The theory underlying Civil Rule 43 diverges from that of its counterpart Criminal Rule 26.

"1. This [latter] rule contemplates the development of a uniform body of rules of evidence to be applicable in trials of criminal cases in the Federal courts....

"2. This rule differs from the corresponding rule for civil cases

.

Rule

43 (a) in that this rule [Criminal Rule 26] contemplates a uniform body of rules of evidence to govern in criminal trials in the Federal courts, while the rule for civil cases prescribes partial conformity to State law and, therefore, results in a divergence as between various districts . . .”

You will note that, in general, proposed Rule 501 of H.R. 5463 on privilege is based on the theory of Criminal Rule 26, which in turn is based on the Funk, 290 U.S. 371 and Wolfle, 291 U.S. 7, cases, that as of 1933 and 1934 declared new doctrine to the effect that in criminal cases the rules of evidence are to be determined by the common law as interpreted by the federal courts in the light of reason and experience. This was a big improvement in theory. But while alluring and promising like a spring breeze, not too much has come of it due in large measure to the fact that it is difficult to structure a rational and comprehensive system of evidence on a case by case development as the Supreme Court observed in Michelson v. United States, 335 U.S. 469, 486 (1948).

It is not surprising that responsible segments of the profession, leaders of the Bar and commentators continued to urge the formulation and promulgation of uniform federal rules of evidence.

Commentators urge uniform federal rules of evidence. As the original civil Advisory Committee stated in its Note to Rules 43 and 44 (in connection with its Report of 1946 commentators had been critical of Rule 43. 5 Moore §43.01[7]. This criticism and/or pressure for adoption of uniform rules of evidence for the federal courts continued. See Thompson, Federal Rule 43 (a)—A Decadent Decade (1948) 34 Corn L Q 238; Green, Federal Civil Procedure Rule 43(a) (1952) 5 V and L Rev 560 [this is in addition to his earlier article cited in the Committee Note of 1946]; Clark, Foreword (1956) 10 Rutgers L Rev 479, 482 (Although stating that Rule 43 (a), which "was essentially of a holding nature" had worked better than its critics implied, he expressed "the need, now that uniform rules of a desirable and acceptable nature are at hand, that further steps be taken"); Joiner, Uniform Rules of Evidence for the Federal Courts (1957) 20 FRD 429; Estes, The Need for Uniform Rules of Evidence in the Federal Courts (1959) 24 FRD 331; Degnan, The Feasibility of Rules of Evidence in Federal Courts (1959) 24 FRD 341.

American Bar Association urges uniform federal rules. Upon receiving the Report of its Special Committee on Uniform Evidence Rules for Federal Courts, the House of Delegates in 1958 adopted a resolution urging the United States Supreme Court to promulgate Uniform Rules of Evidence in the District Courts.

Judicial action. The Third and Sixth Circuits each recommended that a committee be created to study and recommend uniform rules of evidence for the federal courts; and the formal resolution of the Sixth Circuit was referred by the Judicial Conference of the United States, in 1957, to its Committee on Court Administration. Jud. Conf. Sept. 1957, Rept. p. 43.

A year later the Judicial Conference established a standing Committee on Rules of Practice and Procedure. And re-referred the subject of evidence to that Committee. Jud. Conf. Sept. 1958, Rept. p. 15.

The standing Committee recommended to the Judicial Conference at its March 1961 session that provision be made for a sixth advisory committee on rules of evidence; and that this committee make a study to determine whether it is advisable and feasible to develop uniform rules of evidence for the federal courts. And the Conference approved the recommendation.

PROPOSED RULES OF EVIDENCE

In light of the above developments and recommendations, Chief Justice Warren, on May 17, 1961, announced the appointment of an ad hoc Committee to make a thorough survey of the situation; and determine the feasibility and desirability of uniform federal rules of evidence. I had the privilege of chairing that Committee, which was composed of the chairmen of all the advisory committees Civil, Bankruptcy, Criminal, Admiralty, and Appellateand Judge Maris ex officio as chairman of the standing Committee.

In December, 1961, the Special Committee met and considered the report prepared by its Reporter, Professor Thomas F. Green, Jr., Preliminary Study of the Advisability and Feasibility of Developing Uniform Rules of Evidence for the Federal Courts, and tentatively concluded that federal rules of evidence should be improved; and rules of evidence, which would be uniform throughout the Federal court system, are both advisable and feasible.

Wide circulation of the Committee's Preliminary Report and Professor Green's study was made; and the Bench and Bar were given approximately a year for study and comment thereon.

