738 D. I. CHADBOURNE, INC. v. SUPERIOR COURT [60 C.2d Hon. WILLIAM HUNGATE, AMERICAN BAR ASSOCIATION, Chairman, Subcommittee on Criminal Justice of the House Judiciary Committee, Rayburn House Office Building Washington, D.C. DEAR CONGRESSMAN HUNGATE: At the meeting of the House of Delegates of the American Bar Association held August 6-8, 1973, the enclosed resolution was adopted upon recommendation of the Committee on Federal Practice and Procedure. This resolution is being transmitted for your information and whatever action you may deem appropriate. Please do not hesitate to let us know if you need any further information or have any questions. Sincerely yours, Enclosure. RULES OF EVIDENCE KENNETH J. BURNS, Jr. Recommendation presented by the Committee on Federal Practice and Procedure and Approved by the House of Delegates-August, 1973. Whereas, Subsequent to the filing of the report of the Special Committee on Federal Practice and Procedure, the Special Subcommittee of the Judiciary Committee of the House of Representatives (commonly called the Hungate Subcommittee) which is giving detailed consideration to the proposed Federal Rules of Evidence, has filed a report with the full Judiciary Committee, where the matter is presently pending; and Whereas, Certain of the recommendations of the Special Committee are no longer necessary because the pertinent sections to which the Special Committee objected have been stricken in the report of the Hungate Subcommittee; Now, therefore, be it Resolved, That the American Bar Association concurs in the Hungate Subcommittee's Report on the Federal Rules of Evidence insofar as the Report omits from the proposed Federal Rules of Evidence for United States Courts and Magistrates as transmitted by the Supreme Court of the United States to the Congress certain of the rules pertaining to Hearsay [Rules 803 (24), 804(b)(2), and Rule 804(b)(6)]; all of the rules pertaining to privilege (Rules 501-513); and the rule on summing up and comment by judges (105). Further Resolved, That the recommendations made by the Special Committee in its reports for revision of certain rules be approved as follows (the page number in the Special Committee's report follows the Rule number and title): Rule 601.. Rule 609 (a). Rule 609(b) Rule 609 (c). Rule 803(1). Rule 803 (6) Rule 803(18) Rule 804 (b)(1). Rule 804 (b) (5). General Rule of Competency (p. 8). Impeachement by Evidence of Conviction of Crime- Time limit (p. 10). Effect of pardon, annulment or certificate of rehabilitation (p. 10). Hearsay Exceptions. Present sense impression (p. 11). Records of regularly conducted activity (p. 11). Learned treatises (p. 12). Hearsay exceptions. Former testimony (p. 13). Hearsay exceptions. Statement of personal or family history (p. 14). AMERICAN BAR ASSOCIATION, SPECIAL COMMITTEE on Federal Practice AND PROCEDURE RECOMMENDATION That the President of the American Bar Association be authorized to designate Association representatives to present the views of the Association upon the proposed Rules of Evidence for United States Courts and Magistrates as set forth in the Special Committee's August, 1973 Report. REPORT AUGUST, 1973 The Special Committee on Federal Practice and Procedure met in Chicago on Monday, June 18th at the call of the Acting Chairman to consider and act on the Proposed Rules of Evidence for United States Courts and Magistrates. All the Committee members were present. The Rules are under consideration by a Special Sub-committee of the Committee on the Judiciary of the House of Representatives, of which Congressman William L. Hungate is the Chairman. Mr. Meserve had written to the Congressman on February 16, 1973, that the Special Committee would consider further changes and whether it would make recommendations with respect to the Rules. This meeting was called as a result of that commitment. It should be emphasized at the outset that the Committee did not consider: first, whether or not there should be any new Rules; second, whether if there were to be Rules such Rules should be drafted by the Supreme Court of the United States or its duly authorized representatives or by a Congressional committee; and, third, whether there should be in any Rules of Evidence provisions relating to privileges (Article V) or hearsay (Article VIII). Various members of the Committee felt and the Report of the previous American Bar Association Committee expressed its opinion strongly on these issues but they were not on the agenda for discussion since the purpose of the meeting was only to review the Rules now being considered by the Hungate Committee. Rule 105. Summing up and comment by the judge This Rule affords the Judge the option of summing up the evidence and commenting to the jury upon the weight of the evidence and credibility of the witnesses, provided he also instructs the jurors that they must determine for themselves the weight of evidence and the credibility of witnesses and are not bound by his summation or comment. The Committee recommends that the provision as written be stricken out in its entirety and in place thereof the following be inserted: "After the close of the evidence and arguments of counsel, the judge may review the evidence to the extent necessary to clarify his instructions on the law. If he does so, he shall also charge that the jury's recollection of the evidence is to control, but he shall not comment to the jury on the weight of the evidence or the credibility of the witnesses." The present Federal procedure is one which permits the Judge to make such comments and the Appellate Courts have attempted to set forth pertinent guidelines. This has proved ineffectual because it cannot take into account the manner in which such comment is made; such as the tone of voice used by the Judge, facial