subdivision (b)(2), (3), or (4), his attendance or testimony) by process or other reasonable means.

"A declarant is not unavailable as a witness if his exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrong doing of the proponent of his statement for the purpose of preventing the witness from attending or testifying."

As originally proposed by the House Subcommittee, the amendment contained no exemption for former testimony.

The purpose of the amendment, according to the Report of the House Committee on the Judiciary, is "primarily to require that an attempt be made to depose a witness (as well as to seek his attendance) as a precondition to the witness being unavailable." Since no other purpose is apparent, a question may be raised why language directly specifying a deposition requirement was not employed. See, e.g. Model Code of Evidence Rule 1(15) (b). Presumably, the similarity between the former testimony exception and depositions led to the exemption of that exception from the deposition requirement. The exception thus exempted is no doubt the most frequently recurring of the hearsay exceptions covered by the Rule, and the impact of the deposition requirement is correspondingly reduced. Nevertheless the amendment continues it with respect to dying declarations, declarations against interest, and declarations of pedigree. None of them warrants this needless, impractical and highly restrictive complication. A good case can be made for eliminating the unavailability requirement entirely for declarations against interest cases. Uniform Rule 63(10); Kan. Stat. Anno. §60-460 (j); 2A N.J. Stats. Anno. §84-63 (10). In dying declaration cases, the declarant will usually, though not necessarily, be deceased at the time of trial. Pedigree statements are admittedly and necessarily based largely on word of mouth, not greatly fortified by a deposition requirement.

Depositions are expensive and time-consuming. In any event, deposition procedures are available to those who wish to resort to them. Moreover, the deposition procedures of the Civil Rules and Criminal Rules are only imperfectly adapted to implementing the amendment. No purpose is served unless the deposition, if taken, may be used in evidence. Under Civil Rule (a) (3) and Criminal Rule 15(e), a deposition, though taken, may not be admissible, and under Criminal Rule 15(a) substantial obstacles exist in the way of even taking a deposition.

The amendment should be deleted.

Subdivision (b) (1)

The hearsay exception for former testimony as submitted by the Court, with the changes made by the House, is as follows:

"(1) Former testimony.-Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, [at the instance of or against a party with an opportunity to develop the testimony by direct, cross, or redirect examination, with motive and interest similar to those of the party against whom now offered.] if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."

The essential difference between the two versions is the House's substitution of the common law's "same party" or "predecessor in interest" test in place of the more simple "with motive and interest similar to those of the party against whom offered" test provided in the subsection as submitted by the Court.

The position of the House represents a step backward and is needlessly and unjustifiably restrictive. It must be remembered, in view of the unavailability requirement, that the choice is not whether to insist upon production of the witness but rather whether anything at all is obtainable from that source. Subjecting the testimony to a winnowing and sifting process by a person with like interest surely furnishes a guarantee of trustworthiness equal to that for the vast majority of hearsay exceptions that require no oath or cross-examination at all. Modern authority supports this position. Tug Raven v. Trexler, 419 F.2d 536 (4th Cir. 1969) (testimony at Coast Guard inquiry admissible in wrongful death action); Cox v. Selover, 171 Minn. 216 213 N.W. 902 (1927) (testimony against guarantor with corporate connections admis

sible against corporate guarantor); Bartlett v. Kansas City Public Service Co., 349 Mo. 13, 160 S.W. 2d 740, 142 A.L.R. 666 (1942) (testimony for defendant in suit by husband admissible in suit by wife); Travelers Fire Ins. Co. v. Wright, 332 P.2d 417 (Okla. 1958) (testimony against one partner in criminal prosecution for arson admissible in action on fire policy by partners).

The Rule should be reinstated in the form submitted by the Court.

Subdivision (b)(2)

The bill passed by the House deleted the following provision from the Rules: "(2) Statement of recent perception. A statement, not in response to the instigation of a person engaged in investigating, litigating, or settling a claim, which narrates, describes, or explains an event or condition recently perceived by the declarant, made in good faith, not in contemplation of pending or anticipated litigation in which he was interested, and while his recollection was clear."

The Report of the House Committee on the Judiciary explains the deletion on the ground that the exception is unwarranted on the ground that it does not bear sufficient guarantees of trustworthiness. This conclusion disregards the safeguards which were incorporated in the Rule. Since the Rule requires unavailability of the declarant, the effect of the deletion is simply to eliminate all evidence from that source.

