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The House draft would, for the first time, require some proposed amendments to gain the approval of an act of Congress. The amendments in view are those "creating, abolishing, or modifying a privilege." I unreservedly approve this requirement. A rule of privilege is unlike other evidentiary rules. Undoubtedly, it affects the adjudicative process, but privilege is even more relevant to prelitigation conduct, conduct before a law suit was ever dreamed of. As such, it presents a matter more of legislative than judicial concern. And heightened formal manifestations of congressional approval are much to be desired if the law of privilege is to be changed in any way.

The second charge in the technique of rulemaking in the House draft is to enlarge, from 90 to 180 days, the time within which there has to be legislative action to prevent a proposed Rule of Evidence from taking effect.

While there is the obvious objection that this involves delay where sometimes speed may be urgent, I can agree with this proposal. Were speed really an urgent matter, Congress could pass a special act. In any event, the delay in itself does not seem to be serious.

The third change in the technique of rulemaking for evidence from that prevailing with the Rules of Civil Procedure is to deny effect to a rule of evidence when it is disapproved merely by one House, either the House or the Senate.

The requirement for both Houses to participate in a veto has worked well in the case of the Rules of Civil Procedure and I see no reason to abandon it. Moreover, it is possible that there are dangers in having one system of amendment for the Rules of Evidence and another for the Rules of Civil and Criminal Procedure. There may well be evidentiary amendments proposed that are interrelated with procedural amendments. It may be that the two sets of amendments should go into effect together or not at all. But this would be impossible to achieve under the House draft if the two sets of amendments were proposed simultaneously. The remedy is, of course, to make the statutory provisions, in the respects alluded to, identical. And I would hope that the provisions in respect to the Rules of Civil Procedure would be followed.

In this connection, there is one further problem that ought to be mentioned. It exists now with the Rules of Civil Procedure and would also exist in respect to the Rules of Evidence if they were changed to require the veto of both Houses in order to deny effect to proposed amendments. If one House or the other voted its disapproval on the 179th day, I should think that thereafter, the other House ought to have more than 1 day to consider the matterperhaps another 180 days, perhaps something less. But unless the statute is changed, this would not be the case.

I turn now to a technique not of rulemaking but rather a technique of lawmaking. Rule 802, in the hearsay article, provides:

Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by act of Congress.

If I read this rule correctly, it excludes the possibility of further judicially created exceptions to the hearsay ban. New hearsay ex

hope that the provisions in respect to the Rules of Civil Procedure would be followed.

In this connection, there is one further problem that ought to be mentioned. It exists now with the Rules of Civil Procedure and would also exist in respect to the Rules of Evidence if they were changed to require the veto of both Houses in order to deny effect to proposed amendments. If one House or the other voted its disapproval on the 179th day, I should think that thereafter, the other House ought to have more than one day to consider the matter-perhaps another 180 days, perhaps something less. But unless the statute was changed, this would not be the case.

I turn now to a technique not of rule-making but rather a technique of law-making. Rule 802, in the hearsay article, provides :

"Hearsay is not admissible except as provided by these Rules or by other Rules prescribed by the Supreme Court pursuant to statutory authority or by Acts of Congress."

If I read this Rule correctly, it excludes the possibility of further judicially created exceptions to the hearsay ban. New hearsay exceptions must come from Acts of Congress or the rule-making process. This is ironic because the exceptions we now have were largely developed by judges in their adjudicative capacity. No reason is advanced by the Advisory Committee for this "freeze" and it seems to me that it should be deleted. To leave it in effect would force judges eventually to distort those hearsay exceptions that are authorized to accommodate an exception that the judges have become willing to recognize. While on the subject of the hearsay Article, there is another provision that seems to me ought to be deleted. I am referring to Rule 801(d)1(C) which 'declares that a statement is not hearsay if the declarant testifies and is subject to cross-examination and the statement is "one of identification of a person made after perceiving him." It has been argued that the earlier identification has greater probative value than an in-court identification because the witness's memory may not have been good or he might have been wrongly influenced in other ways either to testify in harmony with the prior statement or to deny its accuracy. This argument would have more force if the Rule required that the hearsay identification be made contemporaneously or soon after the "perceiving" on which the identification was based. What is worse, the Rule leaves open this possibility: The sole evidence of identity against a defendant could be a witness's out of court identification which the witness now repudiates. Somehow, when the only witness before the court gives in court only exculpatory testimony, it seems to me offensive to our basic concepts of justice to allow the prosecution a chance of victory.