expressions, or other indicia of his personal beliefs which the printed record does not reflect. We see no useful purpose served by permitting such summation and comment. Rule 503. Lawyer-client privilege This Rule preserves the traditional Lawyer-Client privilege broadly codifying existing law. Moreover, it extends the privilege to cover "representative of the lawyer" who is defined as "one employed to assist the lawyer in the rendition of professional legal services". This definition would seem broad enough to cover accountants, para-professionals, investigators and secretaries working with the lawyer. As to a related definition, i.e. "representative of the client", the Committee originally proposed the following language which was not, at that time, accepted. The Committee strongly urges the adoption of the following provision which it originally suggested: (3) A 'representative of the client' is one (a) having authority to obtain professional legal services, or to act on advice rendered pursuant thereto, on behalf of the client, or (b) authorized by the client to disclose or furnish to the client's lawyer or a representative of such lawyer confidential communications, data or information." Rule 503. Lawyer-client privilege (c) Who May Claim the Privilege. The Committee strongly urges in the second sentence the word "may" be changed to "shall" and add at the end the words "unless waived by the client" so that the sentence will read: "The person who was the lawyer at the time of the communication must claim the privilege but only on behalf of the client unless waived by the client." Rule 504. Psychotherapist-patient privilege The Committee urges that limitation on the physician-patient privilege contained in Rule 504 be rejected and that the revised Rule should contain the traditional protection of the physician-patient privilege, subject only to the waiver by the patient or his legal representative. The privilege would be considered to have been so waived where an action in which the condition of the patient is an element or factor of the claim or defense of the patient or of any party claiming through or under the patient or claiming as a beneficiary of the patient through a contract to which the patient is or was a party. Rule 505. Husband-wife privilege This Rule narrows the Husband-Wife privilege to criminal cases with three stated exceptions. The Special Committee favors the existing rule of law where the privilege is available in both civil and criminal cases and recommends that language be adopted that preserves the privilege, in accordance with the law of the state, in both civil and criminal cases. Rule 506. Communications to clergymen This Rule deals with communication with clergymen and defines the term "clergymen" broadly and extends the privilege to any communication made to a clergyman in his professional capacity. The Special Committee has no comment as to the Proposed Rule except that it feels very strongly that paragraph (c) which permits the privilege to be claimed by the person, his guardian, conservator or personal representative, if he is deceased, should be amended so that either the clergyman or the person may claim the privilege. The Special Committee proposed this language: "(c) Who May Claim the Privilege. The privilege may be claimed either by the clergyman or by the person, by his guardian or conservator or by his personal representative, if he is deceased, and may not be waived by anyone other than the person." Rule 509. Secrets of state and other official information This Rule has undergone more discussion and more amendment than any other Rule or Privilege. As now drafted, the Special Committee has this recommendation which it deems of real importance. In paragraph (c) Procedures, the phrase in the first sentence reading "but the privilege for official information may be asserted by any attorney representing the government" should be eliminated so that the sentence will read: "(c) Procedures. The privilege for secrets of state and the privilege for official information may be claimed only by the chief officer of the government agency or department administering the subject matter which the secret or official information sought concerns.' The Committee feels that if the privilege is to be claimed, it should be done by a person at a high level of authority and not by some Assistant United States District Attorney, way down on the bottom of the totem pole. The Committee urges that Rule 509 be reviewed and reconsidered to make it consistent with the Freedom of Information Act with the view of placing the government in the same position as any other percipient witness insofar as the imposition of a duty to disclose relevant evidence is concerned. Rule 513. Comment upon or inference from claim of privilege; instruction The Special Committee suggests that the provision be tightened by making it clear that paragraph (a) Comment or Inference Not Permitted, does not apply to the constitutional privilege against self-incrimination, which these Rules do not purport to state or to govern in any respect. Although no comment on the claim of this constitutional privilege is permitted in criminal cases, there is authority to permit counsel for the opposing party in civil litigation to suggest to the jury that they may draw appropriate inference from a party's refusal to answer questions relevant to the issues in the civil case, even though the party is entitled to refuse to answer because of the privilege against self-incrimination. The Special Committee's suggestion could be implemented by adding the words "accorded by Rules 503-510, inclusive" so that the sentence will read: "(a) Comment or Inference Not Permitted. The claim of a privilege accorded by Rules 503-510, inclusive; whether in the present proceeding