V. OTHER MATTERS Rule 403 provides for the exclusion of relevant evidence under certain circumstances, including "unfair prejudice" and "waste of time." I am somewhat troubled by the term "unfair prejudice," since it implies that some kinds of prejudice are fair and hence I believe that it should be stricken both in Rule 403 and in Rule 609 (a). In addition, although it is more a matter of linguistics or semantics than anything else, the phrase "unfair prejudice" in Rule 609 (a), as added by the Committee, itself includes a value judgment that the harm outweighs the probative value of the evidence, therefore, the phrase that follows "prejudice" should be stricken as it is redundant. Rule 609 (b), which precludes the admission of convictions where there has been a lapse of more than ten years from the later of the date of the conviction or the release of the witness, should be modified. First, the release of a convict will never occur earlier than the conviction and hence the use of the "later date" seems of little utility. Second, the far more logical date to utilize for the running of the ten year period would be the date of the offense or perhaps the date of the conviction since the length of sentence would appear to be unrelated to the commencement of the 10 year rehabilitation period. Last, the Committee should make it clear that simply because a conviction is within the ten year period, it does not automatically entitle the person offering the conviction in evidence, to have it admitted and that the other unfair prejudice standard of 609(a) is still applicable. Respectfully submitted, ALAN B. MORRISON. FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, Re Federal Rules of Evidence. DEAR CONGRESSMAN: You have requested comments on H.R. 5463 no later than July 31st. I have one comment which, tho technical, is important since it deals with one of the slipperiest phrases in the law. The Advisory Committee has used the term "burden of proof" or "burden of proving" in connection with presumptions (Article III). "Burden of proof" may mean either burden of establishing or burden of going forward. It is my belief that the burden of establishing never shifts, tho the burden of going forward with evidence may shift a substantial number of times during a trial. H.R. 5463 in dealing with presumptions in civil actions states: "A presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence." I strongly urge that in place of the underlined words, the words "the burden of going forward with evidence" be substituted. When the person against whom the presumption exists fails to introduce evidence refuting the presumption or fails to introduce enough evidence so that reasonable minds may reasonably differ, the party having the aid of the presumption wins the issue on that point. If the words "burden of proof" mean "burden of establishing" then the party against whom the presumption operates must introduce sufficient contrary evidence so that his evidence overcomes the presumption "by a fair preponderance of the evidence". This, I believe, is not the correct rule. The burden of establishing never shifts and remains upon the party who has the benefit of the presumption until the very end; e.g., he must establish to the satisfaction of the trier of the facts by fair preponderance of the evidence including the presumption that he is entitled to the decision on that issue. Only in the case of a res ipsa loquitur situation does it appear that the burden of establishing shifts. Actually, it doesn't. In such a situation the party against whom the presumption operates is unable to produce any evidence and, therefore, fails on that issue. Failure to make the distinction has led many courts into error which would not have occurred had the correct term been used. Whether your Committee decides to use the term "burden of establishing" or "burden of going forward with evidence" will make comparatively little difference, tho I think the latter term is more correct. If the term "burden of proof" is used, the same confusion in decisions now existing will continue. I cannot conclude this letter without again congratulating your Committee on the result achieved by it in H.R. 5463. Yours sincerely, GEORGE A. SPIEGELBERG. THE AMERICAN PSYCHOANALYTIC ASSOCIATION, Hon. PETER W. Rodino, Jr., DEAR SIR: The American Psychoanalytic Association is deeply concerned that the proposed new "Rules of Evidence of the Federal Courts," should not constitute a hazard to the confidentiality of patient-psychotherapist communications and thereby become a threat to the practice of psychiatry and psychoanalysis. If testimony can be forced concerning the content of communications during psychotherapy or psychoanalysis, a psychiatrist cannot assure his patient of confidentiality, and the proper setting for psychiatric work cannot prevail. Without such assurance the public will hesitate to avail itself of the benefits of psychiatric