and implausible disclaimer of a prior inconsistent statement can stamp that former statements as being true with a force sometimes lacking the straightforward testimony. Admissibility does not, of course, mean that the jury has to accept the former statement over the current testimony; in fact, the jury may decide to reject the evidence in its entirety. However, by admitting prior statements as affirmative proof, the law can prevent those miscarriages of justice that occur when witnesses are intimidated or otherwise improperly influenced, or are motivated by malice or spite, to repudiate their initial statements under circumstances enabling the jury to discern the falsity of that repudiation.

Recently in my own district we were unable to use valuable evidence in a bank robbery case because the old rule still prevails in my circuit. Thus the trial court, of necessity, had to limit the prior inconsistent statements to purposes for impeachment and the jury was denied the opportunity of discerning the truth or falsity of the prior statements.

Mr. Chairman, I am deeply indebted to you and the members of your committee for affording me the opportunity of presenting these remarks. If you or any other members of 'the committee have questions, my colleagues and I will be happy to respond.

Mr. RAKESTRAW. Mr. Pauley to my left has spent approximately 7 years with the Criminal Division and is currently its Deputy Chief, Legislation and Special Projects. He was subcommittee minority counsel while the Rules of Evidence were being produced in the House and accordingly is very familiar with their technical development.

Both Mr. Ray and Mr. Pauley are here to add to my testimony whenever necessary and assist me in responding to questions of the committee.

At this time, may I submit my prepared statement for the record and present my remarks in outline form to preserve the committee's time.

Senator BURDICK. I appreciate that suggestion very much. The full statement will be made a part of the record and you may proceed. [The statement follows:]

PREPARED STATEMENT OF W. VINCENT RAKESTRAW, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS

Mr. Chairman and Members of the Committee: I appreciate the opportunity to come here today to present for your consideration the views of the Department of Justice on the proposed Federal Rules of Evidence.

The establishment of a uniform code of evidence for the Federal courts has been a matter of great concern to many people for a long time now. It is obviously not a very just system for one Federal court to be using one set of rules while another and perhaps neighboring Federal court is using a different set of rules. It is also a fact that judges and lawyers sometimes have difficulty presently finding clear or ready answer to evidence questions in the reported cases. Enactment of a comprehensive code of evidence would be recognized for years into the future as having improved the Federal system of justice, both civil and criminal.

During the several years in which this legislation was being developed in the committees of the Judicial Conference, the Supreme Court, and the House of Representatives, the Attorneys General were kept advised about the various versions by a special Committee within the Department of Justice. This special advisory committee was composed of lawyers from the Antitrust, Civil, Civil Rights, Criminal, Land and Natural Resources, and Tax Divisions. as well as attorneys from other elements of the Department including United States Attorneys. Most of the members of the committee were, or had for long periods been, trial attorneys. The views I express here today represent the consensus of opinion of that special Departmental committee, and of the Department of Justice.

As one would expect considering the enormous efforts that have gone into this bill, it is on the whole exceptionally good legislation. Several choices were made along the line that the Department of Justice considered less desirable than the rejected alternatives, but unanamity of viewpoint is not to be expected. Many of the questions are too complex to be resolved to everyone's satisfaction. I am not going to point out all the provisions that the Department believes might be improved. Not by half. But there are a few matters of extreme concern to the Department of Justice as to which we would ask your most careful consideration. The Department is most anxious to see a Federal Code of Evidence enacted and the work that has gone into this legislation fulfilled. But this bill presents some serious problems and, at the least, the following matters require amendment.

RULE 606(b)-INQUIRY INTO GRAND AND PETIT JURY DELIBERATIONS

Problem: Should a rule on the competency of a juror to testify at an inquiry into the validity of a civil or criminal verdict or a criminal indictment be so broad as to allow questions on matters or statements occurring during the jury's deliberations?

Argument: Inquiry into all internal matters, as distinguished from external influences, should continue to be forbidden, in the interest of protecting the jury system.

