Rule 404(b) You inquire as to whether the change in language between the March 1971 draft and the draft transmitted to the Congress is not primarily one of emphasis. The purpose of the change was to conform the proposed rule to the prefatory statement preceding the hearsay exceptions in proposed Rules 803 and 804. The need is for a form of statement which avoids suggesting that the evidence may not be objectionable under some other rule. The change in phraseology did not reflect a change in the thinking of the Advisory Committee but was made with a view to clarification. To that extent the change of language was one of emphasis. Rule 405 (a) (1) You ask why the last sentence was added to the 1969 draft. The sentence to which you refer first appears in the 1971 draft. At that time what is now the next to the last paragraph of the Advisory Committee's Note was added by way of explanation. Subsequently what is now the last paragraph was added by way of further explanation. The sentence was added for purposes of clarification and simplification. In most jurisdictions, cross-examination of reputation witnesses as to specific instances of conduct has been limited to "have you heard" questions, to the exclusion of questions directed to the incident itself. As an exercise in logic this approach has some specious appeal, but realistically viewed it is an absurdity. The distinction becomes even more unacceptable when character is proved through the medium of opinion evidence. The sentence eliminates it. The sentence makes clear that specific instances may not be recited in the direct testimony of reputation and opinion witnesses. It also makes clear that crossexamination is not limited to such matters as opportunity to learn of reputation or to form an opinion but extends as well to relevant specific instances. (2) You ask what was the reasoning behind recognizing opinion evidence as a means of proving character, thereby departing from the usual contemporary practice. The matter is covered in 7 Wigmore §§ 1980-1986, especially § 1986. In brief, here is what Wigmore says: The original practice called for the personal opinion of the witness, based on personal acquaintance. This was the English rule until the 1860's, when it was determined that the character of an accused was provable only by reputation. The original rule still prevails as to the character of witnesses. [To the same effect is Cross, Evidence 221, 222 (3rd ed. 1967).] The early American rule followed the original English rule, but eventually departed from it in favor of reputation, though a combination of reputation and opinion came to prevail with regard to the character of witnesses for veracity. The so-called rule against opinions is not a satisfactory ground for abandoning the original rule. Opinion based on personal acquaintance is far more helpful than some supposed reputation consisting of "the secondhand, irresponsible product of multiplied guesses and gossip." See also, with respect to proving the character of witnesses for veracity, McCormick § 44, at 90, 91. Rule 405(b) (1) You ask whether I can supply any further justification for support of the change being made in existing law by allowing inquiries as to specific instances of conduct as part of a case in chief when character is in issue. I must observe at the outset that the subdivision simply states existing law and in no sense represents a change. McCormick § 187 (2nd ed.); 1 Wigmore §§ 202-213. The subdivision applies, it must be noted, only in the relatively rare situations where character is truly an issue in the case, e.g. chaste character of victim in prosecution for seduction, incompletency of driver in action for negligently entrusting a vehicle. What is commonly called "putting his character in issue" by an accused does not actually involve character in issue, but rather a circumstantial use of character, which is not within the subdivision. The justification for the rule is that character, when truly in issue, deserves the most searching inquiry and convincing proof. Specific incidents meet that standard and are therefore admitted despite problems of collateral issues and possible surprise. See McCormick and Wigmore, supra. (2) In response to your request for copies of comments received by the Advisory Committee on this proposed rule, I will, of course, supply them. Since some delay will be involved, however, I will send them later under separate cover. It was a pleasure to see you last week, and I particularly appreciated the ride to the airport. Sincerely yours, EDWARD W. CLEARY, Reporter. ASSOCIATION OF AMERICAN PUBLISHERS, INC., Hon. WILLIAM L. HUNGATE, Chairman, Special Subcommittee on Reform of Federal Criminal Laws, Committee on the Judiciary, Rayburn House Office Building, Washington, D.