thermore, even if evidence were accessible to controvert the specific statements of the witness in this respect, its admission would lead to the introduction into the case of innumerable collateral issues which could not be tried out without introducing the utmost complication and confusion into the trial, tending to distract the minds of the jurymen and befog the chief issue in litigation." Opinion testimony is objectionable for other reasons. Unlike reputationevidence, which can be established by a limited number of witnesses and therefore is subject to control by the court, opinion testimony would be difficult to limit since it is the individual opinion which is relevant. As the Advisory Committee's Note makes clear, if a person is charged with a crime such as theft, the proposed opinion testimony rule would permit the accused's employer or a psychiatrist to give his opinion that the accused is an honest man. Such evidence of good character by itself "may be" sufficient to raise a reasonable doubt as to guilt and the jury is to be so instructed. Michelson v. United States, 335 U.S. 469 (1948). Moreover, under present practice, the "may be" of Michelson has become the general practice, with a jury being routinely so instructed once any evidence of good character is admitted. To permit acquittal on this ground alone an employer's or psychiatrist's personal opinion as to honesty is clearly a questionable rule of law. If it is determined that the authorization in Rule 405 (a) to use opinion testimony to prove character or a trait of character should be eliminated, this can be accomplished by inserting a period in the first sentence of Rule 405 (a) after the word "reputation" and deleting the rest of the sentence. If this is done, a comparable change should be made in proposed rule 608 relating to Evidence of Character and Conduct of Witness. Thus, the first sentence of 608 (a) should be amended to read: "Reputation Evidence of Character." Also, in line 12, page 18 of H.R. 5463, the words "opinion or" should be deleted. PROPOSED RULE 609-IMPEACHMENT BY EVIDENCE OF CRIME Inquiry: Does the general provision of Rule 403 relating to the exclusion of relevant evidence on grounds of unfair prejudice apply to the specific provision of Rule 609 governing impeachment by evidence of conviction of crime? Response: The clear intent of having a specific rule such as 609 (a) governing impeachment by evidence of conviction of crime is that it not be controlled by a standard such as Rule 403 relating to the admission of evidence generally. This is so whether the rule for 609 recommended by the Supreme Court. The Judicial Conference and the Department of Justice, and enacted by the Congress for the District of Columbia in 1970, is adopted by this Committee or whether the version of H.R. 5463 is adopted. Both proponents and opponents of the two versions made it clear during the debate on the floor of the House of Representatives that they are unanimously opposed to the so-called Luck rule which permits the exclusion of conviction by prior crimes as impeachment if their relevance is allegedly substantially outweighed by the prejudice. See 120 Cong. Rec. H.556 (daily ed., February 6, 1974). Moreover, an amendment to incorporate such a standard for impeachment by proof of felony convictions was specifically defeated on the floor of the House of Representatives. 120 Cong. Rec. H.553-557 (daily ed., February 6, 1974). Though the inapplicability of Rule 403 to Rule 609, in our view, is therefore clear, to avoid litigation concerning this question, a question which we understand his arisen at various legal conferences discussing the proposed rules, we recommend that the Committee use the language adopted by the Congress when it enacted similar legislation in the District of Columbia Court Reform and Criminal Procedure Act of 1970, Public Law 91-358. In amending 14 D.C. Code Sec. 305(a), rather than use the language of H.R. 5463, p. 19, line 7, "is admissible," the Congress eliminated the Luck problem by specifying that certain crimes "shall be admitted if offered". Inquiry: Is there a definition in either the Proposed Rules or relevant legislative history of the terms "dishonesty or false statement?" Response: Whether this Committee accepts the version of Rule 609 (a) adopted by H.R. 5463—limiting impeachment to crimes involving dishonesty or false statement-or the recommendation of the Supreme Court, the Judicial Conference and the Department of Justice and enacted by the Congress for the District of Columbia in 1970, authorizing impeachment by proof of any felony conviction and by misdemeanors involving dishonesty or false statement, neither the Rules themselves or the legislative history of H.R. 5463 provide any meaningful definition of these terms. Indeed, debate on the floor of the House of Representatives during consideration of this provision reveals a clear disagreement on the meaning of these terms, particularly "dishonesty." See 120 Cong. Rec. H.555-56 (daily ed., February 6, 1974). However, when Congress enacted in 1970 for the District of Columbia the impeachment by prior conviction rule urged by the Department of Justice and