Professor JOINER. Mr. Chairman, I am a judge of the eastern district of Michigan. Before that I was a professor of law, before that I tried lawsuits.

I have a formal statement and I would like to read portions of it,

if I may.

it.

I have given a copy to the reporter and I would like to highlight

Senator ERVIN. That would be entirely satisfactory to the committee, and let the record show Judge Joiner's complete statement will be printed in full following this testimony.

Judge JOINER. I support the comments of the Standing Committee on Rules of Practice and Procedure and the Advisory Committee on Rules of Evidence of the Judicial Conference of the United States on H.R. 5463 dealing with Federal rules of evidence.

The report of the two committees should be supported by the Senate Judiciary Committee and the Senate.

Rather than deal with details of individual rules, I wish to call to your attention today the usefulness of the product as submitted by the Supreme Court, and the difficulty the judges and lawyers are in at the present time until Congress acts to adopt the rules.

Almost 2 years ago in my court I began to use the rules as an active guide to the law of evidence. I kept a copy on the bench. I made certain that the lawyers trying cases in front of me had a copy. At the pretrial conference, I made clear that the rules would be my guide in ruling on evidence problems. I did this in civil cases pursuant to rule 43 of the Rules of Civil Procedure, and in criminal cases pursuant to rule 26. I explained to the lawyers that the rules were probably the best evidence of the principles of the common law as they may be interpreted by the courts of the United States in light of reason and experience.

I began using the rules at a time when the Advisory Committee. had finished its work on the assumption that in all probability the rules would be recommended to the Supreme Court, and in a short while become law. The reaction of the bar was favorable. They found guidance to problems they had lacked before. As evidence questions arose and objections were made, I could quickly find the appropriate section, show it to the lawyers and usually the objection or the evidence would be withdrawn. It speeded trials and avoided injustice by pointing out ways for lawyers to shorten proof through the judicial notice rule, and by avoiding prolonged controversy over evidence problems. The rules provided a rationale to me in determining whether to admit evidence that carried forward to the comments sometimes necessary as a part of the instructions to the jury at the end of the trial. They were an unqualified success from the beginning.

But when Congress refused to permit the rules to become law, they became much less useful. True, they were just as thoughtful and just as good, but there now was more uncertainty as to whether these were the rules, if any, that would become the law in Federal Civil and Criminal cases. No longer did I feel as comfortable in relying on them in my rulings. Now they must be compared with State

evidence rules and with earlier sixth circuit and Supreme Court cases in the field of evidence. Arguments began again. Trials took longer.

I am not the only judge who has had this experience. I may have used them more than other judges because I came to the bench at the right time to make the break, and I had experience in working with them as a member of the Advisory Committee. Other district judges have reported similar pleasure at having them as their guides. Court of Appeals judges have increasingly relied upon them for the best in the law.

The thrust of this part of my presentation is a plea to give priority to adopting the rules. The bench and the bar were ready a year ago. They need them even more today. Remember, there is not a single problem or issue talked about at the hearings before the House Subcommittee that was not fully discussed, debated and rediscussed by the Advisory Committee that drafted the rules. My guess is that the same will be true of these hearings. I urge rapid adoption of the rules of evidence.

Now, if you please, I would like to make a few comments to underscore particular areas of particular concern with what the House has done.

Rule 201 (g). A judge is not permitted to take judicial notice of at fact unless it is generally known within the territorial jurisdiction of the trial court or is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Judicial notice applies only to facts not in dispute. The House destroyed the effect of the judicial notice rule in criminal cases by changing rule 201(g) so as not to require the jury to accept any fact judicially noticed. It is completely inconsistent with the premise of the rule.