Ć. DEAR MR. CHAIRMAN: We are submitting herewith a statement on behalf of the Association of American Publishers on the proposed Uniform Federal Rules of Evidence which are currently before your Subcommittee. Our statement is being submitted in sufficient copies for each member of the Subcommittee. Thank you for your consideration of our views. RICHARD P. KLEEMAN, Assistant Director, Washington Office. STATEMENT SUBMITTED ON BEHALF OF THE ASSOCIATION OF AMERICAN PUBLISHERS, INC., TO THE SPECIAL SUBCOMMITTEE ON REFORM OF FEDERAL CRIMINAL LAWS REGARDING THE UNIFORM FEDERAL RULES OF EVIDENCE Mr. Chairman and Members of the Subcommittee, our Association, which represents the book and educational materials publishing industry, welcomed the action of the Congress in postponing the effective date of the Uniform Federal Rules of Evidence until there has been close scrutiny of the proposed rules and positive action upon them by the Congress. In the following statement, our Association, whose members are responsible for at least three-fourths of the annual American production of books, will confine its comments on the substance of the proposed rules to those issues most relevant to publishing in particular and to First Amendment freedoms in general. Since the people's right of access to information stems directly from First Amendment protection of the freedom of speech and of the press, any evidentiary rules must of necessity comply with First Amendment mandates. We shall, therefore, limit our comments to Article 5 as it relates to privileges and "secrets of state." We feel there is a substantial question as to whether Article 5 of the proposed Rules on privileges can survive close constitutional scrutiny. Completely absent from Article 5 is any privilege covering confidential sources and information given to news and information gatherers and disseminators. Recent experience and many pages of testimony before other Congressional subcommittees specifically considering "shield" legislation is sufficient evidence of the fact that careful consideration must be given as to whether such a privilege should be included in any comprehensive legislation on privileges. The omission of a "newsman's" protection is highlighted by the inclusion of a comprehensive privilege to the government to refuse to disclose the identity of a government informer. Inclusion of the identity-of-informer privilege would seem to be based upon a concern for the well-being of the particular informer and a general desire to encourage others to impart information without the fear of excessive self-involvement or risk. Certainly the purpose of shield legislation is no less vital; it is also very analogous. The absence of a "newsman's" protection resulting in the compulsory disclosure of the identity of confidential sources could very well endanger the well-being of a particular source and would certainly lead to a reluctance on the part of other potential sources to impart confidential information. The overriding risk is, of course, the impediment to access to information and a hindrance to the free flow of information to the public. Absence of a "newsman's" protection in the Rules of Evidence would also result in the invalidation of the various state shield laws for federal proceedings. Hence, the efforts already made in the direction of re-fortifying the First Amendment in its goal to create and protect a free flow of information to the public will suffer a tremendous setback. Another problem raised by Article 5 of the Rules is the comprehensive Rule 509 on "secrets of state" and "other official information". While a concept of a privilege for state secrets is not new, Rule 509 expands the categories of information to which the privilege applics, decreases the government's burden of showing the need for non-disclosure, and limits the procedural rights of the parties and counsel to contest the government's claim. With respect to "secrets of state", the Rule does not require any showing that disclosure would be contrary to the public interest. It does not even allow the court to review the "secret" information for the purpose of making its own de 21-191-73-3 termination of that issue. Moreover, the definition of "secrets of state" is sufficiently broad to allow the government to claim the privilege with respect to any information relating to defense or international relations. The government need only show "reasonable likelihood of danger" that the evidence will reveal a secret of state. Much information which may fall within that phraseology has been revealed to the public, contrary to the government's desires, and has caused no harm to the national security whatsoever. The obvious example in the Pentagon Papers. Even now there is a misunderstanding among the State Department, the Senate Foreign Relations Committee and U.S. District Court Judge Byrne, presiding over the Ellsberg case, as to what portions of the documents are still "secret". The opinions of the Supreme Court Justices in the Pentagon Papers case (New York Times v. United States) are helpful in pointing out the problems with Rule 509. First is the over-breadth of the definition of a "secret of state". That definition is even less precise than that of "security" as used by the government in the Pentagon Papers case. In his opinion in that case, Justice Black noted that: "The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic." The decisions in the Pentagon Papers case also illustrate the problems with the procedures set forth in Rule 509. As noted above, these procedures do not require the government to submit the material in question to the court for its own scrutiny and do not impose any burden on the government to show that actual harm will result from disclosure. In discussing the Pentagon Papers themselves and not just government assertions with respect thereto-Justice Stewart stated: "I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate and irreparable damage to our nation or its people." Similarly, Justice Brennan found that the Government had to make a strong showing of "direct, immediate and irreparable" harm. "Thus, only governmental allegation and proof that publication must inevitably, directly and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order. In no event may mere conclusions be sufficient: for if