MORGAN, LANOFF, COOK & MADIGAN, Re HR 5463: Federal Rules of Evidence. Hon. WILLIAM L. HUNGATE, DEAR CONGRESSMAN HUNGATE: Your circular letter of June 30, 1973 which was sent to the Chicago Bar Association relative to HR 5463 was referred to the Committee on Federal Civil Procedure of the Chicago Bar Association. I am writing this letter as Chairman of that Committee. In order to review your Report on HR 5463, our Committee divided into four Subcommittees. These four Subcommittees met and reviewed various aspects of the House Subcommittee Report during the week of July 16th. Our Committee then met as a whole in two meetings on July 24th and July 26th to review the Reports of our Subcommittees. This letter reflects the actions taken by our full Committee after discussion and vote. We report the position of our Committee only on items as to which there was a substantial majority of the Committee members voting who voted for the position reported. We interpret substantial majority to mean more than twothirds. This Report does not include matters which were not voted or matters as to which the Committee was divided more evenly. We, therefore, report the following recommendations with respect to HR 5463 as amended by the Report of the Subcommittee on Criminal Justice. I. RULES AS TO WHICH CBA COMMITTEE SUPPORTS RECOMMENDATIONS OF HOUSE SUBCOMMITTEE The Chicago Bar Association Committee on Federal Civil Procedure by substantial majority supports the recommendations of the House Subcommittee with respect to the following Rules: Rule 104 (c) Preliminary question: Hearing of Jury. Rule 105. Summing up and comment by Judge. Rule 201. Judicial Notice. Rule 201(g). Instructing Jury. (Our action is taken with the suggestion that the deletion recommended by the House Subcommittee would not preclude such an instruction when no evidence has been introduced to refute the facts expressly judicially noticed.) Rule 303. Presumptions in criminal cases. (Our recommendation suggests that, when the matters dealt with by the Brown Commission and S. I are concluded, such matters should be placed in the Rules of Evidence.) Rule 404 (b). Character evidence not admissible to prove conduct; exceptions; other terms: Other crimes, wrongs or acts. Rule 405(b). Methods of proving character: Specific instances of conduct. Article V-Law of Privilege. (With respect to Article V, the Committee concurred with the House Subcommittee in opposition to the statement of the law on privilege in Article V. However, our Committee rejected the restatement of Article V by the House Subcommittee.) Rule 601. General lack of competency. Rule 606(b). Competency of Juror as Witness: Inquiry into validity of verdict or indictment. Rule 608(b). Evidence of character and conduct of witness. Specific instances of conduct. The CBA Committee supported the House Subcommittee with the exception that it recommended that the phrase "and not remote in time" deleted by the House Subcommittee remain in the statement of Rule 608(b). Rule 609. Impeachment by Evidence of Crime. Rule 611. Mode of Order of Interrogation and Presentation. Scope of cross examination. Rule 612. Writing Used to Refresh Memory. Rule 801(d)(1). Statements which are not hearsay-prior statement by witnesses. The CBA Committee rejected the Rule proposed by the Supreme Court. However, there was not a substantial majority in favor of the proviso to Rule 801(d) (1) as recommended by the House Subcommittee. Rule 803 (6) (7). Hearsay Evidence; availability of declarative material— business records exception. Rule 804 (b) (2). Hearsay Exceptions; declarant unavailable-statement of recent perceptions. Rule 804(b) (4). Hearsay Exceptions, declarant unavailable statement against interest. (The CBA Committee voted to retain the deleted language "civil or" and the deleted language "or to render invalid a claim by him against another". It favored the deletions of the language suggested by the House Committee "or to make him an object of hatred, ridicule or disgrace". The remaining recommendations of the House Subcommittee were supported by the Committee). Rule 902(8). Self-Authentication. Acknowledged documents. Rule 1003. Admissibility of duplicates. II. RULES AS TO WHICH THE CBA COMMITTEE REJECTS THE RECOMMENDATION OF THE HOUSE SUBCOMMITTEE The CBA Committee supported the Rule transmitted by the Supreme Court and rejected the suggestions of the House Subcommittee with respect to the following Rules: Rule 803 (24). Hearsay Exceptions; availability of declarative material— other exceptions. Rule 804 (b) (3). Hearsay Exceptions; declarant unavailable: Hearsay Exceptions statement under belief of impending death. Rule 804(b)(6). Hearsay Exceptions; declarant unavailable--other exceptions. Effective Date: The CBA Committee recommends that the effective date be July 1st of the year following the year in which the Act becomes law. The purpose of this is to assure at least six months to acquaint the Bar with the Rule and to provide for the Rule becoming effective in the less active part of the Court year. The absence of any reference to any Rule as transmitted by the Supreme Court or any change in any Rule suggested by the House Subcommittee is not intended to be a comment by the CBA Committee on any such item. This Report deals only with the Rules specifically treated herein. In view of the short time between the receipt of the recommendations of the House Subcommittee and the date on which comments were requested to be received by the House Subcommittee, our Committee has felt that it was impossible to present a commentary in support of its position. In the event that the House Subcommittee requests a more extended statement of the reasons for any specific action taken by the CBA Committee, we would be pleased to respond to such inquiry. In such event, the period necessary to develop such a commentary and to have it considered by our Committee should be not less than four weeks from the time the inquiry is directed to us. In closing, I would like to express the appreciation of the members of our Committee for the efforts of the House Subcommittee on Criminal Justice as evidenced by its