The Joint Committees recommend reinstatement of the Rule for the reasons set forth in the Advisory Committee's Note.

Subdivision (b)(3)

The provision relating to dying declarations, applicable without limitation as to type of case under the Rule as submitted by the Court was amended by the House to apply only in homicide prosecutions and civil cases, thus excluding nonhomicide criminal prosecutions.

This result was predicated on alleged lack of reliability of this form of hearsay. The reasoning is elusive. If the evidence may be used in the most serious, i.e. homicide, cases, why should it not be used in the lesser ones?

The narrow subject-matter scope of the Rule affords built-in safeguards against abuse.

The Rule should be restored to its original form.

Subdivision (b)(4)

This subdivision, as submitted by the Court, with the changes made by the House, is as follows:

"(3) Statement against interest.-A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to [civil or] criminal liability, [or to render invalid a claim by him against another or to make him an object of hatred, ridicule or disgrace] that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless [corroborated] corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within this exception."

With regard to the type of interest declared against, the version submitted by the Court included statements tending to subject declarant to civil liability or to invalidate a claim by him against another. The House struck these provisions as redundant. In view of the many cases construing "pecuniary or proprietary interest" narrowly, so as to exclude, e.g., tort cases, this deletion is unfortunate.

The House also deleted the provisions respecting exposure of the declarant to "hatred, ridicule, or disgrace." These provisions are based on ample motivation to tell the truth and should be restored.

The rephrasing of the corroboration requirement to include the word "clearly" imposes a burden beyond those ordinarily attending the admissibility of evidence, particularly that offered by accused persons. It should be deleted. The final sentence added by the House is believed to be broader than required by the Bruton case. See Advisory Committee's Note.

The Rule should be reinstated as submitted by the Court.

Subdivision (b)(6) ·

The House deleted this subdivision which, as submitted by the Court, read as follows:

"(6) Other exceptions.-A statement not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness." See comments under Rule 803 (24).

SECTION 2 OF H.R. 5463

The Joint Committees approve the provision of Section 2 of H.R. 5463 adding a section 2076 to title 28 U.S.C. which would confer on the Supreme Court power to prescribe amendments to the Federal Rules of Evidence. After these rules have become effective by Act of Congress there will undoubtedly arise instances in which amendments will be found in the interest of justice, and it will be very much in the public interest of justice, and it will be very much in the public interest to make it entirely clear that the Court is empowered to deal with them. Likewise the Committees are satisfied that it is appropriate to require that amendments proposed by the Court be reported to the Congress and that they not take effect until a specified time has elapsed after they have been so reported, the exact length of that period of time being for the Congress to determine.

Section 2 of H.R. 5463 further provides that if either House of Congress disapproves any rules amendment prescribed by the Supreme Court the amendment shall not take effect.

The Committees understand the problem which this provision is designed to meet but believe that the provision is unsound in principle and might in practice place either the Senate or the House at loggerheads without means of accommodation and defeat a necessary exercise of the rule amending power which the section is designed to grant. It is suggested that the problem sought to be met could better be taken care of by a substitute provision that either House of Congress shall have authority by resolution to postpone the effective date of a rules proposal received from the Supreme Court for such a period of time as it might deem necessary to enable the Congress to give full consideration to it and to take action upon it.

The difficulty which the Committees see in the provision giving a single House the veto power is its inevitable seriously inhibiting effect on the exercise of the rulemaking power. The Committees believe that in a matter as vital to the administration of justice as the formulation of rules, the Supreme Court, having been given primary responsibility, is entitled to have any action by the Congress in this field take the form of a binding law enacted by both Houses, just as the Congress is now doing in the case of these proposed Federal Rules of Evidence, and not as a mere negative reaction from a single House.

Section 2 of H.R. 5463 imposes a further limitation upon amendments creating, abolishing, or modifying a privilege, in that the section provides that no such amendment shall be effective unless approved by Act of Congress. Thus inaction by either House is an automatic veto. This provision is therefore even more restrictive than the one allowing a veto by action of either House. It reduces the rulemaking power in this area to a mere advisory capacity, and nothing more.

It is believed, as suggested above, 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 the Congress acts in this area, will be met if each House is given independent authority to postpone the effective date of a rules proposal prescribed by the Supreme Court for a period of time sufficient to enable both Houses to act on it.

