inquire whether the rule is congruent with the underlying theory, and find that it is not, at least in its present verbal formulation. (b) Analysis of Rule 703 in Light of its Rationale Explicit and implicit in the example quoted above from the Committee Notes on Rule 703 (1971 Fed. R. Ev. at p. 404) are three assumptions: First, that in the usual case "most" of the outside data relied on by the expert "are admissible in evidence," but only at the price of great waste of time in calling authenticating witnesses whose testimony will almost always prove to be uncontroverted, incontrovertible, and therefore purely formal and useless; Second, that the expert is an honest and sincere professional who is interested only in searching for the truth, and not in upholding or defeating a cause: Third, and perhaps most importantly, the example includes the unspoken premise that others--here the patient and his family-have themselves relied on the expert's opinion so formed in making important decisions, or permitting them to be made by the physician. And the fourth matter about the rule bears noting: Unlike certain other rules which require preliminary findings by the court or permit a different treatment in special circumstances, the rule is flat and inflexible. In each of these respects the rule as now stated appears to be deficient. As to the first assumption, the Rule's statement is simply that "if of a type reasonably relied on by experts in the particular field in forming opinions upon the subject, the facts or data need not be admissible in evidence." This is too easy and for two reasons: (1) It has been held that the first branch of the statement is satisfied merely by the witness' ipse dixit 12 and in many situations there may be no other way to prove or disprove it; (2) the kind of inadmissibility we are talking about is hearsay inadmissibility in circumstances where authentication appears to be both time-consuming and unnecessary, but the clause "need not be admissible in evidence" is far broader than this and stamps approval on every kind of inadmissible evidence as the basis for competent (in the evidentiary sense) expert opinion. As to the second assumption venality of experts is unfortunately a fact more common than one would like to have to acknowledge. This, like Mr. Justice Jackson's observation about the efficacy of cautionary instructions to juries where inadmissible evidence has been heard and stricken (Krulewitch v. United States, 336 U.S. 440, 453 (1949) (concurring opinion) is something lawyers know. Thirdly, there are experts and experts. As the Committee notes, "The physician makes life-and-death decisions" which his patients and their loved onces accept. The petroleum engineer like Jeffrey forms expert opinions on the basis of which millions change hands. The structural engineer makes decisions on which office buildings, great hydroelectric projects, airplanes or ships are built, and which involve similar millions in investment as well as the safety of thousands of people. Other "experts" who may have "knowledge, skill, experience, training, or education" in this field or that have never made a decision on any important question or rendered an opinion on which anyone else relied for an instant. The opinion of that kind of expert thus lacks the validating force of the fact that others have relied on his opinions at their own risk, based on the kind of hearsay evidence we are talking about. Finally, there may well be situations in which additional checkreins on freewheeling opinion appear to be indicated, and provision for those cases should be made in the rule. (c) Recommendation In the light of what has been said, we recommend that Rule 703 be redrafted along the following lines: "Rule 703. Bases of Opinion Testimony by Experts.. "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing. The facts or data need not be offered or admitted in evidence if: (a) they would otherwise be admissible if authenticated by those who made them known to the expert; and (b) they are of a type reasonably and ordinarily relied upon without authentication by experts in the particular 12 "Nowhere has it been argued that the records consulted by Jeffrey were other than of the type customarily relied on by experts in valuing oil properties. Jeffrey so testified [sic] and this testimony was never challenged." United States v. Williams, 447 F.2d 1285, 1291-92 (5th Cir. 1971). field, in forming opinions or inferences upon the subject; and (c) the opinions or inférences so formed are reasonably and customarily relied on by those for whose benefit they are formed, for the purpose of making or permitting to be made important personal, economic, or similar decisions. In any case the court in its discretion, in the interest of justice, may require such facts or data to be proved like other evidence, before permitting an opinion or inference based upon them to be expressed." 