time to study would ordinarily be sufficient and is far better than the present 90 day period?

Mr. HUNGATE. Yes, Mr. Chairman, and certainly either body, either the Senate or the House and we recognize either body might be tied up on a piece of business where both could not act― I could do it.

Mr. Hogan deserves considerable credit for that veto provision, seeing that it could not be vetoed by a president, to come back and try by two-thirds. Mrs. Holtzman added the final sentence that any such amendment shall have no force or effect until approved by act of Congress, which really makes that strong.

Senator ERVIN. Incidentally, I would like to make the observation that Representative Holtzman was of remarkable aid in this whole subject.

Mr. HUNGATE. Mr. Chairman, I would agree, and would add that my favorite remarks about the work of the committee relates to the members of the committee. Mr. Dennis sits at my right. I know of no finer attorney in the House of Representatives. He has contributed a great deal to the work. He is a diligent student, and he is a conservative. He is a constitutional conservative and perhaps put in the most important and liberal amendment insofar as human individual rights are concerned. His work has been invaluable.

Mr. Hogan who sits at my left has spoken out constantly and consistently for the importance of the separate powers of the Legislative Branch.

Mrs. Holtzman we have alluded to earlier.

Mr. Mayne, of Iowa, on our committee, is a distinguished trial attorney and very conversant with the American Bar Association positions, and he has also been very helpful.

Again, there is no partisan or political coloration.

We have Mr. Edwards of California, a former president of the Americans for Democratic Action and Mr. Kastenmeier, a distinguished man from Wisconsin. Mr. Smith, the ranking Republican on our committee is a man without whom passage of this measure would not have been possible. He is a very valuable balance wheel to the whole committee.

Out of deference to the committee's time I will close by recognizing that our committee distinguished itself completely in this effort. Senator ERVIN. I notice that the House cut out the provision about comments by Federal judges on the weight of evidence. I was brought up practicing in a State where we have an absolute statute which prohibits the judge from expressing any opinion on the facts, as to whether facts are fully and sufficiently proven. If a judge does that in North Carolina, the party is aggrieved.

I find among laymen who sit on juries a very false notion that judges are all wise, and having been a judge a long time ago, I know that is a very fallacious notion. I have always been opposed to the federal practice of judges commenting on the facts because I think it virtually destroys the right of trial by jury. In many cases, fortunately, a great many judges do not elect to comment on the

facts. But some of them like to comment on the facts like one federal judge who was trying a case of mine, a moonshining case. He told the jury, "Now, on the evidence I thought the evidence was very circumstantial and very doubtful of what it proved." He told me he did not think it was necessary for me to argue the case, he was going to give them a very short instruction. He told the jury, "If you return a verdict of guilty, I promise you I will put him on probation." I don't like that kind of comment.

Mr. HUNGATE. Mr. Chairman, that is like the lawyer who said, "If you are asking that question for me, I withdraw it; if you are asking it for the other fellow, I object."

Mr. MATHIAS. Mr. Chairman, first of all, I want to express a very personal welcome to Congressmen Hungate and Hogan and Dennis. It is a great pleasure to see them here. Their comments are very valuable to this committee.

I was interested in Congressman Hungate's comments on Congressman Dennis' position, because as you know, Mr. Chairman, what are in fact the most basic principles of supporting the Constitution often do have the appearance of contemporary rules. Perhaps that is the greatest monument to the Constitution that could possibly be erected.

In considering these rules, I remember another story which Mr. Celler used to tell annually. I am sure Mr. Hungate will remember it. Every year when failing newspaper bills were produced for the committee, he would tell a story of a very, very poor congregationso poor that the Rabbi told his parishioners that he could not possibly expect them to give to charity but, he said, there is one thing you can do. He said, I am going to put a big barrel outside my house and at night when you have your evening meal and you raise a glass of wine, don't drink all of it, just dring half of it and bring the other half and put it in the barrel outside my house. When that barrel is full we will give it to the poor. So we, too, can be blessed by having given to charity. So the day came when the barrel was full and they opened it up and were about to give it to the poor and the Rabbi was ceremoniously taking one glass and blessing it, and lo and behold, it was water. He went around to each member of the congregation and asked them about this and each one of them said, we thought one half a glass of water wouldn't matter.

