somewhat marginal, must be balanced against the disadvantages of (1) the complete loss of a substantial body of reliable evidence (mainly consisting of admissions of fact), (2) greater inconvenience and expense in preparing evidence for trial, and (3) the generating of controversies as to whether statements of fact were "made in compromise negotiations" or not. I am aware of no criminal penalties for factual misrepresentations made during negotiations to settle a controversy between two private parties. On the other hand there is a strong public policy, implemented by various criminal sanctions, of discouraging false statements to federal Government agencies. For example, I invite your attention to section 7206 of the Internal Revenue Code. I do not suggest that enactment of Rule 408 would encourage direct violations of these criminal statutes. But the public policy they express would certainly be undermined by assuring taxpayers that, unless criminal intent can be shown, they have no responsibility for the accuracy of any factual representations they may make in the course of settlement negotiations with the Internal Revenue Service. The proposed privilege would also, in my opinion, tend to obstruct the fair and efficient administration of the internal revenue laws. The administrative settlement machinery of the Internal Revenue Service was designed with the objective of securing a fair and speedy resolution of tax controversies at the lowest administrative level possible. In many instances, where the facts are peculiarly within the taxpayer's control and not readily subject to independent verification, the administrative decision whether to settle or litigate may be based primarily on the taxpayer's factual representations. If the taxpayer is accorded the privilege of suppressing such representations in the event of litigation, the Internal Revenue Service will be forced to re-examine the reliability of its informal fact-finding procedures. The result might well be increased use of the administrative subpoena power to ensure a clear separation between the settlement and investigative functions of the Service. If so, the additional cost of the average audit in terms of both time and expense would be significant. This would in turn result in either fewer audits or increased audit manpower, as well as additional expense and delay to taxpayers whose returns are selected for audit. In addition, it may be necessary to prescribe more onerous record-keeping requirements pursuant to Internal Revenue Code section 6001 to increase the likelihood that privileged taxpayer statements will be subject to documentary corroboration. It appears to me that the common law rule has worked well over the years, and the courts in developing the rule have intentionally and wisely refrained from extending the privilege to independent statements of fact. Since I doubt that the advantages of departing from the common law rule are sufficient to outweigh its disadvantages, even in litigation between private parties, I recommend that the second sentence of Rule 408 be deleted from the draft bill. If this is not possible, then I recommend that the operation of the privilege for factual statements and conduct be restricted to litigation between private parties. For the reasons discussed above, the policy reason for extension of the common law privilege to independent statements of fact submitted during compromise negotiations does not seem fully applicable to controversies between a citizen and his Government, particularly tax controversies. If my staff or I can be of any further assistance to the subcommittee in your consideration of this important legislation please don't hesitate to call upon us. In view of your request for the expedition of this report, it has not been possible to obtain the customary clearance by the Office of Management and Budget prior to its submission. Sincerely yours, Hon. WILLIAM L. HUNGATE, DONALD L. E. RITGER, UNIVERSITY OF CINCINNATI, Chairman, Subcommittee on Criminal Justice, Committee on the Judiciary, DEAR REPRESENTATIVE HUNGATE: Your subcommittee has made some notable improvements in the Proposed Federal Rules of Evidence. For example, it was sound to delete F.R.E. 201(g), a provision that probably invaded a criminal defendant's right to trial by jury. As enclosed articles reflect, I have studied the federal rules of evidence since they were in the Preliminary Draft Stage and have believed since that time that they gave insufficient recognition to the principle of Erie v. Tompkins. See, The Proposed Rules of Evidence: An Introduction and Critique, 39 U.Cin.L. Rev. 469-471 (1969). Your sub-committee recognized this fact in the rules on privileges (501) and witnesses (601). I would point out that the Erie principle was also ignored in article IV, Relevancy and its Limits. For example, rule 407 excludes evidence or subsequent remedial measures when offered to prove negligence or culpable conduct. As the Advisory Committee notes, the rule is not based on relevance, but on the goal of encouraging (or at least not discouraging) defendants from making repairs after an accident has occurred. The rule may not achieve this goal because many defendants would make the repair even if the evidence was admissible against them. In any case, whether the evidence is excluded or not