Rules of Evidence

RULES OF EVIDENCE

TUESDAY, JUNE 4, 1974

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The committee met, pursuant to recess, at 10:15 a.m., in room 2228, Dirksen Senate Office Building, Senator Sam J. Ervin (acting chairman) presiding.

Present: Senators Ervin, Hruska, and Mathias.

Also present: Kenneth Lazarus, minority counsel; Paul Summit, Michael Mullen, and William Pursley, assistants to Senators. Senator ERVIN. The committee will come to order.

OPENING STATEMENT OF SENATOR SAM J. ERVIN

Today the Senate Judiciary Committee begins a 2-day series of hearings on H.R. 5463, a bill to establish rules of evidence for the Federal courts. Congressional consideration of these proposed rules, originally submitted to the Congress by the Supreme Court on January 29, 1973, has raised questions beyond the advisability of adopting particular language with respect to specific rules prescribing rules of evidence for federal courts. It has involved some fundamental questions about the constitutional or statutory basis for the Supreme Court's authority to promulgate rules of evidence. These important issues were first formally brought into focus by the dissent of Mr. Justice Douglas to the Supreme Court's order of November 20, 1972, authorizing the transmittal to Congress of the rules of evidence, initially drafted by the Judicial Conference of the United States.

Observing that "fashioning of rules of evidence is a task for the legislature, not for the judiciary," Justice Douglas concluded that rules of evidence were not "rules of practice and procedure” within the authority of the Supreme Court to prescribe pursuant to the Rules Enabling Acts. In addition, Justice Douglas asserted that the Supreme Court does not in fact write, supervise the writing of, or carefully appraise proposed rules of evidence. Indeed, he suggested that the Supreme Court has "no special insight" with respect to the development of rules of evidence for Federal courts.

Furthermore, many persons, including myself, have some doubt as to the wisdom of promulgating a uniform code for rules of evidence. I find considerable merit to the proposition, expressed by members

of the bar and certain legal scholars, that rules of evidence are best left to a case-by-case development where they can be truly tested and refined by judges with experience in judicial proceedings. Certainly Congress needs to consider this question.

Because of these and other questions I had about the Supreme Court's order of November 20, 1972, I introduced S. 583 in January 1973. to defer implementation of the proposed rules submitted by the Supreme Court until Congress had sufficient time to study them. Passed by the Senate and the House of Representatives, after amendment, this legislation has enabled Congress to discharge what I believe to be a legislative, not a judicial function.

In February of 1973, the House Judiciary Subcommittee on Criminal Justice began an intensive study, including public hearings, on the proposed rules of evidence. We will hear today from members of that subcommittee who, in my opinion, have been responsible for one of the most conscientious and thorough legislative deliberations about which I have known during my 20 years in Congress.

The ultimate product of their hard and thoughtful work is now the subject of our hearings. While I have not as yet studied H.R. 5463 sufficiently to have reached a final conclusion as to the wisdom of each particular rule, I am familiar enough with the bill to suggest that the House Judiciary Committee has drafted a set of rules which, in my judgment, is greatly improved over what was originally promulgated by the Supreme Court.

I am particularly pleased that the rules on privileges have been deleted because, as submitted by the Supreme Court, they would have substantially and, in many cases, unwisely altered important privileges presently recognized in many jurisdictions.

Now the time has come for the Senate Judiciary Committee to give its attention to these rules as passed by the House of Representatives. This is an important responsibility because these proposed rules, if adopted, will have a significant impact on the adminsitration of justice in the Federal courts.

The committee is grateful to the many individuals and groups who have submitted criticisms and comments on the proposed rules and we are particularly indebted to those persons who will present testimony to the committee over the next two days.

Senator Hruska wanted to be here and is very much interested in this subject. He was unable to be here on account of a prior commitment. He has offered a statement which I will ask you to read.

OPENING STATEMENT OF SENATOR ROMAN L. HRUSKA

Mr. LAZARUS. Clarence Darrow, one of our most successful lawyers, remarked that laws should be like clothes-tailored to fit the people whom they are meant to serve. Unfortunately however, our current Federal evidence law is ill-fitting.

There is a real need for a comprehensive code of evidence intended to govern the admissibility of proof in all trials before the federal courts, quite simply because no one knows what the present law of

evidence is on the federal level. Rules would provide uniformity, accessibility, intelligibiilty and a basis for reform and growth.

In criminal cases and civil cases based on Federal question jurisdiction, the Federal courts now apply Federal statutes, rulings on evidence previously decided in suits in equity or general common law as interpreted by the Federal courts.

In civil cases based on diversity of citizenship, the courts apply state rules of evidence contained in state statutes, and sometimes State decisional law, unless there is an overriding Federal policy to the contrary.

Consequently, the law of evidence varies from case to case, court to court, and circuit to circuit.

Approximately 12 years have elapsed since the proposal to draft Federal rules of evidence was published in 1962. As currently constituted, H.R. 5463 is the culmination of an enormous amount of work by the Advisory and Standing Committees on Rules of Practice and Procedure of the Judicial Conference of the United States and the House Judiciary Subcommittee on Criminal Justice. This Senator is hopeful that this committee will act promptly on the subject bill in true bipartisan spirit to tailor rules that fit well the people they are to serve and to ensure the emergence of a public law codifying Federal rules of evidence prior to the close of the 93d Congress.

Towards this end, I would hope that our hearings today and tomorrow will logically build upon the substantial efforts of the House in an attempt to refine further this proposed body of law.

Senator ERVIN. The committee is delighted to have with us Representative Hungate, who is chairman of the Subcommittee on Criminal Justice of the Judiciary Committee of the House that worked on these rules, and Representative David W. Dennis and Representative Lawrence J. Hogan, who have also done work in amending and revising the rules as originally submitted.

We are delighted to have you gentlemen with us today and I will call on the chairman first for a statement.

TESTIMONY OF HON. WILLIAM L. HUNGATE, REPRESENTATIVE IN CONGRESS FROM THE STATE OF MISSOURI; ACCOMPANIED BY HON. DAVID W. DENNIS, REPRESENTATIVE IN CONGRESS FROM THE STATE OF INDIANA, AND HON. LAWRENCE J. HOGAN, REPRESENTATIVE IN CONGRESS FROM THE STATE OF MARYLAND Mr. HUNGATE. Thank you, Mr. Chairman.

It is a pleasure for us to be here. We appreciate the remarks you have made and the opening statement of Senator Hruska which have indicated your grasp of the problem.

At the outset, we appreciate this invitation. Our colleague, Henry Smith of New York, planned to be here, but unfortunately something intervened.

A. P. Herbert has noted that the question of what is the law is one which frequently arises in the courts and sometimes receives a satisfactory answer. It is in the interests of seeing the percentage of

of the bar and certain legal scholars, that rules of evidence are best left to a case-by-case development where they can be truly tested and refined by judges with experience in judicial proceedings. Certainly Congress needs to consider this question.

Because of these and other questions I had about the Supreme Court's order of November 20, 1972, I introduced S. 583 in January 1973, to defer implementation of the proposed rules submitted by the Supreme Court until Congress had sufficient time to study them. Passed by the Senate and the House of Representatives, after amendment, this legislation has enabled Congress to discharge what I believe to be a legislative, not a judicial function.