careful review of the proposed Rules of Evidence. Respectfully submitted. JOHN A. Cook, Chairman. AMERICAN HOSPITAL ASSOCIATION, Hon. WILLIAM L. HUNGATE, Chairman, Special Subcommittee on Criminal Justice, Committee on the Judiciary, Rayburn House Office Building, Washington, D.C. DEAR MR. CHAIRMAN: Thank you for affording the American Hospital Association an opportunity to review the revised draft of H.R. 4563 (Committee Print dated June 28, 1973), a bill to establish Federal Rules of Evidence. As you and the members of the Subcommittee know, this Association strongly urged rejection of proposed Rule 504 as included in H.R. 5463 as originally introduced. Adoption of that rule would have in effect eliminated the traditional general physician-patient privilege, a step we are convinced would not be in the public interest. It is indeed gratifying, therefore, to note that the Subcommittee has deleted proposed Rule 504 and the other proposed specific rules on privileges, and has proposed, through a single Rule, 501, to leave the law of privileges in its present state-to be developed and interpreted by the courts in the light of reason and experience. We wish to express appreciation for this action by the Subcommittee, which we hope will be confirmed in the course of further consideration and actions on H.R. 5463. With regard to Rule 501 as contained in the June 28, 1973 Committee Print version of H.R. 5463, we would offer the following comments: While the language of the proviso appears to be broad and all encompassing, the phrase "with respect to a claim or defense" is, of course, restrictive. The phrase, for example, might prevent the proviso from applying where medical records are desired to challange the competence of a witness to testify by reason of mental illness or to impeach the credibility of a witness who had testified to lack of medical treatment, good health, or any other fact which the desired medical records would tend to disprove. These points are not raised from any desire to see the truth supressed, but rather to seek assurances of uniformity between state and federal rules of evidence. Under most state rules, the privilege would be recognized in both examples, and we do not want to see the privilege denied in such instances by a federal rule of evidence. According to the Subcommittee's Note following Rule 501 the proviso in the rule is modeled after Rule 302. In Rule 302, however, the words "claim or defense" are preceded by the words "an element of a" which are missing entirely from the proviso in Rule 501. To broaden the proviso in Rule 501 we urge that the words "any element of" be inserted after the words "with respect to". Thus amended the proviso would read "Provided, That in civil actions, with respect to any element of a claim or defense as to which State law supplies the rule of decision the privilege of a witness, person, government, State or political subdivision thereof shall be determined in accordance with State law." While experience might disclose infirmities such as those pointed out with regard to application of the proviso in Rule 501, the rejection of proposed Rule 504 as included in S. 5463 as originally introduced is indeed a great improvement both from the standpoint of hospitals and of the public. Copies of this letter are being sent to each member of the Committee on the Judiciary of the House of Representatives. If we can provide any additional information to assist in the Committee's work, we will be pleased to do so. Sincerely, LEO J. GEHRIG, M.D., MORRISON, FOERSTER, HOLLOWAY, CLINTON & CLARK, Hon. WILLIAM L. HUNGATE, Chairman, Special Subcommittee on Reform of Federal Criminal Laws, House Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR REPRESENTATIVE HUNGATE: I am writing concerning what I believe to be a drafting problem with Rule 1008 of H.R. 5463. The first sentence of Rule 1008 states that the judge "ordinarily" will determine preliminary fact issues arising from the application of Rules 1001 through 1007. As noted by the Advisory Committee, the first sentence of Rule 1008 conforms with the general principles announced in Rule 104. However, Rule 1008 does not expressly refer to Rule 104. Does not the absence of such a reference raise the question of whether the various principles in Rule 104 are applicable to a determination under the first sentence of Rule 1008? For example, is it true that the judge is not bound by the rules of evidence in making his determination under Rule 1008 as is expressly the case (with the exception of those rules concerning privileges) when determination of a preliminary question is made under Rule 104? (See Rule 104, Subdivision (a).) The doubt raised by the absence in Rule 1008 of any reference to Rule 104 is increased when one examines Rule 1101 (d) which states the situations in which all of the rules are inapplicable to "the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the judge under Rule 104(a)." What about the first sentence of Rule 1008? If, as I assume, preliminary fact issues arising under the first sentence of Rule 1008 are intended to be treated in the same manner as those arising under Rule 104(a), I suggest that the following be added to the first sentence of Rule 1008: "in accordance with Rule 104(a)." Further, I suggest that the following be added to Rule 1101 (d)(1): "and Rule 1008." Quite apart from the problem discussed above, I believe the draftsmanship of Rule 1008 could be improved by stating the rule as follows (deletions are shown by brackets and italics indicate material added): "When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is [ordinarily] for the judge to determine[.] in accordance with Rule 104(a) except [However,] when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact." Sincerely, Mr. HERBERT E. HOFFMAN, ROBERT D. RAVEN. DEPARTMENT OF JUSTICE, Counsel, Special Subcommittee on Criminal Justice, House Committee on the Judiciary, House of Representatives, Washington, D.C. DEAR MR. HOFFMAN: Please forgive my tardiness in replying to you concerning the revision of the Proposed Rules of Evidence, HR 5463. I have personally examined the proposed rules