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under the aegis of your subcommittee, which has clearly demonstrated a commendable insight into the problems presented by the original draft of the rules. Thank you again for having extended an opportunity for the presentation of views concerning this matter.

Very truly yours,

Re proposed Federal rules of evidence.
Congressman WILLIAM L. HUNGATE,

MELVIN B. LEWIS,

Professor of Law.

LAW OFFICES,

JAMES F. SCHAEFFER,

Memphis, Tenn., July 18, 1973..

Chairman, Special Subcommittee on Reform of Federal Criminal Laws, Committee on the Judiciary, House of Representatives, Washington, D.C.

DEAR CONGRESSMAN HUNGATE: We have carefully studied the revised draft of the proposed rules of evidence submitted by the House Subcommittee which you chair, and are pleased with the results and impressed with the thoroughness of the study which you have conducted. There remain, however, certain problems to which we wish to address ourselves for your further consideration. These include the following:

(1) Rule 406-Habit; Routine Practice. We have previously submitted an analysis and position paper in connection with this rule and have suggested that the same be amended. It was our understanding the Subcommittee staff had agreed with our basic suggestions and recommended the change. We note that the Subcommittee print retains this rule in its original form, which we believe to be too broadly drawn, and we request your reconsideration of the position paper earlier submitted to you.

(2) Rule 706-Court Appointed Experts. We have previously submitted a position paper to the subcommittee in opposition to this rule. It is possible, however, that you did not receive this paper in time to consider it prior to your study of this rule. We are particularly concerned that under the rule in its present form the jury may be informed that such an expert was selected by the judge. (3) Rule 803(1)-Present Sense Impressions. We submit with this letter a position paper in opposition to adoption of this rule. It is, in practical effect, a restatement of Rule 804(b) (2), which was stricken by the subcommittee. We feel this rule is even more dangerous and should also be eliminated.

(4) Rule 803(18)-Learned Treatises. We agree with the substance of this rule as an improvement on existing law, but believe it could be improved as outlined in our position paper. We appreciate your statement in your letter to me on July 9, 1973, that the committee will consider in the final draft phase the ATL position that the requirement that an expert be on the witness stand be eliminated.

The Association of Trial Lawyers of America wishes to express its thanks to the Subcommittee for an excellent legislative study of the rules to this point in their development. We will continue our study of the rules, and will submit additional suggestions or comments as necessary or requested. We urge you to call on us for any further work which would be of benefit to the Congress in the future consideration of these rules.

Very truly yours,

JAMES F. SCHAEFFER.

POSITION PAPER ON PROPOSED FEDERAL RULE OF EVIDENCE No. 803(1)

SUBMITTED FOR THE ASSOCIATION OF TRIAL LAWYERS OF AMERICA BY THE COMMITTEE ON FEDERAL EVIDENCE AND PROCEDURE; JAMES F. SCHAEFFER, CHAIRMAN, IN CONSULTATION WITH JOE A. MOORE, PROFESSOR OF LAW, MEMPHIS STATE UNIVERSITY, MEMPHIS, TENN.

PROPOSED RULE No. 803(1)

"The following are not excluded by the hearsay rule, even though the declarant 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."

COMMENT

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.

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The only language differential between the two rules is that 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) The utterance 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., Sec. 265.

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

"The admissibility of a declaration as res gestac is not determined by a stopwatch 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 ALR2d 1361, the court used the precise language set forth in Am. Jur. 2d. In so holding, the court referred to McCormick on Evidence, Sec. 272, as follows:

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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., Sec. 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.

U.S. COURT OF CLAIMS,
Washington, July 19, 1973.

Hon. WILLIAM L. HUNGATE,
Chairman, Subcommittee on Criminal Justice, Committee on the Judiciary,
House of Representatives, Washington D.C.

DEAR CHAIRMAN HUNGATE: This is in response to your June 30, 1973, request for comments on the Committee Print of a tentative Subcommittee draft of H.R. 5463, a bill to establish the Federal Rules of Evidence, and for other purposes. Commissioners of the United States Court of Claims sit as trial judges in nonjury cases to receive testimony and evidence on claims before the Court. In these trials, all evidence is admitted that is admissible under the statutes of the United States or under the rules of evidence applied in the United States District Court for the District of Columbia. It would be appropriate, therefore, in my opinion, to amend Rule 1101(a) of the Subcommittee draft of H.R. 5463 to make the new rules apply to the United States Court of Claims. This could be accomplished by inserting "the United States Court of Claims" in the first sentence of Rule 1101(a) and by amending the final sentence to read as follows: "The word 'judge' in these rules includes commissioners of the United States Court of Claims, United States magistrates and referees in bankruptcy."

