ganized crime, narcotics, et cetera, witnesses are not infrequently intimidated into abandoning their former statements. The House went part way by permitting this use of prior contradictory statements, in cases where these statements were themselves made under oath and subject to cross-examination, but not otherwise.

House debate appears at pages H561-H563 of the Congressional Record of February 6, 1974.

I favor the House version, and respectfully urge its retention.

In rules 803 (24) and 804(b)(6), the Court listed in detail, and with considerable liberality of view, all the known and recognized exceptions to the hearsay rule but then added, in each case, a catchall phrase as follows:

(24) Other exceptions.-A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness.

We rejected this, as stated in our committee report, "as injecting too much uncertainty into the law of evidence and impairing the ability of practitioners to prepare for trial."

I subscribe to this view of the House Judiciary Committee.

I have addressed myself. I believe, to most of the more important and controversial provisions of the proposed rules, including particularly those where there are important differences of opinion between the House version and the views of Professor Cleary, the reporter for the rules as given us by the Court.

I say again that you have before you a basically good bill. I shall be happy to attempt to answer any questions you gentlemen may have.

Thank you.

Senator ERVIN. Well, referring to rule 609, I was brought up in a jurisdiction where they did not allow any evidence that the accused had committed a crime for the purpose of impeachment, and the only way you could elicit any evidence was on the cross-examination of the witness, who testified as to his good character. Otherwise, the evidence was total inadmissible unless it was for the purpose of showing the design or identifying the accused, which is a very exceptional case. I have always felt that a case ought to be tried on the merits of the existing charge and admitting evidence of a previous crime is prejudicial to obtaining a fair trial.

Mr. DENNIS. Mr. Chairman, I certainly agree with you. You had a more humane and civilized rule than I was accustomed to practicing under.

I happen to remember one experience; when I was a prosecuting attorney, I prosecuted a labor leader who had been involved in a strike riot, a perfectly decent citizen other than that he happened to be involved in a strike riot, but when he was about 18 years old he stole an automobile and he had a conviction. But for this very old conviction, the man had a clean record. It was perfectly appropriate to put him on the stand and ask him about that, allegedly going to his credibility. His counsel came to me and asked me not to do it because he needed to take the stand. I agreed not to do it. I never thought that law was right. I think we worked a very fine change. Mr. HOGAN. Would the gentleman yield?

Mr. DENNIS. Of course I will yield.

Mr. HOGAN. I might interpret that a prior conviction for auto theft was a crimen falsi.

Mr. DENNIS. In my opinion, crimen falsi includes such matters as perjury, false pretense, con games, embezzlement, some types of theft, probably not to a car theft-certainly not crimes of violence.

Senator ERVIN. Our system was that the only attack you could make on the credibility of a witness was proof of his general character.

Mr. HUNGATE. Mr. Chairman, as you can see, the Chairman leaves the hard parts to the committee members.

I sought to do that. I think Mr. Hogan wishes to address the committee. I think with the colloquy we can develop the most difficult parts.

Mr. HOGAN. In regard to your reference to the law in North Carolina, you understand we are not only talking about the accused when he is a witness. This is not the only thing that 609 addresses itself to, but it applies to all witnesses, not only the accused as witness. This is the area that I want to address myself to.

Senator ERVIN. 609 (a) says for the purpose of attacking the credibility of a witness.

Mr. HOGAN. Yes, whether he be the accused or not. In other words, we are not talking about just introducing prior convictions in order to prejudice the defendant unless he is on the stand as a witness. That is the distinction I was trying to make.

