George A. Spiegelberg as a fellow and former Regent of the American College of Trial Lawyers has been designated to present its views on the proposed Federal Rules of Evidence by the Ad Hoc Committee of New York Law Firms and was a member of the committees of both organizations which drafted reports concerning the proposed Federal Rules of Evidence. He is Counsel to the present firm of Fried, Frank, Harris, Shriver & Jacobson, and for almost fifty years was the senior litigating partner of its predecessor. He is a Professor Emeritus of New York University Law School where he taught evidence over a period of thirty-five years. He has been a member of the bar of the State of New York for fifty-two years and of the United States Supreme Court for forty-two years. He is a veteran of both World Wars; he was appointed a Colonel in World War II and awarded six decorations for his services. He was Treasurer of the Association of the Bar of the City of New York for four years and has served three terms as a Vice President of that Association. He is also a member of the American Bar Association; the New York State Bar Association; and the County Lawyers Association. Senator ERVIN. I want to thank you for a very helpful statement and also suggesting specific amendments which in your judgment ought to be made. You have been very helpful to us. Mr. SPIEGELBERG. Thank you very much, sir. Senator ERVIN. The committee will stand in recess until 10 o'clock tomorrow morning when we will meet in the same room. [Whereupon, at 4:25 p.m., the committee was adjourned.] RULES OF EVIDENCE WEDNESDAY, JUNE 5, 1974 U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, D.C. The committee met, pursuant to recess, at 10:05 a.m., in room 2228, Dirksen Senate Office Building, Senator Quentin N. Burdick (acting chairman) presiding. Present: Senator Burdick. Staff present: Kenneth Lazarus, minority counsel; Paul Summit, Michael Mullen, and William Pursley, assistants to Senators. Senator BURDICK. Our first witness this morning will be W. Vincent Rakestraw, Assistant Attorney General, Office of Legislative Affairs, Department of Justice. Welcome to the committee. TESTIMONY OF W. VINCENT RAKESTRAW, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS, DEPARTMENT OF JUSTICE; ACCOMPANIED BY H. M. RAY, U.S. ATTORNEY, NORTHERN DISTRICT OF MISSISSIPPI, AND ROGER M. PAULEY, DEPUTY CHIEF, LEGISLATIVE AND SPECIAL PROJECTS SECTION, CRIMINAL DIVISION Mr. RAKESTRAW. Thank you very much, Mr. Chairman, members of the committee. I appreciate the opportunity to be here today to discuss the Proposed Federal Rules of Evidence. With me are Mr. H. M. Ray to my right and Mr. Roger M. Pauley seated on my left. Mr. Ray is the U.S. Attorney for the Northern District of Mississippi and a member of the Attorney General's Advisory Committee and chairs the Legislation and Court Rules Subcommittee. He has served as U.S. Attorney for the Northern District of Mississippi for 12 years and later I will submit his biography and statement. Attorney General Saxbe intends to expand the activities of the U.S. Attorney General's Advisory Committee, particularly in the area of legislation. The Subcommittee on Legislation and Court Rules is designed to bring the collective thoughts of all 94 U.S. Attorneys and their 1,300 assistants before the Department and Congress in a timely, workable manner. At this time I submit, with the committee's approval, an outline of the subcommittee, Mr. Ray's biography, and his statement. Senator BURDICK. It will be received without objection. [The above referred to statement follows:] SUB-COMMITTEE ON LEGISLATION AND COURT RULES The purposes stated by the Attorney General in his creation of the Advisory Committee of United States Attorneys were: (1) To give the United States Attorneys a voice in Departmental policies; (2) To conduct studies and make recommendations with regard to improving management, specifically with respect to relationship between the Department and the United States Attorneys; (3) To improve liaison with State Attorneys General to the end of a better understanding of the proper sharing of law enforcement responsibilities by state and federal law enforcement agencies; (4) To promote greater consistency in the application of legal standards across the country and across the levels of government; (5) To aid him in formulating new programs for improvement of the criminal justice systems at all levels, including the penal system. OBJECTIVES In order to accomplish its responsibilities for the above purposes the objectives of the Sub-Committee on Legislation and Court Rules shall include the following: (1) Establishing liaison and subsequent exchanging of views, comments and suggestions, with others involved in the Sub-Committee's areas of responsibility. (2) Providing comments and suggestions, on an on-going basis, to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. (3) Reviewing and responding to legislative proposals, including such current pending subject matter as: (a) Federal Criminal Code (b) Federal Rules of Evidence (c) Speedy Trial (d) Federal Grand Juries (e) Deferred Prosecution of Adults (4) Initiating legislative proposals on Criminal Justice System subject matter. (5) Commenting on impact of court rules, court decisions, Departmental policy, and legislation of the criminal justice system. MEMBERSHIP The membership of the Sub-Committee on Legislation and Court Rules shall consist of the six following regular members: Ralph G. Guy, Jr.