Mr. SPIEGELBERG. I agree with that completely, sir and I agree as I have tried to say that I think we would be better off without a code of evidence. I would like to point out, and I think it is very much in order, that Henry Friendly, who is an able judge and a great student of the law, made the following statement before the House. "If it be said that the proposed rules should decrease appeals because of their clarity, my rejoinder is that they are not and in the nature of things cannot be that clear. I cannot believe the chairman of the Advisory Committee (Mr. Albert Jenner) was serious if he said, as he has been quoted as saying, that this little book will enable a lawyer quickly to answer every evidence problem that can arise in a Federal trial. If it were all that simple, one wonders why the Reporter has just brought out an 864 page revised edition of Professor McCormack's valuable treatise." And I think that is a succinct and valuable statement of the difficulty of codification, but if we are to have codification I can only say let us have the codification which the House embodied in the rules now being considered, H.R. 5463. Finally, the Ad Hoc Committee got out a report, out of date now, brought out on June 1, 1970, and I mention it only because the second part of that report which covers 147 pages is the research work done by that group on the proposal of the Advisory Committee in its original form, and I would hope it will assist the staff in saving a good deal of time in researching the common law in view of the original proposition. Now, I would be happy to attempt to answer any questions. I have submitted a statement which I would ask to be made a part of the record, and with that I will, with one concluding remark, end my remarks. In these two volumes, which represent the hearings before the House, I have gone over them rather carefully, and I won't say I am absolutely right, but I believe that I am, in saying that except for the Advisory Committee and the Standing Committee, only one of the many persons who appeared and testified before the House Committee favored the Advisory Committee's draft as a Code of Evidence, and the one who did favor it, a Mr. Jestrab, whose testimony is on pages 352 and following, who is a Commissioner of Uniform State Laws, took the position he did for the following reason: Congressman Kastenmeier, at page 354 said: "I would inquire whether if the rules of evidence were written differently you would have come to the same conclusion. It is not the substance of the rules, but the necessity, the overriding necessity for purposes of uniformity, of adopting some rules of evidence at an early date, that prompts your recom mendations, to which Mr. Jestrab said: "That is substantially correct." In short, any code, whether good or bad, is better than no code at all, and I do not think that that is a very helpful attitude either to this committee or to the law, and I thank you for this opportunity to have addressed you, sir, Senator ERVIN. Thank you. As I understand your testimony, you did not cover everything in your statement. Mr. SPIEGELBERG. No, I did not. Senator ERVIN. I would direct that your statement be printed in full at this point in the body of the record, and also we were furnished a statement by the American college of Trial Lawyers and a statement concerning your career, and they will also be printed in the record at this point. [The statements follow:] STATEMENT ON BEHALF OF THE AMERICAN COLLEGE OF TRIAL LAWYERS AND ON BEHALF OF A COMMITTEE OF NEW YORK TRIAL LAWYERS BY GEORGE A. SPIEGELBERG 1. Should the Federal Rules of Evidence be codified? "The feeling of the group [the Committee of New York Trial Lawyers] was that we shouldn't have any rules [of Federal evidence], that it was not the proper thing to do ***. "[It] is our opinion that *** rules should be tested in the crucible of the courtroom. This was best expressed by the Chief Judge of our Circuit, Judge Henry Friendly, and with his express permission we have annexed to our statement his letter which he wrote to the Advisory Committee, and he has given us permission to include it as part of our statement and it is annexed to the report." (Robert L. Clare, Chairman of the New York Committee, pages 200, 201 of the Hearings before the House Subcommittee on the proposed rules of evidence, February 8, 1973) Judge Henry J. Friendly, then Chief Judge, U.S. Court of Appeals for the 2nd Circuit, said in his statement before the House Judiciary Subcommittee (pages 261-263 of the Hearings before the House Subcommittee on the proposed rules of evidence, February 8, 1973): "With the benefit of hindsight, the error lay in the too ready acceptance without opportunity for full debate, of the preliminary report in 1961 that said rules of evidence should be drafted. Once the Advisory Committee on rules of evidence was constituted and went to work, the project acquired its own momentum; the questions put to the profession were not whether there should be such rules but what the rules should be. "My first objection to the proposed rules is that there is no need for them. Someone once said that in legal matters when it is not necessary to do anything, it is necessary to do nothing. I find that a profoundly wise remark. We know we are now having almost no serious problems with respect to evidence; we cannot tell how many the proposed rules will bring." (p. 261) "My second objection is that prescription of the rules will stimulate appeals and increase reversals on evidenciary rulings." (p. 262) "If it be said *** that the proposed rules should decrease appeals because of their clarity, my rejoinder is that they are not and in the nature of things cannot be that clear. *** I cannot believe the Chairman of the Advisory Committee was serious if he said, as he has been quoted as saying, that this little book [the Federal Code of Evidence] will enable a lawyer quickly to answer every evidence problem that can arise in a Federal trial. If it were all that