should be a matter of state policy where state law governs. (See the enclosed article, The Exclusionary Rule on Evidence of Repair-A Rule in Need of Repair.) A similar situation would exist with any rule whose purpose is not finding truth or expediting a trial, but rather promoting some other value and excluding evidence on that basis. There is one change that the sub-committee made that does deserve reconsideration. That is the decision to place the creation of privileges on a case law basis in situations where federal law governs. In that connection, it should be noted that for privileges to be effective, the parties protected by them should know of their existence and be aware of their configurations. More specifically, a client talking to an attorney should know whether or not his statement will be admitted in federal court in a matter arising under federal law. Although the Advisory Committee on the rules overreached in attempting to apply the rules on privileges to state law claims, it did achieve a degree of predictability with respect to privileges that would serve to benefit the ordinary citizen. I would suggest that all the privileges that do not directly involve the government be retained as they were drafted by the advisory committee and the rules indicate that they are only applicable in cases arising under federal law. As the enclosed writings reflect, I have other observations about the rules and would be pleased to expand upon those that I set forth herein. Should your committee desire that I testify, please call my office (513-475–2631), I would be more than happy to help. With highest regard, I am Enclosures VICTOR E. SCHWARTZ, Acting Dean, Professor of Law. NOTE. The three attached articles not printed herein are: 1. Victor E. Schwartz, "The Exclusionary Rule on Subsequent Repairs—A Rule in Need of Repair," The Forum (New York: American Bar Association, October, 1971), Vol. VII, No. 1, pp. 1-7. 2. Victor E. Schwartz, "The Proposed Federal Rules of Evidence: An Introduction and Critique," The University of Cincinnati Law Review (Cincinnati: The University of Cincinnati, 1969) Vol. 38, No. 3, pp. 449-483. No. 3. Victor E. Schwartz, "Evidence," Virginia Law Review (Charlottesville: The University of Virginia, 1970) Vol. 56, No. 7, pp. 1325–1355. Re Federal Rules of Evidence H.R. 5463. Hon. WILLIAM L. HUNGATE, U.S. House of Representatives, Washington, D.C. U.S. DISTRICT COURT, Pittsburgh, Pa., August 2, 1973. DEAR CONGRESSMAN HUNGATE: I have a letter from Mr. Foley of the Committee on Rules of Practice and Procedure of the Judicial Conference relative to proposed rules of evidence as changed by your subcommittee after several weeks of hearing. The only matter I wish to comment on is the preservation of the dead man's rule. In diversity cases arising in states such as Pennsylvania where we sit, this is firmly embedded in the state law and to permit a different result to occur in federal court than if the case were tried in Pennsylvania State court is certainly not desirable. Very truly yours, WILLIAM W. KNOX, District Judge. 21-191-73-21 Re H.R. 5463. BERMAN, BERMAN & SIMMONS, P. A., SUBCOMMITTEE ON CRIMINAL Justice, Lewiston, Maine, August 2, 1972. Committee on the Judiciary, House of Representatives, GENTLEMEN: I am writing to offer my comments on the proposed bill to establish the Federal Rules of Evidence. I write as a member of the Bar of the States of Maine and Massachusetts. The following comments reflect my personal views as an attorney engaged in litigation in both the State and Federal Courts. Rule 105.-I agree with the Committee's proposed deletion of this rule. While the rule states the present practice in Federal Courts, many State jurisdictions have a contrary rule. I believe that a Judge ought to be able to fairly and impartially sum up the evidence but should not be allowed to comment upon the weight of the evidence and the credibility of the witnesses. Rule 106.-It is my belief that, in criminal cases, limiting instructions are practically meaningless to a jury. See Bruton v. U.S., 88 S.Ct. 126. It would be my suggestion that evidence, in criminal cases, which is admissible as to one defendant but not admissible as to another should not be admitted into evidence. It seems to me that the prosecution, if it feels that such evidence is a necessary part of its case, could move to sever the trial of the joint defendants at the beginning of the proceedings. Rule 107.-I have no objection to the proposed rule but question as to whether it goes far enough. There are times, in the trial of a case, when a written or recorded statement is used in a negative manner. For example, a prior written statement may not contain information about which the witness has testified and this fact is brought out in cross-examination. Fairness may require that the statement, or at least a portion thereof, ought to be considered contemporaneously with the negative inferences. Rule 201(g).-I do not believe that the Subcommittee ought to delete this subsection. It seems to me that an improperly judicially noted fact is an appellate question and not for jury determination. The question of the propriety of taking judicial notice of a matter should be decided outside the presence of the jury. Rule 601.