Let us concede for the purposes of discussion that we are talking about cross-examination. My point is that even though that be true, if you are going to cross-examine a man as to an unrelated offense on the theory that it reflects on his credibility, which is a theory, it should be an offense which in fact does relate to his credibility and not some offense which actually has no relationship to his credibility but simply gives the prosecuting attorney a chance to prejudice the case against him. Also, we have the innocent fellow who comes in with a civil suit and sometime or other he had an offense. They ask him about that on the theory it affects his credibility.

Professor Borsch wrote a book one time on convicting the innocent where it was proved that the greatest reason was mistaken eyewitness identification and the second was this very kind of a thing where a man with a criminal record was afraid to take the stand and defend himself, or he was crucified by this type of cross-examination.

One final thing: One of the earlier drafts from the court did go along my lines more or less, and one of the reasons they changed was that back in 1970 the House passed the Court Reform Act for the District of Columbia where the House at that time had doubted Mr. Hogan's view.

That reason is now gone because this time the House adopted my view. I think that is an interesting point.

Mr. HOGAN. Senator, may I comment on that?

Senator ERVIN. Yes.

Mr. HOGAN. The original version as proposed by the Advisory Committee in 1969 had the version which I prefer. After that, the Luck case was adjudicated by the Court of Appeals for the District of Columbia. That restricted it to dishonesty and fraud.

Responding to that decision, the next Advisory Committee version was changed, but Mr. Dennis is correct when he says that Congress acted in the Court Reorganization Act and changed it back to the original version proposed by the 1969 draft of the rules which is what came before the Congress.

Mr. HUNGATE. Mr. Chairman, I know you have a number of distinguished witnesses waiting who can throw light on this subject from different directions, and if I might just sum up, we would not want you to think we left you with only two choices on that last question. There was even a third ground, which would have been the Dennis ground for impeachment, plus if there were conviction of a felony it would be admissible unless the court determines the danger of unfair prejudice outweighs the probable value of the evidence.

I think these three views indicate the difficulty in its intricacy and we are certainly wide open for improvement.

Senator ERVIN. I am not much of a man for admitting the judgment of judges, and under that draft evidence would be admissible unless the judge decided otherwise, and I would rather have the rules say what is admissible rather than discretionary, because some judges do not have the discretion others do.

I think rule 609 (a) should be amended so as to read substantially as follows: For the purpose of attacking the credibility of the wit

ness, evidence may be elicited on his cross-examination that he has committed a crime only if the crime involved dishonesty or false statement, or to take Mr. Hogan's views, I think you ought to make it clear this can only be elicited on cross-examination.

Mr. HOGAN. I might suggest a different avenue as you all debate this, and that would be that most of the objections are when the defendant is himself a witness. But as this is written it applies to all witnesses, and if you are going to restrict it, I would say restrict it to only those occasions when the defendant is himself a witness, because it frequently works to the prejudice of the defendant when the individual testifying against him has a long record and that cannot be brought out.

Senator ERVIN. That is true, but the question is to determine the credibility of a witness, it is important to find out whether the witness is a credible witness.

Mr. HOGAN. Right.

Senator ERVIN. Do you have any questions?

Senator HRUSKA. No, thank you.

Mr. HUNGATE. Thank you, Mr. Chairman.

Senator ERVIN. Thank you very much. You all have done great work on these rules. Your formal statements will be printed in full at this point in the record.

[The statements follow:]

STATEMENT OF CONGRESSMAN WILLIAM L. HUNGATE

At the outset, permit me to express the appreciation of the House Judiciary Committee, as well as my personal appreciation, for your kind invitation to my colleague, Congressman Henry P. Smith III of New York, and me to appear before you today in support of H.R. 5463.

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 satisfactory answers become somewhat better and in the interest of improving justice with better procedures in our courts that H.R. 5463 has been developed and is presently with you for your consideration. As it has been stated, if we proceed in the right way, we are apt to do the right thing.

Why an evidence code?

I suggest that five major factors are involved in the advisability of a unified code of Federal evidence rules available in one place.

First, at present evidence questions frequently call for a decision on-the-run by a judge in the midst of trial and without guidance such as he would have if a code of evidence were available at the bench. Similarly, lawyers must often react with seat-of-the-pants judgments.

Secondly, the existing law of evidence is quite complex. We have been informed that of 6 million recorded cases, about one-fourth related to the question of evidence.

Thirdly, there are uncertainties in the law of evidence and variations among the circuits, which these rules would seek to extinguish.

