to the scope of judicial power, while admitting to a split of authority on what the law is.

"In an article by Professor McCormick which the Second Circuit in Scott v. Spanjer Bros., Inc., (298 F.2d 928 (1962))-(Citation Added) also cites in support of its statement that the inherent power of a judge to call expert witnesses is no longer questioned, the author does state that the power to call witnesses is 'fairly well recognized'. (Emphasis supplied.) As authority for this conclusion, Professor McCormick, in a footnote, cites six cases, three upholding the power and three denying it. Apparently, in the case of a tie, the 'ayes' have it."

Sub-section (c) of Rule 706 contains the principle, "evil inherent", in its adoption. While all concerned with the trial of lawsuits involving expert testimony recognize and accept the problem implicit in contradictory evidenceof this nature, the suggestion that the court-appointed expert be annointed with judicial authority amounts to creating a cure more destructive of the jury system than the disease to which its powers are directed.

Immediately after the jury discovers that one of the conflicting opinions has been rendered by an "impartial" expert of the court's choosing, the adversary aspect of the trial is at an end. For anyone of trial experience to believe that such an expert's opinion would not be absolutely taken as controlling by the jury is unlikely. How can the jury reject the testimony of the one expert witness who appears before them clothed in the robe of judicial approval? One of the most eminent trial lawyers in the nation, Harry Gair,. said at the 1956 Proceedings of Section of Insurance Law (A.B.A.) (1965): "Buttressed as the witness is by the Court's sanctions, selected to give the best possible truth, which is to say, to resist the ignorance or errors of partisan doctors, of what avail cross-examination?"

In Lord, Book Review of Report of Special Committee of New York City Bar on Impartial Medical Testimony (McMillan, 1956), 29 Temple L. Q. 472, at 474 (1956), the author states:

"Any hope of persuading the jury to reject such an unsullied, untainted opinion would be forlorn, if not non-existent, even though the opinion may be wrong. The almost overwhelming likelihood is that testimony will prevail, not because of its validity, but because of its source."

The underlying basis for this criticism is not that the court-appointed expert is a venal man, or one who is consciously biased and prejudiced. The opponents to court-appointed experts do not ascribe dishonesty and avarice to the medical community with the same ease as the proponents, but point out that no man alive or dead has ever been truly impartial. All men are the product of their background, education, experience and knowledge. No body of opinion is more agreed than that of the medical profession itself that reasonable men may differ because of the fact that medicine is an art more that a science. There are not absolutes. There are widely differing schools of thought within the medical profession, which dictate differing views as to many common medical problems. This aspect of the problem was well stated by Justice Walter R. Hart of the New York Supreme Court, in 2 The Plaintiff's Advocate (N.Y.) 23 (Oct., 1958), where he said:

"I have heretofore stated that the doctors are assigned under a rotating system which introduces an element of chance into the situation. For instance, there is a difference of opinion with respect to injuries to the abdominal organs, one school holding that a normal appendix cannot be injured by means of a severe non-penetrating blow to the abdomen. Drs. Liniger and Melineus say yes; Drs. Jennings, Burger and Jacob say no. In the case of a diseased appendix Drs. Bissell, Kelly and Goldbeck say yes; Drs. Fowler and Keesler say no. Myocardial infarction due to trauma, Dr. Boas proponent: Drs. Master, Dack and Jaffee opponents. There is likewise a wide conflict on the causation of Parkinson's disease and neoplastic diseases. It will be readily seen that a plaintiff's case is won or lost, depending upon which doctor is next on the rotating list of the particular panel. In the case of a myocardial infarction, if it drew Dr. Boas, he is in, but the next plaintiff would draw Dr. Masters, and he would be out."

This problems not resolved by using a method other than rotating panel selection. If hysician is selected by deliberate choice of the trial judge, the proble school of thought does the judge believe cor-ware of the medical dispute?