-I understand the Subcommittee's concern with the rule as proposed and the rationale for the amendment. However, I believe that the proposed rule is a proper one and should be adopted. The original Advisory Committee's note pointed out that, with the exception of the Dead Man's Acts, American Jurisdictions generally have ceased to recognize grounds of incompetency not otherwise spelled out in other rules. The Dead Man's Statutes are anachronisms. The only justification for amending the rule is to avoid forum shopping in diversity cases. However, forum shopping has long been recognized as legitimate in the American Judicial System. See generally, Ladd Privileges, 1969 Ariz.St.L.J. 555. The existing Federal Rules of Civil Procedure already support the proposition that the Federal Courts may, even in diversity cases, apply a broader range of admissibility. See e.g., Rule 43(a). Rule 607-I would think that before a party is allowed to impeach his own witness he should first be required to prove either that the witness is hostile or that there is some independent basis to infer that the witness is committing perjury. The contemplated rule opens the door for fishing expeditions and the bringing forth of facts by counsel through cross-examination and leading questions. I am convinced that juries are sophisticated enough to remember the source of their information. Rule 609.-It has been my experience that impeachment by evidence of conviction of a crime can deny a defendant a fair trial. The juries do not understand nor accept the limiting instruction that the evidence is admissible solely for the purpose of attacking credibility. Many defendants do not take the stand in their own behalf because they believe that evidence of a prior conviction would be disastrous to their chances for a fair trial. I would recommend that only convictions of offenses bearing on credibility should be admissible. Rule 611.—I believe the proposed “wide open" rule is preferable to the limiting rule suggested by this Committee. There seems nothing to be gained by hypothecating a witness' testimony. Further, it would seem desirable for a jury to hear all of a witness' testimony at one time. Rule 613.-Under this rule, a defendant, in a criminal case, if he takes the stand, is subject to complete impeachment. I believe that some safeguards should be inserted in this rule. The rule, as presently written, raises substantial constitutional questions. Rule 701.-This rule permits the rendering of opinions or the explanation of inferences by lay witnesses so long as the opinions are "rationally based on the perception of the witness. . ." This would appear to be contrary to the general rule that only experts may testify as to an opinion. I fail to see an overwhelming Federal question that requires such a change. This is especially true since this Committee was concerned with State policy in conjunction with Rule 601. It seems to me that the question of who might give an opinion should be determined by State Law. Rule 801(d).-I believe that existing Federal Law, which permits the use of prior inconsistent statements for impeachment purposes only, is a desirable rule. The Committee's compromise is preferable to the proposed rule. Rule 803 (24).---I fully concur with the Subcommittee's decision to delete this subsection. The proposal that any statement which has circumstantial guarantees of trustworthiness should be admissible as an exception to the hearsay rule could, in my opinion, make the hearsay rule completely unintelligible. This is especially true when the proposal is read in conjunction with Rule 103. It seems to me that if sub 24 was adopted, the Rules of Evidence would differ from Court to Court and from Judge to Judge. Certainly, this is not a desirable objective. Rule 804.-I concur with the Subcommittee's changes to the proposed rule for the reasons set forth in the Subcommittee's notes. I hope that this letter will be of help to you in your deliberations. If there is any further information you desire, I would be happy to attempt to provide it. Thank you for your courtesy and cooperation. Very truly yours, JACK H. SIMMONS. U.S. COURT OF APPEALS FOR THE FOURTH CIRCUIT, House Judiciary Committee, U.S. Hon. WILLIAM L. HUNGATE, Chairman, Subcommittee on Criminal Justice, House of Representatives, Washington, D.C. DEAR MR. HUNGATE: I have been at NYU at a seminar for the past two weeks and during my absence received H.R. 5463. So, it was not possible for me to comment on the rules by July 31st. Indeed, if I had been here, the shortness of time allowed would have made it difficult to give much intelligent comment without dropping some significant part of the work of the court. I realize a great deal of time and work have gone into making up the proposed rules by members of the bar, the Judicial Conference, and the committees of Congress. Nevertheless, since comment has been invited I believe I should tell you in all candor that I cannot see that they have any virtue except uniformity. If specific rules of evidence are sought to be changed, I should think that is more properly a matter for Congress to undertake than a revamping of the entire Federal Rules of Evidence. For example, 28 USC § 1732 was such a change for many courts. The field of evidence is constantly developing and I think is more properly left to the courts on a case-by-case basis where the admissibility of