Rule 611. The changes made by the House in rule 611 (b) restrict the efforts of the judge to provide for an orderly process of the trial. It emphasizes the piecemeal approach to the production of proof. It forgets that the courts should attempt to accommodate to the people, witnesses and clients, rather than to the lawyers. The draft approved by the Supreme Court and by the Judicial Conference suggested that a witness should testify as to all that he knows when he is on the stand, either on direct or on cross-examination, reserving to the trial judge discretion to narrow the crossexamination. The draft in the House bill reverses the emphasis by permitting a witness to testify on cross-examination as to matter about which he has knowledge and beyond the scope of direct examination only if he is permitted to by the judge. The House version takes us back to the "game" theory of litigation. Cleraly our efforts should be at providing rules to reach the truth, rather than to play games of interest to the lawyer.

I show in my written statement how the American Bar Association recommends this approach.

As Judge Joe Estes points out in his memorandum on this subject "Every witness takes an oath to tell the truth, the whole truth, and nothing but the truth. Why hamstring the court with the H.R.

5463 rule that cross-examination 'should be limited', rather than permitting open, unfettered cross-examination in search for that 'whole truth'. The open rule as submitted by the Supreme Court to the Congress is conducive to that end."

RULE 801

The addition of the requirement that inconsistent testimony must be given under oath subject to cross-examination and subject to the penalty of perjury at a trial, or hearing, or in a deposition, to rule 801 (b) (1) (A) which is part of the definition of what is not hearsay, the addition destroys the usefulness of the Rule. A witness on the stand, who has given a statement contrary to what he has said on the stand, must be challenged with that statement. Clearly the contrary statement should have effect. The cautionary instruction that is sometimes given about not considering it as substance, is not effective and should not be. The witness is in court. He is subject to cross-examination. His prior statement should therefore be weighed in the total balance, and not just as to his credibility. To ask the jury to do any less is asking them to do more than they are capable of doing. The House addition is very damaging to the fact-finding process that juries are asked to perform.

If I may add in light of your prior comment, these are rules on admissibility of evidence. These are not rules that determine whether or not a case is made out by a plaintiff or whether or not a crime has been proven by the Government. The fact that a prior statement may be read as substance may or may not under the final circumstances be determined to be enough alone, if there is nothing more, to make out a case in favor of the plaintiff or in favor of the Gov

ernment.

Senator ERVIN. In light of the fact nobody testifies, that is no effect at the trial because on cross-examination it was extra-judicial because it was repudiated by the only man who ever made it.

Judge JOINER. My point is that these rules do not deal with that problem. They do not say that where there is that testimony and no other evidence, a case has been made out on which a person can be convicted. These rules simply deal with whether the testimony is admitted into evidence.

Senator ERVIN. Admitted in evidence for the purpose of establishing guilt, or for no purpose whatever.

Judge JOINER. It may have the effect in some cases, along with other evidence.

Now, to turn briefly to 803 (24) and 804(b)(6), we are not wise enough to write for all time all of the exceptions to the hearsay rule. The draft of these two carefully circumscribed definitions of when lawyers and judges may use other hearsay is an effort to permit wisdom to control at the trial, and not just mechanical operations of words. Hearsay exceptions have always been judicially created. They have been created when a need was present. To deprive the judges of the ability to respond to the needs of justice as would the elimination of these two rules, as suggested by the House, is a bad decision and one that will probably be regretted.

The standards suggested in these rules are the very same standards used in connection with the development of the other hearsay exceptions, and simply give to the lawyers and judges the tools with which to fashion a just result in certain cases.

RULE 804 (B) (2)

I urge you to carefully read the Court's proposed rule 804(b)(2). It is a narrow rule that contains an exception of great value. I point out to you that it is an exception to a rule that requires the absence of the witness before it can be used. This kind of evidence as of the present time often comes in or is properly urged upon the court under one or another of the other exceptions, stretching them very badly. This exception simply recognizes that this best evidence, when the witness is not available, under the narrow circumstances suggested, may be used.

Finally, as a trial judge, and one who has had almost 2 years' experience in the actual use of the proposed rules, I urge, first of all, that you proceed as rapidly as possible to the adoption of the Rules of Evidence; and, secondly, that you utilize the wisdom and the skill and judgment that was brought to bear over a period of more than 5 years of deliberation in the process of drafting the rules that were submitted by the Supreme Court.

