Mr. PAULEY. Our suggested amendment is in the form of an addition to the rule. Following the final word, "offer," we would insert "except as provided by an act of Congress. This rule shall not apply to the introduction of statements made in connection with any of the foregoing pleas or offers when offered for impeachment purposes or in subsequent perjury prosecution of the declarant."

The rationale behind our submission is that in other areas which we feel are analogous, the Supreme Court has held that even though certain evidence in the form of statements of the defendant, for example, those barred by a failure to give adequate Miranda warnings are not admissible in the Government's direct case, yet if the defendant seeks to use that protective rule of inadmissibility as a sword rather than a shield, and to make a statement at trial which is directly contradictory to the statement he gave on the prior occasion, then the prior statement notwithstanding its inadmissibility as direct evidence may be used to impeach him at that time, and we think that the same rule should apply in this context with regards to statements made in connection with pleas of guilty which are subsequently withdrawn for one reason or another.

Mr. RAY. Mr. Chairman, I think that the proposed words would also be of great benefit in the evergrowing caseload we have in habeas corpus motions, attacks being made by the defendant. We certainly urge the adoption of the proposed language.

Senator BURDICK. You would add then that statements barred by Miranda could be used for impeachment, is that the only addition to 410?

Mr. RAKESTRAW. Yes.

Senator BURDICK. I believe you said impeachment and perjury.
Mr. PAULEY. Yes.

Mr. RAKESTRAW. We have only one other rule we would like to discuss in summary. That is rule 606 (b), found on page 17 at line 15. This rule as passed by the House of Representatives causes the Department great concern. The rule quite properly forbids the questioning of a former juror as to the effect of anything upon his or any other juror's mind or emotions as influencing the verdict. However, the rule does not contain the proscription against testimony as to any matter or statement occurring during the course of the jury's deliberations, which was the original legislation. It is extremely unwise to provide an opportunity for litigation over a jury's internal deliberations. The possible harrassment of former juries by unsuccessful parties or the possible exploitation of disgruntled jurors are further considerations. Jurors must be free to engage in discussion knowing that their deliberations will not be the subject of post-trial litigation. Such a possibility would make it impossible for juries to function effectively. We strongly urge the committee to remedy this situation. Mr. Chairman, this concludes my summary of my formal statement.

Senator BURDICK. How would you remedy it? Go back to the existing law?

Mr. RAKESTRAW. Reinstate the Supreme Court version, and Mr. Ray has that.

35-817-74- -9

Mr. RAY. The Supreme Court version provides that on an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement during the course of the jury's deliberations or to the effect of anything upon his or other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous, prejudicial information was improperly brought to the jury's attention or whether an outside influence was improperly brought to bear upon the juror. His affidavit or statement concerning the matter about which he would be precluded from testifying could not be received.

Mr. Chairman, the U.S. attorneys that I have been in contact with are very disturbed about the proposal as it now stands before you, and we urge that it be changed back to the Supreme Court version. I have in my statement, and I won't go into it unless the chairman wishes me to, stated the reasons.

Senator BURDICK. In other words, that language comes from the Supreme Court proposal?

Mr. RAY. From the Supreme Court version.

I did not include in my statement another theory. If the internal deliberations are subject to this type of procedure, I believe that jurors would have fear of personal harm if there was a rule that people could go in and open this matter up.

Professor Cleary, who is here today, and I appeared at a seminar about a year and a half ago at Jackson, Miss. One of the things I recall today is that at least two or three lawyers were quite interested in being able to open this up. I have heard it discussed a good many times since, and it is my opinion that the losing parties would subject jurors to harassment. I just think it would be terrible if this rule goes through as that has been proposed in the House version.

Mr. RAKESTRAW. Mr. Chairman, this concludes my summary of my prepared statement, and Mr. Ray and Mr. Pauley and I will be happy to try to respond to any further questions you may have.

Senator BURDICK. Before I turn the staff loose on you, I have a question.

What is the Department of Justice position on the limitation added by the House to 611(b), generally restricting cross-examination of the scope of direct examination?

Mr. RAY. Mr. Chairman, the Department's position is that we hope your committee will restore what is the current practice, limiting cross-examination to the matters brought out on direct.

We feel in an especially complex civil case as well as criminal, that unless the plaintiff can present his proof in an orderly manner there will be confusion.

Now, I have addressed to it in my prepared statement. I won't take up the chairman's time in going into it except to add one thing. As you know, we now have a cross section of jurors coming up in the jury panels throughout the country; we have 18-year olds. I think it is even more important when we consider the educational level of persons and the age range that we do have an orderly presentation of evidence.

Senator BURDICK. In other words, you would oppose the last sentence in 611(b)?

Mr. RAY. No, I would agree with the last sentence.