evidence must be decided in view of a precise factual situation according to the common law tradition, rather than be subjected to an all-embracing set of rules, some of which would be consistent with existing rules and possibly just as many of which will be inconsistent with them. The routine day-to-day rules of evidence, of course, are very nearly the same in all state and federal courts. It is only in the close situations that new rules or exceptions develop, and, with all respect, I submit that these situations are more properly justly decided in the light of a precise factual situation than covered by rules promulgated in advance. Indeed, I also venture to guess that the promulgation of the proposed set of rules will certainly lead to a fresh batch of litigation of significant quantity over the construction of the rules. As you know, the ingenuity of lawyers is endless. This is really the strength of the adversary system. To offer only one brief comment on a particular rule, I refer to proposed Rule 406. Suppose a person is charged in an automobile accident case with running a red light. The fact that he has run red lights before or is in a habit of running them, I should think, would be very prejudicial and irrelevant as to whether or not he ran the red light on the occasion in question. Similarly, and equally irrelevant and prejudicial, would be the fact that he had stopped at red lights in the past or makes a habit of stopping at them. This is only one of many departures from rules of evidence most of us have grown up with, which seem to indicate to me that the broad reach of the proposed rules will be to convert rules of evidence in the courts to more nearly conform to rules of evidence in administrative hearings, where, all of us know, most objections are considered only as going to the weight of the evidence and not to its admissibility. For example, due to the tremendous commercial growth in this country and the increasing reliance of everyone on records and books of account, the Business Records Act may have been necessary and a recognition of a fact of life. I do not feel it appropriate, for the sake of uniformity alone, to enact what will be a complete code of evidence but believe the interests of justice would be promoted by correcting now what may need to be corrected, leaving the balance for development by the courts on a case-by-case basis in accordance with common law tradition which has served so well over the centuries, other than in unusual circumstances when legislatures properly have acted on the matters at hand. I know, and hope you will draw the conclusion from this letter, I would be just as happy if Congress rejected all of the proposed rules at this time as they are offered in a bunch but might make such corrections as seem appropriate and needed by the society in which we live. I thank you for the opportunity to comment and hope the lateness of this letter may be excused. Had I more time, there are more comments I would have to make on specific rules. I think I have an inborn hesitation about creating uniformity for its own sake, and that is really my big reluctance and the reason for the nature of this response. Sincerely, H. E. WIDENER, Jr. COMMITTEE ON FEDERAL COURTS, THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, Hon. WILLIAM L. HUNGATE, Chairman, Subcommittee on Criminal Justice, Committee on the Judiciary, House of DEAR MR. HUNGATE: I enclose our comments respecting H.R. 5463. 1. A report approving the scheme by which future changes may be made to the Federal Rules of Evidence, but making various technical suggestions with respect to the proposed addition to Title 28. 2. A report on the section dealing with privileges, Rule 501, approving of the change. 3. A report on the hearsay sections, generally approving the changes, with exceptions: (a) We suggest reconsideration to Rule 804(a) (5). (b) We suggest deleting the "civil action" application for dying declarations-Rule 804(b)(2). (c) We think it unwise to include a requirement of corroboration as a test of admissibility with respect to statements against interest-Rule 804(b) (3). 4. A report on various other sections, approving the changes. Our more intensive study reinforces the initial opinion we offered-that the Committee is to be commended for a most thorough, scholarly revision of the Federal Rules of Evidence. We are glad to have offered our help, and we stand ready to assist with respect to any additional studies that might be desired. Very truly yours, ALVIN K. HELLERSTEIN. SECTION 1 STATUTORY AUTHORITY FOR THE FEDERAL RULES OF EVIDENCE The House Subcommittee's bill enacts the Federal Rules of Evidence, retaining most of the language of the rules as promulgated by the Supreme Court, but making certain changes. It also, by section 2 of its bill which adds $1657 to Title 28, grants the Supreme Court a continuing power to amend the Federal Rules of Evidence, subject to Congressional veto. As a matter of draftsmanship, one may doubt whether the grant of power to amend the Rules of Evidence should be located in Chapter 111, entitled " General Provisions", of Title 28. There are three chapters of Title 28-Chapters 115, 117, and 119-dealing with evidence, but they are concerned with documentary evidence, depositions, and witnesses, and have no place for a section granting |