simple, one wonders why the Reporter has just brought out a 864 page revised edition of Professor McCormack's valuable treatise." (pp. 262-263) Judge Friendly's third "and more serious objection" would be the overturning of rules of state courts built up over many years. "I therefore hope that, despite the labors that have gone into them, the proposed rules will be placed on the book shelves along with earlier attempts at codification by equally able and high-minded lawyers." Codification of the law is desired by the academicians, rather than by those in active practice. Where it has occurred it has certainly not been an unmixed blessing. There are many who believe that the Federal Rules of Civil Procdure enunciated by then Professor and Dean Charles Clarke in 1934 have made it impossible for an entity of limited means to litigate a civil case with an opponent of unlimited means. We are in agreement with the views of Judge Friendly. The proponents of codification of the rules of evidence may say that if experience indicates that changes in those rules are necessary, amendments may be sought. The Advisory Committee of the Supreme Court started its work in drafting the proposed Code of Evidence in 1965. If H.R. 5463 becomes the law, either in its present form or with such amendments as may be adopted by the Senate and agreed to in conference by the House, it is fair to say that a period of ten years will have passed. Article 1103, H.R. 5463, Sec. 2(a) (1) Sec. 2076 provides for future amendments of a Code of Federal Evidence if adopted. It says that the Supreme Court of the United States may prescribe amendments which shall have effect only after the expiration of six months provided that if either House of Congress within such six months' period disapproves any amendment reported, it shall not take effect. If there is no objection to the proposed amendment, any provision of law in force at the end of six months in conflict with the amendment shall be of no further force or effect. It is respectfully submitted that the Supreme Court of the United States is really not an appropriate agency to determine Federal Rules of Evidence, as some of its members have noted, since it almost never deals with cases involving such rules. The inertia of the suggested procedure will probably make any amendments unlikely until it is apparent that the Code requires substantial revision. When that will occur, if it does. is of course uncertain, but it is safe to say that it will not be for many years and in the meantime progress by judicial decision will in all probability be prevented. The Committee of the American College of Trial Lawyers was appointed in the summer of 1969 "to study the preliminary draft of the proposed rules of evidence ***." That committee did not at all consider whether or not there should be a Federal code of evidence and they, therefore, expressed no opinion on that subject. IF THERE IS TO BE A FEDERAL CODE OF EVIDENCE WHAT SHOULD IT CONTAIN? In his report to the House on the Federal Rules of Evidence dated November 15, 1973 (Report No. 93-650) Congressman Hungate, Chairman of the Subcommittee of the Judiciary of the House. pointed out the differences between the rules proposed by the Supreme Court and those appearing in H.R. 5463: (1) He first set forth the proposed Supreme Court rules deleted by the Committee [Rules 105; 303; 406(b); all of Article V; 803 (24); 804 (b)(6); and 804 (b) (2)]. H.R. 5463 deleted the privilege provisions in the Supreme Court rules and replaced them with the existing common law rule, adding, however, that in civil actions as to which state law supplies the rul of decision, the privilege "shall be determined in accordance with state law.” (2) He then set forth the rules proposed by the Supreme Court which were significantly amended by H.R. 5463 [Rules Nos. 104 (c); 106; 201(g); 301, 402; 404 (b); 405(a); 408; 410; 601; 606(b); 608 (a); 608 (b); 609 (a); 609 (b); 609 (c): 611(b) and (c); 612; 801 (d) (1); 803(3), (4), (5), (6), (7), (8) and (13); 804(a) (3); 804 (a) (5); 804 (b) (1); 804 (b) (2); 804(b) (3); 902 (8) and (9); 1001 (2); 1003, 1004 (1), and 1101]. As the deletions and amendments are succinctly set forth in the Hungate report, they will not be repeated here. Our only comment is well expressed in the words of Judge Friendly in a letter to Representative Hungate: "It goes without saying that I consider the revision of the Federal Rules of Evidence proposed by your Committee to constitute a very substantial improvement over the rules submitted to Congress by the Supreme Court." The Judge thereupon commented on the changes made in the proposed rule relating to privilege, as well as to competence of witnesses and the changes made with respect to the Hearsay Rule. He then said: "In fact, if there are to be Federal Rules of Evidence, I do not see how there could be much better ones than your Subcommittee has propoesd." The Judge then addressed himself to the question of the need for a Federal evidencial code and said: "There still remains for me the basic question whether the good such rules may accomplish will not be outweighed by the harm, even tho you have sub stantially reduced the latter. The arguments about the value of such rules of the Department of Justice and other lawyers who conduct litigation in my districts and to judges who accept assignments outside their own state, seem to me to be pretty small beer-a quite inadequate justification for so large an endeavor." (Letter of Judge Friendly to Hon. William L. Hungate dated July 12, 1973 and set forth at page 199 of the Supplement to the Hearings before the House Judiciary Committee) That leaves for discussion only the question of desirable changes in H.R. 5463, assuming the Senate agrees with the House that codified rules of evidence are desirable; (1) Rule 611(b) (H.R. 5463, p. 84). This section deals with the scope of cross-examination and limits it to be the subject matter of direct as well as credibility, but grants the court a