Senator BURDICK. Then you are enlarging the old rule?

Mr. PAULEY. May I perhaps attempt to clarify the matter, Senator? Senator BURDICK. Yes.

Mr. PAULEY. The Supreme Court version of the rules which from testimony in the House was clear, was adopted by a very narrow margin in the Advisory and Standing Committees on Rules and Practices and Procedure of the Judicial Conference, expanded the existing Federal rule with regard to scope of cross-examination to permit cross-examination of a witness as to any matter relevant to the case, irrespective of whether that matter had been covered on his direct examination. That is not existing Federal law. That would have broadened Federal law and in effect is called the wide open rule of cross-examination, followed in a minority of jurisdictions.

The House restored the rule to existing Federal purview, that is, ordinarily cross-examination may occur only as to the matters embraced within the witness' direct examination. The judge may in his discretion permit more, but ordinarily cross-examination is confined. This has the great virtue, in our view, of enabling each side to present its case in an orderly fashion, and prevents the defense, for example, for in effect interjecting its entire defense in the course of the prosecution's development of its case. This can be extremely confusing, we feel, to a jury as well as prejudicial to plaintiffs, particularly in complex cases, such as an antitrust or tax case where the attorneys have spent long hours trying to evolve an orderly way to bring the facts before the jury so that it can better understand them. We, therefore, strongly favor retention of the House amendment of this rule.

Senator BURDICK. Staff, do you have questions?

Mr. LAZARUS. I don't have any questions at this time, Mr. Chairman. However, I would appreciate communicating with the Department on certain technical aspects of the bill.

Senator BURDICK. You may be hearing from us.

Mr. RAKESTRAW. Fine. We look forward to continued good working relationships with the committee and the staff.

Senator BURDICK. Thank you very much for your contribution. [The committee subsequently received the following document.]

Hon. JAMES O. EASTLAND,

Chairman, Senate Judiciary Committee,

OFFICE OF THE ATTORNEY GENERAL,

Washington, D.C., June 14, 1974.

U.S. Senate, Dirksen Building, Washington, D.C.

DEAR SENATOR EASTLAND: The Department of Justice has received a number of inquiries from the staff of the Judiciary Committee concerning the position of the Department of Justice on certain of the proposed Federal Rules of Evidence in H.R. 5463, now pending before this Committee. These inquiries relate to matters not specifically covered in the testimony of the Department before the Committee on June 5, 1974, or in the statement it submitted.

The inquiries of the Staff and our responses are set forth in the order in which the provisions to which they relate appear in the bill.

PROPOSED RULE 106-REMAINDER OF OR RELATED WRITINGS OR RECORDED STATEMENTS Inquiry: Should an adverse party be authorized to require the party who has introduced a writing or recorded statement or part thereof to introduce

"any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it?"

Response: Though proposed Rule 106 answers this inquiry in the affirmative, we respectfully disagree. We oppose Rule 106 as proposed because it could be utilized to usurp the function of cross-examination by permitting one party to disrupt the orderly presentation of evidence by the other by moving into evidence, under a claim of fairness, other documents which properly should be admitted only in its own case. This may well have a generally disruptive effect in orderly presentation, particularly in complicated fraud and antitrust cases which involve a great number of documents. The upshot is that instead of preventing the jury from being misled-the aim of the Rule the Rule may have the opposite effect: i.e., it may engender the disorderly and illogical presentation of evidence with consequent disruption and confusion.

In our view, the rule should be confined to requiring the offering party to place into evidence only whatever other part of the same document "relates to the same subject matter." McCormick, Evidence, p. 131 (1972 ed.). The proposed test of fairness is vague and fails to provide the necessary guidance. Should the rare situation arise in which a jury is apt to be misled by a party offering into evidence one writing inextricably intertwined to another-such as a letter and a response-the judge is empowered to eliminate the confusion by his general control "over the mode and order of presenting evidence" under proposed Rule 611(a).

Recommendation: We therefore suggest that the rule be amended accordingly : "When a part of a writing or recorded statement is introduced by a party, an adverse party may require him at that time to introduce any other part of the same writing or recorded statement which relates to the same subject matter."

If the Committee should not accept our objection and decide to permit other separate documents to remain admissible under the rule, an adverse party may be able to secure the introduction into evidence of documents which are not properly authenticated or are otherwise inadmissible. This is so because the rule provides only that the document sought to be moved into evidence by the adverse party will be admitted if it "ought in fairness to be considered . . To use such vague terminology and dispense with other rules regarding an admissibility of documentary evidence seems unwise.

Accordingly, if our initial recommendation is not accepted, we suggest the following alternative change:

"When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him at that time to introduce any other part or any other writing or recorded statement which is otherwise admissible and which ought in fairness be considered contemporaneously with it."