or upon a prior occasion is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom." ARTICLE VI. WITNESSES Rule 601. General rule of competency This Rule eliminates the so-called "Dead Man's Acts". The Special Committee prefers to omit this provision so that the law will be as it is at present governed by the laws of the various states. If, however, it remains the present paragraph should be marked (a) and a new paragraph should be added as follows: "(b) Effect of State Dead Man Disqualification. With respect to a material proposition as to which state law controls the rule of decision, the law of that state creating a disqualification of evidence or witnesses on the basis of state policies safeguarding the estates of deceased or incompetent persons, shall control over any inconsistent provision in these rules." This addition is suggested in order to avoid the same Erie considerations of federal usurpation and forum shopping that are presented by the proposed privilege Article. Rule 609. Impeachment by evidence of conviction of crime (a) General Rule. The Committee strongly urges that there be added to this Rule the language that appeared in the previous edition (1971 Revised Draft) and is omitted in the current Draft (November 20, 1972): "unless (3), in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice." (b) Time Limit. The Committee strongly urges that the language used in the current draft be stricken in its entirety and in place thereof the language in the previous draft (1971 Revised Draft) reading as follows be substituted: "(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of conviction or of the release of the witness from confinement, whichever is the later date." (c) Effect of Pardon, Annulment or Certificate of Rehabilitation. The Committee strongly urges that the following words in lines 4 and 5 of this paragraph be stricken out: "and the witness has not been convicted of a subsequent crime” so that the paragraph will read: "(c) Effect of Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a substantial showing or rehabilitation or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on innocence." Rule 803. Hearsay exceptions ARTICLE VIII. HEARSAY (1) Present Sense Impression. The Committee feels that contemporaneity of the event and statement offers the only basis of enhanced reliability and that it is undesirable to relax this requirement. It strongly urges that the last three words in the sentence "or immediately thereafter" be stricken out so the corrected sentence will read: "(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition." (6) Records of Regularly Conducted Activity. The Special Committee feels the Proposed Rule is too broad. It suggests that paragraph (6) be stricken out in its entirety and in place thereof the following be inserted: "(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events or conditions made at or near the time by, or from information transmitted by, a person with knowledge and a duty to so record or transmit, and kept in the course of a regularly conducted business or professional activity, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness." (18) Learned Treatises. The Special Committee recommends that in the second and third lines, the words "or relied upon him in direct examination" be stricken and in place thereof the words "or relevant to such cross-examination" so that as amended it will read as follows: "(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relevant to such cross-examination, statements contained in published treatises, periodicals, or pamphlets on a subject, of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits." (Italic indicates changes.) (24) Other Exceptions. The Special Committee recommends that this provision be stricken out in its entirety and in place thereof the following be inserted: "(24) Other. A statement not specifically covered by any of the foregoing exceptions but having equivalent cricumstantial probability of trustworthiness; provided that the proponent's intention to offer the statement was made known to the adverse party sufficiently in advance of the trial or hearing to provide him with a fair opportunity to prepare to meet it." (Italic indicates changes.) Rule 804. Hearsay Exceptions. (b) Hearsay Exceptions. (1) Former Testimony. This sub-paragraph (1) should be striken in its entirety and in place thereof the following should be inserted: "(1) Former Testimony. Testimony, given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of another proceeding, if offered and received in evidence on an issue of fact involved in the current hearing, against a party who had an opportunity to examine the witness and whose incentive, interest and position with respect to that issue was substantially identical to that of the party against whom now offered." (Italic indicates changes.) Rule 804. Hearsay Exceptions (b) Hearsay Exceptions. (2) Statement of Recent Perception. The Special Committee recommends that this subparagraph (2) be omitted as offering too great an opportunity for abuse without any strong assurance of accuracy. If that recommendation is accepted, the numbering of the following paragraphs will have to be changed. Rule 804. Hearsay Exceptions (b) Hearsay Exceptions. (5) Statement of Personal or Family History. The Special Committee recommends that this provision be stricken and in place thereof the following be inserted: "(5) Statement of Personal or Family History. A statement made prior to the commencement of the action (A) concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) a statement concerning the foregoing matters, and death also, of another person, if the declarant can be shown by evidence other than the declarant's own statement to have been related to the other by blood, adoption, or |