Fourth, making evidence law by decision is an accidental and fragmentary process. A decision reached in 1880 may not comport with present thinking. The individual attorney has no incentive to be innovative. His client hired him to win a case, and not to write new law or to reform society.

Fifth, it has been said that the rules of evidence grow like an inverted pyramid. Sometimes a case is decided hurriedly and through the years further decisions are predicated upon that earlier one, until finally the decision which was hurriedly arrived at, and may well be improvident, is bearing much greater weight than it warrants. A uniform code of evidence should reduce the incidence of unwise precedents.

H.R. 5463 has been a long time in the making. Approximately twelve years ago, in February of 1962, a special committee of the Judicial Conference of the United States reported "It is feasible and desirable to formulate uniform rules of evidence" for use in the Federal courts.

From 1965 to 1971 a distinguished committee of the Judicial Conference labored hard and long to develop a set of rules which, after several tentative drafts on which comment was solicited from the bench and bar, was prepared and forwarded to the Supreme Court.

This was a committee of 15 members in the Judicial Conference on the rules of evidence, and this consisted of nine trial lawyers, three Federal judges, and three law school professors.

(Some of the distinguished members of this panel were: Albert E. Jenner, Chairman; David Berger, attorney; Hicks Epton, attorney; Robert S. Erdahl, attorney; Judge Joe E. Estes; Professor Thomas F. Green, Jr.; Egbert L. Haywood, attorney; Dean Charles W. Joiner; Frank G. Rachle, attorney; Herman F. Selvin, attorney; Judge Simon E. Sobeloff; Craig Spangenberg, attorney; Judge Jack B. Weinstein; Edward Bennett Williams, attorney.) They made certain policy decisions, and I believe the committee followed those.

First, constitutional issues were avoided as far as possible.

Second, they examined the rules of evidence on their merits.

Third, to the fullest extent possible, there was an attempt to provide the same rules in criminal and civil cases.

These proposed rules were promulgated by the Supreme Court on November 20, 1972, to be effective July 1, 1973, and forwarded to the Congress by the Chief Justice on February 5, 1973. The proposed effective date was July 1, 1973.

While the House hearings were in progress, Congress processed towards enactment Public Law 93-12, which was approved by the President on March 30, 1973. This legislation, introduced by Senator Ervin, provided that the proposed rules "Shall have no force or effect except to the extent, and with such amendments, as they may be expressly approved by Act of Congress." Two days after receipt of the proposed rules from the Supreme Court, the House Judiciary Subcommittee on Criminal Justice opened hearings. Between February 7, 1973, and March 15, 1973, the subcommittee heard approximately 50 witnesses and developed a 600-page hearing record. H.R. 5463, containing the text of the rules as sent to the Congress by the Supreme Court, was introduced by me and a number of cosponsors to serve as a vehicle on which the Congress could work its will. At the time of its introduction, the bill was not intended as a blanket endorsement of the proposed rules, or even of the concept that uniform rules are necessary or desirable. It was strictly a working tool.

In the course of 17 markup sessions between March 21, 1973, and June 22, 1973, during which the subcommittee evaluated the testimony and written comments which had been received, it was concluded that the concept of a code of uniform rules was a good one. A tentative draft, dated June 28, 1973, was developed embodying changes agreed upon by the subcommittee. This draft was distributed nationwide for comment, being sent to the State bar association in each of the 50 States, the Supreme Court, the Justice Department, all who had testified or submitted comment to the subcommittee, and other persons and organizations of whose interest the subcommittee was aware. These included individuals and organizations in non-legal pursuits, such as the news media, medical profession, social workers, and others. The draft was also published in the Congressional Record so that it would come directly to the attention of the 535 elected Representatives of the people, and through them, to their constituents.

The subcommittee spent 5 additional days evaluating the comments which were received during the summer on this tentative print, embodying its final recommendations in a draft dated October 10, 1973. This draft, the June 28 draft, and the comments received on the June 28 draft, are contained in a 400page supplement to the hearings.

H.R. 5463 was considered by the full 38-member Judiciary Committee over the course of 3 meetings. On November 15, 1973, the committee reported the bill by voice vote, and on February 6, 1974, the House passed it overwhelmingly by a record vote of 377-13.

Of the 77 proposed rules transmitted to the Congress by the Chief Justice, 27 have not been amended at all. Of the remainder, nonsubstantive changes have been made in 14. Thus, 53 percent of the rules are before you substantively unchangd from those transmitted by the Supreme Court and received by it as a consequence of some 12 years' study by eminent judges, attorneys and legal scholars.