So I think that emphasizes the quality that must be embodied in these rules.

I do raise one question with you, and that is the question of rule 611(b) which is the subject of greatest conflict as far as I personally am concerned.

Mr. HUNGATE. That rule provides that a witness may be crossexamined on any matter relevant to any issue in the case, including credibility, unless it is in the interests of justice to limit the crossexamination. That is a rule submitted by the Court. We amended this to return to a rule which prevailed in the federal courts, the state jurisdictions and in the text of the advisory committee draft. In essence, it was a return to a narrower version of cross-examination.

Mr. MATHIAS. The objection which many Federal judges have voiced is that this deprives them of a flexibility which they feel is important to them.

Mr. HUNGATE. If I interpret our rule correctly, they are limited to cross-examination on credibility and on matters of testimony on direct unless the judge permits more, and then in which case, of course, he may proceed as if on direct.

Mr. MATHIAS. But in the opinion of the committee it was unduly restrictive?

Mr. HUNGATE. No, we discussed this heatedly and at length and this was the final result.

I will yield to either of my colleagues for comment on it.

Mr. HOGAN. I do not specifically recall the debate which resulted in that particular formulation of the rule. However, personally, I favor as wide a cross-examination as possible because I think it is one of the best ways to get at the truth.

Mr. DENNIS. Mr. Chairman, if you will yield. I think this is a matter of judgment and can be looked at two ways. The argument for the more liberal view is that it is less artificial, it helps you to proceed in a more free-wheeling manner.

The argument for what we have done is that it is more of an orderly procedure, and I think probably members of the committee were influenced by what they were used to. I know I have always operated under the narrow rule and could make the objection that a question exceeded the scope of cross-examination, and I suspect I naturally tend to want to do that, and I suspect the committee members wanted to do that.

Mr. HUNGATE. If the gentleman would yield, I have past recollection here. Mr. Mayne and Ms. Holtzman supported the narrow view that excluded cross-examination. Other members supported the wide open examination.

We discussed this with Mr. Jenner, at that time. He stated that the broad cross-examination was adopted by an 8 to 7 vote in that committee. It was rather a hard case either way. You go with the scholars for the broad and generally litigants for the narrow. Senator MATHIAS. Thank you very much, Mr. Chairman. Senator ERVIN. Representative Dennis?

Mr. DENNIS. Mr. Chairman, Senator Mathias, as a member of the subcommittee of the Committee on the Judiciary of the House which worked long and hard on the measure now before you under the very able chairmanship of my colleague, Mr. Hungate, I am most pleased to have the opportunity to appear here today before your distinguished committee.

I join Mr. Hungate, my distinguished ranking member, Mr. Smith, of New York, my colleague, Mr. Hogan, and our other colleagues from our subcommittee in the view that we have submitted to you, based on the distinguished labors of the distinguished committee which prepared these rules in the first instance, a good and worthwhile bill.

While recognizing that all human efforts are of course subject to improvement, I join with them in urging its adoption by your committee and by the U.S. Senate in substantially its present form.

In the interest of brevity I shall comment on only a few of the rules which I believe to be of particular interest or importance; but I shall, of course, do my best to answer questions as to any others respecting which you may wish to inquire.

With this in mind I shall touch briefly on the following: Rule 301, which deals with the very complicated subject of presumption. Candor compels me to state that I agree with the strictures of Professor Cleary, in his statement to this committee, regarding our subcommittee's treatment of this particular rule, although I do not entirely concur with his conclusions.

I agree that presumptions are not evidence, and that, in an illstarred effort to reach a middle ground between the so-called “bursting bubble" theory, and that originally adopted and submitted by the court, we have in the subcommittee said in effect they are evidence. This is truly grievous error and ought to be abandoned.