My preference, Senator, is for the rule in the form in which it was proposed to us by the Advisory Committee, which stated that for the purpose of attacking the credibility of a witness, evidence that he has been convicted for a crime is admissible only if the crime was punishable by death or imprisonment for 1 year, or involved dishonesty or false statement regardless of the punishment. This is existing practice in the overwhelming majority of the State courts. The Advisory Committee, after studying this for many years, adopted the version of the rule which has the weight of traditional authority. It also is in accord with Wigmore on evidence. It has the support of the Department of Justice. It is also identical with that enacted in the District of Columbia Court Reorganization Act in which Congress reestablished the common law and reestablished Luck v. United States (348 F. 2d 763 (D.C. Cir., 1965)) on this point. Unfortunately, the House of Representatives saw fit to turn its back on this traditional rule. The version of rule 609 (a) as passed and contained in H.R. 5463 is as follows:

General rule. For the purpose of attacking the credibility of a witness. evidence that he has been convicted of a crime is admissible only if the crime involved dishonesty or false statement.

I am here today to urge strongly that you reject this form of rule 609 (a) as contained in the House-passed bill and restore the rule as transmitted by the Supreme Court after years of study by the Advisory Committee.

One can only speculate on what the effect of such a radical break with existing practice will be. Limiting impeachment of a witness'

credibility to crimen falsi, or crimes involving falsehood and fraud, was considered and specifically rejected by the Judicial Conference. The Advisory Committee on the Rules of Evidence noted:

While it may be argued that consideration of relevancy should limit provable convictions to those of crimes of untruthfulness, acts are constituted major crimes because they entail substantial injury to and disregard of the rights of other persons or the public. A demonstrated instance of willingness to engage in conduct in disregard of accepted patterns is translatable into willingness to give false testimony.

The purpose of impeaching a witness' credibility by the use of a previous conviction is to assist the jury in evaluating the believability of his testimony. This limited purpose is explained to the jury by the court in the judge's instructions.

I believe the more information a jury has the better job it can do in reaching the truth. Those who favor limited impeachment might do so because they feel that knowing the defendant-witness' prior conviction record prejudices his right to a fair trial.

To limit its prejudices society's right to a fair trial, and we should know that the rule applies to all witnesses, not only defendant witnesses. The defendant witness has the right not to take the stand and, thereby, prevent the introduction of his background.

Should the jury see a person who has been convicted many, many times on the stand and assume he is entitled to total credibility as a citizen with an unblemished record?

The Government must often prosecute cases with key witnesses who have previously been convicted of felonies. This frequently happens in narcotics conspiracy cases but the juries do not necessarily reject the witnesses' testimony because of the prior conviction. They assess it as a part of the judgment of whether or not to believe him.

I would emphasize, therefore, that this amendment simply concerns admissibility-allowing evidence to go before the jury.

The traditional rules does not operate necessarily to destroy the credibility of a witness with a criminal record. Obviously, the character of a witness is material, circumstantial evidence on the question of the veracity of the witness, as you indicated in North Carolina. Prior criminal conduct, including all prior felony convictions, is relevant evidence of such character.

By the same token, the rules of evidence should not permit a witness to testify on behalf of a criminal defendant with the appearance of an unblemished citizen, when in fact that witness has been convicted of felonies. This is not to say that he would lie, but it is to say that juries should weigh the criminal record in assessing his credibility.

Let me cite an example in which the House-passed version of rule 609 (a) would unfairly prejudice the defendant. Prosecutors often use the testimony of accomplices and informants, who are criminals themselves, to learn about other criminal activities.

The Government, for example, might well need the testimony of a convicted drug dealer to successfully prosecute other drug dealers. Yet drug violations are not crimen falsi, and so, under the House

passed version of rule 609 (a) would not be available to the defendant for cross-examination.

A convicted narcotics dealer would be on the stand as a Government witness and the defendant would have no right to bring the witness' record of drug convictions to the attention of the jury.

I think this is unfair to the defendant.

Would it not be unjust to convict people of serious crimes on the testimony of felons without that being known to the jury? The jury should have such information about Government witnesses to adequately judge their veracity.

It is a fact of life that in conspiracy cases and organized crime cases the Government witnesses are frequently of bad character. They should be shown to be such and not be presented to the jury as witnesses of unblemished character.

Thus, this amendment can cut both ways.