Where the rules were amended, many of the changes were relatively noncontroversial and easily agreed upon. A few were highly controversial and the subject of close divisions among the members of the committee. These latter changes, I understand, may be the areas on which these hearings will wish to focus. The views of the Committee on the Judiciary and the House of Representatives on these controversial areas are detailed in the committee report and the floor debate, both of which I understand have been made available to you. Therefore, I will not at this time burden you with them, except to the extent that you are interested in discussing particular rules.

I call to your attention section 2(a) of H.R. 5463, which prescribes how amendments may be made to the rules. Earlier, I referred to Senator Ervin's bill, enacted as Public Law 93-12, which deferred the effectiveness of the rules until approved by the Congress. Among the reasons behind that legislation was the question touched upon by Mr. Justice Douglas in dissenting to the submission of the rules by the Supreme Court-that is, the submission of rules of evidence may not be within the scope of any of the rules enabling acts. A second reason behind that legislation was that Congress must be afforded an adequate opportunity to study and react responsibly to rules which have so great an impact on the outcome of litigation. For these two reasons, section 2(a) of H.R. 5463 specifically empowers the Supreme Court to submit amendments to the Federal Rules of Evidence, but provides that no amendment shall be effective in less than 180 days after being reported, and in no event shall any amendment be effective if disapproved by either House of Congress. In the field of privilege, no amendment may become effective unless specifically approved by Act of Congress.

The Honorable Albert B. Maris, senior circuit judge for the third circuit and until recently Chairman of the Standing Committee on Rules of Practice and Procedure, Judicial Conference of the United States, advised the Subcommittee on Criminal Justice of the House Judiciary Committee that

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.. an overwhelming chorus of Federal district judges and trial lawyers believe, as the Judicial Conference does, that the existnce of a readily available and authoritative statement of the rules of evidence will be extremely helpful in conducting the trial of cases in the district courts, will reduce the possibility of erroneous rulings, and thus the number of appeals, and will generally expedite the trial of cases.

The Chairman of the Judicial Conference Advisory Committee on Rules of Practice and Procedure, which developed the proposed rules of evidence, Albert E. Jenner, Jr., of Chicago, described the proposed code of evidence as a great equalizer, placing the younger, less experienced lawyers more on a par with their older, more experiencd adversaries in the Federal courts. He also noted that the proposed code would be most useful to Federal judges in fulfilling assignments in districts or circuits other than their own. No longer would different rules apply in different circuits.

As you know, section 1 of H.R. 5463 provides that the proposed rules of evidence shall take effect on the 180th day after the date of enactment. This means that if H.R. 5463 is enacted by July, the proposed rules would not go into effect until 1975. Based on the testimony presented to our subcommittee, I would hope that H.R. 5463 complete its legislative course in this Congress. I think I can state fairly that we have proceeded in the Subcommittee on Criminal Justice with the view that it is unlikely that all wisdom resides in any one place. Accordingly, we believe we improved the product forwarded us from the Supreme Court, through the able work of the distinguished Committee of the Judicial Conference. Likewise, the full Judiciary Committee and, in turn, the House of Representatives made further improvements in this product. The fine legal minds of the Senate Judiciary Committee and of that body as a whole will no doubt further improve some aspects of this code.

It is my earnest plea that some action can be taken as soon as schedules reasonably permit, so that we may avoid another lap in the legislative tortoise

race. The time should be ripe to enact this product of 13 years of earnest, scholarly endeavor by judges, lawyers, legislators, and public-minded groups. My principal pride in the work of the committee and of the House on this measure is that it is as free from partisanship as possible. If there is any one area in which partisan politics has no place, I submit it is in the rules of evidence, through which each citizen must seek or defend his liberty and property in this country.

I urge your prompt and favorable action on this bill.

PREPARED STATEMENT OF HON. DAVID W. DENNIS OF INDIANA

Mr. Chairman and Gentlemen of the Committee: As a member of the Subcommittee of the Committee on the Judiciary of the House of Representatives 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, and my other colleagues from our Subcommittee, in the view that we have submitted to you over-all a good and worthwhile bill; and-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 United States 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

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 ill-starred 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 effect, said that they were. 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 adopted. 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.

RULE 408

This rule 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)

This rule, dealing with the question of cross-examination of a witness— including particularly, but not exclusively, the defendant in a criminal case

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