The Rule as it passed the House harks back to an earlier version suggested by the Advisory Committee of the Judicial Conference and is considerably broader than the final court version, which embodied existing federal law.

Thus, while the bill very wisely forbids impeachment of a civil or criminal trial verdict or of a grand jury indictment by questioning jurors as to the effect anything may have had upon a juror's mind or emotions or regarding the mental processes involved in reaching a determination, it deletes from the Supreme Court version the proscription against testimony "as to any matter or statement occurring during the course of the jury's deliberations." Thus a verdict will presumably now be open to challenge on the basis of a juror's affidavit that the jury, e.g., refused to follow the trial judge's instructions or that some of the jurors did not take part in the deliberations. It is unwise to leave the door open in such a fashion for litigation over a jury's internal deliberations. As the Supreme Court warned in McDonald v. Pless, 238 U.S. 264, at 267 (1914):

"[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation-to the destruction of all frankness and freedom of discussion and conference.”

As it stands, this bill augurs a whole new pattern of post-trial litigation, the harassment of former jurors by losing parties, and the possible exploitation of disgruntled or otherwise badly motivated ex-jurors. Public policy requires a finality to litigation. Furthermore, 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. Jurors cannot continue to function effectively if their deliberations are to be scrutinized in post-trial litigation. Many grand and petit jurors serve at considerable personal sacrifice, and protection is due them after their service so that they may not be pestered by investigators, disappointed suitors, or others, whether looking for grounds for a new trial or reacting to the contentions of some one of the jurors, nor should the law tolerate jurors being pitted against each other in post-trial litigation. In the interest of protecting the jury system and the individual citizens who make it work, Rule 606 should not admit any inquiry at all into the internal deliberations of jurors.

Pertinent cases include: Holden v. Porter, 405 F.2d 878 (C.A. 10, 1969); United States v. Chereton, 309 F.2d 197 (C.A. 6, 1962); Farmer's Cooperative Elevator Ass'n. v. Strand, 382 F.2d 224 (C.A. 8, 1967), cert. denied, 389 U.S.

1014 (1967); United States v. Crosby, 294 F.2d 928 (C.A. 2, 1961); Miller v. United States, 403 F.2d 77 (C.A. 2, 1968), modified on other grounds, 411 F.2d 825 (1969); United States v. Driscoll, 276 F. Supp. 333 (S.D.N.Y. 1967); United States v. Dioguardi, (C.A. 2, 1974) 14 Criminal Law

Reporter 1071.

-F.2d

RULE 609(a)-LIMITING USE OF CONVICTIONS TO IMPEACH

Problem: Should impeachment by proof of prior criminal record be limited to proof of conviction for crimes involving "dishonesty or false statement," or should proof of any felony conviction be permitted for impeachment purposes? Argument: So that it may adequately assess the credibility of witnesses, the jury should be given proof of all felony convictions.

This bill would limit impeachment by proof of criminal conviction to conviction for crime involving "dishonesty or false statement." This is much too indefinite and restrictive.

What might happen under this version of Rule 609 (a), is that courts would permit impeachment by proof of conviction for only a few crimes, such as larceny by stealth and perjury. This would mean that, in both civil and criminal cases, whether the witnesses were called by the plaintiffs (the government in a prosecution) or by the defendants, the juries might be kept in the dark as to facts bearing heavily upon the credibility of witnesses. This is the crux of the whole matter. Although the possibility of prejudice is a valid consideration, by far the weightier factor is to insure that juries obtain all the pertinent information needed to render just verdicts. In our view, there should be no limitation in this Rule, even if a concrete meaning could be given to the term "dishonesty." All felony convictions should be admissible for impeachment purposes subject only to limitation that they not be so old as to be irrelevant. This is exactly the solution the Congress chose to adopt, after lengthly consideration of alternatives, only a few years ago (1970, to be exact), in the District of Columbia Code (14 D.C. Code 305). The legislation was sound then and its principle should be adopted generally now, as indeed the Supreme Court's final version proposed to do.