It does not follow, to my mind, that the Court's rule ought to be reinstated. In my view a presumption simply imposes on the party against whom it is directed the burden of going forward with the evidence and that is all it does. The burden of proof never shifts. The presumption disappears when countervailing evidence is introduced. The problem is one of the most complicated in the law of evidence; but I believe this is sound theory, and that calling it a "bursting bubble" does not make it less so.

X Rule 408, deals with the admissibility in evidence of offers of compromise, and of admissions of fact made in the course of compromise negotiations. The rule, as submitted by the Court, extended the rule of inadmissibility of the making of an offer to compromise to cover also admissions of fact made in the course of compromise negotiations, even though such admissions were not made hypothetically or stated to be made without prejudice. Our subcommittee, on the urging of various government departments, has retreated from this proposed change in the common law rule.

I was not personally entirely satisfied with our action at the time, and, on further reflection, and on reviewing Professor Cleary's statement to this committee, beginning at the bottom of page 15 thereof, I am inclined to agree with him and to recommend, in this instance, a return to rule 408 as originally proposed by the Court.

Rule 609 (a). is one on which, as Senator Mathias pointed out a moment ago, Ms. Holtzman being a great liberal and I, generally classified as a conservative, agreed on and which I disagree with my very good friend and colleague, Mr. Hogan. He will no doubt appear and discuss the point when he addresses the committee.

Rule 609 (a) deals with the question of cross-examination of a witness, including particularly but not exclusively, the defendant in a criminal case who takes the witness stand as to prior criminal convictions, on the theory that such cross-examination goes to his credibility. This rule was the subject of considerable debate in our subcommittee, in the full Committee on the Judiciary, and on the floor of the House.

The debate in the House, on February 6, 1974, appears at pages H551-H557 of the Congressional Record.

As adopted by the full Committee on the Judiciary, and by the House, cross-examination to discredit in respect to prior criminal convictions of the witness is limited to convictions which involved dishonesty or false statement-those generally categorized as crimin falsi.

This is contrary to the rule in the majority of jurisdictions, which permits cross-examination on the subject, for the purpose of reflecting on the credibility of the witness as to any and all types of previous criminal offense.

We adopted this limitation because of considerations both of fairness and logic.

In a criminal case, generally speaking and subject to some recognized exceptions, the State or the government is not allowed, as a part of its case in chief, to make proof of other separate and unrelated crimes on the part of the defendant-because in this country we try men only for the offense at hand, and do not try to prosecute or jail people for some alleged general bad character unrelated to that offense.

Yet, if a defendant in a criminal case takes the witness stand, we allow cross-examination as to all previous convictions on the theory of testing his credibility as a witness.

Many such offenses, in fact, have no logical bearing on or relation to the credibility of the witness, and serve only to prejudice his

case.

The defendant in a criminal case is often placed in the unfair position of either not taking the stand and giving his defense, or being subjected to very damaging prejudice through such crossexamination if he does so.

Those who have prosecuted or defended-and I have done bothhave witnessed at first hand the unfairness of this practice. With me, this is fact, not theory, and it is based on personal experience.

Studies show that this situation is a prime cause for miscarriages of criminal justice.

In civil cases, too, people innocently involved as witnesses may be subjected to grave embarrassment.

Consequently we have simply limited cross-examination as to prior convictions directed to credit, to those crimes which by their nature actually do bear upon credibility, and to such crimes alone.

We regard this as a real advance in the law ,and I strongly recommend its retention.

In Rule 801 (d) (1) (A), as proposed by the court, prior inconsistent statements of a witness, which are now generally allowable for only purposes of impeachment, are stated not to be hearsay as they of course are by any normal definition, and are made competent as substantive evidence-competent for proof of the matter or facts asserted in such a statement.

This proposal presents the anomaly that a prosecution could be successfully conducted, on the basis of such a prior inconsistent statement as the sole proof, even though the witness in court testifies to the contrary and there is no other proof of guilt whatsoever.

The theory advanced for this departure is that in cases of or