-(E., Mich.) D. Dwayne Keyes-(E., Calif.) James L. Treece-(Colo.) H. M. Ray-(N., Miss), Chairman; and such other special members, to be selected by the Chairman, as may be needed to carry out any special or particular Sub-Committee objective. H. M. RAY, UNITED STATES ATTORNEY, NORTHERN DISTRICT, MISSISSIPPI Born (8-9-24) & Reared in Alcorn County (Hinkle Creek), near Corinth, Miss., Educated in the Alcorn Co. Public Schools and the University of Mississippi, JD degree. B-24 (Bomber) Pilot World War II in ETO. During Korean Emergency recalled & served as Intelligence Staff Officer, Hdqrs 3rd Air Force, London. From 1954-66 participated actively as an M-day assignee to the Assistant Chief of Staff, Hdqrs USAF. While a Member of the Mississippi House of Representatives (1948-51) was principal author of Mississippi's Workmen's Compensation Act, and as a member of an interim study committee co-authored a complete revision of the Mississippi Municipal Code (1940). Except for military service, engaged in the general practice of law in Corinth, Miss. from 1949 to 1961, during which he also served twice as county prosecuting attorney and also served as corporate counsel to a sawmill machinery manufacturing company and was active in committee work of the Mississippi Manufacturer's Ass'n and the Mississippi Economic Council. Has served as U.S. Attorney for the Northern District of Miss. for more than twelve years, and in such capacity has actively participated in significant trial and appellate argument of all types of criminal and civil cases, including Small Business Administration matters. Has authored a "Desk Manual of Local Office Procedures For the U.S. Attorney of the Northern District of Mississippi" which has been reproduced by the Department of Justice and distributed to U.S. Attorney Offices throughout the nation. Has been a frequent contributor of proposals dealing with the Federal Rules of Civil, Criminal, and Appellate Procedure. He is a member of the Attorney General's Advisory Committee of United States Attorneys, and Chairman of its Legislation and Court Rules Subcommittee. A member of the Miss. Chapter of the Federal Bar, and a member of the American Bar and local bar associations. PREPARED STATEMENT OF H. M. RAY, U.S. ATTORNEY, NORTHERN DISTRICT OF MISSISSIPPI Mr. Chairman and Members of the Committee: My name is H. M. Ray. As a member of the Attorney General's recently created Advisory Committee of United States Attorneys, as Chairman of its Legislation and Court Rules Subcommittee, and as United States Attorney for the Northern District of Mississippi since 1961, it is a pleasure and a privilege to appear before you today in this supportive role to the Attorney General on the Proposed Rules of Evidence. I wholeheartedly support and endorse the position of the Department of Justice on the proposals before you. You may be interested in knowing that for some time United States Attorneys throughout the land have felt that they could be a significant source in bettering our system of criminal justice if some effective means were developed to insure that their views on matters within their areas of experience and expertise were received and made known to the decision makers, including the Congress. A few months ago the Attorney General established an Advisory Committee of United States Attorneys. Two of the purposes stated by the Attorney General in his creation of the Advisory Committee were: (1) To promote greater consistency in the application of legal standards across the country and across the levels of government; (2) To aid him in formulating new programs for improvement of the criminal justice system at all levels, including the penal system. Objectives of the Advisory Committee's Legislation and Court Rules SubSubcommittee include the receiving and responding to legislation and rule proposals, such as today's subject matter, the Federal Rules of Evidence. Although our committee has been in existence for sufficient duration to provide you with an in-depth appraisal of the entire proposed code, individually we have been most interested for years in the codification of the Rules of Evidence and are truly pleased with the progress to date. We do, however, not only share the views of the Attorney General with respect to the few matters which are of particular concern to the Department of Justice, but in one or two instances I believe that our concerns for remedial change is even greater. This is perhaps due to our being "in the trenches," so to speak, where we are daily involved with applying Rules of Evidence. The ends of justice, we