the Executive Branch seeks judicial aid in preventing publication, it must inevitably submit the basis on which that aid is sought to scrutiny by the judiciary." Neither the basis for this sort of analysis, nor the imposition of a burden is contained in Rule 509. Although the Supreme Court has passed on the Uniform Rules of Evidence, it is clear from the dissent of Justice Douglas, that the Court did not particularly review the Rules and cannot be said to have sanctioned any one or all of them. It would seem that Rule 509 is so directly in conflict with recent opinions of the Supreme Court Justices that that Rule would probably not withstand scrutiny by the Court. This, of course, is apart from the issue of whether the Rule appears proper to the Congress. With respect to other official information, we question whether such a category for privilege was ever before in existence. Its broadness and lack of compelling need for non-disclosure is indicated by the Rule itself, which allows any attorney representing the government to assert the privilege. The mere requirement that the disclosure be shown to be contrary to the public interest does not begin to bring it within the realm of genuine national security requirements. Indeed, it could be argued that any information which might be embarrassing to government officials could be contrary to the public interest by weakening the public's confidence in its officials. Yet, that is exactly the kind of information to which the public, let alone any parties in litigation with the government, is entitled. Another problem is raised by the procedures contained in 509 (c) with respect to the rights of counsel to oppose the assertion of the privilege by the government. As to "secrets of state", counsel can be precluded from seeing the government's presentation of the claim, let alone the underlying material, and counsel can be precluded from an opportunity to inspect "official information" presented to the Court in camera. In terms of in camera inspection, the Rule ignores completely the traditional distinction between purely factual information and matters of law and policy. Presumably even solely factual material would not be available for inspection by opposing counsel. It does appear that the drafters of Rule 509 (c) forgot that the American legal system is predicated on the belief that Courts can best make decisions when issues are presented by opposing adversaries. In short, we feel that Rule 509 so greatly increases the possibility of government secrecy and hence so greatly decreases the public's access to information to which it is entitled, that it raises substantial questions of conflict with the clear goals of the First Amendment. Any legislation dealing with the privilege of state secrets or other official information must be carefully drafted to impinge upon the First Amendment as little as possible. Rule 509 does not comply with that need for strictly delimited legislation. Added to the problems inherent with the Rules themselves, is the disturbing fact, brought out in recent hearings, that Rule 509 was added to the proposed Rules at the request of the government, and without full consideration of all persons who participated in drafting other sections of the Rules. In view of the foregoing, we believe it essential that Congress, after subjecting the Rules to thorough analysis, develop Rules which are compatible with the overriding considerations of First Amendment goals. Hon. WILLIAM L. HUNGATE, CENTER FOR LAW AND SOCIAL POLICY, Chairman, Special Subcommittee of the Committee on the Judiciary, Rayburn Building, Washington, D.C. DEAR CHAIRMAN HUNGATE: In response to your request, we enclose a brief statement of the problems we have encountered with each of the Federal Evidence Rules the Subcommittee is still considering that we previously identified as "controversial" in our testimony on behalf of the Washington Council of Lawyers. More important than these individual problems is our overriding concern that whatever revisions in the Rules your Subcommittee adopts be exposed to the widest spectrum of the bar and the public before they are formally proposed as legislation. The crucial importance of wide public circulation and opportunity for comment has been amply demonstrated by the flaws in the Court-proposed Rules. The need is just as great now with respect to the Subcommittee's own draft Rules. To ensure that bar and lay groups and individuals are afforded the maximum feasible opportunity to review the revisions in the Rules and bring their views to the Subcommittee's attention in timely fashion, we believe it is essential for the Subcommittee as a whole to consider and decide upon effective mechanisms for guaranteeing that both the bar and the public are: (1) fully informed that the Subcommittee plans to recommend revised Rules in the form of legislation; (2) given an adequate opportunity to obtain copies of the proposed revisions and adequate time to study and report on them; (3) given an adequate opportunity to present their views to the Subcommittee through both (a) written comments and (b) public hearings. We believe the Subcommittee should also plan: (4) to meet again following the public hearings to make further changes indicated to be necessary. We are especially concerned that those the Subcommittee affirmatively alerts to its proposed legislation include not just the national and state bar associations but also the criminal defense bar, legal services bar, public interest and civil liberties and civil rights lawyers and