The comments overwhelmingly, and with almost unanimity, supported the Special Committee's tentative and unanimous conclusions, set forth in its Preliminary Report; and favored going forward with the drafting of uniform rules of evidence for the federal courts with promulgation as the ultimate objective.

In January, 1963, the Special Committee on Evidence met and, after considering the comments and suggestions prompted by the Preliminary Report, unanimously adhered to its preliminary recommendations. These final recommendations were then reported to the Standing Committee in February, 1963. The Standing Committee unanimously approved the recommendations, and so reported to the Judicial Conference; and, in turn, it approved the recommendations.

On March 8, 1965, the Chief Justice announced the appointment of an Advisory Committee on Evidence to formulate uniform rules to govern the admissibility of evidence and the competency of witnesses in civil and criminal trials in the United States district courts.

The work of that Committee is well known; and that of its members, particularly its Chairman, Mr. Jenner, and its Reporter, Professor Cleary, continues to this day.

Senator ERVIN. Let the record show that Mr. James F. Schaeffer, who represents the Association of Trial Lawyers of America of Memphis, Tenn., submitted a written statement to the committee. He has informed the committee, however, that he will be unable to appear in person, and I ask that his written statement appear in the record and it will be inserted in the record at this point. [The statement follows:]

PREPARED STATEMENT OF JAMES F. SCHAEFFER AND JOE A. MOORE

Mr. Chairman, and distinguished members of the Committee, my name is James F. Schaeffer of Memphis, Tennesse. I am presently Chairman of the Committee on Federal Evidence and Procedure of the Association of Trial Lawyers of America and appear before you today in that capacity. As you are no doubt aware, the Association of Trial Lawyers of America is the second largest bar association in the world and is made up of a membership of over 25,000 lawyers who are primarily concerned with the trial of jury cases before the American courts. As such, of course, we are vitally interested in the question which is presently before this Committee. As we see the matter, two basic problems must be resolved by the Congress. In the first instance, is it desirable to create a code of evidence for use in the federal courts; and, second, if so, is the proposed code which is now before you for consideration a good one for adoption?

The legal basis for promulgation of a code of evidence for use in the federal courts lies in the enabling act of 1934, 28 U.S.C. $2072. This act was first put to use by the judicial system with the adoption of the Federal Rules of Civil Procedure in 1938. The operative language of the original legislation bears directly on the problems presented as to many of the proposed rules of evidence, and reads as follows:

"That the Supreme Court of the United States shall have the power to prescribe by general rule for the District Courts of the United States and for the Courts of the District of Columbia, the forms of process, writs, pleadings, and motions, and the practice and procedure in civil actions at law. Said rule shall neither abridge, enlarge, nor modify the substantive rights of any litigant."

The language of the act, particularly that portion which mandates that any rule adopted under its authority shall not abridge nor modify the substantive rights of litigants is the foundation of objection to much of the proposed code of evidence.

The distinction between substance and procedure is of critical importance in matters where the federal courts sit in diversity jurisdiction situations. The distinction between substantive and procedural questions has been considered primarily in cases involving conflict of laws. The general view in such cases has been that evidence is procedural rather than substantive. From this position the argument proceeds to conclusion that authority granted by the Congress to the court to prescribe rules of procedure necessarily includes the power to prescribe rules of evidence. Standing against this position is the view that the term, "procedure", as used in the legislation must be qualified against the cautionary language prohibiting the adoption of any rule which will abridge, enlarge or modify the substantive rights of litigants. It cannot be seriously questioned that many of the rules of evidence are "outcome-determinative" in many situations. If so, it is difficult to assume that the distinction routinely drawn between matters of substance and matters of procedure for purposes of application of conflict of laws maxims serves to answer the question.

It is one thing to assert that a rule of evidence, because it is procedural, should apply because it is the law of the forum. It is quite another to say the same reasoning has validity when the classification of a rule of evidence is considered in the context of its effect on the rights of particular litigants in a case pending before a federal court sitting in a state with a contrary rule. This distinction has been stressed by those who have taken the position that the rule-making power of the court does not reach to the extent claimed for it. Notable in this connection are the remarks of former Justice Arthur J. Goldberg in his prepared statement presented to the House Committee:

"My misgivings about the proposed rules of evidence concern the second assumption, namely that the rules extend only to matters of practice and procedure. To my mind, some of the proposed rules extend beyond the mere matters of procedure and represent legal changes in the substantive rights and duties of persons throughout the country."