3. Analysis of the Rule That Facts or Data Underlying an Expert Opinion Need Not Be Disclosed on Direct Examination Rule 705 is as follows: "The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the judge requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination." The reasons given for the proposed Rule are not satisfactory. (1971 Fed. R. Ev., p. 406.) They are (1) that the "hypothetical question has been the target of a great deal of criticism . . ."; (2) that the “elimination of the requirement of preliminary disclosure at the trial of underlying facts or data has a long background of support"; and (3) that "if the objection-is made that leaving it to the crossexaminer to bring out the supporting data is essentially unfair, the answer is that he is under no compulsion to bring out any facts or data except those unfavorable to the opinion.' The first reason is not any reason at all, since the rule applies to all expert testimony, not only that given in response to a hypothetical question, and the hypothetical question is now largely out of fashion anyway. The second is irrelevant since the fact of support is meaningless: what are the reasons for it? The third is naive. Very few cross-examiners can gain expertise in a scientific or technical subject in preparation for one trial that can begin to match the lifetime knowledge of a wise and wily expert witness. More and more the expert is becoming wily as well as wise, and taking the view that his task is to support the cause of whoever pays his bill. The question is really only one of emphasis: Should mandatory disclosure on direct examination of underlying facts or data be the exception or the rule? The Committee on Practice and Procedure has decided it shall be the exception; we think it should be the general rule, and for three independent reasons: (a) Where the adversary seeking to require disclosure has de burden of showing cause of showing that this is the exceptional case in which the general rule should not be followed--he may often have to make his objection to a point at which the record really does not permit the judge to rule intellingently either way; this would not be true if in a particular case there were the rare facts that would justify nondisclosure: (b) Requiring disclosure of underlying facts or data before the opinion is permitted to be expressed will allow an opportunity for voir dire with respect to them; and thus permit exclusion of some "opinions" so lacking in competent foundation that they should never get before the trier of fact at all. Where disclosure is not made until cross-examination, and a motion to strike follows, the temptation is present to leave an incompetent opinion in the record "for what it is worth"; and (c) It is "essentially unfair" to leave it to the cross-examiner to bring out the facts or data underlying an opinion of an expert. It is a home truth that an expert's opinion is no better than the facts on which it is based. To let counsel who sponsors the witness decide whether to disclose those facts on direct, or let his adversary take his chances, smacks of a return to the theory that a trial is a game of wits.13 For these reasons we recommend that Rule 705 be rewritten somewhat as follows: "Rule 705. Disclosure of Facts or Data Underlying Expert Opinion "The expert shall disclose the investigations, facts, and data underlying his opinion or inference before expressing his opinion or inference or giving his reasons therefor. Opportunity will be given for preliminary cross-examination concerning such investigations, facts, and data before the expression by the expert of his opinion or inference. This Rule is subject to modification by the judge only in exceptional circumstances for good cause shown." 13 The D.C. Circuit, per Bazelon, Ch.J.. assumed without discussion of the point that an expert would give his reasons on direct. In drafting its "Court's Instruction to Expert Witness in Cases Involving the Insanity Defense' ", it included the following: "... [You may not state conclusions or opinions as an expert unless you also tell the jury what investigations, observations, reasoning, and medical theory led to your opinion." Washington v. United States, 390 F.2d 444, 457 (1967). U.S. DISTRICT COURT, Congressman WILLIAM L. HUNGATE, Chairman of the Subcommittee on Criminal Justice, DEAR CONGRESSMAN HUNGATE: I have received a copy of H.R. 5463 from the Committee on Rules of Practice and Procedure of the Judicial Conference. A quick reading of your bill indicates that the most objectionable portions of the proposed rules have been eliminated. Nevertheless, I still am of the firm opinion that it is impossible to condense the law of evidence fairly and accurately into a set of rules, and being so convinced suggest that our entire judicial system would be better off if the federal rules of evidence as originally proposed, or as amended by your subcommittee, were not passed. Our entire legal system would benefit if we ceased changing just for the purpose of changing and if committees of the Judicial Conference would cease looking for opportunities to do so. These rules represent change for the sake of change only. I do not think we need them. WILBUR D. OWENS, Jr., Sincerely, U.S. Judge. COMMITTEE ON RULES OF PRACTICE AND PROCEDURE, HERBERT E. HOFFMAN, Esq., Counsel, Subcommittee on Criminal Justice, Rayburn House Office Building, Washington, D.C. DEAR MR. HOFFMAN: The Advisory Committee on Federal Rules of Evidence and the Committee on Rules of Practice and Procedure of the Judicial Conference met jointly on July 18th and 19th to consider the amendments to the Rules of Evidence proposed by the Subcommittee on Criminal Justice. In due course you will receive their report. Meanwhile it was thought better that I bring to your attention a couple of matters on an informal basis. The stylistic purity of Rule 611(c) would be enhanced by deletion of "such." Small support for this usage will be found in the standard works. The joint committees do not disagree with the conclusion stated in the Subcommittee Note to Rule 803(4) in view of the fact that the sole effect of the rule is to exempt the various matters from the operation of the hearsay rule. Other principles may still require exclusion. Nor do the joint subcommittees disagree with the result reached in the Subcommittee Note to Rule 803(5). However, neither this rule nor the subdivision "bars" any evidence; rather, an item merely fails to qualify as an exception. Of course, an item which fails to qualify under one subparagraph may qualify under another. Sincerely, EDWARD W. CLEARY, Reporter. P.S.