inevitably have an inhibiting effect on the exercise of the rulemaking power. Our Committees have suggested, and I thoroughly agree, that in a matter as vital to the administration of justice as the formulation and amendment of rules of evidence, the Supreme Court, having been given preliminary responsibility, is entitled to have any action by Congress in this field take statutory form binding on the courts and the public, just as is now being done by the enactment of H.R. 5463, rather than a mere negative reaction from a single House.

Section 2, moreover, imposes a further limitation upon amendments creating, abolishing, or modifying a privilege, by providing that no such amendment shall be effective unless approved by act of Congress. This provision, by imposing a veto resulting from inaction is even more restrictive than the one allowing a veto by affirmative action of either House.

It would reduce the Supreme Court in this area to a mere advisory body. We strongly urge that there is no justification for such a harsh restriction on the rulemaking power of the Court.

We would submit that the problem to which the provisions of section 2 which I have been discussing are addressed, can be fully and fairly met by a substitute provision that either House of Congress shall have authority by resolution, or successive resolutions, to postpone the effective date of a rules proposal reported by the Supreme Court for such a period of time, in addition to the time specified in section 2076, as the House deemed necessary to enable Congress to give full consideration to it and to formulate and enact legislation with respect to it. We suggest that the need of each House of Congress to have ample time to consider and act upon rules amendments and the need of the Supreme Court, the bench, the bar and the public to have the guidance of statutory law when Congress does act in the area of evidence rules, will be met if the proposal which I have described is included in section 2076 of title 28, United States Code as enacted by section 2 of H.R. 5463.

May I say in conclusion that the adoption of the Federal rules of evidence represents, and in the future will be regarded, as a significant milestone on the road to the better administration of justice in the Federal courts by providing clear, precise, and readily available rules for trial judges and trial lawyers to follow which will be uniformly applicable throughout the Federal judicial system. I would bespeak your sympathetic consideration of them.

Senator ERVIN. Well, thank you, Judge. You have given us a most illuminating dissertation on the way these rules were born and developed. As I recall my conference with you, I said we could not do much in 90 days by statute when we had a proposal of rules because normally it would take Congress several years to get around to it. We have so many other tasks besides this administration of justice and rules for administration of justice.

You laid great emphasis on the Supreme Court having the primary responsibility, but I am inclined to think there is a good deal of truth in the statement Justice Douglas made when he dissented to the submission of the rules by the Supreme Court to the Congress

that the Supreme Court acted only in a perfunctory manner when it approved and submitted the rules; he suggested that where rules of evidence were concerned the Judicial Conference should do the job of submitting the rules to the Congress.

Judge MARIS. Well, the Court does act on them in that they set up a very careful organization to advise them, and that organization is under the complete control of the Chief Justice and is in effect an arm of the Supreme Court.

To give authority to rules that will uniformly govern practice not only in the Federal but perhaps also in the State courts, it seems advisable, and perhaps wise, to repose in the highest court of the land the ultimate authority to make an order in this field.

The Judicial Conference, after all, is a conference. It does not have any minutes, it does not have any record. The Supreme Court has a clerk and a records office. This is the way it was developed from 1792 and so far that has been reasonably satisfactory with some disagreement from a few justices, but I must say that has been very satisfactory.

Senator ERVIN. No one is proposing to put Mr. Justice Douglas' proposal into effect, so it never even got the status of being moot. Thank you very much.

Judge MARIS. Thank you.

Senator ERVIN. I want to commend those who worked with you in a very worthwhile task, a very necessary task; you have performed a good job in devising these rules.

Judge MARIS. I would like to add that my 13 years of service in this program, represent one of the most interesting and satisfactory services of my career. I found it a great opportunity. I thoroughly enjoyed it and I think we have done constructive work.

Senator ERVIN. You have done constructive work of a permanent nature to the country.