groups, the poverty bar, and the public at large. In short, we believe it is essential that the Subcommittee not make the same mistake of inadequate provision for public scrutiny and comment that was harmful to the Court-proposed Rules and instrumental in provoking the opposition of much of the bar. An additional problem you will have to face is revision and/or rewriting of the accompanying explanatory Notes. Notes to other procedural rules promulgated by the Supreme Court have been integral to the rules' interpretation and application. Messrs. Cleary and Jenner suggested in their testimony that that is also true here: purposes and explanations of rules are often found only in the Notes. Without them, the Rules may lack the supporting material necessary for just and meaningful application. Whether the Subcommittee will choose to do away with Notes, or rewrite them and issue them in the form of a Committee Report, or some other alternative, should be a subject on which members of the Bar (and especially those involved in the drafting processes on the Advisory and Standing Committee) are invited to comment and testify at public hearings. Sincerely, CHARLES R. HALPERN, Rule 606(b)-Impeachment of Jury Verdicts. Comments to the Advisory Committee and the legal literature reveals a considerable difference of opinion about the best substantive rule in this area. Since it appears questionable whether the Rule as drafted reflects its purpose as stated by the accompanying Notes, and since this is arguably a matter of substantive law (concerning proper grounds for a new trial or reversal on appeal) that ought not to be dealt with under the rubric of a witness' "competency,' one solution to the problems involved might be to omit the Rule altogether and leave the matter to caselaw. Rule 607-Impeachment of a Party's Own Witness. Criminal defense lawyers apparently fear that this new rule may be subject to abuse by the Government in criminal prosecutions (see, c.g., NLADA testimony). This problem would presumably be alleviated by amending the Rule to apply only in civil cases, where the need for the new rule is strongest. Rule 608-Character evidence. Rule 608 must be read in conjunction with Rules 404 and 405. Together, these rules would (a) permit impeachment of a witness' character by testimony relating not just to his "reputation" for truthfulness but others' "opinions" about the witness, and (b) permit inquiring into all manner of a witness' former conduct to impeach him, on cross. As the Note admits, “modern practice has purported" to repudiate the first rule. The second, as Mr. Johnson points out in his letter to Chairman Hungate dated April 6, 1973, "may authorize open season on witnesses. . . in the federal courts." This general broadening of the admissibility of character evidence is something the Subcommittee might study as a whole, investigating and making its own determination of the existing law and practice in federal courts, with a view to limiting impeachment of a witness' character to "reputation" evidence and excluding altogether impeachment by prior conduct falling short of criminal charges or convictions. Rule 609-Impeachment By Prior Conviction. First, this Rule is inconsistent with the underlying thrust of Rules 404, 405, and 608 that limit use of character evidence to that closely related to truthfulness. A consistent Rule here would permit impeachment only by prior convictions involving dishonesty or perhaps moral turpitude (e.g., Rule 609 (a) (2), now applicable only to misdemeanors). Second, the Rule as now drafted is the only Rule that explicitly contradicts and is inconsistent with Rule 403, permitting and requiring the trial judge to exclude evidence whose potential for prejudice outweighs its probative value. The existing Rule 609 does not permit the trial judge any discretion, but commands him to admit evidence he may well believe should not be admitted. Third, the Advisory Committee's own considered view would have recognized such discretion in the trial judge (March 1971 Draft), and this view ought to be given weight. If the Subcommittee decides to adopt the existing no-discretion approach, two difficulties remain. First, impeachment by juvenile court convictions apparently contradicts present law. Second, the "ten year time cut-off" has apparently been changed from the Advisory Committee's own formulation to one that violates the stated purpose of the provision. Rule 706—Court Appointed Experts. Trial lawyers' groups' reports to the Advisory Committee suggested that in civil cases this provision could upset the litigative balance unfairly in many instances. Since the Federal Criminal Rules already provide for such experts in criminal cases, these objections could presumably be met simply be deleting this Rule. Article VIII-Hearsay. Other groups testified at great length on this article. We note that the most vociferous objections to Article VIII might be met by making a number of small changes such as eliminating Rule 803(24) and altering the definition in the Rule and Notes of "unavailability for trial." Article V-Privileges, Etc. The bulk of our previous testimony adequately presented the general and specific objections to Article V: problems of constitutionality and federalism; a bias against personal privacy and in favor of Governmental secrecy; unprecedented new rules for Governmental witholding of information; etc. The simplest way to meet the many objections to this Article made by various witnesses would, of course, simply be to omit the Article in its entirety. |