-On my own motion, I am unable to resist adding, with regard to the amendment to Rule 803(16), that Senator Dirksen did not say "an idea the time of which has come." GREENFIELD, DAVIDSON & MANDELSTAMM, St. Louis, Mo., July 25, 1973. Re proposed Rules of Evidence. Hon. WILLIAM A. HUNGATE, Congress of the United States, Cannon House Office Building, DEAR BILL: By this time you have received Karl Blanchard's comments made on behalf of an ad hoc committee of the Missouri Bar on the proposed Federal Rules of Evidence. I would like to add one note. (I am not certain we need a code of evidence and there are some matters left in I wish were not in). The excisions were not capricious and represent no meat axe approach. I think the end result shows a skilled handling of it with a scalpel. As lawyers the members can take professional satisfaction from their constructive approach to highly controversial matters. Of course from you, I would expect no less. Sincerely, JOHN L. DAVIDSON, Jr. DYCHE, WRIGHT, SULLIVAN, BAILEY & KING, Re Tentative subcommittee of H.R. 5463. Hon. WILLIAM L. HUNGATE, Chairman, Subcommittee on Criminal Justice, House Judiciary Committee, Congress of the United States, Washington, D.C. DEAR CONGRESSMAN HUNGATE: The following are a series of comments which may be helpful to the Committee in making a final determination of the content of H.R. 5463. Thise comments are based upon the principal that the Supreme Court of the United States promulgated the Federal Rules of Evidence in order to provide a uniform system of evidentuary rules applicable to all Federal District Courts regardless of the state in which they are located. The intent of the rules as expressed in Rule 102, is that "the truth may be ascertained and proceedings justly determined". Proposed Rule 105 (Summing Up And Comment By Judge) should be retained in the Federal Rules of Evidence. There may be some basis for the argument that comment on the weight of evidence by Federal Judge is procedural rather than evidentuary, however, there can be no doubt that this practice does influence how a jury will view evidence introduced at a trial and therefore should be regulated by a definitive standard rather than developed on a case by case basis. Proposed Rule 201(g) should be retained in the final draft of the Federal Rules. One of the major objectives of a Federal District Judge is to eliminate non-contested issues from presentation to a jury. In accordance with this goal, the Federal Bench encourages, and, in fact, demands rigid stipulation agreements of undisputed facts, etc. The deletion of subdivision (g) would result in the useless presentation of additional evidence to attempt to discredit judicial notice. The forum for challenging judicial notice is not the trial court. If a party feels that judicial notice has been improperly taken they should appeal that determination to the Court of Appeals. The deleted Rule 303 (Presumptions in Criminal Cases) should be included in the final draft of the Federal Rules. Clarification of the scope of a presumption in a criminal case is critical to the guaranty of the rights of the defendant. The Rule, as proposed by the United States Supreme Court protects these rights and is in such a form as to not result in unnecessary and useless litigation. Proposed Article V (Privileges) should be included in the final draft of the Federal Rules. The simple statement substituted by the Committee seems to go against the spirit and intent of the Federal Rules. In the first place it provides that a defendant's rights will be determined by where his case is tried, in that the privilege will be determined on a basis of state law and secondly, where state law has not settled the question it seems to open the doors to a flood of litigation as to what should be privileged and what should not be privileged. If the intent of the Federal Rules is to provide a single Federal system of evidentuary rule to insure fairness wherever a litigant brings a cause of action or is sued, then specific rules of privilege are essential. I am aware that this area of the proposed rules probably created more discussions than any other, however some acceptable draft should be possible. I would strongly recommend that the Committee accept the draft of the United States Supreme Court since it seems to provide a fair and consistent set of rules. Proposed Rule 601 (General Rule of Competency) as amended by the Committee again seems to fly in the face of the intent of the Federal Rules of Evidence. Here again, the Committee has left the determination of what the Rules of Evidence