court right now testifying and can be cross examination on what he heard her say it's not being offered to prove the truthfulness of the matter asserted