discretion to permit the cross-examiner to go further, but restricts his right to ask leading questions as to new matter and restricts his examination "as if on direct." This is a change from the Supreme Court rule and is undesirable. The words "as if on direct examination" should be stricken. The reason for prohibiting leading questions on direct is that the witness is friendly and will gladly allow himself to be led. Quite the contrary is true with a hostile witness and if the cross-examiner is restricted to non-leading questions he will in almost all instances fail to develop pertinent information. (2) Article VIII, 801 (c), undertakes to define "hearsay." For the sake of clarity and to avoid great difficulty the words "one made by the declarant while testifying at the trial" should read: "One made by a witness who qualifies under Rule 602 while testifying at the trial ***." The underlined portion is a safety precaution which cannot be overlooked, since if the court and counsel at a trial of hearing are unaware of 602, and they may well be, it would appear that the witness may testify to the truth of a statement, to prove its truth, although he has no personal knowledge of whether or not it is. Without the cross reference this would permit introduction of unlimited hearsay. (3) Rule 803 (5) "recorded recollection" (H.R. 5463, p. 93). The last sentence of this section dealing with recorded recollection should be amended by inserting the underlined clause: "If admitted the memorandum or record may be read in evidence, but if not admissible under another exception to the hearsay rule may not itself be received as an exhibit unless offered by an adverse party." (4) Rule 803 (6) "records of regularly conducted activity" (H.R. 5463, p. 93). In line 5 after the words "a person with knowledge" add the words "and a duty to so record or transmit" so that the phrase will read : "or from information transmitted by a person with knowledge, and a duty to so record or transmit as kept in the course * * *." The last sentence of the same section reads the term "business" as used in this paragraph includes business, profession, occupation, and calling of every kind. It is submitted that the words "occupation and calling" should be omitted as they are too broad and have no guarantee of trustworthiness. The sentence should read: "The term business as used in this paragraph includes business and profession of every kind." This in itself is a substantial extension of today's rule which limits the admission of entries to "business entries" which are, in fact, the only entries on which real reliance may be placed. (5) Article VIII, 803 (7) and (10) (H.R. 5463, pp. 93, (4). These two sections in and of themselves are not objectionable as a rule of law. It is highly questionable whether they should find themselves in a bill establishing Federal Rules of Evidence since they have nothing whatsoever to do with the admission or exclusion of evidence. (6) Article VIII, subd. 12 (H.R. 5463, p. 95). Permitting a non-governmental official to issue a certificate of the kind mentioned in Article 12 is unwise. This is certainly so unless the adverse party is notified in advance that such a certificate will be offered and given an opportunity to check the authenticity of the matter contained in the certificate. (7) Article VIII, Rule 804 (b) (2) (H.R. 5463, p. 99). "Statement of belief of impending death" As proposed, in case of "a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent concerning the cause or circumstances of what he believed to be his impending death" is admissible. The so-called "dying declaration" exception to the hearsay rule is the most unreliable of all. At common law it was limited to a situation where the declaration was offered in a homicide case where the death of a declarant was the subject of the charge. By statute this exception was extended to abortion cases. Further to extend it involves a question of judgment which, in view of its doubtful reliability, is believed to be inadvisable. It is submitted that the section should read: "In a prosecution for homicide where the declarant's death is the subject of the charge a statement made by the declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death." AMERICAN COLLEGE OF TRIAL LAWYERS The American College of Trial Lawyers was organized as an unincorporated association in 1950. Its membership limited to 1% of the lawyers licensed to practice in the States. In order to be eligible for membership a lawyer must have engaged in trial practice for at least fifteen years. The organization is national in scope, at the present time having approximately 2,300 members. It has in the past issued a "Code of Trial Conduct." It has been active in various matters involving lawyers and the law and, among other committees, it has committees dealing with: Civil Practice Manual (A work on this subject has just been published) Members or fellows of the College, as they are called, are recommended for membership under a procedure which results in the proposd fellow learning of the invitation to join only when it has been approved. The governing board of the Association consists of a Board of Regents, seventeen in number, and has as officers a President, President-Elect, Secretary and Treasurer, each of whom usually, but need not necessarily, be an active member of the Board of Regents. AD HOC COMMITTEE OF NEW YORK TRIAL LAWYERS This group consists of two members from fifteen firms in New York City and the former Associate Director of the Practicing Law Institute. The firms involved are: Bauman & Marcheso Shearman & Sterling Cravath, Swaine & Moore Debevoise, Plimpton, Lyons & Gates Davis, Polk & Wardell Milbank, Tweed, Hadley & McCloy Fish, Richardson & Neave Donovan, Leisure, Newton & Irvine White & Case McHugh & Leonard Sullivan & Cromwell Paul, Weiss, Goldberg, Rifkind, Wharton & Garrison Simpson, Thacher & Bartlett Strasser. Spiegelberg, Fried & Frank Dewey, Baliantine, Bushby, Palmer & Wood. 35-817-74-8 |