in the Federal jurisdiction will be to the states. It opens the door to "forum shopping" and affects substantive rights. Proposed Rule 611(b), expanded the scope of cross-examination in such a manner as to provide an attorney with the opportunity of eliciting any additional information which was relevant to any issue in the case. As amended, this Rule would limit cross-examination and once again provide the opportunity to "hide the ball". The intent of the Federal Rules was to provide an expanded opportunity to arrive at the truth, whatever the truth may be. In my opinion, the amended Rule 611(b) is inconsistent with that premise. Amended Rule 612 (Writing Used to Refresh Memory) is the same kind of "hide the ball" amendment as Rule 611(b). Once again the intent should be to provide the opposing council with every possible means of the arriving at the truth, within the Constitutional limits. Amended Rule 802(6) seems to be an effort at protecting business establishments from legitimate claims which may arise as a result of unlawful transactions. The only standard that should be required of a business memorandum or record is that it be shown to have been written in the course of a regularly conducted activity of the business. The committee note concerning insufficient guaranties of reliability in records made in the course of regularly conducted non-business or non-professional activities would seem to be a comment directed toward the weight of evidence rather the admissibility of evidence. In the search for truth the jury should be allowed this discretion. Amended Rule 804(b)(2) (Statement of Recent Perception) should be dropped and the final draft of the Federal Rules of Evidence substituted. Here again, the jury should be able to determine the weight given to evidence of this nature. The surrounding circumstances outlined in the draft by the Supreme Court provide adequate protection and assurance of reliability. Proposed Rule 804(b)(4) (Statement Against Interest) should be included in the final draft of the Federal Rules of Evidence. The proposed changes in the rule again provide an opportunity to limit responsible testimony from going to the jury, particularly in a civil action. Proposed Rule 804(b) (6) (Other Exceptions) should be included in the final draft of the Federal Rules of Evidence. The United States Supreme Court went to a great deal of efforts to expand what could be admissible in a trial in a Federal District Court. That subdivision provides the Federal District Judge with needed discretion to allow introduction of anything having a guaranty of trust worthiness. The purpose of the Rules as expressed in Rule 102 is to promote the growth and development of the law of evidence so that truth may be ascertained and proceedings justly determined. This discretionary authority will accomplish the purpose. I appreciate the opportunity to comment on the proposed bill and express my thanks to the Committee for the depth of the inquiry which the proposed draft indicates has been made. Very truly yours, Re H.R. 5463. Hon. WILLIAM L. HUNGATE, DAVID T. MADDOX. WHITE FORD, HART, CARMODY & WILSON, Chairman, Subcommittee on Criminal Justice, Committee on the Judiciary, House of Representatives, U.S. Capitol, Washington, D.C. DEAR MR. CHAIRMAN: The undersigned has been engaged in the practice of law in the District of Columbia and Maryland for the past 25 years, and was, also, a member of the 1973 Judicial Conference of the District of Columbia Circuit. At that conference and subsequently, I have taken considerable interest in the Federal Rules of Evidence as initially proposed to the Congress by the Supreme Court, and particularly to H.R. 5463, your Subcommittee's proposed changes in that proposal. It would appear that the suggested amendments set forth in that Bill, solve most of the problems which were apparent from a study of the original proposal. In one instance, however, I believe a serious problem remains. Rule 803(8) relating to public records and reports appears to be a serious relaxation of the Hearsay Rule with reference to "factual findings resulting from an investigation made pursuant to authority granted by law" despite the somewhat vague limitation immediately following. A great number of "official" investigations are made by governmental agencies of all sorts, from fire marshals, coroners, or even individual police officers, to such agencies as the Federal Trade Commission, Transportation Safety Board, and the like. The rights of interested parties to protect themselves in these proceedings is often lacking or, to say the least, minimal. Yet the conclusions of such investigations, bearing the stamp of approval of the Federal or of a State government will be permitted to be given to juries in contested civil cases; thus, to all intents and purposes, taking from the parties their rights to have these matters determined by a jury under the Federal Constitution, or if waived, by a Federal Judge. Would it not be more appropriate for the legislation relating to specific investigatory agencies to state the extent, if any, which the factual findings growing out of investigation should be admissible in civil action, and also providing such procedural safeguards as would protect the right of possible future litigants to the due process of law guaranteed by the Constitution? Is not this provision, like so |