Professor CLEARY. Mr. Chairman, members of the committee, I was unable to prepare any set remarks because I thought I should operate in the capacity of cleanup man and utility infielder after the gentlemen from the House had appeared. So my remarks may be somewhat rambling.

I felt a little nostalgic as the gentlemen from the House were arguing among themselves as to the merits of impeaching a witness by proof of conviction of crime under rule 609, because that very well could have been reproduced from a tape of any one of a number of our own Advisory Committee meetings.

Senator MATHIAS. That is an unfortunate reference in this moment in history.

Senator ERVIN. I used to be on an appellate court and I found out sometimes the arguments which go on in the conference room when the judges are trying to make a decision are even more spirited than those that the lawyers make.

Senator ERVIN. Since there is a vote underway we will stand in recess until we vote.

[Short recess.]

Senator ERVIN. The committee will resume.

Professor CLEARY. Mr. Chairman, I do not think I identified myself for the record. My name is Edward W. Cleary. I teach in the Law School at Arizona State University. I have been there since 1967.

Prior to that time I was on the faculty at the University of Illinois for 21 years, and prior to that time for 12 years I was in private practice, including trial work.

I have been the reporter for this committee since its inception in 1965.

I think all of us have the same objective here. The gentlemen from the House subcommittee who were here this morning, the members of the Advisory Committee of the Standing Committee on Rules of Practice and Procedure, and I think those objectives are that cases be tried fairly and expeditiously with as much uniformity of result as is possible, particularly in the Federal question and the Federal criminal area, with due regard for the other interests that may be involved.

The discussion necessarily has focused on areas of disagreement which really represent percentagewise a very small proportion of the total effort. It ought to be emphasized again that the areas of agreement extend very much beyond just the enacting clause of the House bill and include most of the bill's subject matter.

We, the Advisory Committee on Rules of Evidence, have been referred to as everything from a bunch of 19th century antiques on the one hand, to the "Hippies of the Law" on the other. I think that it was a lawyer from Judge Maris' hometown of Philadelphia who called us "hippies.'

Senator MATHIAS. Well, perhaps it is better to be called both rather than one or the other.

Professor CLEARY. Thank you, Senator.

May I suggest that a proper description of the committee and its product probably lies somewhere in between, and I think these rules fairly can be described as a moderately progressive set of rules. They are not radical. They were intended to improve the law of evidence as we conceive improvement to be proper, but there is nothing in these rules which is not the law in at least one jurisdiction in the United States and generally in more than one.

Senator ERVIN. Well, I do not know whether that is singing the glories of the rules or not. I read a speech some years ago made by an old lawyer in St. Louis to a group of young lawyers and he told them that under no circumstances should they study the law relating to their cases before the cases were tried because they might lose confidence in the cases. He said after you lose you can always appeal and find some decision in some jurisdiction in the United States that will sustain any point on appeal.

Professor CLEARY. Well, I think that has a measure of truth in it; on the other hand, we should not close our eyes to what the choices

are.

I suppose the basic philosophy of these rules is that all relevant evidence ought to be admitted unless there is some reason to keep it out.

One disturbing feature of the amendment made by the House bill that generally, although not always, they would exclude evidence h the Court's rules would have admitted.

I want to enter a disclaimer, also. The gentlemen from the House this morning made some reference to the Cleary report or some such language as that. No such report has been filed with this committee. I take it that they were referring to the report which Judge Thomsen transmitted to the Senate Judiciary Committee on May 22. This is a report in which I participated, but which was revised and reviewed by the advisory committee and by the standing committee. So the 61-page report which has been placed in your hands is not an individual's product.

With some hesitation, since I know that I will now have 100 percent opposition from members of the committee who are present, I call attention to the deletion of rule 105, which spells out the judge's authority to sum up and comment on the evidence.

The House report agrees that the rule is consistent with longstanding and current Federal practice. This is a constitutional mandate under the decisions of the Supreme Court. Its advantages lies in aiding the jury, in possibly sobering flights of fancy otherwise contemplated by more imaginative lawyers, and in reposing an appropriate confidence in the judge as an effective participant in the trial process. Rule 105 is not in H.R. 5463. It is taken out.