treatment, because to do so would entail a significant potential legal hazard. Similarly, the psychiatrist cannot work in good conscience if he is aware of the patient's vulnerability as well as his own. As a result of the fact that psychiatric groups have been able to demonstrate that there is a constitutional basis for preserving the confidentiality of communications during psychotherapy and legal scholars have demonstrated that Wigmore's four technical conditions needed to establish legal privilege are amply satisfied for the psychiatrist-patient privilege, we understand that Rule 504 was fashioned to delineate that privilege. The American Psychoanalytic Association, by action of its Executive Council, has authorized me to communicate to you its support for Rule 504 and to urge that efforts be made to further modify the rules to eliminate the patient-litigant exception or to amend it in conformity with the 1971 amendment to the Illinois Statute on Privilege and the relevant Illinois Appelate Court's decisions of 1969 and 1970. We respectfully urge that the Committee give careful consideration to these views and that you recommend appropriate changes in the rules. Sincerely, Re H.R. 5463. BURNESS E. MOORE, M.D., President, The American Psychoanalytic Association. MORTON, BERNARD, Brown, ROBERTS & SUTHERLAND, Hon. WILLIAM L. HUNGATE, Washington, D.C. Washington, D.C., July 12, 1973. DEAR MR. HUNGATE: I have been asked to respond on behalf of the American Patent Law Association to your request for comments on your subcommittee's draft of the Federal Rules of Evidence. Our Association was, on balance, in favor of the rules promulgated by the Supreme Court. Again on balance, our Association believes that the subcommittee has improved the rules and made their acceptance and use by the Federal bar and their acceptance as models for future State legislation easier. We do, with deference, recommend the amendment of the subcommittee revision of Rule 501 as shown below: Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority or in these rules, no person has privilege to: (1) Refuse to be a witness; or (2) Refuse to disclose any matters; or (3) Refuse to produce any object or writing; or (4) Prevent another from being a witness or disclosing any matter or producing any object or writing. [the] A claim of privilege of a witness, person, government, State, or political subdivision thereof may be made under the authority of this rule and shall be governed by the principles of the common law ***. It seems to us that the Supreme Court's statement of the general duty to provide evidence is a salutary one, putting an important obligation of citizenship into positive expression, and emphasizes the nature of "privilege" as a specially sanctioned exception thereto. Very truly yours, UNITED STATES COURT OF APPEALS, SECOND CIRCUIT, Hon. WILLIAM L. HUNGATE, DEAR REPRESENTATIVE HUNGATE: Thank you for your letter of June 30 enclosing the committee print of H.R. 5463. It goes without saying that I consider the revision of the Federal Rules of Evidence proposed by your subcommittee to constitute a very substantial improvement over the Rules submitted to Congress by the Supreme Court. On the subject to which my objections were primarily addressed, namely, the unfortunate effect of the proposed rules in litigation relating to state-created rights or defenses, I particularly applaud the changes made on pp. 12, et seq., relating to privileges and the change on p. 19 relating to competence of witnesses. Of course, I am also gratified by the proviso in Rule 801 (d) (1), the new material in Rules 803 (6) and 804 (b) (3), and the elimination of Rule 803 (24). In fact, if there are to be federal rules of evidence, I do not see how there could be much better ones than your subcommittee has proposed. There still remains for me the basic question whether the good such rules may accomplish will not be outweighted by the harm, even though you have substantially reduced the the latter. The arguments about the value of such rules to Department of Justice and other lawyers who conduct litigation in many districts and to judges who accept assignments outside their own state seem to me pretty small beer-a quite inadequate justification for so large an endeavor. Also, you will have to consider that to the extent you have subjected the rules to extensive and, in my view, desirable surgery, you have somewhat decreased their value for these purposes. Moreover, as a conceptual matter, I find it difficult to understand why, if when dealing with a claim or defense based on state law, matters such as privilege and competency should be determined by state rules of evidence, as you have wisely recognized, the admissibility of hearsay should be determined by a federal rule. However, I believe I have already said all I can usefully say on this subject. If your subcommittee concludes after full consideration that it is worthwhile to go ahead with