PROPOSED RULE 201 (g) —JUDICIAL NOTICE

Inquiry: In a criminal case, should, as proposed Rule 201(g) provides, the jury be instructed "that it may, but is not required to, accept as conclusive any fact judicially noticed?"

Response: The jury, in our view, should be instructed, as in a civil case, "to accept as conclusive any fact judicially noticed." If a fact is properly judicially noticed pursuant to 201(b), it is "not subject to reasonable dispute." If not subject to reasonable dispute, a jury should clearly not be instructed that it can disregard the fact.

The Judicial Conference and the Supreme Court properly recognized that there is no distinction between the effect of judicially noticed facts in either civil or criminal cases, on the theory that "the right of jury trial does not extend to matters which are beyond reasonable dispute, . . ." [Citation omitted.] Advisory Committee's Note. We respectfully disagree, therefore, with the Report of the House Judiciary Committee, p. 7, that the Supreme Court's proposal is "contrary to the spirit of the Sixth Amendment right to a jury trial." The burden of proof on the prosecution in a criminal case is guilt beyond a reasonable doubt. There can be no reasonable doubt about a fact not reasonably in dispute.

Recommendation: Rule 201(g) in H.R. 5463 should be amended at p. 10, Mines 6-10, by deleting "In a civil action or proceeding," capitalizing the "t"

in the following word, and deleting the second sentence. It will, therefore, read as follows:

"The court shall instruct the jury to accept as conclusive any fact judicially noticed."

PROPOSED RULE 404-CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT, EXCEPTIONS, OTHER CRIMES

Inquiry: Does proposed rule 404 (b), which provides that evidence of other crimes "may" be admissible for other purposes, such as proof of motive, opportunity, intent, etc., accurately reflect existing law?

Response: We believe it does not. The general rule is that if relevant, such evidence is admissible and the normal "rule of exclusion is simply inapplicable." McCormick, Evidence, p. 448 (1972 ed.). "[F]acts consisting of past misconduct, whether criminal or not, and being offered to show design, motive, intent, knowledge, or the like-are admitted, then, whenever they are relevant otherwise than to character." 1 Wigmore §216.

Insofar as the House Judiciary Committee altered the Supreme Court proposal to insert the word "may" and thereby place "greater emphasis on admissibility than did the final court version" (H.R. No. 93-650, p. 7), it did not, we submit, accurately reflect either what the law is or what it should be. The modifier "may" makes admissibility clearly discretionary with the court and may therefore result in the exclusion of evidence which clearly is relevant and should be admitted. Only if the probative value of these facts is substantially outweighed by the danger of unfair prejudice, are they properly excludable. This should be the test.

Finally, though the list of purposes in rule 404 (b) for which such evidence is admissible is not all inclusive, we submit that the term "common scheme" should be added since proof of evidence of other crimes is often highly relevant to demonstrate a particular pattern of criminal conduct or common scheme or plan. See e.g., Drew v. United States, 331 F.2d 85 (D.C. Cir., 1965). To accomplish the above objectives, the second sentence of Rule 404(b) in H.R. 5463, p. 12, lines 19-22, should be redrafted to read as follows:

"It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, or absence of mistake or accident, unless the probative value of this evidence is substantially outweighed by the danger of unfair prejudice."

In the alternative, we recommend that the second sentence of the Supreme Court version of Rule 404 (b) be substituted for the second sentence of Rule 404 (b) in H.R. 5463.

PROPOSED RULE 405-METHODS OF PROVING CHARACTER

Inquiry: When evidence of character or a trait of character of a person is admissible, should proof by testimony in the form of a personal opinion be permitted?

Response: H.R. 5463 authorizes the admission of personal opinion. As the Advisory Committee's Note to Rule 405 observes, this "rule departs from usual contemporary practice," which permits only proof of character by evidence of reputation. See Michelson v. United States, 335 U.S. 469 (1948).

The House Judiciary Committee followed the traditional rule and did not authorize use of personal opinion evidence. On the floor of the House, however, this evidence was authorized, but only by a vote of 13-11. 120 Cong. Rec. H549 (daily ed., February 6, 1974).

The reasons for the general disfavor with which courts regard opinion testimony, were persuasively stated by the New York Court of Appeals in the leading case of People v. Van Gaasbeck, 189 N.Y. 408, 418, 82 N.E. 718, 721 (1907):

"If a witness is to be permitted to testify to the character of an accused person, basing his testimony solely on his own knowledge and observation, he cannot logically be prohibited from stating the particular incidents affecting the defendant, and the particular actions of the defendant which have led him to his favorable conclusion. In most instances it would be utterly impossible for the prosecution to ascertain whether occurrences narrated by the witness as constituting the foundation of his conclusion were or were not true. They might be utterly false, and yet incapable of disproof at the time of trial. Fur