Perhaps the most fundamental flaw in the proposed rule is its willingness to depart from fundamental belief in the efficacy of the jury system as such. The principal proponents of the theory from its inception have been Wigmore and McCormick, neither of whom are noted for their belief in an adversaryjury resolution of such issues. This aspect of the issue was eloquently stated by Howard K. Berry in Impartíal Medical Testimony, 32 FRD 539, at 544-45 (1963), as follows:

"A persistent chipping and eroding, taking a minute and imperceptible privilege at a time, may finally cause an invaluable right, in the over-all plan of liberty, to be lost altogether. And this tragic subtraction is usually accomplished by the ill-advised efforts of the better citizens, acting in the utmost good faith, and under the impression that they are protecting and preserving the rights of people, instead of injuring them.

"In a situation such as this, where the technical harm lies hidden deep under a cover of what might appear to be expediency, and the improvement of our plan of trial, it is necessary that the judges and lawyers, with their trained discernment, aided by their experience and practice, be vigilant to see that the wrong path is not taken up, and followed away. First an Impartial Doctor. Then an Impartial Traffic Expert. Then an Impartial Safety Engineer. Don't you see where the thing that you and I call 'a fact question for the jury' is headed."

The fears of Mr. Berry that encroachment on the jury system by use of court-appointed medical experts would be followed by proposals that the use of such expert witnesses be used in all possible fields of expertise, has been realized in proposed Rule 706. The rule does not apply to medical experts only, but is of general application to all types of expert testimony. Analysis of the three reasons advanced by the advisory committee note for adoption of Rule 706 demonstrates the weakness of their position.

(1) The committee states the rule is addressed to the problem of "shopping for experts". Rule 706 will not solve this problem, if it be a problem, in any particular. By express provision of the rule, in subsection (d), the right of the parties to shop for and call expert witnesses of their own selection is assured.

(2) The committee next asserts they address themselves to the "venality of some experts". Once again, the rule does not grant any authority to the court to preclude the testimony of any expert called by the parties. Further, the rule does not and cannot give assurance that the expert selected by the court will be less venal than the expert selected by the parties.

(3) The committee last points out that many "reputable" experts are reluctant to involve themselves in litigation. Rule 706 likewise does nothing to resolve this problem. Subsection (a) expressly provides that, "An expert witness shall not be appointed by the judge unless he consents to act.". There is little or no reason to suppose that an expert who is reluctant to involve himself in litigation will be less reluctant if called by a judge rather than a lawyer.

Preservation of the adversary-jury system is more important to the liberties of the American people than the miniscule difficulty inherent in the use of expert witnesses selected by the parties to litigation. There are no impartial experts; there are no impartial human beings. Rule 706 should be rejected in its entirety. At the very least, clear provision must be made that the jury will not be informed directly or indirectly that one of the witnesses before them has been selected or approved in any manner by the presiding judge.

A second rule which remains in the proposed code as approved by the House of Representatives is Rule 803 (1), which reads as follows:

"The following are not excluded by the hearsay rule, even though the declarer is available as a witness:

"(1) Present sense impression.-A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."

The proposed rule is inconsistent with existing law, and, in the judgment of the Association of Trial Lawyers of America, represents a departure which is not wise. In order to place the status of the rule in proper perspective, it must be compared with the similar proposed rule 804 (b) (2), which rule was stricken by the House Subcommittee on the stated ground that it was "creating a new and unwarranted hearsay exception of great potential breadth.

The Subcommittee did not believe that statements of the type referred to in the proposed Court Rule bore sufficient guarantees of trustworthiness to justify admissibility."

It is submitted that Proposed Rule 803 (1) is subject to the same criticism, and to a greater degree by reason of the fact the requirement here is that the hearsay is admissible even though the alleged declarant is available as a witness at the trial. Under the now stricken 804 (b) (2) the requirement of unavailability of the declarant was made, thus giving at least some semblance of need for the admission of the hearsay.

The only language differential between the two rules is that Rule 804 (b) (2) imposed the time relationship between the alleged statement and the event to which it referred in the terms "recently perceived by the declarant" whereas 803 (1) requires that the alleged statement be made "while the declarant was perceiving the event or condition, or immediately thereafter." It is submitted this distinction in time limitation does not serve to furnish the essential element of trustworthiness of the information to the degree necessary in couching an exception to the hearsay rule. The term "immediately thereafter" is subject to various interpretations, and could be abused easily.

