stand by to be recalled and who must often testify at least twice in the same case. Frequently, these witnesses are scientists, nationally known experts, busy physicians, and other important persons who do not have the time to appear more than once at a trial.

"(2) The unsoundness of the restrictive rule in 611(b) in H.R. 5463 is recognized by the leading authorities on evidence and practice: Wigmore, McCormick, Morgan, Ladd, Moore, and the authors of the A.L.I. Model Code of Evidence.

"(3) The rule stated in subdivision (b) of H.R. 5463 is not in harmony with subparagraph (a) of Rule 611.

"(4) To follow such a restrictive rule, judges must perform often impossible feats of memory, or stop trials to review the scope of evidenceon direct examination, thereby causing delays and possibly making erroneous rulings inadvertently."

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, 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.

Rules 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 regreted. The standards suggested in these two Rules are the very same standards used in connection with the development of the other hearsay exceptions, and simply gives 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.

CONCLUSION

As a trial judge, and one who has had almost two 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 the judgment that was brought to bear over a period of more than five years of deliberation in the process of drafting the Rules that were submitted by the Supreme Court.

PREPARED STATEMENT OF PROFESSOR JAMES WILLIAM MOORE To The Honorable Chairman and Members of the Senate Judiciary Committee. June 4, 1974. Gentlemen: My name is James William Moore. I am a Professor of Law at Yale University and reside in Hamden, Connecticut. I am the author of

Moore's Federal Practice, and Editor-in-Chief of Collier on Bankruptcy, 14th Edition. I have been connected with the federal rule-making process since its inception in 1935, first as Chief Research Assistant to the original Advisory Committee on Federal Rules and subsequently a member of that committee. In 1958, when various committees were activated, I became a member of the standing Committee on Practice and Procedure-the committee that supervises the other advisory committees; and I am still a member of that Committee.

I respectfully urge that Congress at this session enact such legislation as it deems necessary to effect uniform rules of evidence based upon the rules promulgated by the Supreme Court.

In support of this proposition, I would make four points: One, the Federal Rules of Evidence are the product of 40 years of professional discussion and work. Two, these Rules are thoroughly professional in the best sense. Three, there should be a strong presumption in favor of the validity and desirability of the Supreme Court Rules. Four. I endores the case for and defense of particular rules as presented by Judge Thomsen for the Joint Committees.

I

Let me now summarize the 40-year background of the Rules.

In 1936 Colonel Wigmore characterized the law of evidence as applied in the federal courts prior to the Civil Rules as "inferior to that of any of the fifty States and Territories . . . and not only inferior, but far inferior." And there was strong pressure put upon the original Advisory Committee, which was then formulating the Civil Rules, to draft uniform rules of evidence. While the Committee concluded that the matter of evidence, in general, was within the rule-making power and that, of necessity, it must deal with the subject to some extent, it realized that the work of formulating the civil rules would be unduly delayed if it tried to deal comprehensively with evidence. First, the subject is a broad and extensive one. Second, the Committee would not have had the benefit of the great studies, that came later, as the American Law Institute's Model Code of Evidence and the Uniform Rules of Evidence prepared by the Commissioners on Uniform State Laws. The basic Civil Rule, which the Committee formulated and which is presently applicable to eivdence, is Rule 43. Its cast favors admissibility and partially prescribes conformity to state law. Its theory diverges from that of its counterpart, Criminal Rule 26. This latter rule contemplates the development of a uniform body of evidence for federal criminal cases. This has not, however, come to pass. The Supreme Court, in the Michelson case, stated in 1948 that it had contributed little to the law of evidence and that it was not in a position by decision to produce a rational law of evidence.

It is not surprising that commentators continued to urge that uniform rules of evidence be promulgated by the Supreme Court; and that the American Bar Association concurred as early as 1958. This position was also joined in by the Third and Sixth Circuits; and in 1961 the Judicial Conference approved the recommendations of the standing Committee that a study be made to determine the advisability and feasibility of developing uniform rules of evidence for the federal courts. On May 17, 1961, Chief Justice Warren appointed a special Committee to make a thorough survey of the situation; and I had the honor to chair that Committee which was made up of the chairmen of the various Committees. Professor Green, the Reporter, made an extensive study of the federal law of evidence prior to the Civil and Criminal Rules; the law as developed under those rules; and the right of the Supreme Court to promulgate rules of evidence under its rule-making power. This study and its recommendations, which were tentatively adopted by the special Committee, were circulated widely; and with almost unanimity the comments overwhelmingly supported the special Committee's unanimous conclusions favoring uniform rules of evidence promulgated by the Supreme Court. The Special Committee reported favorably to the standing Committee, which in turn unanimously reported to the Judicial Conference, and it approved the recommendations. On March 8, 1965 the Chief Justice appointed an Advisory Committee on Rules of Evidence to formulate uniform rules; and that Committee shortly began its long and arduous labors which culminated in the Federal Rules of Evidence that the Supreme Court promulgated and sent to this Congress.