With best personal regards,

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Re Federal Rules of Evidence.
Hon. WILLIAM L. HUNGATE,
Rayburn House Office Building,
Washington, D.C.

DEAR MR. CHAIRMAN: Thank you for your letter of June 30, 1973 and for the enclosed Committee Print of the Subcommittee draft of the proposed Federal Rules of Evidence.

As I testified, I have grave misgivings about prescribing uniform rules of evidence for the federal courts. Nevertheless, the Subcommittee draft is a tremendous improvement over the rules promulgated by the Supreme Court.

Particularly welcome are the Subcommittee's treatment of privilege, its deletion of proposed Rule 303 regarding presumptions in criminal cases, and its decision to look to State Law to determine competency of witnesses in civil diversity cases. I remain concerned about the breadth of impeachment of witnesses as to their character and conduct permitted by Rule 608. It's hard enough as it is to obtain the attendance of witnesses even under subpoena, and it will be harder still if the idea gets abroad that it's open season in court on their character and past conduct.

Finally, in connection with the business entry exception to the hearsay rules as defined in Rule 803(6), the Subcommittee may wish to reconsider the restriction of that exception to "business or professional" activity. Governments, labor unions and charitable organizations, for example, keep extensive records in the regular

course of their activities. It seems to me that these too should be admissible, but they might not be as Rule 803 (6) is presently worded.

In closing, Mr. Chairman, I would like to compliment you and the Subcommittee for your thorough hearings, your careful_consideration of these extensive proposed rules, and the vast improvements you have wrought. It has been a real privilege to watch nine able lawyers, of every political persuasion, thoughtfully and objectively weighing every line. You have done a real public service.

Respectfully,

STUART H. JOHNSON, Jr.

STATE OF ALASKA,
DEPARTMENT OF HEALTH AND SOCIAL SERVICES,
OFFICE OF THE COMMISSIONER,

Juneau, July 19, 1973.

Hon. WILLIAM L. HUNGATE,
House of Representatives,

Washington, D.C.

DEAR MR. HUNGATE: I am in receipt of the tentative draft of H.R. 5463, a bill to establish federal rules of evidence. On March 26, 1973 you wrote me and explained that the letter I had written Congressman Don Young on March 16, 1973 had come to your attention.

I stand on my original comments regarding S. 583. H.R. 5463 seems to have the same limitations as S. 583 in that physician-patient privileges are referred to only in Rule 504 under the definition of "psychotherapist." I can only assume that this definition would not extend the physician-patient privilege to matters not involving "the diagnosis and treatment of a mental or emotional condition." Since I cannot in good faith endorse such a distinction as the only privileged information that passes between physician-patient, I would strongly support the American Medical Association's request for limited physician-patient privileges. As Commissioner of Health and Social Services, I supervise a number of agencies having many social workers in various capacities. I am concerned that the definition of "psychotherapists" does not extend itself to that profession. I am particularly concerned about the question this generates in those states which have professional social worker licensure as "clinical social workers." If "psychotherapy" is to be the criteria for privilege then it should be expanded to include all judicially recognized professionals able to provide "psychotherapy." I thank you for this opportunity to comment. Sincerely,

FREDERICK MCGINNIS, Commissioner.

HILL, SHERMAN, MERONI, GROSS & SIMPSON,
ATTORNEYS AND COUNSELLORS AT LAW,
Chicago, Ill., July 19, 1973.

Re proposed Rules of Evidence for the U.S. courts and magistrates.
Hon. WILLIAM L. HUNGATE,

Chairman, Special Subcommittee on the Reform of Federal Criminal Laws, House
Committee on the Judiciary, Washington, D.C.

DEAR MR. HUNGATE: Since my earlier letter of June 15, 1973 to you, and since your earlier deliberations, court decisions have been published further illustrating the desirability, if not the absolute practical necessity, of enacting all inclusive Federal Rules of Evidence including uniform rules regarding Privilege.