I turn now to a matter of somewhat large moment-that of the Rules' relation to state law. It is useful at the outset, I think, to remember that the question of constitutional power is settled. In legislating truth-finding rules for cases in the federal courts, Congress is not restrained by state evidentiary provisions. As Chief Justice Warren said in Hanna v. Plummer, 300 U.S. 460, 472:

"[T]he constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts, which in turn includes a power to regulate matters which, through falling within the uncertain area between substance and procedure, are rationally capable of classification as either."

But to say that Congress has power is not to say that it should be used. The House was well aware of this. Not only in respect to privileges but in respect to presumptions and competency, it opted for state law as to "a fact which is an element of a claim or defense as to which State law supplies the rule of decision." Apparently, the House rejected the claims of state law in regard to the confidentiality of juvenile adjudications (Rule 609 (d), except testimony and the disclosure of data underlying expert opinion (Rules 703 and 705), hearsay as far as statements for the purpose of medical diagnosis are concerned (Rule 803 (a)4 and dying declarations (Rule 803 (b)2).

It may be that the House correctly decided all of these matters. I have already indicated my belief that it correctly decided the privilege matter. I should now like to say a word or two about various approaches to the problem.

It seems that we have no alternative but to consider the matter from a threefold classification: State law cases, Federal question cases, and criminal cases. This classification has its utility but it does not seem to be altogether satisfying. It assumes, for example, that all competency problems are alike or that all privilege problems. are alike. But this is not so. It is one thing, it seems to me, to speak of the competency of a 5-year old child and quite another to speak of competency in the Dead Man's Statute situation. It is one thing to speak of the medical privilege and quite another to speak of the newspaperman's privilege. And breaches of the privilege do just as much harm in Federal questions cases as in diversity cases.

But the classification is with us and I see no easy way to escape it. In making the choice as to what should be remitted to State law, there are now familiar guidelines in the diversity situation. Wherever a significant and rationally based State interest is involved, the claim of State law is at its strongest This is particularly true when the law in question, even though it has evidentiary effects, has an impact on primary conduct independently of any litigation, The newspaperman's privilege is the prime example.

Another factor in the choice is the probability of whether the narticular rule in question is likely to be outcome determinative. It is my thought that if the rule is outcome determinative merely because as an instrument for ascertaining the truth, it is superior to a State competitor, then by all means the Federal rule should be followed. But if the rule is outcome determinative because the States have chosen to subject classes of defendants or plaintiffs to greater or lesser burdens, then it seems to me that State law ought to be followed as a general proposition, especially where it cannot be demonstrated that one rule is superior to the other as an instrument for ascertaining the truth.

Judging by these standards, it seems to me that the House properly remitted, in State law cases, the effects of a presumption, the exist ence of a privilege, and questions of competency to State law. It seems tot me that a similar course is indicated in respect to juvenile adjudications. A policy rightly deemed by some States to be of great significance ought not to be frustrated by the Federal courts, at least in State law cases.

I also would urge that rule 803 (4) be amended to make State law applicable in the case of statements made for the purpose of medical diagnosis. In their effect, State rules denying admissibility to these admittedly hearsay declarations are something more than truth-ascertaining rules. They reflect a State's judgment of how easy it ought to be for a plaintiff to get to the jury on the questions of casuality and physical condition.

For quite similar reasons, I should think that there should be a resort to State law in respect to the disclosure of data underlying expert opinion. Under rule 704, an expert may give his opinion without prior disclosure of underlying facts and data.

Undoubtedly, this will often save time but more often it will simply shift to the adverse party the burden of producing the data. The adversary, to whom State law sought to give what is tantamount to a substantive advantage, has it taken from him.

As to dying declarations, since it is only a truth-ascertaining rule and nothing else, I would not bother with a resort to State law. But if I could have my way, I would delete the provision altogether as I do not believe that such declarations are any more reliable than other hearsay.