strongly urge, require that Rule 609(a) be exactly that which the Congress chose to adopt in 1970 for the District of Columbia (14 D.C. Code 305) so that in the impeachment of witnesses jurors will be given proof of all felony convictions in order that they may properly assess the credibility of the witnesses. In commenting to me on the House version of Rule 609(a), one United States Attorney said: "There is no definition of dishonesty or false statement. Apparently no other felonies would be admissible even though you may be trying a bank robber and as I had, a case involving 9 other bank robbery convictions. What could affect credibility more than that? The same would be true, perhaps of mail fraud, drugs and other violations. Many of these criminals commit the same general type of crimes and the evidence affects their credibility substantially." We are also concerned that Rule 609 (b) be amended to permit for impeachment purposes beyond the ten-year rule, in the discretion of the judges, where the convictions may have probative value. One United States Attorney has commented: "I have tried cases where the defendant has had as high as 13 felonies. What could be more relevant to his credibility than his prior felony record? I urge careful consideration of what appears to be an extraordinary change in the law." We urgently request the House version of Rule 609 (b) be changed to the Supreme Court version, so that inquiry into all internal matters of the jury will be barred while inquiry will be permitted as to external or outside influences brought to bear on any juror. I would forecast a dimunition in the quality of justice if the House version is enacted. From discussions of this particular subject matter and from my own observations it is my opinion that jurors will be harassed by losing parties unless some protection is accorded to them for their dutiful service. If jurors were to realize in advance of trial that their internal deliberations could be the subject of public disclosure, I believe that not only would jurors seek excuses from service but, perhaps due fears of public pressures, even different results might result, especially in unpopular causes. Common fairness requires that an absolute privacy be preserved for jurors to engage in full and free, and sometimes stormy discussions before rendering verdicts or returning indictments. Juries cannot continue to function effectively if their deliberations are to be picked over in post-trial litigation. The House version should be changed back to the Supreme Court version of Rule 609 (b), so that inquiry into all internal matters will be specifically barred while inquiry will be permitted as to external or outside influences brought to bear upon any juror. As to the amendments added by the House to Rule 611 restricting crossexamination to matters brought out on direct examination, I would hope that the House version would be preserved. Especially in complex civil cases (or criminal) cross-examination beyond the scope of direct can create confusion, prevent a plaintiff from the orderly presentation of evidence, and result in injustice. The House version, of course, would not prevent going beyond the scope of direct examination where no objection is made, but would leave the matter in the hands of the lawyers, who after all should know their case and whether or not going beyond the scope of direct would seriously jeopardize it, either from confusion or from suffering a directed verdict or judgment of acquittal at the close of plaintiff's evidence due to being unable to anticipate the need for having witnesses available to rebut cross-examination evidence that goes beyond the scope of direct examination. We must also remember that throughout this land we now have a cross section of persons above the age of 18 years performing jury service. Thus, we should enact rules of evidence that will assist these cross-sectional members of our society in understanding the facts upon which they are required to make judgments. Lastly, I would urge you to seriously consider the Department of Justice position with respect to Rule 801(d) (1) concerning the admissibility of prior inconsistent statements on the issue of the truth of the matter asserted. The traditional prohibition against use of prior inconsistent statements to prove the truth of the matter asserted has been rejected by most legal scholars. The old rule is considered unworkable, since the prior inconsistent statements go into evidence anyway, for impeachment purposes. under limiting instructions that juries probably find difficult to apply. The old rule is also considered illogical, since, forgetting about the original nature of the evidence as hearsay, the witness is now before the court to testify after the former statements. His confirmation of the hearsay would be non-hearsay testimony, and whatever he might otherwise say about the former statements or even in denial of having made them is all present testimony that can be gone into thoroughly before the jury. Surely a weak |