this project in the improved form to which you have now moulded it, I would accept the decision with good grace. One minor point is this: I wonder whether the draft of Rule 606(b) really carries out the subcommittee's intent as expressed in its note. I would think the material in the second bracket should be restored. In rereading my testimony, as printed in the hearings, which I had to correct in a great hurry because I was leaving on a short vacation the very day when the type-script arrived, I have noticed a number of errors. Most of them are either obvious or unimportant, but there are two which do not fit those categories. One of these is on page 257, in my next to the last answer. The sentence reading "There are many appeals on questions of evidence" should say "There are not many appeals on questions of evidence." Somewhat less important, on page 255, in the first full paragraph, line 7, the word "agents" should be "acts". I know nothing can be done to correct printed copies that have been circulated to the public, but I would be grateful if the subcommittee could make these corrections in its official copy. Sincerely, 21-191-73—14 HENRY J. FRIENDLY. Hon. WILLIAM L. HUNGATE, NATIONAL BROADCASTING COMPANY, INC., House of Representatives, Washington, D.C. DEAR CONGRESSMAN HUNGATE: Thank you for sending me a copy of the Subcommittee draft of H.R. 5463 dated June 28, 1973. I want to congratulate the Subcommittee on the greatly improved draft Federal Rules of Evidence. As you may know, NBC had expressed concern that Article V on Privileges in the draft Rules in the form originally submitted to the Subcommittee would threaten First Amendment freedoms and the flow of information. The general rule which replaces the enumerated privileges effectively removes that threat-and, therefore, our objection to the bill. Sincerely, CORYDON B. DUNHAM. CASE WESTERN RESERVE UNIVERSITY, Hon. WILLIAM L. HUNGATE, Chairman, Subcommittee on Criminal Justice, Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR CONGRESSMAN HUNGATE: Thank you very much for sending me, in reply to my letter of July 3, 1973, a copy of the tentative Subcommittee draft of the proposed Federal Rules of Evidence. In your letter you very kindly asked for my further comments. I have studied the draft and wish to express certain views. As I understand your draft, the principal changes are the abolition of the chapter on Privilege (Rules 502-515) and the apparent general desire to limit the existence of "Federal common law of Evidence" (see Subcommittee Notes to Rule 501, Rule 402, Rule 1101(e), and the newly proposed § 1657 of Title 28, U.S.C.). I gather from the draft that it is the Subcommittee's general purpose to reduce the number of instances in which the federal courts should have new rules of evidence or should have rules different from the state rules. This is apparent, e.g., in the deletion of the entire chapter on Privilege (Rules 502-513), in the retention of the provision limiting the scope of cross-examination (Rule 611), and in the retention of the state Dead Man's statutes (Rule 601). While it may be argued that in this fashion the new Federal Code of Evidence will be much less comprehensive and will not meet the desire of a general codification, such tendency in my opinion is not necessarily objectionable from the legislative point of view, in view of the fact that at present a codification of the doubtful area of privilege may not be legislatively desirable. As I explained in my letter of July 3, 1973, I found the provision of Rule 509(a)(2) on privilege objectionable, and I am therefore happy to note that this provision is eliminated. However, I have a specific objection to the newly proposed Rule 501, and I like to address myself to this very particular problem. The problem is as follows. Assume that in a diversity case in a federal court, governed by Erie Railroad Co. v. Tompkins, 304 U.S. 65 (1938), questions of federal governmental privilege (state secrets, executive privilege or the like) arise in connection with discovery directed against a witness: what law should the court apply to the determination of such privilege, state or federal law? As I read the newly drafted provision of Rule 501, under the proviso of that Rule state law would apply, and, as I shall explain, I do not believe that the present law is to that effect. Admittedly, under Erie state law applies to the determination of issues of substantive law as it "supplies the rule of decision", but in my opinion (contrary to the view expressed in the Subcommittee Note to Rule 501) the proviso of Rule 501 to that limited extent did not leave "the law of privileges in its present state." While in general such assertion is correct, it is in my opinion not correct with respect to the particular problem here considered. Federal government privilege of the various different types has been invoked when the Government has not been a party to the litigation