The historic decision in Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), when read in conjunction with the later decision in Hanna v. Plumer, 380 U.S. 460 (1965), furnishes the foundation for the pro and con arguments on the issue. In Erie the court gave voice to what has become known as the "substance procedure test". Succinctly stated, the Court found that the state rule of decision must be looked to in any diversity jurisdiction litigation when the law, rule, or procedure is substantive. Thus, if the state rule dictated one result but the claimed application of a federal rule dictated another, the federal rule must give way to the state.

The rule was limited by Hanna. In that case the Warren Court undertook a re-examination of the thrust of the Erie doctrine in its application to the Federal Rules of Civil Procedure, and in arriving at its conclusion that Rule 4 did not transgress the Erie doctrine, used language which indicated to many that the Supreme Court had the power to prescribe rules of evidence which could well be outcome-determinative.

In 1961 the Judicial Conference of the United States created an ad hoc advisory committee charged with the obligation to conduct a study and analysis of the rules of evidence and their impact in federal trial. In 1963 that committee reported that "it is feasible and desirable to formulate uniform rules of evidence to be adopted by the United States Supreme Court". The report of the committee was accepted, and on March 8, 1963, the Chief Justice named an advisory committee on rules of evidence.

Following several years of study the advisory committee finalized what has become known as its 1969 priliminary draft. After the draft was circulated, the Judicial Conference forwarded it to the United States Supreme Court with revisions and with its recommendation that it be adopted. The Court did not approve the draft but returned it to the committee without comment.

During March and April 1971, approximately 45,000 copies of the proposed rules were circulated by the West Publishing Company, and comment was invited. In October 1971, following further revision and receipt of comment, the Judicial Conference again approved the rules and urged their adoption by the Court. On November 20, 1972, the Court approved the rules and ordered

that they be forwarded to the Conference pursuant to the requirements of the act of 1934 as amended. Justice Douglas dissented from the approval.

The anticipated routine approval of the proposed rules did not occur. The rules were referred to the House Committee on the Judiciary, and, by that body, were referred to the Special Subcommittee on Reform of Federal Criminal Laws, chaired by Representative William L. Hungate (Democrat, Missouri). In the Senate, the Honorable Sam J. Ervin (Democrat, North Carolina), introduced Senate Resolution 583 which provided that the effective date of the rules be delayed from July 1, 1973, to the end of the then current session of the Conference.

In March 1973, the House enlarged upon the Senate position and enacted House Resolution 4958 providing that no rule would become effective until the same had been affirmatively enacted as law by the Congress. Thereafter, the Senate acquiesced in the House position, thus nullifying the rules as submitted.

Subsequently, House Bill 5463 was introduced. The Bill, in form, was a compilation of the proposed rules as submitted to the Congress by the Court in November 1972. The intent was that a line-by-line study of the rules be thereafter undertaken by the Congress. Public hearings were conducted by the subcommittee and testimony taken.

On June 28, 1973, the subcommittee released a committee print of the rules as amended by vote of the committee, and the print was thereafter circulated with invitation to comment. Finally, the full House Committee approved a form of the rules which was passed by the full House and referred to the Senate.

There is serious question as to whether it is advisable for the Congress to promulgate a code of evidence in the first instance. During the centuries of the evolution of the common law rules of evidence, the process of change has been on a case by case and experience basis, rather than by legislative enactment of a complete code of evidence. There is much merit to that approach As is well-known to the members of this committee, rules of evidence must be applied in ever-changing factual and legal circumstances, and the inherent flexibility of common law evolution has served us well in the American courts. The basic objection to codification was well stated by Chief Judge Friendly of the Court of Appeals of the Second Circuit during the course of his remarks before the House committee:

"There is no need for the proposed rules. Someone once said that in legal matters when it is not necessary to do anything, it is necessary to do nothing. I find that a profoundly wise remark. We know we are having almost no serious problems with respect to evidence. We cannot tell how many the proposed rules will bring."

Further, once a code is adopted, it becomes the absolute rule of decision in federal trials in all factual circumstances until the rule involved is further amended either by the Supreme Court or by the Congress. The action of the House demonstrates that that body is not willing to abrogate the final responsibility in this area to the rule-making power of the Court. Substantial changes to be made in the future will, therefore, require consideration by the Congress on a continuing basis. This could well serve to burden this body and distract its attention from matters of weightier legislative concern in the years to come.