recommended by the Supreme Court, it did provide extensive direction in the legislative history as to the meaning and applicability of the terms dishonesty and false statement. See H.R. 91-907, 91st Cong., 2d Sess. 62 (1970). We assume and recommend that in the absence of legislative history to the contrary the direction of that thorough, specific analysis of the case law will be controlling Should the Committee determine to provide guidance in the legislative history, we submit that it adopt the approach taken by the Congress only four years ago. Inquiry: Should this Committee adopt the provision of Rule 609 (b) in H.R. 5463 prohibiting impeachment by evidence of criminal convictions if ten years has elapsed since the later of the date of conviction or release from confinement imposed for that conviction? Response: Such an absolute rule would, we submit, result in the exclusion of highly probative evidence. For example, if a person were convicted of perjury in 1962, released from confinement in 1963 and placed on parole until 1965, and then indicated and tried for mail fraud in 1974, his credibility could not be impeached or challenged with proof of that perjury conviction. This kind of result in no way serves the truth-seeking function of a trial. We recommend instead the time limit enacted by the Congress in 1970 for the District of Columbia, 14 D. C. Code 305(b) (1973 ed.). At the very minimum we urge that proof of admissible prior convictions be allowed unless they are so old as to be irrelevant. Inquiry: Should the Committee retain Rule 609 (d) of H.R. 5463, permitting witnesses, but not the accused, in criminal cases, to be impeached by juvenile adjudications the judge determines appropriate for a fair determination of the issue of guilt or innocence. Response: The Department continues to oppose any provision which, as this, unreasonably discriminates between a witness and the accused in a criminal case. When an accused takes the stand to testify, the traditional rule has been that he is to be treated like any other witness. Therefore, Rule 609 (d) should either be deleted or made equally applicable to the accused. RULE 706-COURT APPOINTED EXPERTS Inquiry: In criminal cases, should the parties be authorized to take depositions of court appointed experts as is provided in Rule 706 of H.R. 5463? Response: Rule 706 in H.R. 5463 is the same as recommended by the Supreme Court. The Advisory Committee's Note states that the proposed rule follows Rule 28 of the Federal Rules of Criminal Procedure. This is so except that Rule 28 does not authorize the deposition of the court appointed experts. The Advisory Committee's Note observes that such a provision has been incorporated in the proposed Rule. This certainly is contrary to existing practice in the trial of federal criminal cases. Heretofore the rules governing depositions have been set forth previously in Rule 15 of the Federal Rules of Criminal Procedure and 18 U.S. Code §3503, the latter relating to organized criminal activity. Absent demonstration of a compelling need to determine the appropriateness of depositions in criminal cases in these Rules of Evidence, we suggest that it is preferable to let that be determined by the Federal Rule of Criminal Procedure. In fact, the latest proposed amendments to these Rules contain substantial modification of Rule 15 pertaining to depositions. We therefore suggest that in H.R. 5463, page 25, line 14, the words "in civil cases" be added after the word "party". RULE 803 (8) (C)-HEARSAY EXCEPTIONS-PUBLIC RECORDS AND REPORTS Inquiry: Should the exception to the hearsay rule of public records and reports be admissible against the Government in criminal cases? Response: This proposed rule poses serious problems for the Government in bribery, corruption, and conflict of interest investigations and prosecutions of federal employees. It is customary for federal agencies to suspend an employee accused of bribery. The employee is, however, ordinarily entitled to a specification of charges and a hearing on those charges. Failure of an agency to take prompt action against dishonest employees creates a serious burden for the prosecutor who subsequently is entrusted with handling the criminal case since the agency's inaction appears to condone the corrupt activity. The hearing to which the employee is entitled is often conducted without either party possessing subpoena power, with limited cross examination and, in many instances, without truly adverse interests. Because of the Grand Jury secrecy limitations of Rule 6(e) of the Federal Rules of Criminal Procedure, the agency may not have available heavily incriminating evidence in the hands of the prosecutor. The hearing terminates in many instances in factual findings of no misconduct by the employee who has been represented by highly paid resourceful counsel and faces an agency which is merely going through the motions. Under the proposed rule the favorable outcome obtained by the employee in the personnel hearings could be introduced in a subsequent criminal trial. The prosecutor thus must select among the following options, none of which is in the public interest: A. He may prevail upon