but merely a witness. For instance, in Machin v. Zuckert, 316 F. 2d 336 (D.C. Cir. 1963) (which originated as a suit by the air force pilot Machin against the United Aircraft Corporation, the manufacturer of the propeller), merely a subpoena was served on the Secretary of the Air Force but still the general federal law of executive privilege was applied; see also Freeman v. Seligson, 405 F. 2d 1326 (D.C. Cir. 1968) (where in ancillary bankruptcy proceedings the trustee petitioned for examination of the 1 Secretary of Agriculture); Boeing Airplane Company v. Coggeshall, 280 F. 2d 654 (D.C. Cir. 1960) (where general federal law of government privilege was discussed at 659); see also Pollen v. Ford Instrument Co., 26 F. Supp. 583 (E.D. N. Y. 1939); City of Philadelphia v. Westinghouse Elec. Corp., 210 F. Supp. 486, 488 (E.D. Po. 1962) (involving the privilege against the disclosure of grand jury minutes and citing many federal precedents); Atlantic City Electric Company v. General Electric Co., 244 F. Supp. 707 (S.D. N. Y. 1965). While several of the above-cited cases are not directly in point as concerns the hypothetical example given by me, the trend clearly appears that it is federal law which in every case determines the interpretation and scope of the federal governmental privilege. It is understandable that federal law alone should apply to the construction of the federal governmental privilege, whether it be the privilege of military secrets, diplomatic secrets, federal executive privilege, or secrecy of federal grand jury proceedings. Such view would seem to be sound and to be in accord with general views expressed by the Supreme Court in related fields (see Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421-427 (1964); Hinderlider v. La Plata River Co., 304 U.S. 92, 110 (1938)). Another example serves to highlight the unsoundness of the solution which, in my opinion, apparently follows from the proviso of proposed Rule 501. Assume that the Federal Government has instituted a suit against a private defendant under the False Claims Act, 31 U.S.C. §§ 231-233; assume further that the defense of the private party consists of the affirmative defense of release to which, under the particular facts of the case (see United States v. Yazell, 382 U.S. 341 (1966)), state law applies. Is it really the intention of Rule 501 that in such a case state law would govern the issue of government privilege if in connection with the defense of release an issue of military secrecy arises in discovery proceedings directed against a witness? In my opinion, the proviso of proposed Rule 501 should be redrafted so as to make certain that in the case of a state "claim or defense", despite the general application, of state law to the assertion of privileges, federal law should apply with respect to the interpretation of inherently federal privileges such as military or diplomatic secrets. If that should not be done, I fear that under proposed Rule 501 the interpretation of the concept of military and diplomatic secrets would become a matter of state law, possibly differing in the different jurisdictions. In that connection, it might also have to be considered whether the emphasis in the proposed Rules on "rules prescribed by the Supreme Court pursuant to statutory authority" (see Rule 402, Rule 501, Rule 1101(a)) and the apparent limitation of federal common law of evidence, should be changed. A minor comment of mine is as follows. The tentative draft eliminates Rule 105 (Summing up and Comment by Judge) for the reason that the issue is "primarily procedural rather than evidentiary and thus inappropriate in a code of evidence." (Subcommittee Note). It is, of course, a mere matter of terminology whether a matter is "procedural" or "evidentiary." But the more important matter, in my opinion, should be the consideration that the present Federal Rules of Civil Procedure do not contain any provision dealing with the summing up of evidence and the comment by the judge; and there seems to be no indication at the present time that such rules will soon be promulgated. Accordingly, it would be my suggestion to retain Rule 105. Very respectfully yours, SIDNEY B. JACOBY, Professor of Law. UNIVERSITY OF CALIFORNIA, LOS ANGELES, Re Federal Rules of Evidence Hon. WILLIAM L. HUNGATE, Chairman, Subcommittee on Criminal Justice, Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR SIR: INTRODUCTION I wish to thank you for this opportunity to comment on the tentative draft of H.R. 5463. Since the Subcommittee has apparently made the policy decision to rest its version of the rules on the same discredited doctrines that motivated the Supreme Court's Advisory Committee, my general response is one of disappointment. If passed, the bill would simply continue a set of rules that favor some liti By typographical error in my letter of July 3, 1973, the citation of that case was erroneously given as 180, rather than 280, F. 2d. |