As we stated in the course of the hearings in the House, the Association of Trial Lawyers of America does not take the absolute position that no rules of evidence should be standardized. But the Association does, most earnestly, submit that the rules adopted must be very carefully screened, to the end that only matters of judicial housekeeping and practice are dealt with. If the rule proposed is arguably one of substance, rather than practice, it should not be the subject of codification.

Turning from the basic proposition of the wisdom of adopting any such code to the substance of the proposed rules of evidence as they now stand, the Association takes the position that the amendments to the proposed rules made by the House of Representatives were of great benefit. We feel that the proposed rules were vastly improved by the amendments made and that the rules, as they now stand, are more nearly representative of existing welldefined and appropriate rules of evidence as they exist in both the state and federal courts of the nation. With all this, however, there yet remain some troublesome rules. Time will not permit a discussion of all of these rules at

this time, but we do wish to make mention of two particular rules which remain in the proposed code which we feel are not in the best interest of litigants before federal courts.

Proposed Rule No. 706, in sum, allows the trial judges to appoint expert witnesses of the court's selection. This appointment may be accomplished on motion of the parties, or on the court's own motion. In such cases, the rule provides that the expert witness may thereafter be called by either party or by the court. The rule further provides that in the exercise of his discretion, the judge may authorize disclosure to the jury of the fact that the court appointed the expert witness.

It is the unqualified position of the Association of Trial Lawyers of America that this is an undesirable rule which should be totally eliminated from the proposed code.

Certain authorities, notably Professors Wigmore and McCormick, have long advocated the practice of appointment of so-called impartial experts by the court. The primary thrust of the argument is that the usual course of events, particularly in personal injury trials involving medical experts, is that the experts called by the litigants express widely divergent views of the bodily infirmity of the plaintiff. It is argued that the situation offers no real assistance to the jury in resolving the issue, but merely confuses. The advisory committee note makes specific mention of this problem:

"The practice of shopping for experts, the venality of some experts, and the reluctance of many reputable experts to involve themselves in litigation, have been matters of deep concern."

The committee supports its view with the position that the trial judge has inherent authority to appoint an expert of his own choosing in any event. The committee asserts that such power is "virtually unquestioned". In support of this view, cases from two federal circuits are cited, together with secondary authority from Sink and Wigmore. Also referred to is an annotation at 95 A.L.R. 2d 383. The cited authority supports the committee position, but examination of the annotation readily discloses that the actual use of such power by the courts over the years has been sparse indeed. Further, many of the cases involved equity matters or other types of litigation in which a jury was not involved. Standing against this limited authority is the undoubted fact that the vast majority of jurisdictions have not allowed the appointment of so-called “impartial experts" in jury cases.

The proposal here made is not new. As early as 1926 it was suggested by the American Medical Association. (Digest of Official Actions 1846-1958 of the American Medical Association, 225.) The Commissioners on Uniform State Laws promulgated the Uniform Expert Testimony Act in 1937. That act was adopted by one state, South Dakota, in 1952. (S.D. Code, §636.0109-0118 (Supp. 1960).) Also in 1952, an impartial medical testimony plan was adopted in the trial court of New York, and in 1953 in Bronx County. (N.Y. & Bronx Counties Sup. Ct. R. XI-12.) As of 1967, United States District Courts in five judicial districts had established some form of court-appointed medical procedure. (34 Ins. C. Jour. 115, 118 (1967):)

Opinion opposing the court-appointed expert has been substantial over the years. (Julien, Impartial Medical Plan, Ins. Law J. 213 (April 1960); Levy, Impartial Medical Testimony-Revisited, 34 Temple L. Q. 416 (1961); Berry, Impartial Medical Testimony, 32 FRD 539 (1963); Lambert, Impartial Medical Testimony: A New Audit, 20 NACCA L. J. 25 (1957).)

The statement by the advisory committee to the effect that the power of a trial judge to select an expert of his own choosing is "virtually unquestioned", is not as well grounded as the committee indicates. In that connection, the following statement is made by Wick and Kightlinger, Impartial Medical Testimony Under the Federal Civil Rules: A Tale of Three Doctors, 34 Ins C. Journal 115, at 133:

"As authority for the broad statement that courts 'no longer question' this power, the Second Circuit cited Ex Parte Peterson, Wigmore and McCormick.

"Examining these authorities (except the Peterson case, which has heretofore been discussed and distinguished), they do not come close to upholding the court's power beyond question. Professor Wigmore states only that lack of such power 'never will be conceded, so long as the Bench retains a true conception of its constitutional function and a due sense of self-respect.' He is plainly expressing his views of what the law ought to be with respect