In dealing with declaration exceptions to the hearsay rule, Dean Wigmore stated that the exception had certain logical limitations in order to meet trustworthiness requirements, including:

"The logical limitations now accepted for this exception are as follows: "(1) There must be some startling external event;

"(2) The utterance must be soon afterwards, before time has elapsed for deliberate reflection; how much time, depends entirely on the circumstances of each case, and precedents are here of little use.

"(3) he uttTerance must relate to the circumstances of the event.

"(4) The person uttering may be a bystander, and not necessarily a victim of an injury." Wigmore, Evidence 2d Ed., §265.

The basis for the recognized exception is well stated in 29 Am. Jur. 2d, Evidence, $716, p. 779:

"The admissibility of a declaration as res gestae is not determined by a stop watch which counts the number of minutes that elapse from the moment of the exciting event to the utterance of the declaration, but by a determination of whether or not the sway of the exciting event still dominated the declarant when he spoke." (Emphasis Added).

In State v. Hutchison, 222 Or. 533, 353 P.2d 1047, 83 A.L.R.2d 1361, the court used the precise language set forth in Am. Jur.2d. In so holding, the court referred to McCormick on Evidence, §272, as follows:

66

"... The factor of special reliability is thought to be furnished by the excitement which suspends the powers of reflection and fabrication. . . . At any rate, excitement flowing from a startling event is the key requirement now....'

Rule 803 (1) eliminates the requirement of an exciting event as the basis for admissibility under the exception, leaving only the time relation as the guarantee of trustworthiness.

While several authorities, including Professors Thayer, Morgan and McCormick, have argued for the position taken by the proposed rule, only the State of Texas has given credence by judicial decision to an additional exception for declarations stemming from non-exciting events which the declarant is observing at the time he made the declaration. (Houston Oxygen Co., Inc. v. Davis, 161 S.W.2d 274; Anderson v. State, Tex. Cr. App., 454 S.W.2d 74; Claybrook v. Acreman, Tex. Civ. App., 373 S.W.2d 287.)

The advisory committee takes the position that evidence of the type to be allowed by the "present sense" exception here created has been routinely allowed under the guise of res gestae. Analysis of the authorities, however, indicates that this has not been true in any broad sense. Professor McCormick has stated that "some courts however have admitted evidence of this sort under general res gestae language, although others have rejected it." (McCormick. Evidence 2d. ed., $298, et seq.) Study of the cases referred to by McCormick discloses that the majority of courts have rejected such offered evidence when presented under the aegis of res gestae.

In Rule 803 (1), the committee has not only adopted the essence of a minority view, but has expanded the rule of admissibility from a declaration

made while the declarant was actually perceiving the event or condition to include statements made "immediately thereafter". (Morgan, Res Gestae, 12 Wash. L. Rev. 91 et seq.)

The advisory committee states in its note that the "underlying theory of the exception is that substantial contemporaneity of event and statement negative the likelihood of deliberate or conscious misrepresentation.. ." That statement is not substantially supported by existing authority. The case law majority is clearly to the contrary. (Barnett v. Bull, 250 Pac. 955, (Wash. 1926); Murphy Auto Parts Co. v. Ball, 249 F.2d 508 (C.A.D.C., 1957); Idea Cement Co. v. Killingsworth, 198 So.2d 248 (‒‒‒‒‒‒ 1967); Wrage v.

King, 220 Pac. 259 (Kansas 1923); Showalter v. Western R.R. Co., 106 P.2d 895 (Cal. 1940).)

Rule 803 (1) is broader and less trustworthy in basis than stricken Rule 804 (b) (2) and should be eliminated from the proposed rules on the same basis. The Association likewise has serious reservations concerning the advisability of the inclusion of Rule 406 dealing with the allowance of evidence of habit and routine practice. In the proposed rule the committee places evidence of the habit of an individual on parity with the routine practices of an organization. The two are vastly different in basic concept and in probitive value. In the first instance, a routine business practice could be established by direct and easily handled evidence of that practice. Further, such routine business matters have far more probative value because of the manner of their promulgation, the time over which the practice has existed, and the ability of the business involved to establish the existence of the practice as being a part of a regularly conducted business activity completely disassociated with pending or threatened litigation.

