who takes the witness stand-as to prior criminal convictions, on the theory that such cross-examination goes to his credibility, 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, crossexamination to credit in respect to prior criminal convictions of the witness is limited to convictions which involved dishonesty or false statementthose generally categorized as Crimin Falsi.

This is contrary to the rule in a majority of jurisdictions, which permit 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 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-alleged-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 cross-examination if he does so.

Those who have prosecuted or defended-and I have done both-have witnessed at first hand the unfairness of this practice. This is fact, not theory. 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.

RULE 801 (D) (1) (A)

In this rule, as proposed by the Court, prior inconsistent statements of a witness, which are now generally allowable only for 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 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 excuse advanced for this departure is that in cases of organized crime, narcotics, etc., 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.

RULES 803 (24) AND 804 (B) (6)

In these two rules the Court listed in detail, and with considerable liberality of view, all of the known and recognized exceptions to the Hearsay rule. The Court then added, in each case, a catch-all 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.

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

PREPARED STATEMENT OF HON. LAWRENCE J. HOGAN (R-MD.)

Mr. Chairman and Members of the Committee, I appreciate the opporttunity to appear here today. I serve on the House Judiciary Committee's Subcommittee which has just completed a lengthy consideration of the proposed Federal Rules of Evidence which you now are considering.

I will confine my remarks to Rule 609 (a) which deals with impeachment of a witness' credibility by the use of evidence that the witness had previously been convicted of a crime.

As you know, proposed Federal Rules of Evidence were transmitted by the Supreme Court to Congress on February 5, 1973. These Rules were developed and promulgated by a special Advisory Committee of the Judicial Conference of the United States after 10 years of careful study and consideration. Three study drafts were circulated for comment.

The Rule 609 (a) of the proposed Rules promulgated by the Advisory Committee is as follows:

"For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is admissible but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involved dishonesty or false statement regardless of the punishment."

This rule is a codification of existing federal practice, and existing practice in the overwhelming majority of State courts. The Advisory Committee noted that this version of the rule has "the weight of traditional authority". This form of the rule is also in accord with Wigmore on Evidence. It has the support of the Department of Justice. It is also modeled after Section 133 (a) of P.L. 91-358, the District of Columbia Court Reorganization Act, in which Congress specifically re-established this well established common law rule to end the chaos and confusion brought about in the District of Columbia by Luck v. United States, 121 U.S. App. 151, 348 F. 2d 673.

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 attack-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 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 the effect of such a radical break with existing practice. 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 the fact that he had been previously convicted of a crime 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 the 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 it prejudices society's right to a fair trial and the rule applies to all witnesses, not only defendant witnesses. The defendant witness had the right not to take the stand and, thereby, prevent the introduction of his background.

The Government must often prosecute cases with key witnesses who had 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. I would emphasize, therefore, that this amendment concerns simply admissibility-allowing evidence to go before the jury. The traditional rule 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. 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, whereas 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 determining credibility.

Let me cite an example in which the House-passed version of Rule 609(a) unfairly prejudices the criminal 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 offenders. 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. 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 usually of bad character. They should be shown to be such and not be presented to the jury as witnesses of unblemished character.

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. Wouldn't this Rule of Evidence be applied differently in every State?

Unless one practices in a 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 have been found not to fit the crimen falsi definition. Although ordinarily one would think of car theft as involving dishonesty, it has been contended that the "joy riding" type of case does not involve dishonesty, but some cases of trespass are obviously not accompanied by any intention to steal, for example, the Watergate break-in. In other words, argument can be made that some kinds of offenses which are normally thought to involve dishonesty do not involve dishonesty on the facts and would not be usable to impeach the credibility of a witness convicted of such offenses. The standard employed in the committee's rule is simply not a very satisfactory one.

In summary, I believe that the House of Representatives 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 recommend 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. The committee will now invite the representatives of the Judicial Conference to present their views. I would ask each one of you to introduce yourselves to the rest of the committee.

Mr. MATHIAS. Mr. Chairman, could I presume upon the committee's good nature to have the privilege of introducing Judge Thomsen?

Senator ERVIN. Yes.

Mr. MATHIAS. He has been a distinguished member of the Maryland Bar, a leading practitioner for many years until he was elevated to the Bench of the United States District Court of Maryland and served as Chief Judge of that Court. In light of the very active trial practice which he had as a lawyer, a member of the bar, and in the light of the extremely active and vigorous career that he has had on the Bench, I cannot think of anyone who could approach this committee with better credentials with the likelihood of illuminating some of the issues with which we will have to wrestle.

