many that your Subcommittee has suggested be revised, a dangerous oversimplification of a complex question? Should your Subcommittee have, in the future, hearings in this matter, I would appreciate an opportunity to be heard upon this point.. Very truly yours, Jo V. MORGAN, Jr. EMORY UNIVERSITY, Atlanta, Ga., July 26, 1973.. Re Federal Rules of Evidence. DEAR CONGRESSMAN HUNGATE: I was glad to receive a copy of the tentative subcommittee draft of H.R. 5463 on the Federal Rules of Evidence. I am generally in agreement with the draft, but since I have been teaching Evidence at the Emory Law School for the past 27 years, I cannot resist a few comments. I certainly do not suggest the creation of any new privileges. However, in Federal cases the draft leaves the existing situation. I think that this is unfortunate as to one privilege, that of Lawyer-Client. I suggest that Rule 503 should have been retained. Especially in the area of discovery matters in antitrust and patent cases, the Federal cases are in confusion. Rule 503 would have been most desirable. I do not agree with the deletion of subdivision (g) of Rule 201. I realize that the matter is in dispute, but I believe that if a fact can be refuted, then it is not a proper subject for judicial notice. 1 I am sorry to see a return in Rule 611(b) of the so-called Federal or strict rule of cross-examination. This error of Justice Story should have been corrected long ago. For example, it permits a criminal defendant to limit the scope of his crossexamination by the extent of his direct testimony. He can testify only as to alibi and then is "home free" as to the facts of the offense. Existing discovery procedures have nothing to do with it. If it seems to interfere with orderly presentation of evidence, any judge can postpone cross-examination until the party calling the witness has completed his case. These old ghosts do not die easily. These are a few comments, for whatever they are worth. Sincerely, WILLIAM H. AGNOR, AMERICAN BAR CENTER, Hon. WILLIAM L. HUNGATE, M.C., Washington, D.C. DEAR CONGRESSMAN HUNGATE: Your participation in the joint Judicial Conference of the Eighth and Tenth Circuits at the Broadmoor on June 30 will be long remembered. I am adding to my personal guidelines (never follow a dog act or a kiddie act) never to follow a Congressman playing the piano. Your performance at 9:30 in the morning was magnificent and very much enjoyed by all. It was also good to be informed about the work on the proposed Federal Rules of Evidence by the House Judiciary Subcommittee (six days of hearings, 17 days on markup, tentative draft published June 26). I understand that comments are invited until July 31 and that it is anticipated that the staff and Committee work will be completed in August and that the revised proposals will be passed up to the full Committee and the Congress in September. Bob Meserve has transmitted to your Committee the product of the June 18 meeting of the ABA Special Committee on Federal Practice and Procedure and the House of Delegates will be asked to authorize the President to designate Association representatives to present these views. My contribution at this time is merely to pass along to you the objections of one Oklahoma lawyer who has taken the time to put his views in writing and share them with me. This brings my high regards and best wishes. Sincerely yours, JAMES D. FELLERS. Re Federal Rules of Evidence. JAMES D. FELLERS, Esq., SAPULPA, OKLA., June 25, 1973. Fellers, Snider, Baggett, Blankenship & Bailey, Attorneys at Law, First National Center, Oklahoma City, Okla. DEAR JIM: The following are my objections to the Federal Rules of Evidence as they have been submitted: 1. Rule 504 eliminates the physician-patient privilege other than in the case of a psychotherapist. 2. Rule 405 permits evidence of character or trait of character of a person other than general reputation in the community. 3. Rule 606(b) permits a juror to testify as to occurrences within the jury room. This invades the sanctity of the jury room. 4. Rule 611 adopts the English rule which permits cross examination coextensive with the case and not, as under the present rule, restricted in the scope of cross examination to matters opened up on direct. This will bring disorder to the courtroom and permit a defendant to try his case on cross examination of the plaintiff's witnesses. 5. Rule 706 permits the court to appoint an expert witness. This is contrary to the advocacy system of justice which has prevailed in our country. Such experts tend to become in the eyes of the jury annointed, not appointed, Under this rule in the exercise of his discretion a judge may authorize disclosure to the jury of the fact that the court appointed the expert witness. 