My final serious objection to limiting the impeachment of witnesses to crimen falsi is that it would certainly frustrate the uniform and evenhanded administration of Federal justice. What do the words "dishonesty" and "false statement" mean? Some crimes would clearly fit into the definition; most would not.

The exchange between my good friend, Congressman Dennis, and I illustrates the problem. In his view stealing an automobile does not reflect on honesty. In many jurisdictions it does. Unless one practices in the jurisdiction which has statutorily defined crimen falsi, the common law definition of "any crime which may injuriously affect the administration of justice, by the introduction of falsehood and fraud” is applicable.

This definition has been held to include forgery, perjury, subornation of perjury, suppression of testimony by bribery, conspiracy to procure the absence of a witness or to accuse of crime, obtaining money under false pretenses, stealing, moral turpitude, shoplifting, intoxication, petit larceny, jury tampering, embezzlement and filing a false estate tax return.

In other jurisdictions, some of these same offenses are not within the "crimen falsi" definition.

In some jurisdictions, they say stealing a car does not reflect dishonesty; in others, they say it does.

If the defendants in the Watergate break-in are convicted, their crime does not involve any stealing. It does not reflect on honesty, and yet it is a burglary. In most jurisdictions, under restrictions to crimen falsi, the Watergrate break-in would not be available to impeach the witness' credibility, and I think legitimately it should. In summary, I believe that the House made a serious mistake in abandoning existing law and striking out into unknown territory in acting on rule 609 (a). Existing law should not be changed without good reason.

If the law in this regard were currently unfair or unjust, I am confident that the Judicial Conference of the United States and the Department of Justice would have recommended change. Because they did not, and because they support rule 609 (a) in the proposed rules as transmitted, I strongly urge you to reject the House-passed

version of this rule and reinstate the version recommended by the Department of Justice and the Advisory Committee on the Rules of the Judicial Conference of the United States.

Senator ERVIN. As I construe rule 609, this would be independent evidence, not evidence solicited on the cross-examination of the witness, that he committed a crime that involved dishonesty or false statement?

Mr. HOGAN. No, it would only be available to impeach the witness' credibility on cross-examination, and it would only apply to witnesses, not to the defendant, unless he were himself a witness.

Senator ERVIN. That is not the way I interpret these words. It says for the purpose of attacking the credibility of a witness, evidence that he has committed a crime is admissible.

Mr. HOGAN. But the individual who brings the witness certainly would, under normal circumstances, not be impeaching his credibility. So it would be on cross-examination.

Senator ERVIN. I have no trouble with the proposition when the witness is on the stand, but for the purpose of impeaching his credibility, he should be subject to cross-examination as to whether he has committed a crime.

Mr. HOGAN. That is all we are talking about.

Senator ERVIN. This philosophy, I am afraid, would permit independent evidence that he committed a crime, because it does not say he may be cross-examined.

Mr. HOGAN. Well, that certainly is the intention of the rule as proposed, and you make an interesting point which perhaps should be clarified. But the point is that when the witness is on the stand his character should be in issue for the jury to be able to assess whether to believe him or not. Should the defendant or the prosecution, therefore, be able to bring out during that cross-examination the fact that the evidence shows he has been previously convicted of felonies or crimes involving dishonesty?

Senator ERVIN. Well, my interpretation of this and your different interpretation shows the difficulty of formulating rules of evidence. Mr. HOGAN. It is not restricted to the material he covers during his direct examination, but his veracity and character are in issue by virtue of the fact that he is on the stand.

In that context, his personal character should be used to show he is not of unblemished character.

Senator ERVIN. But it does not say the only way you can elicit that evidence is on cross-examination. I would infer from this you could offer independent evidence.

That would certainly multiply issues of a case and also give him a right to explain in detail that although he was convicted he was innocent. You would have to litigate four or five cases if you have this evidence.

Mr. HOGAN. He certainly should have that right.

It certainly is our intention, and I am confident that it is the Advisory Committee's intention, to limit this to cross-examination when the defendant is a witness and in no other instance.

Mr. DENNIS. May I make a point?