One further problem and I am done. It is a problem of draftsmanship. The House draft, when it wishes to command adherence to State law speaks in terms of "a fact which is an element of a claim or defense as to which State law supplies the rule of decision." What was intended is reasonably clear but this phraseology may give trouble. Such words as "element," "claim," "Defense" are among the most recondite known to the law. The cases attempting to interpret section 1331 of the Judicial Code testify to the problem. A simple illustration of the difficulty that might be encountered is a suit on a Federal claim alleging some act by a defendant through an agent. The defendant interposes a State defense of no authority in the agent. The plaintiff replies with an estoppel argument, that the defendant is estopped to deny the authority of the agent. Would State or Federal law apply as to relevant facts of estoppel under the House formulation? Certainly, the estoppel is no "element" of the "defense." Nor can it be considered an "element" of plaintiff's claim. But still, in my judgment, State law ought to apply both as to evidence and substance unless there is some indication to the contrary in the statute establishing the Federal claim. Yet the rule as drafted leaves the matter up in the air.

Possibly, some such formulation as the following might work: "In civil actions and proceedings, the effect of a presumption respecting a fact relevant by virtue of State law is determined in accordance with State law."

I thank the committee very much for hearing me.

Senator ERVIN. I want to thank you for a very informative and helpful statement. You make several suggestions about amendments that ought to be made in the House bill. I also appreciate the fact that you and I seem to agree with respect to the use of extra-judicial statements as the basis for conviction of a defendant in a criminal case when those statements have been repudiated by their maker.

It seems to me a very dangerous method of trying to ascertain the truth, and I think that the rule is better for some guilty parties to escape rather than innocent people to be convicted.

Professor PASCHAL. I am delighted the Senator does agree. I am hopeful he is able to persuade his colleagues on that particular

matter.

Senator ERVIN. I have been opposing some threats of putting that in the Omnibus Crime bill. I finally told them if they left it in I was going to fight the whole bill. I think this is an outrageous assault on life as well as the experience of the law.

Thank you very much, and I appreciate your appearing here.
[The statement of Prof. J. Francis Paschal follows:]

PREPARED STATEMENT OF J. FRANCIS PASCHAL, PROFESSOR of Law,
DUKE UNIVERSITY

Initially, I should like to thank the Committee 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 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 rule-making 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 basics of the statutory scheme for the Rules of Civil Procedure. There are, however, three significant changes.

The House draft would, for the first time, require some proposed amendments to gain the approval of an Act of Congress. The amendments in view are those "creating, abolishing, or modifying a privilege." I unreservedly approve this requirement. A rule of privilege is unlike other evidentiary Rules. Undoubtedly, it affects the adjudicative process but privilege is even more relevant to pre-litigation conduct, conduct before a law suit was ever dreamed of. As such, it presents a matter more of legislative than judicial concern. And heightened formal manifestations of Congressional approval are much to be desired if the law of privilege is to be changed in any way.

The second charge in the technique or rule-making in the House draft is to enlarge, from 90 to 180 days, the time within which there has to be legislative action to prevent a proposed Rule of Evidence from taking effect. While there is the obvious objection that this involves delay where sometimes speed may be urgent, I can agree with this proposal. Were speed really an urgent matter, Congress could pass a special Act. In any event, the delay in itself does not seem to be serious.

The third change in the technique of rule-making for Evidence from that prevailing with the Rules of Civil Procedure is to deny effect to a Rule of Evidence when it is disapproved merely by one House, either the House or the Senate. The requirement for both Houses to participate in a veto has worked well in the case of the Rules of Civil Procedure and I see no reason to abandon it. Moreover, it is possible that there are dangers in having one system of amendment for the Rules of Evidence and another for the Rules of Civil and Criminal Procedure. There may well be evidentiary amendments proposed that are interrelated with procedural amendments. It may be that the two sets of amendments should go into effect together or not at all. But this would be impossible to achieve under the House draft if the two sets of amendments were proposed simultaneously. The remedy is, of course, to make the statutory provisions, in the respects alluded to, identical. And I would

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