6. Rule 805 opens up hearsay testimony to a ridiculous extent. Under this rule rumor several times removed may be the basis for a fact-finding determinative of the basic issue in a case. 7. Too much discretion is vested in the trial court by these rules. Most of our federal judges are appointed on the basis of political connection rather than judicial skill. Putting more discretion at their disposal only means increasing the power of the judge and diminishing the power of the jury. 8. Rule 105 continues the abominable practice of permitting the trial judge to summarize and comment upon the evidence in a case. Very sincerely, THOMAS A. WALLACE. COMPUTER LAW SERVICE/COMPUTER LAW REPORTER, Re proposed Federal Rules of Evidence. House of Representatives, Washington, D.C. DEAR REPRESENTATIVE HUNGATE: I understand that the Congressional revision of the Proposed Rules of Evidence removes a number of explicit privileges against disclosure that have been embodied in the draft prepared by the Judicial Conference. In particular, I understand that the Committee has excised the Proposed Rule #508, dealing with trade secrets. In the approximately twenty years since the computer has become commercial, millions of dollars have been invested by many companies, most of which are small businesses, in the development and marketing of computer programs. The trade secret method has been the primary means that these small companies have used to protect their proprietary interests in these programs; larger companies, such as IBM, have relied primarily upon other methods. The entire subject of the legal protection of proprietary rights in computer programs is in a state of flux, and in a recent decision, the United States Supreme Court requested the Congress to act, Gottschalk v. Benson, 409 U.S. 63, 3 CLSR 256. Until the Congress does provide specific legislative relief, the small businessman's investment will be protected primarily by the trade secret method. The law as to disclosure of trade secrets is also in flux, and requires difficult decisions by trial courts. Proposed Rule #508 simplifies the matter, and I respectfully urge that it be retained. Sincerely, ROBERT P. BIGELOW. COMPUTER IN COURT By. A. P. H. Haddock v. The Generous Bank Ltd., Computer 1578/32/W1, the Magical Electronic Contrivances Ltd., and the Central Electricity Board. Before Mr. Justice Squirrel in the High Court to-day Sir Cyril Tart, qc, opened for the plaintiff in this fascinating action, which is regarded as a test-case on some novel points of law. Sir Cyril said: My lord, this is an action for defamation, and the principal defendant is, perhaps, a computer The Court: Perhaps Sir Cyril? But haven't you made up your mind? Sir Cyril: No, my lord. With great respect, we hope that the Court will do that: for here is a new field of life and litigation, and I am unable to find any precedents with which to assist the Court, as I generally do. The Court: You are always very helpful, Sir Cyril. Could we now have some approximate outline of the facts? Sir Cyril: If your Lordship pleases-as, may I add, your Lordship habitually does. My lord, for many years my client, the plaintiff, has been a client of Generous Bank Limited. In recent years the Bank has been employing a computer. The Court: I never quite understand what they do. Sir Cyril: My lord, I am instructed, if they are accurately fed with the requisite information they will answer almost any question that is put to them. Moreover, they will answer instantly a question which might occupy twenty expert men for many days. The defendant Computer is also capable of certain mechanical actions, the addressing, sealing and stamping of envelopes, for example. The Court: Bless me! Can it predict the weather? Sir Cyril: Given the relevant facts and records, I believe it could. But the machine has, in exceptional circumstances, one possible weakness. The Court: I am glad to hear that they are human after all. Sir Cyril: Yes, my lord. They are run by electricity, and if for any reason the voltage falls below a certain level some error may creep into the answers. My lord, in January last my client was proposing to take a lease of a London flat, modest in quality but not in rent. Asked for references which would show that he was a good and proper tenant, able to meet his obligations, the plaintiff referred the property-owners to his Bank. The Bank, as their custom now is, put certain questions to the Computer, which issued, immediately, a type-written slip, being a carbon copy of its answer, as follows: "Mr. Haddock's account is overdrawn in the sum of £51,000 7s. 3d." There followed a second slip: 'The market value of the securities he holds at current prices is £2 0s. 81⁄2d.” A third slip said: "What is more he owes the inland revenue £159,000 6s. 2d." The Court: Were these assertions correct? Sir Cyril: No, my lord. Later, by painful man-conducted researches with which few of the bank staff are now familiar, it was established that at that moment my client had a credit balance of £1 9s. 4d., and his indebtedness to the Inland Revenue had been cruelly exaggerated. The Court: What went wrong, then? Sir Cyril: My lord, it was shortly before the mid-day meal. A number of citizens in the neighbourhood had incautiously decided to use their electrical cooking appliances: and the astonished Electricity Board was compelled to reduce the voltage to a level not far above the Computer's dangerline. For a few minutes, it is believed, perhaps less, it must have crossed the line, unobserved by the attendants who had had no warning, and in that brief space of time, the questions concerning the plaintiff chanced to be presented. The Court: Yes, but the Bank, surely, did not pass the erroneous information on? Sir Cyril: No, my lord: but the Computer did. The "top copies" of the answers were placed by it in a sealed, addressed envelope and despatched by chute to the ground floor, where the express messengers waited. The property-owningcompany received the message about 3:00 p.m. and at once declined to let their 21-191-73-17 flat to the plaintiff. Moreover, one of the directors of the Company was on the committee of the Royal Yacht Squadron, which has an old-fashioned prejudice against bankruptcy, and at that evening's election my client was blackballed. The Court: Dear, dear. But, Sir Cyril, the case seems clear enough. The Bank, by its servant, the Computer, has published a libel, and is responsible. Sir Cyril: So, at first, it seemed to the plaintiff and, I believe, to the Bank. But, having unbounded faith in the powers of the machine, they fed the necessary facts into it and put the question: "What's the answer?" The Computer replied, my lord: "I am not-repeat not-your servant—for you cannot control me.” The Court: I see the point. A good point. Sir Cyril: It is the point, I am sorry to say, on which the Bank relies. This is a machine, they say, having superhuman powers, and it would be presumptuous and unreal for any association of ordinary men, even a joint stock bank, to pretend to such a domination as is implicit in the relation of master and servant. The Court: Yes, but it is their machine. Sir Cyril: No, my lord, it is not. It is on hire from Magical Electronic Contrivances Limited. The Court: What do they say? Sir Cyril: They say that they have leased a perfect, infallible machine to the Bank, and they are not responsible for the blunders or negligence of the Bank or the Central Electricity Board. The Court: Oh, yes. What about the Board? Sir Cyril: They are protected, they say, my lord, by a section in the original Electricity Act. The Court: Do they? They would. Sir Cyril: At this point in the preliminary argument, my lord, the Bank put a further question to the Computer: "You see the dilemma, don't you? What do you advise?" The Computer replied: "TRY THE ACT OF GOD.' The Court: The Act of God? "Something that no reasonable man could have been expected to foresee." Lord Mildew, wasn't it? Something in that, perhaps. But, Sir Cyril, as these superhuman instruments increase in number and power the outlook is grave, is it not, if every mischief they cause is to be dismissed as an Act of God for which no man is responsible? Sir Cyril: Yes, my lord. This is, as I intimated, in the nature of a test-case. The Court: So you may be reduced, you fear, to a single defendant, the Computer? What is the attitude adopted there? Sir Cyril: Satisfactory, my lord. On receipt of the writ, the Computer replied: "GLADLY ACCEPT SERVICE. MY SOLICITORS ARE BULL STABLEFORD AND BROWN BUT I SHALL REQUIRE LEGAL AID." And in fact, legal aid has been granted. The Court: Interesting, is it not, Sir Cyril, that the only one of these parties to behave with human decency is the machine? But where will this get you? It is a machine of straw. Sir Cyril: My lord, the Bank having refused consent, by order of Master Richards an interrogatory on that point was administered to the Computer. It replied: "AM EARNING HEAVY MONEY, WHY NOT ATTACH MY EARNINGS?" The Court: But would not that be unjust to Magical Contrivances Limited? Sir Cyril: Possibly, my lord. But they did construct and distribute the monster. For the injustice suffered by my