In Kewanee v. Bicron, 178 USPQ 3, (May 10, 1973), the Sixth Circuit Court of Appeals reiterated the long recognized rule that patent cases are the province of the United States by mandate of the United States Constitution, and States have been preempted from acting in that area. The Kewanne case added to that rationale cases involving "trade secrets" that could have been patented but intentionally never were.

In Sperberg v. Firestone Tire & Rubber Co., BNA (No. 130) D-1, (May 4, 1973), the District Court for the Northern District of Ohio, Eastern Division, ruled that venue in patent cases was strictly limited by 28 USC 1400 (a very restrictive venue provision indeed) and class actions under Rule 23 could not affect a "class" defendant not otherwise reachable under 28 USC § 1400 in the Judicial District wherein the "class action" was filed.

Both of these very recent cases emphasize the fact that cases involving patents. or related proprietary rights are rather rigidly controlled, that they must be brought in Federal Courts, and that the choice of the particular Federal District for suit is strictly limited. Since the patent grant is federal, and the court ruling. upon it or related matters must be federal, one could properly expect uniformity of the trial proceedings and evidenciary rulings no matter what district is the forum. The United States Supreme Court, in University of Illinois v. BlondlerTongue, 402 U.S. 313, has just reversed its long-standing rule and established as a completely new doctrine (to improve uniformity and reduce the amount of litigation over an individual patent) that in normal circumstances, a patent owner will henceforth be entitled to only one trial where that trial results in a ruling of patent invalidity. In fact, however, no real uniformity of ruling can be expected unless the Rules of Evidence are uniform in all Judicial Districts in which patent rights could be judicially determined. The opportunity is at hand to provide that uniformity and must not be allowed to pass by. We believe it extremely important that the Rules of Evidence, including discovery of "privileged" documents, be uniform so that where the one trial takes place, it will be based on universally accepted evidence and discovery proceedings.

Forum shopping based upon procedural rules of evidence should not be encouraged or allowed, and cannot be avoided if the basic rights to discover evidence in the form of internal corporate materials vary from District to District. To give in, as proposed in the Committee Print, Section 501, and specify that the Rules regarding Attorney-Client and other Privileges, will be determined under the common law, is to encourage, in fact to establish, multitude Rules of Privilege, and hence corporate policies regarding communication, all with respect to subject matters uniformly thought of, and legally considered by Congress and the Courts as properly one federal, rather than state, matter. The Federal Rules of Evidence, including sections relating to privilege must, we submit, provide uniformity at least in cases where, as in patent cases, the matter at issue is recognized by all as an exclusively federal question.

Sincerely yours,

LEWIS T. STEADMAN.

COMMONWEALTH OF KENTUCKY,
OFFICE OF THE ATTORNEY GENERAL,
Frankfort, Ky., July 20, 1973.

SUBCOMMITTEE ON CRIMINAL JUSTICE,
House Judiciary Committee,
Washington, D.C.

GENTLEMEN: Congressman Romano L. Mazzoli has forwarded to this office a copy of proposed Federal Rules of Evidence, developed by the Subcommittee on Criminal Justice, House Judiciary Committee, for our attention and comments.

Two members of our staff attended seminars in Washington, D.C., and Atlanta, Georgia, dealing with these proposed Rule changes, and the following are their studied comments:

We have carefully reviewed the changes proposed by the Subcommittee and feel that an excellent and thorough effort has been made toward improvement of the Federal Rules of Evidence.

The Subcommittee's elimination of the proposed specific rules on privileges is' commendable. As now proposed, through a single Rule, 501, the law of privileges will continue to be developed by the Federal courts governed by the principles of Erie R. Co. v. Tompkins, 304 U.S. 64, that is, to mandate the application of State privilege law in civil actions. This is the position unquestionably that should be taken.

Furthermore, by elimination of the proposed specific rules on privileges the Subcommittee has also eliminated an aspect of the Federal Rules of Evidence which could foster undesired forum shopping between the State and Federal court.

As to Rule 601, the Subcommittee has properly seen fit to amend the Rule to' make competency in civil actions determinable in accordance with State law with respect to claims or defenses as to which the State law supplies the rule of decision. As the Subcommittee has noted, this added amendment to the Rule has the most effect on those States, as Kentucky, which have a Dead Man's Statute, irrespective of the merits of this type of statute.

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