and in particular the privilege sections and have concluded that the rules would more than meet the objections that we raised in our appearance. As you are, of course, aware the State of Wisconsin has almost simultaneously been preparing Rules of Evidence. Most recently these rules were promulgated by the Wisconsin State Supreme Court to be effective January 1, 1974. I have enclosed a photostatic copy of the amended Wisconsin Rules of Evidence. I personally am of the opinion that the balance the Committee has finally arrived at is a most reasonable balance between the rather clear interest of the individual states and the interest of the federal courts in having some formalized Rules of Evidence to guide their decision. The area of privilege is particularly sensitive and I believe particularly an area for state determination. As the copy of the proposed Wisconsin Rules indicates, most of the ends sought to be achieved by the Federal Rules are achieved by the State Rules. The State Rules are, of course, molded more closely to the particular concerns of the State of Wisconsin and of the Wisconsin State Statutes. I have not had a clear opportunity to discuss these changes in any detail with Mr. Warren. I did, however, suggest to him and draft for him some favorable remarks concerning the modifications for submission to the National Association of Attorneys General. Somewhat fortuitously a regional meeting of the Midwestern Attorneys General is presently under way and it is my understanding he may make the remarks at that meeting. I will certainly endeavor to have Mr. Warren formally reply to the Committee. I have every reason to believe that his reply would be no different than my personal evaluation of the Rules. I would again express my own individual pleasure at these modifications. I am personally thankful to you for the help and advice that you have given me in this activity. I would be pleased if you could possibly keep me informed of any con-tinuing developments and I remain. Sincerely, ROBERT D. REPASKY, WISCONSIN RULES OF EVIDENCE 904.12 Statement of injured: admissibility, copies. (1) In actions for damages caused by personal injury, no statement made or writing signed by the injured person within 72 hours of the time the injury happened or accident occurred, shall be received in evidence unless such evidence would be admissible as a present sense impression, excited utterance or a statement of then existing mental, emotional or physical condition as described in s. 908.03 (1), (2) or (3). 1 (2) Every person who takes a written statement from any injured person or persons sustaining damage with respect to any accident or with respect to any injury to person or property, shall, at the time of taking such statement, furnish to the person making such statement, a true, correct and complete copy thereof. Any person taking or having possession of any written statement or a copy of said statement, by any injured person, or by any person claiming damage to property with respect to any accident or with respect to any injury to person or property, shall, at the request of the person who made such statement or his personal representative, furnish the person who made such statement or his personal representative, a true, honest and complete copy thereof within 20 days after written demand. No written statement by any injured person or any person sustaining damage to property shall be admissible in evidence or otherwise used or referred to in any way or manner whatsoever in any civil action relating to the subject matter thereof, if it is made to appear that a person having possession of such statement refused, upon the request of the person who made the statement or his personal representatives, to furnish such true, correct and complete copy thereof as herein required. (3) This section does not apply to any statement taken by any officer having the power to make arrests. CHAPTER 905-PRIVILEGES 905.01 Privileges recognized only as provided. Except as provided by or inherent or implicit in statute or in rules adopted by the supreme court or required by the constitution of the United States or Wisconsin, no person has a privilege to: (1) Refuse to be a witness; or (2) Refuse to disclose any matter; 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. 905.02 Required reports privileged by statute. A person, corporation, association or other organization or entity, either public or private, making a return or report required by law to be made has a privilege to refuse to disclose and to prevent any other person from disclosing the return or report, if provided by law. A public officer or agency to whom a return or report is required by law to be made has a privilege to refuse to disclose the return or report if provided by law. No privilege exists under this section in actions involving false swearing, fraudulent writing, fraud in the return or report, or other failure to comply with the law in question. 905.03 Lawyer-client privilege. (1) Definitions. As used in this section: (a) A "client" is a person, public officer, or corporation, association, or other organization or entity, either public or private, who is rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him. (b) A "lawyer" is a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation. (c) A "representative of the lawyer" is one employed to assist the lawyer in the rendition of professional legal services. (d) A communication is "confidential" if not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication. (2) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client: (a) between himself or his representative and his lawyer or his lawyer's representative, or (b) between his lawyer and the lawyer's representative, or (c) by him or his lawyer to a lawyer representing another in a matter of common interest, or (d) between representatives of the client or between the client and a representative of the client, or (e) between lawyers representing the client. (3) Who may claim the privilege. The privilege may be claimed by the client, his guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The person who was the lawyer |