PREPARED STATEMENT OF JUDGE CHARLES W. 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.

1. The report is a thoughtful critique of the changes made in the House to the Rules as submitted to the Congress by the Supreme Court.

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2. In many instances it articulates reasons for adopting the version of the Rules submitted by the Supreme Court more effectively than did the Com

mittee notes.

3. In some instances it points up the utter havoc that will be engendered if the Rules are left in the form adopted by the House.

4. The overall thrust of the report is constructive in that it makes an effort to understand the changes made by the House, and at the same time to support the process of judicial rulemaking that has probably produced the best and most useful set of Rules yet devised by any group.

The labors of practical down-to-earth trial lawyers, law teachers and judges on the Advisory Committee, after two submissions to the Bar as a whole for comment, came up with a draft of Rules that has widespread support among the Bar, the judges and the law teachers of the country, and a draft that was accepted by the Judicial Conference of the United States and the Supreme Court. That draft deserves your full-fledged support.

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 two 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 my bench. I made certain that the lawyers trying cases in front of me had a copy. At the pre-trial 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 "principle 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 by the Judicial Conference and submitted to Congress by 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 some 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 problm or issue talked about at the hearings before the House Sub-Committee that was not fully discussd, debated and re-discussed 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.

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

201 (g). A judge is not permitted to take judicial notice of a fact

Rule it is "generally known within the territorial jurisdiction of the trial

unless

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. This is completely inconsistent with the premise of the Rule.

Rules 301 and 303. The presumption rule adopted by the House is not comprehensible. The comments of the two Committees explain this and should be heeded. There is also a need for a presumption rule in criminal cases. The reasons given by the House, the pendency of the Criminal Code revision proposal, for deleting the rule may be reason to amend it later, but the proposed Rule 303 is a sound Rule and would provide much guidance to judges and lawyers.

Rules 501 to 513. The draft of the various privileges submitted by the Supreme Court is a constructive effort to improve the law of evidence in this area. Litigation would be helped of the Rules were adopted. If, however, this is not feasibile for certain classes of cases, the draft is badily needed and would be of great help in the trial of federal question and federal criminal

cases.

Rule 611. The changes made by the House in Rule 611(b) restricts the efforts of the judge to provide for an orderly process of the trial. It emphasizes the piece-meal 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 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 cross examination. 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 do so by the judge. The House version takes us back to the "game" theory of litigation. Clearly our efforts should be at providing Rules to reach the truth, rather than to play games of interest to the lawyer.

The version submitted by the Court has the support of the American Bar Association Committee for the Improvement of the Law of Evidence, which said in its 1937-1938 report:

in experience the most obvious obstruction to the rational investigation of facts in jury trials" was "the rule limiting cross-examination to the precise subject of the direct examination . . . [I]t is probably the most frequent rule (except the opinion rule) leading in trial practice today to refined and technical quibbles which obstruct the progress of the trial, confuse the jury, and give rise to appeals on techincal grounds only. **We recommend that the rule allowing questions upon any part of the issue known to the witness... be adopted."

*

McCormick, in his Law on Evidence, at note 89 on page 55, states: "A glance at the Dec. Digest, Witnesses, Key Number 269, demonstrates the almost entire absence of appellate dispute over the application of the wide-open practice, and the large number of such questions from jurisdictions following the restrict practice." In his Section 27, he urges consideration of "economy of time and energy". He states that "the restrictive practice in all its forms can be productive in the courtroom of bickering over the choice of the numerous of the variations of the scope of direct criterion and their application to particular questions. These controversies are all often ventilated on appeal, and there may be the possibility of reversal for error" which would not be present under the draft as proposed by the Supreme Court.

The Board of Editors of the Manual for Complex Litigation, some of America's most experienced trial judges, says that the restrictive rule as adopted by the House is an impediment to the administration of justice for many reasons, including the following:

"(1) It will frustrate the objectives of transfer of multi-district and complex litigation [transfer under §§ 1407 and 1404 (a), title 28, U.S. Code] for convenience of parties and witnesses and to promote the just and efficient conduct of the actions and in the interests of justice. The expense and hardship to witnesses, parties, and judges of the restrictive rule in modern complex and conventional litigation is evident. The House subdivision (b) will cause great hardship to witnesses who must often