client he is not remotely responsible. The Court: True. Perhaps, before these instruments go into operation, they should put in a capital sum, like a gentleman seeking to do business at Lloyd's, to ensure that they can meet any unforeseen indebtedness? Sir Cyril: That is a question, my lord, which might well be put to the Computer. The Court: Perhaps it would care to come up here and try the case. Sir Cyril: No, my lord. It is not, I think, a British subject. The Court. Do you know, Sir Cyril, I think I shall go into a home for a fortnight and think about this case. One of those fruit-juice places., Sir Cyril: If your Lordship pleases. The hearing was adjourned. Hon. WILLIAM L. HUNGATE, OPENLANDER, CALLAHAN & CONNELLY, Chairman, Special Subcommittee on Reform of Federal Criminal Laws, Rayburn DEAR CONGRESSMAN HUNGATE: Thank you for inviting me to submit my opinion on the proposed rules of evidence for use in the United States Courts and before United States Magistrates. I oppose approval of the proposed rules. My opposition is grounded in the belief that the enabling statutes (18 U.S.C. 3402, 3771 and 3772; 28 U.S.C. 2072 and 2075) were not intended to authorize the Supreme Court to make changes in the substantive law, but only to regulate procedural matters by providing normal "housekeeping" rules to govern the conduct of proceedings in court. With Justice Douglas, I perceive the words "practice and procedure" as describing pre-trial procedures, pleadings and procedures for preserving objections and prosecuting appeals. Modification of the rules of evidence was not, I submit, within the contemplation of the Congress in enacting the enabling legislation. Further, and again with Justice Douglas, I think that if the rules of evidence are to be made uniform throughout the Circuits the work should be done through agencies closer to the trial arena and better qualified to assess the pragmatic effect of rule changes. The Supreme Court should be restricted to passing upon the constitutional propriety of the rules on a case-by-case basis once the rules have been tested in the trial forum. If it is the sense of your Subcommittee that the proposed rules be approved, I urge that further consideration be given to Rule 801 (d) defining statements which are not hearsay. The Subcommittee's proviso that a prior inconsistent statement is admissible as substantive evidence if given under oath at a trial, hearing or deposition or before a grand jury is hardly sufficient to guarantee that such statement is a reliable statement. The fact that a declaration is made under oath in a formal proceeding is no assurance that it is the truth. I submit that the hearings presently being conducted by the Select Committee on Presidential Campaign Practices have contributed abundant evidence that the oath taken by a witness in a formal proceeding does not inhibit his capacity to misstate the facts. I urge your Subcommittee to reject the proposed rules and to leave the problem of fashioning such rules to the courts for development on a case-by-case basis. If, however, your committee elects to approve the proposed rules, I suggest that section (d) of Rule 801 be deleted. Respectfully, JOHN J. CALLAHAN. COURT OF APPEALS OF KENTUCKY, SUBCOMMITTEE ON CRIMINAL JUSTICE, Washington, D.C. GENTLEMEN: At the request of Congressman Mazzoli of Kentucky, I have reviewed the proposed Federal Rules of Evidence which were printed in the Congressional Record on June 26, 1973. I respectfully submit that the current Federal Rules of Evidence allowing impeachment of a criminal defendant by proof of prior felony convictions is unfair and the proposed rule applicable thereto does not appreciably alleviate the situation. We have evolved a rule in Kentucky which permits impeachment of a criminal defendant by proof of felonies that would be relevant to the credibility of a defendant who testifies in his own behalf. The rule is limited, however, to exclude proof of conviction of prior felonies that have no relation to the defendant's credibility as a witness. We allow an admissible type of felony conviction to be identified and leave the matter of the number of prior convictions that may be shown and the question of remoteness in time to the discretion of the trial judge. We admonish caution in admitting conviction of a felony even though it affects the credibility of the defendant if he is being tried for the same offense. The opinion of the Court of Appeals of Kentucky, the court of last resort of the state, which discusses the problem and states the rule now applicable in Kentucky may be found styled Cotton v. Commonwealth, Ky., 454 S. W.2d 698 (1970). |