Senator ERVIN. Thank you, Judge.

Do you have any questions?

Senator MATHIAS. No questions.

Senator ERVIN. Thank you very much, Judge Joiner. You have given us a very illuminating discussion of these rules.

I want to assure you that I think it will be the purpose of this committee to give high priority to attain the enactment of whatever the Committee finally thinks are wise provisions.

I want to commend the members of the Judicial Conference for the very long and laborious and very helpful and fine work they have done in formulating these rules.

Do you other gentlemen mind if we come back?

The committee stands in recess until 2 o'clock.

(Whereupon, at 12:25 p.m., the committee was recessed, to reconvene at 2 p.m., the same day.)

AFTERNOON SESSION

Senator ERVIN. The committee will resume.

I am sorry I was late. Legislative matters do not wait on any man, especially a Senator.

Judge MARIS. My name is Albert B. Maris. I am a senior circuit judge for the Third Circuit and have served, first as district and then as circuit judge, for nearly 38 years. I served as chairman of the Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States from the inception of the present rules study program of the Conference in 1959 until my retirement as chairman on October 1, 1973. The Federal Rules of Evidence which the Supreme Court promulgated on November 20,

1972 and which are embodied in somewhat modified form in H.R. 5463, the bill now before your committee, are a major product of the rules study program of the Conference which was produced while I was chairman. It is in support of them that I appear before you today.

May I point out preliminarily that the rulemaking power of the Supreme Court has existed since the foundation of our Nation. As far back as the act of May 8, 1792, 1 Stat. 276, the Court was empowered to prescribe the procedure in common law, equity, and admiralty cases. This power was reaffirmed by the act of August 23, 1842, 5 Stat. 518. Under this authority the Court promulgated equity and admiralty rules but did not exercise its statutory rulemaking authority in the common law field and the latter was withdrawn by the Conformity Act of June 1, 1872, 17 Stat. 197, which confirmed the then existing practice of conforming to State procedure in common law cases. Then in 1934 came the act of June 19, 1934, 38 Stat. 1064, which empowered the Court not only to prescribe rules of procedure for actions at law but also to unite the procedure in equity and at law so as to secure one form of civil action. The act provided that if the Court should decide to unite law and equity practice, the united rules should not take effect until after they had been reported to Congress at the beginning of a session and until after the close of the session.

The Court, as we all know, exercised its authority under the act of 1934 by adopting the Federal Rules of Civil Procedure uniting law and equity practice. Shortly prior thereto the act of February 24, 1933, 47 Stat. 904, as amended by the act of March 8, 1934, 48 Stat. 399, had granted the Court authority to make procedural rules in criminal cases subsequent to verdict, finding, or plea of guilty, and the act of June 29, 1940, 54 Stat. 688, extended this power to the procedure in such cases prior to verdict, finding, or plea, subject to the requirement that any rules relating to the latter procedure should be reported to Congress before they took effect. Under these statutes the Federal Rules of Criminal Procedure were prescribed by the Court.

There were three subsequent statutory developments of current interest. By the act of May 10, 1950, 64 Stat. 158, the requirement that any such rules promulgated by the Supreme Court should be reported to Congress at the beginning of a session was modified, so as to permit them to be reported at any time after the beginning of a session up to May 1, and the limitation upon their effective date was advanced from the close of the session until the expiration of 90 days after being so reported. The second development was the grant to the Court by the act of October 3, 1964, 78 Stat. 1001, of full rulemaking authority to govern the practice and procedure under the Bankruptcy Act. And the third was the consolidation by the act of November 6, 1966, 80 Stat. 1323, of the civil rulemaking power granted by sections 2072, 2073, and 2074 of title 28, U.S. Code, in an amended section 2072 and the broadening of it so as to include the procedure in the courts of appeals and for the review and enforcement of agency orders.