III

RULE 803 (8) (B)-PUBLIC RECORDS AND REPORTS

Problem: Regarding the provision on the admissibility of public records and reports of matters observed pursuant to a duty, is there any justification for excepting (and thus making inadmissible) such records or reports made by policemen?

Argument: Reason and authority dictate that all prior inconsistent statements than others who make public records, the exception cannot be justified.

Rule 803 (b) was amended in the House of Representatives so that, among other things, the general rule on the admissibility of public records and reports of matters observed pursuant to a duty imposed by law would not apply in criminal cases to records made by policemen. There is no justification for such an exception, since there is no basis for concluding that records of observations made by police officers are any less accurate than public records or reports of similar observations made by other public officials such as social workers or employees of the weather bureau. The amendment to this Rule accordingly should be deleted.

IV

RULE 801 (d) (1)—ADMISSION OF PRIOR INCONSISTENT STATEMENTS Problem: Should prior inconsistent statements be admissible for the truth of the matter asserted only if such statements were under oath and subject to cross-examination?

Argument: Reason and authority dictate that all prior inconsistent statements should be admissible for their truth and not just for impeachment purposes, because the witness who made such statements is now before the court and subject to cross-examination about them.

Most legal scholars have rejected the traditional prohibition against use of prior inconsistent statements to prove the truth of the matter asserted. The old prohibition 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 the law says may be impeached is before the court to testify and can be questioned about the former statements. The witness's confirmation of the hearsay would be non-hearsay testimony, and whatever he might otherwise say about the former statements, even in denial of having made them, is all present testimony that can be gone into thoroughly before the jury. Surely a weak and implausible disclaimer of a prior inconsistent statement can stamp that former statement as being true with a force sometimes lacking in straightforward testimony.

Admissibility does not, of course, mean that the jury is obliged to accept the former statement over the current testimony; in fact, the jury may decide to reject the evidence in its entirety. However, by admitting prior statements as affirmative proof, the law can prevent those miscarriages of justice that occur when witnesses are intimidated or otherwise improperly influenced, or are motivated by malice or spite, to repudiate their initial statements under circumstances enabling the jury to discern the falsity of that repudiation.

The bill seems to recognize the validity of what is said above, but unnecessary qualifications have been tacked onto the Rule, as if the principle of admissibility of the former statement somehow depended upon a prior oath or prior cross-examination. Such factors are immaterial. The new rule has commanded support because the inconsistent statements allegedly made at an earlier time are always introduced only when the witness is before the court, live, under oath, and subject to cross-examination. Once that is recognized as the rationale there is no cause for half-measures; all prior inconsistent statements should be made admissible under 801(d)(1). See Rule 503 of the Model Code of Evidence, Rule 63 of the Uniform Rules of Evidence, and Section 1235 of the California Evidence Code.

It is urged most strenuously that this bill be changed back to the Supreme Court version, which contained no qualifications about the prior inconsistent statement having been made under oath subject to cross-examination.

It is clearly established under California v. Green, 339 U.S. 149 (1970), that the admissibility of prior inconsistent statements as affirmative evidence does not violate a defendant's right to confront the witnesses.

V

RULE 410-BARRING PROOF OF STATEMENTS MADE IN CONNECTION WITH PLEAS SUBSEQUENTLY WITHDRAWN

Problem: Should statements made in connection with pleas of guilty or nolo contendere be inadmissible under all circumstances simply because the please are withdrawn?

Argument: The rule affords proper protection in barring proof of pleas that are withdrawn and mere offers to plead, but there is no reason categorically to bar evidence of statements made freely and voluntarily in court in connection with the pleas.

Preliminarily, two aspects of Rule 410 are to be noted. First, Rule 410 makes inadmissible evidence of mere offers to plead guilty or nolo contendere. Such a rule of law is based upon the proposition that offers to plead are to be encouraged. Secondly, the Rule bars proof of pleas that have been withdrawn. We have no quarrel with the Rule in these respects.