Senator ERVIN. Well, you certainly have testified very eloquently to the judicial character of Judge Thomsen.

TESTIMONY OF JUDGE ROSZEL C. THOMSEN, CHAIRMAN, STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE, JUDICIAL CONFERENCE OF THE UNITED STATES; ACCOMPANIED BY JUDGE ALBERT B. MARIS, JUDGE CHARLES W. JOINER, PROF. JAMES WILLIAM MOORE, AND PROF. EDWARD W. CLEARY, MEMBERS OF THE STANDING COMMITTEE ON RULES OF PRACTICE AND PROCEDURE, JUDICIAL CONFERENCE OF THE UNITED STATES Judge THOMSEN. Mr. Chairman and members of the committee, I was appointed a District Judge for the District of Maryland in 1954, and I am now a senior judge. Chief Justice Burger appointed me Chairman of the Standing Committee on Rules of Practice and Procedure of the Judicial Conference last October, to succeed Judge Maris. Before that I had been a member of the Advisory Committee on Civil Rules for nearly 15 years, and in the '30s I was on a committee of Maryland lawyers appointed by Judge Chesnut to consider the first proposed Civil Rules.

However, I had no part in the drafting of the proposed Rules of Evidence. My experience with them has been that of other district. judges-keeping the drafts beside me on the bench, and consulting them frequently. The judges of our court have found the proposed rules very helpful, and as a trial judge I endorse them with enthusiasm. But since I had no part in their preparation, I am not going to discuss them in detail. We have people here who can do that much better than I can. They are Judge Albert B. Maris, who was Chairman of the Standing Committee for over 15 years, who

never missed a meeting of either the Standing Committee or of the Advisory Committee, and who, it is fair to say, is revered by all Federal judges; Albert E. Jenner Jr., the Chairman of the Advisory Committee on Rules of Evidence, one of the ablest trial lawyers in the country, with a long career of service to his profession. Mr. Jenner has asked me to say that he will be unable to be here today because he is making a presentation to the Judiciary Committee of the House, but that he plans to be here tomorrow and hopes that you will hear him then.

Another one who is here beside me is Professor James William Moore of Yale University, who has been working on the Federal Rules since 1935 and has been on the Standing committee since it was organized, and has had wide experience as a lawyer, as well as being the author of "Moore's Federal Practice"; Edward W. Cleary, Professor Law at the Arizona State University, formerly at the University of Illinois, who has been the reporter of the Advisory Committee; and Judge Charles W. Joiner, of the Eastern District of Michigan, formerly a Professor of Law at the University of Michigan, then Dean of the Law School at Wayne State University, and a trial lawyer to boot, who has been a member of the Advisory Committee from the beginning, and is now a member of the Standing Committee.

Let me just mention the other members of the Advisory Committee; the late Judge Simon E. Sobeloff, of the Fourth Circuit, formerly Solicitor General of the United States; Judge Joe E. Estes, of Dallas, Texas, Judge Robert Van Pelt, of Lincoln, Nebraska, Judge Jack B. Weinstein, of the Eastern District of New York, Professor Thomas F. Green, of Georgia, and the following lawyers, of wide and varying experience: David Berger, of Philadelphia, Hicks Epton, of Wewoka, Oklahoma, Robert S. Erdahl, of Washington, Egbert L. Haywood, of Durham, Frank G. Aaichle, of Buffalo, Herman F. Selvin, of Los Angeles, Craig Spangenberg, of Cleveland, and Edward Bennett Williams, of Washington.

The Standing Committee, besides Judge Maris and Judge Joiner, has included Judge George H. Boldt, Judge Carl McGowan, Judge Frank W. Wilson, Judge J. Skelly Wright, Bernard G. Segal, Peyton Ford, J. Lee Rankin and Richard E. Kyle, practicing attorneys, and Professor Moore, Professor Charles Alan Wright and Dean Mason Ladd.

These men submitted two drafts of the Rules to the bench and bar, and carefully considered their replies.

There are bound to be criticisms of any rule of evidence. It has worked to someone's disadvantage in some case, somewhere, and the experience has rankled. He is more likely to write us than the many lawyers who have found that the rule or the proposed rule has worked, or believe that it will work, well and fairly in the overwhelming majority of cases. We do not hear from those who are satisfied; they take it for granted that we know it is a good rule.

The Committees have given most serious attention to all criticisms. of the proposed rules, have modified some of the original proposals, and have been satisfied that the arguments in favor of each rule which has been finally approved are stronger than the arguments