II

The Supreme Court's Rules are thoroughly professional in the best sense.
They are truly the product of Bench and Bar.

May I start with the Evidence Committee? Geographically it is a broadly based group. Professionally it is well balanced-judges, both appellate and trial; professors who have devoted their careers to evidence; and lawyers, active at both the appellate and trial levels. The Reporter, Professor Cleary, is well known and highly regarded by academia and the court room. Since I am not a member of that Committee, albeit I attended its sessions, I may properly say that it was a highly learned and devoted Committee. Its product so attests. But the final product that went to the Court was a composite that truly mirrored the discussion and contributions of all segments of the profession.

The Supreme Court's rules would bring to the United States district courts for the first time a modern, rational, and well-conceived set of uniform evidence rules for the trial of civil, bankruptcy, and criminal proceedings and cases. These rules are rooted in the past and in various formulations, such as the Model Code of Evidence, the Uniform Rules of Evidence, and both Judicial and statutory developments. There is nothing revolutionary about them. Experts will, of course, approve some provisions and criticize certain others. But the ideal of unanimity among experts is a mundane illusion; and I shall return to this thought very shortly. Some may think that the overall view of the rules shows them to be too conservative, others that they are too liberal; but "conservative" and "liberal"—rather treacherous characterizations at best-are doubly treacherous in this area. The profession will recognize a thoroughly professional formulation of evidence rules.

III

Turn now, if you will, to the Supreme Court rules vis-a-vis H.R. 5463, and the relationship of rule-making to legislation.

Congressman Hungate, his Sub-committee, and other Congressmen have approached a code of evidence with commendable scholarliness, objectivity, and sincerity. I want to record my deep respect for their work.

I do hope, however, that no harmful precedent will be set by the pending legislation, for the federal judicial rule-making that was launched in 1934 and has continued for 40 years has achieved remarkable results. And one constructive factor has been the good, working relationship between Congress and the Judiciary under which rules promulgated by the Court have not been subjected to extensive revision. In fact H.R. 5463 is the first such effort. While distinctions may be drawn between this evidence project and prior rule projects, the Civil Rules, for example, were launched in 1938 without legislative interference. And that project was more innovative and as far reaching as the present evidence project. Be that as it may, I trust legislative and judicial differences can be kept to a minimum.

There should, in my opinion, be a strong presumption in favor of the validity and desirability of each particular Supreme Court rule, including any rule that differs from its counterpart in H.R. 5463, or any one that may be subsequently proposed.

I do not, of course, ask any member of this Committee or any of your colleagues to surrender a firm conviction toward any rule. I merely suggest that experts often disagree, and many times it is not of great proportion. Let me illustrate by the provision governing the scope of cross-examination. The federal rule has been and is that cross is limited to the scope of direct examination. The original Advisory Committee on Civil Rules proposed a contra rule in 1937. The Supreme Court then rejected that proposal. Subsequently, the two versions were the subject of heated discussion by the Evidence Committee: and by a sharp division the Committee in Rule 611(b) adopted the board scope of cross-examination espoused by the original Civil Committee more than thirty years earlier. This time the Supreme Court agreed. H.R. 5463 adopts the contra view-the Supreme Court's view of 1937. Since under either version the trial court has discretion to vary the scope established by the rule, I do not think the foundations of the Republic will crumble no matter which musical chair you opt for. I respectfully suggest, however, that in a matter so technical as this and upon which

expert opinion is so evenly divided that a presumption in favor of the rulemaking process should carry the day.

IV

I fully endorse the written comments ("Joint Committee Comments") on H.R. 5463 filed by Judge Thomsen with this Senate Judiciary Committee. These reflect the views of the Standing Committee of the Judicial Conference and the Advisory Committee on Rules of Evidence arrived at after a joint discussion of H.R. 5463. As a member of the Standing Committee, I took part in that joint discussion and, as stated, fully endorse the joint positions taken by the two Committees.

To avoid repetitive discussion, I will add brief comment on only two subjects: Presumptions; and Privileges. I believe these subjects are within the Supreme Court's rule-making power; and that the rules promulgated by the Court are valid and desirable. There can be little doubt, though, that the subjects pertain to substantial matters. And if Congress concludes that legislation in the evidentiary area is desirable, then the two most appropriate areas are presumptions and privileges, particularly if the legislation is confirmatory in nature.

As to presumptions, I believe the Court's rules are preferable to their counterparts in H.R. 5463 for the reasons stated in the Joint Committee Comments and any legislation should be confirmatory in nature of the Court's rules.

Relative to privileges, I regard Rule 501 of H.R. 5463 as provisional in nature. And as an interim statement it has merit. But for the long range future, I believe it is deficient in at least two respects.