When you move from such practice to evidence produced tending to establish the alleged habits of an individual, several immediate problems present themselves. In the first instance, as is conceded by the advisory committee, habit must be differentiated from general character. All concerned will agree that character is not admissible in this context, as evidenced by the fact that other specific rules deal with the very limited use to which evidence of character may be allowed. (See Rule 404 where the use of evidence of a person's character is not allowed for the purpose of providing that he acted in conformity therewith on a particular occasion.)

The operation of the law in its litigation sense is an ever-varying and intricate fabric. The rules of evidence and of procedure must necessarily be flexible and adaptable to a myriad of factual circumstances. While it is true that the growth of the common law rules of evidence has been a slow one, and in some instances bad results have been obtained because of too heavy reliance upon the doctrine of satre decisis in the American courts, most scholars and attorneys believe that the course and progression of evolution of the rules of evidence in this country has been an orderly one which has proceeded in the right direction and at approximately the right pace. The consensus of opinion of the most scholarly of advisory committees or of committees of the House of Representatives or of the Senate is necessarily limited by comparison to the experience of the hundreds and thousands of judges and lawyers who have participated in the development of the common law rules of evidence through the period of time which has passed since the beginning of this Republic. This process of development should not be lightly overturned in the interest of expediency. For these reasons, on behalf of the organization we represent, we urge that the committee give searching study to each of the proposed rules to the end that the code as it is adopted, if it is adopted, shall represent a step forward in the law.

Senator ERVIN. The next witness is Prof. J. Francis Paschal, School of Law, Duke University.

I am delighted to have you present.

It calls to mind the old days when you and I worked so hard on the Commission to Improve the Administration of Justice in North Carolina, and I also recall the assistance you have furnished us in the study of the present propositions.

35-817-74- -7

TESTIMONY OF PROF. J. FRANCIS PASCHAL, SCHOOL OF LAW, DUKE UNIVERSITY, DURHAM, N.C.

Professor PASCHAL. Well, I very much appreciate the opportunity, Mr. Chairman, to appear before you here.

I want to thank the committee particularly for conducting this thorough inquiry into the desirability of the proposed new Federal Rules of Evidence.

If we are to have court rules of evidence, or procedure, or whatever, I would hope that the substance of the course of proceedings in this instance will henceforth be the model.

We have had before, of course, the deep and thorough study of advisory groups. We have had before the participation of countless lawyers throughout the country, representative of all branches of the profession. But not for a long time, if ever, have we had such an intensive congressional consideration of the rules submitted by the Supreme Court. While it has been clear from the outset in the case of the Rules of Civil and Criminal Procedure that responsibility for the rules rested ultimately with Congress, this must be true in fact as well as theory.

In this connection, I think especially of the very serious policy judgments which lurk just beneath the surface of even the most commonplace and apparently simple rules. For some, if not all, of these policy judgments, Congress alone seems to me to have the resources for their successful resolution. Consider the simple matter of the confidentiality of juvenile adjudications. For reasons good or bad, quite a number of States, perhaps a majority, have legislatively chosen that such adjudications shall be confidential.

It may be that the Federal courts ought to be permitted on occasion to disregard this policy of confidentiality, important as it is to the States that have adopted it. But the decision to do so should be made by a body where the States are fully represented and are assured that their interests received every due consideration. The benefits of what I am talking about are, in the case of the rules under consideration, already abundantly evident. It involves no disrespect for nor lack of appreciation of the Advisory Committee on the Judicial Conference or the Supreme Court to say that the House version of these rules is an infinite improvement over the draft submitted by the Court. And I have no doubt that the result of the further working of the legislative process will be still further improvement.

This brings me specifically to the subject of rulemaking techniques which is the concern of rule 1103. So far as the Rules of Civil Procedure are concerned, it seems to me that the 1934 statute and its successors have provided, on the whole, a most serviceable statutory scheme. In any event, I suppose that there are few who would deny that, generally, the Rules of Civil Procedure have been a spectacular success. Not surprisingly, the House draft retains for the Rules of Evidence the basies of the statutory scheme for the Rules of Civil Procedure. There are, however, three significant changes.