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 three-fold classification: state law cases, federal questions cases, and criminal cases. This classification has its utility but it does not seem to me 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 five-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 eaesy way to escape it. In making the choice as to what should be remitted to state law, there are now familiar guide lines 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 particular 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 existence of a privilege, and questions of competency to statel aw. It seems to 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. We have one witness who was scheduled for tomorrow, and I should inform the committee that it will be more satisfactory for him to testify today. So we will hear Mr. George A. Spiegelberg of New York on behalf of the American College of Trial Lawyers and on behalf of a committee of New York trial lawyers.

TESTIMONY OF GEORGE A. SPIEGELBERG, NEW YORK, ON BEHALF OF THE AMERICAN COLLEGE OF TRIAL LAWYERS AND THE AD HOC NEW YORK TRIAL LAWYERS COMMITTEE

Mr. SPIEGELBERG. Thank you, Senator.

Since 1922 I have been engaged in the trial of cases in the Federal courts and in the courts in my home State New York and in other States, and in addition to that I have taught the law of evidence or attempted to teach the law of evidence at New York University Law School over a period of 35 years, and am a professor emeritus of that institution. I am a member, or as they like to call themselves, a fellow of the American College of Trial Lawyers and was for many years the principal litigating attorney of a New York firm, one of the firms that participated in the Ad Hoc Committee of New York firms, a list of which appears on what I may call the preliminary statement, page 2, and I won't mention the 15 names except to say that they include most of the large and well-known firms in the city of New York.

I think perhaps the feeling of the two committees which I represent here can best be stated in the words of Robert L. Clare, who is the senior trial counsel at Sherman and Sterling in New York, and in addition the president of the American College of Trial Lawyers, that in testifying before the House Judiciary Subcommittee he said, and I quote:

The feeling of the group (the Committee of New York Trial Lawyers) was that we shouldn't have any rules (of Federal evidence), that it was not the proper thing to do. . . . And he continued. (It) is our opinion that . . . rules should be tested in the crucible of the courtroom This was best expressed by the Chief of our Circuit, Judge Henry Friendly, and with his express permission we have annexed to our statement his letter which he wrote to the Advisory Committee, and he has given us permission to include it as part of our statement and it is annexed to the report.

That testimony will be found on pages 200 and 201 of the hearings before the House Subcommittee on the Proposed Rules of Evidence on February 8.

Now, why do we believe that codification is not a desirable objective! We think it will create more problems than it solves, that it will lead to more appeals, and that the question of interpretation of any code will of necessity involve all of the rules which now exist in judge

The fact and I don't think this has been called to the attention of this committee is that 11 prior attempts to codify the law of evidence have been made over the last 140 years, and none of them have succeeded, and we believe that it is unwise that they should succeed for the reasons that I have already mentioned, and in addition, for the reason that the progress that we would hope would be made by continuing judge-made law would probably be stopped if a code of evidence were to be adopted.

The attempts were started in 1836 by Judge Story and Professor Greenleaf, and I am only talking about Federal codification and codification in the state of New York, and they continued intermittently until finally the present Advisory Committee started drafting the present rules in 1965.

Here, 9 years later, we are finally before the Senate with a proposed Federal code.

Now, if we are to have a code, it is our opinion, and it is the opinion of those organizations which I represent here, that we should certatinly have H.R. 5463 and not the Advisory Committee report which was adopted by the U.S. Supreme Court and then sent over to the Congress.

I have stated in the report which I have submitted why we believe that the changes effected by the House bill are, I think I can say, almost without exception desirable changes. There are still a few, and they are very few, seven in number, which I would hope this committee might consider adopting.

Rule 611(b) allows the court a discretion to permit a crossexaminer to go beyond direct. We believe that to be a correct rule, but the rule goes further and says that in such a case the crossexaminer is bound by the rules of direct examination, and that we believe to be a mistake for a perfectly simple, logical reason: friendly witnesses can be led, and they like to be, and if a friendly lawyer is examining a friendly witness and is allowed to ask leading questions the lawyer will do the testifying and not the witness. However, if a hostile witness is on the stand under cross-examination, the last thing he allows himself to do is to be led, and in those cases the only way you will elicit testimony is if you will allow the cross-examiner to ask leading questions. That is the first suggested change in the House bill that the groups I represent would like to see.

The next one really is a suggestion to avoid error that might be quite damaging. In the definition of hearsay in rule 801 (c) it would appear that a declarant testifying at a trial or hearing is not testifying as to hearsay merely by that fact. There is no cross reference to Rule 602 which provides that in the ordinary case and except as otherwise stated in the rules the declarant must have personal knowledge of those subjects as to which he is testifying, and it is our suggestion that in defining hearsay in 801 (c) there should be a cross-reference to Rule 602 so that the witness on the stand in order to avoid hearsay must have knowledge as to what he testifies. Now, if everybody knew the rules of evidence and the House Code is adopted, my suggestion would be unnecessary. But I think it is the experience of almost everyone who has practiced in our courts, and I may say particularly in our State courts, that the rules of evidence

are not that well known, and it would certainly be helpful if that cross reference were inserted.

The next suggestion I have has to do with entries in the regular course of business; the rule, as the House drafted it, says, in the regular course of business, profession, occupation and calling, and I would like to suggest that it would be wiser to strike the words "occupation and calling" and limit regular course of business entries to business or profession, the reasoning being that under occupation and calling almost any type of entry that a person keeps would come in as being in the regular course of his calling as, for instance, if he were an amateur astronomer he might make weather reports, and I do not think those should be admitted under the hearsay rule. The certificate mentioned in Article 803 (7) and (10), which are certificates that a particular document may not be found in a record office where it would ordinarily be recorded are admissible to prove that the account or transaction did not occur. I think that that exception should be limited to official entries, and it is not in the House Code. The reason for that is that the official has a duty to make the entry; whereas, an individual who is not a public official has no duty to and it does not have the same trustworthiness.

Finally, so far as the House Code is concerned, article 804 (b) (2) dealing with dying declarations should not be extended as that has been by the House. It is admissible under the House suggestion in civil actions as well as in criminal actions, and I urge upon the committee that it is the least trustworthy of the exceptions to the hearsay rule and should be limited to the common law rule of dying declarations where the death is the subject of the charge, a rule which has been extended to abortion cases.

It should not be introduced into the civil law.

Now, I listened with some surprise, I must admit, to Professor Joiner's defense and I think Professor Cleary's defense, too, of section 803, subdivision 24, and section 804, subdivision 6, which state in substance that in addition to the exceptions to the hearsay rule, 29 in number, the court has a discretion to admit any hearsay statement having similar guarantees of trustworthiness. Obviously that must be a question of discretion left to the judge. And equally obviously, if a judge believes that any hearsay has substantial guarantees of trustworthiness he can admit it, how can counsel, who carefully prepare cases, prepare a case when they can not even begin to guess what hearsay a judge may admit against them, I don't know. I think it is fair to say that it would be impossible adequately to prepare a case for trial if the Senate were to replace or return to the hearsay rule the two sections that I mention.

Senator ERVIN. It would seem to me that a very good case can be made for the proposition that if you are going to have rules of evidence prescribed by Congress that any deficiencies that you might discover in the administration of justice in respect to the provisions of the rules in regard to hearsay ought to be dealt with by amendment rather than by leaving the matter to the discretion of the judges. Mr. SPIEGELBERG. I would agree with that.

Senator ERVIN. In other words, it seems that the argument that the judges have discretion to formulate new exemptions to the hearsay rule is really an argument against having any rules at all.