(1) As to a non-federal issue, state law determines privilege under proposed 501, supra. This is a workable (although not necessarily the most desirable) rule when the non-federal issue stands by itself or is cleanly separable from federal issues in the case. Very often, however, federal and non-federal issues are intertwined, as, for example, in cases involving pendent jurisdiction or where a federal statute partially incorporates state law such as $60 of the Bankruptcy Act on preferences. In these situations, I believe the rule proposed by the House will lead to confusion.

(2) Save as to the matter just discussed, the general thrust of proposed 501 is that privilege "shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience." This theory is borrowed from present Criminal Rule 26. It is not informative. And judged by experience under Criminal Rule 26 structured and adequate rules on privilege will be slow in emerging. The Supreme Court put the matter well in Michelson v. United States, 335 U.S. 469, 486 (1948), a criminal case. It said that it had contributed little by the decisional process to any phase of the law of evidence for the reason among others that it has had extremely rare occasion to decide such issues, and continued:

66

". . . It is obvious that a court which can make only infrequent sallies into the field cannot recast the body of case law on this subject in many, many years, even if it were clear what the rules should be.

"We concur in the general opinion of courts, textwriters and the profession that much of this law is archaic, paradoxical and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counterprivilege to the other. But somehow it has proved a workable event if clumsy system when moderated by discretionary controls in the hands of a wise and strong trial court. To pull one misshapen stone out of the grotesque structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice."

CONCLUSION

I respectfully urge that Rule 501 of H.R. 5463 be regarded as a provisional statement of privileges. And, subject to this, that Congress at this session enact such legislation as it deems necessary to effect uniform rules of evidence for the federal courts.

Respectfully,

JAMES WM. MOORE.

APPENDIX

(Amplification and documentation of textual point I.)

The basic conclusions reached as early as 1961 by the Supreme Court's special Committee on Evidence were these:

"1. Rules of evidence applied in the Federal courts should be improved; and "2. Rules of evidence, which would be uniform throughout the Federal court system, are both advisable and feasible."

And the Supreme Court has the rule-making power to promulgate rules of evidence.

Let me, though, set these conclusions in proper perspective.

In 1936, about two years before the Federal Rules of Civil Procedure took effect, Colonel Wigmore characterized the law of evidence then applied in the federal courts in this manner:

"The truth is though some of you may regard this statement as an exaggeration-that the law of evidence in our Federal Courts is in a most deplorable condition. It is inferior to that of any of the fifty States and Territories-I say, inferior to any of them, and not only inferior but far inferior." Wigmore, A Critique of the Federal Court Rules Draft-Three Larger Aspects of the Work Which Require Further Consideration (1936) 22 ABAJ 811, 813.

In formulating the Civil Rules, the original Advisory Committee recognized that its treatment of evidence was tentative in nature-something of a makeshift. General Mitchell, the Committee's chairman, said in 1938:

"There was a tremendous pressure brought on the Advisory Committee by those familiar with the subject of evidence insisting that there was a need for reform, which we did not meet, and some day, some other advisory committee shoulld tackle the task of revising the rules of evidence and composing them into a new set of rules to be promulgated by the Supreme Court." Proceedings of the American Bar Association (Cleveland Institute, 1938) 186. It realized that the work of formulating civil rules would be unduly delayed if it tried to deal comprehensively with the subject of evidence.

First, the subject is a broad and extensive one. Second, the Committee would have had to plough virgin land for no independent studies had at that time been made. Work on the American Law Institute's Model Code of Evidence was not begun until 1939; and the Code was not formally adopted by the Institute until May 15, 1942. The Civil Rules had, in fact, been formulated (1935-1937), promulgated (Dec. 1937), and had gone into effect (Sept. 16. 1938) before work on the Code had been begun. And, in fact, the Civil Rules had been in effect nearly four years before the Model Code of Evidence was adopted.

The Uniform Rules of Evidence, prepared by a Committee for the National Conference of Commissioners on Uniform State Laws, were not approved by the National Conference until August, 1953. And other materials, available to and utilized by the Advisory Committee on Federal Rules of Evidence, such as the California Evidence Code, the Kansas Code of Civil Procedure, and the New Jersey Evidence Rules, are of even more recent vintage.

The basic Civil Rule presently applicable to evidence is Rule 43.

Its cast favors admissibility. When a point of admissibility is raised, the method of determination covers the three following possibilities:

(1) Is it admissible under a federal statue? Here the practitioner receives little aid except from the statutes prescribing how proof of public records may be made, and the federal "shop-book" or "business entry" statute. (2) Is it admissible under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity? The vagueness of federal equity evidentiary rules affords some flexibility and possibility for judicial creativity.

(3) Is it admissible under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held? If evidence is admissible under any one of the three foregoing possibilities, it is admitted. If, however, state law excludes the evidence and no federal statute or rule admits it, under one view the evidence must be rejected. But there are variant views.

The competency of a witness to testify is to be determined in the same manner as admissibility.

Civil Rule 43 is generally applicable in bankruptcy; and, following unification in 1966, to admiralty and maritime claims presented in civil actions.