Senator ERVIN. It is out. By cutting it out I think we are really carrying out what the Constitution contemplated when it said trials. in all cases except of impeachment shall be by a jury.

Professor CLEARY. I realized when I opened up the subject of rule 105 that I was unlikely to save you, but there are other brands who can be snatched from the burning

Senator ERVIN. Well, it would be better to allow them to be consumed.

Professor CLEARY. The American College of Trial Lawyers Committee approved that rule, and that is on the whole, I would say, a rather conservative aggregation.

The next matter that I want to turn to is rule 301, which is the rule of presumptions for civil cases. That rule was rewritten very late in the proceedings in the House; it has been discussed this morning. The House committee agreed with us that presumptions ought to be given substantial effect. They thought that the Court's rule gave presumptions too much effect. In an effort to cut back on that effect, they came up with a rule which is extremely confusing, which has no precedent and for which none is cited. The closest that you can come to it is the old California Code of Civil Procedure provision which was replaced in 1965 when California enacted its present Code of Evidence.

The vice basically is in saying that presumptions are evidence. The judge is put in the position of telling the jury to balance a presumption against evidence when as a matter of fact they are totally dissimilar. Presumptions are not evidence. I do not think they ever can be evidence. They are ways of dealing with evidence. There are ways of talking about evidence. I was very much interested in the indication from Mr. Dennis this morning, that he agreed that this was a rule which was unclear and basically unworkable. California finally gave up the effort to evolve reasonable instructions there, and you will find equivalent comments in the decisions

of the Supreme Court and of the other Federal courts that this simply is not a workable, acceptable way of dealing with presumptions.

This is probably the only instance in which we would feel that what the House has done has been to make a rule that is just totally unworkable. The other disagreements that we have with the House are simply matters of judgment. But this one is not. I think we can say flatly it just won't do.

Senator ERVIN. I would observe that the rule the House put in is the rule which has prevailed in that garden of Eden, North Carolina, since it became an independent State in December 1776, because we have some peculiar presumptions. We have a presumption that if a man purchase a license to operate a still he is guilty of making moonshine liquor in violation of the law. That would be a hard presumption to rebut.

Professor CLEARY. I would think that is really a rule of law, Senator.

Judge THOMSEN. I think that an absolute presumption is generally regarded to be a rule of law.

Senator ERVIN. But this is just a presumption. It can be rebutted. It does not have to be. The jury can accept it as their prima facie evidence of fact, but the jury can disregard the presumption even in the absence of evidence.

For example, we have another statute which provides that there is a presumption that a person driving a car is driving with the consent of the person in whose name the car is registered. I think it is better to leave it where it is just sufficient to justify, but does not require a finding.

I think your rule almost requires a finding.

Professor CLEARY. I would agree.

Senator ERVIN. It changes the burden of proof rather than the burden of going forward.

Professor CLEARY. There are strong policy factors involved in most presumptions. Perhaps some are based on convenience, but I think in general you will find that there are strong policy factors, such as in the presumption that you mentioned, which certainly represents either a legislative or judicial effort, depending on whether it is case law or by statute to deal with a specific problem.

We think simply that rule 301 as revised by the House just won't

work.

Now, the House deleted rule 303, which deals with presumptions in criminal cases, without any comment on the merits of the rule as submitted by the Court, but suggested that it be reserved for treatment with the revision of the Federal Criminal Code. We have no quarrel with that at all, except that we believe that this is a project of considerable magnitude, and it might be wise to reinstate the Court's Rule 303 as a temporary measure, if nothing more. It can always be amended if the Congress is unsatisfied with it. Meanwhile, however, it would give the district courts a handy frame of reference for dealing with presumptions in criminal cases. It purports to do nothing except to summarize the doctrines worked out by the Supreme Court in that area.