the agency not to suspend the dishonest employee in order to avoid temporarily the hearing whose course he cannot control. B. The prosecutor may proceed to procure an indictment before his grand jury investigation has been concluded to avoid, by acceleration of the criminal process, the impact of the results of a badly handled parallel proceeding. C. He may at his peril conduct his investigation as he would ordinarily and hope that the parallel proceeding conducted by persons not under his control and without access to his evidence will terminate satisfactorily. We therefore recommend modification of this Rule to make it inapplicable in criminal cases by deleting in H.R. 5463, page 30, lines 20-21 "and against the Government in criminal cases,". The Rule is also objectionable because of its one way applicability-only against the Government, an applicability noted by the Advisory Committee's Note, because of the confrontation clause. If the recommended language is not deleted, we would assume that any agency finding suffering from the above-mentioned defects would be one in which, as provided in Rule 803 (8) (C), "the sources of information or other circumstances indicate lack of trustworthiness." From a practical point of view, however, and for obvious reasons, it will be very difficult for the prosecution to establish such defects, particularly since it would involve criticism of another federal agency. Inquiry: Should Rule 803, which sets forth exceptions to the hearsay rule, contain a general provision allowing as an exception to the hearsay rule, in addition to those particularized in Rule 803, statements having "equivalent circumstantial probability of trustworthiness?" Response: The Department has previously testified before this Committee strongly in favor of such a provision, a provision recommended by the Supreme Court and the Judicial Conference. We would here wish to direct the Committee's attention to a case which dramatically necessitates the need for such a rule of flexibility. United States v. Kearney, 420 F.2d 170 (D.C. Cir., 1969). In this case involving the murder of a policeman on duty, the policeman made a detailed statement relating to the events leading to his murder some twelve hours after he was shot. It was not clear that the statement was admissible either as a dying declaration or excited utterance. Nevertheless, this important evidence was admitted because it "was made under circumstances that conform to the general policies underlying the exceptions to the hearsay rule.” 420 F.2d at 175. We urge that the courts be given this necessary flexibility and not be limited as they will be by H.R. 5463. This completes our responses to inquiries of the Committee staff concerning the Rules of Evidence. Should there be any further inquiries, the Department is anxious to assist the Committee on this important legislation. Sincerely, W. VINCENT RAKESTRAW, Our next witness is Mr. Richard H. Keatinge, chairman of the California Evidence Law Revision Commission, Los Angeles. Welcome to the committee, Mr. Keatinge. TESTIMONY OF RICHARD H. KEATINGE, CHAIRMAN, CALIFORNIA EVIDENCE LAW REVISION COMMISSION, LOS ANGELES, CALIF.; ACCOMPANIED BY JOHN T. BLANCHARD, ASSOCIATE, KEATINGE, LIBOTT, BATES, & LOO Mr. KEATINGE. Thank you, Mr. Chairman. Mr. Chairman, I appreciate the opportunity of appearing here this morning. My name is Richard H. Keatinge. I am a senior partner of the 17-man Los Angeles, Calif., law firm of Keatinge, Libott, Bates & Loo. In the over 30 years since I became a member of the bar I have primarily devoted myself to the trial of civil cases, both in the Federal and State courts. I served as a member, and as chairman, of the California Law Revision Commission during the period when the commission developed the present California Evidence Code, which has now been in use in the California courts for almost 10 years. I am not presently chairman of the commission. The listing is in error and is not correct in that respect. In addition, I have served as a Special Assistant Attorney General for the State of California in that State's tidelands oil litigation with the Federal Government in the U.S. Supreme Court; I have served as chairman of the American Bar Association's Section of Administrative Law and was a member of the council of that section for 8 years. I am a fellow of the American Bar Foundation, a member of the American Law Institute, and a public member of the Administrative Conference of the United States. I should also mention that in March of this year I spoke at the National College of the State Judiciary in Reno, Nev., on the proposed Federal rules in the form in which they had then been adopted by the House of Representatives. I have been joined at the table today by Mr. John T. Blanchard of our law firm, who has assisted me in the preparation of these oral remarks and the written statement we have jointly filed with the committee. I would ask at this time, Mr. Chairman, that the written statement be incorporated as part of the record. Senator BURDICK. Without objection, so ordered. [The above-referred-to statement follows:] THE FEDERAL RULES OF EVIDENCE: AN OVERVIEW AND CRITIQUE (Presentation and materials by: Richard H. Keating* and John T. Blanchard**) INTRODUCTION The rules of evidence play a crucial role in the Anglo-American judicial system. Historically such rules grew up as codifications of various judges' * Mr. Keatinge is a member of the California, New York and District of Columbia Bars, and is the senior partner of the Los Angeles, California law firm of Keatinge, Libott, Bates, and Loo. ** Mr. Blanchard is an associate of the law firm of Keatinge, Libott, Bates, and Loo. individual practices. However, it is now widely believed that the complexity of the modern adjudicative process requires that the law of evidence be clarified and consolidated. Construction of a clear, uniform evidence code is a laudable objective; there is a compelling need for such a code in the federal practice. However, because of the importance of evidence rules in our system, action to fulfill this need should be undertaken only with caution and circumspection. It would be improvident to pass the Rules of Evidence as they are presently drafted. The Code is the product of a great deal of hard work by jurists, lawyers, and most recently, by the members of the Judiciary Committee of the House of Representatives. The efforts of those who have worked on the Rules to date should not be slighted; they undertook a mammoth task and acquitted themselves admirably. Nevertheless, the product, to be blunt, is not as good as it could be, should be, or, indeed, must be. The blame for this state of affairs must rest upon us all. Many members of the bar paid little attention to the project. Some concerned members of the bench and bar were not given the opportunity to voice their opinions. Former Chief Judge Henry Friendly of the Second Circuit observed during the House Committee's Hearings on the Proposed Evidence Code that1: "With the benefit of hindsight, the error seems to me to have lain in the too ready acceptance, without opportunity for any full debate of the preliminary report many years ago that Federal rules of evidence should be drafted. It was natural that there was not much debate. After all, the proposal was simply that a committee be appointed to attempt to draft rules, and it is hard to take the position that you should not even have a committee make the attempt. So that went through pretty rapidly and smoothly, and I think without any sufficient comprehension of what the product might look like when it emerged. Once the Advisory Committee on Rules of Evidence was constituted and went to work, the project acquired its own momentum. The questions that were put to the profession when the drafted rules were circulated were not whether there should be such rules-an issue that apparently was regarded as having been settled-but what the rules should be." The bar was not diligent in answering the question which was asked of it: "What should the Rules be?" Few members of the bar were diligent in studying the Advisory Committee's preliminary drafts or in making their comments or constructive criticisms known to the members of the Advisory Committee. Perhaps the Advisory Committee may be faulted for not circulating their preliminary drafts widely enough. Despite these and other failures, this Committee should not pass over these proposed rules lightly; indeed, it is urged that the committee not pass the rules at all. A full and careful examination of the entire subject should be undertaken before any rules are passed. It would be a serious, perhaps a tragic, mistake for this Committee to assume that sufficient preliminary work has been done on these Rules. It has not. The bases of certain policy decisions have not been adequately explored. For example, why was Professor Davis' dichotomy between "legislative" and "adjudicative" facts adopted in Article II? The discussion of Rule 201, infra, reveals that adoption to be ill-advised. In other cases adherence to traditional rules has been too blind. For example, what purpose does Rule 611(b)'s restriction of the scope of cross examination serve? It is logically inconsistent with the position generally taken by the Rules regarding witnesses; and it does not take proper account of the wasteful, pointless and time-consuming technical haggling which will be the inevitable consequence of this Rule. It is a mistake to argue that the House Committee's work somehow harmed the Advisory Committee's product. The Advisory Committee's final draft was admirable, but not perfect. The House Committee's changes, in my opinion, sometimes, though not always, improved the Advisory Committee's draft. Review of these rules when the Advisory Committee circulated its preliminary drafts was ineffective because few members of the bench and bar took adequate time to analyze the Advisory Committee's proposals. Many segments of the bench and bar have finally realized that this flawed proposal is perilously close to enactment. This Committee should reject these Rules altogether. Enactment of a federal evidence code should be deferred until the comments, suggestions and attitudes of a wider sampling of the bench and bar, especially those lawyers and judges whose day-to-day business is trial-oriented, are |