The Rule goes further and bars as evidence statements made in connection with pleas of guilty or nolo contendere. In our view the Rule should not prohibit such evidence in all circumstances. We do not suggest, of course, that all such statements are always to be admissible. If, for example, a plea of guilty is vitiated because of coercion, statements made in connection with the plea might also have been coerced and would be held inadmissible by the court upon that basis.

Another aspect of the problem, however, is that even if the government is forbidden to use a defendant's statement in its case in chief, it does not follow that the defendant should be able to use as a sword what was meant as a shield, and lie concerning the matter in question, and expect not to be impeached. The Supreme Court has recognized that Miranda-barred statements, for example, may be used for impeachment purposes in this way. See Harris v. New York, 401 U.S. 222 (1971).

vi

RULE 803 (6)-EXCEPTION TO HERESAY RULE FOR BUSINESS RECORDS

Problem: Is the business records exception vitiated by the requirement that the records have been made "by, or from information transmitted by, a person with knowledge?"

Argument: While this requirement of personal knowledge, in light of its legal background, should be satisfied by general rather than specific proof, the rule appears too restrictive and abandons without sufficient reason the wellestablished Federal rule in 28 U.S.C. 1732.

Statements of the business records exception to the hearsay rule at times mention a requirement that the business records must have been based upon first-hand knowledge. The business records exception should be distinguished, however, from the exception for past recollection recorded where the witness is on the stand with an evidentiary memorandum he knows was accurate when prepared. The business records exception does not require the calling of a witness who authored the basic record at issue, nor does such a person even have to be identified. One authority explains the matter this way:

"But obviously under the complex and specialized division of labor in modern business, it is not required that the person or persons, the clerks, bookkeepers and accountants, who do the recording, must know that facts at first hand. It is sufficient that their records be based upon the reports of informants, salesmen, time-keepers, mechanics, and the like, who know the facts and report them orally or by temporary memoranda to those who will make the record. In respect to a particular record, it may not be possible to prove specifically that the particular informant actually observed the facts, or indeed who the informant was. As evidence that he did, it will be prima facie sufficient to show that it was someone's job, or his business duty in the firm's routine or system, to observe them." (McCormick, Law of Evidence, §286 (1954).

It is noted that Rule 803 (b) says specifically that "all the necessary foundation for admissibility may be supplied by the custodian of the records (H.R. 5463 in the Senate of the United States, p. 29, line 21). Rarely would the custodian be the "person with knowledge," but he could be familiar enough with the business that he would be able to testify that it was "someone's job, or his business duty in the firm's routine or system, to observe" the basic facts recorded. Is this necessarily the case, however?

The long-standing Federal rule is found in 28 U.S.C. 1732. This statute is specific that the admissibility of business records does not depend upon any personal knowledge of the entrant or maker of the record; issues about personal knowledge go only to weight and not to admissibility. This salutary rule has proved decisive in past cases, e.g., Hanley v. United States, 416 F.2d 1160 (5th Cir. 1969), cert. denied, 397 U.S. 910, and the importance of having such a rule is greater today than ever and will most likely grow as business methods continue to change.

As drafted, Rule 803 (6) is a long step backward from established Federal law and contrary to the reasons for making exceptions to the hearsay rule. This is the age of computers. Computer technology is designed to handle great masses of information at incredible speeds. Businesses run on the results. To interfere with the use of such evidence in litigation would be most regrettable; such interferences would make much more difficult if it would not prevent altogether the trial of complicated tax and antitrust cases and other civil and criminal litigation. Just such interference would be the result of Rule 803 (6) as it now stands. The Rule would make admissibility of computerized records turn upon an isolation of the raw data and the testimony of somebody about that data, which may not only be impossible under the best of circumstances but might be impossible because businesses often do not store the raw data after it has been under 28 U.S.C. 1732. This means that the Rule will still require that the records have been kept in the regular course and as a regular practice of the business. If unusual situations arise. Rule 803 (6) provides for the necessary latitude and allows courts to exclude records when the circumstances indicate "a lack of trustworthiness" (id. at line 24). Accordingly, the clause "by, or from information transmitted by, a person with knowledge" should be deleted from the Rule.