(B) The second category in the rule is "investigatory files compiled for law enforcement purposes and not otherwise available." Lest there be confusion, the provision is expressly made subject to the Jencks Act. 18 U.S.C. § 3500, which imposes most substantial limitations upon access to such files. Here again the provision of the rule finds its basis in a provision of the Freedom of Information Act, viz.: "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency." The rule is designed to implement the quoted provision of the Act.

(C) The third category broadly refers to information exempt from disclosure under the Freedom of Information Act. In some instances, for example state secrets, resort to this provision of the rule will not be necessary, as the matter has already been made the subject of another privilege. Otherwise the reference is to the nine exemptions of the Act. It seems evident that the Congress, in enacting the Act, did so on the assumption that each of the exemptions represents a type of information which ought not be made available to the public generally. Accordingly, these areas were exempted from compulsory disclosure obtainable through the procedures provided in the Act. The Act, however, requires no standing; anyone is entitled to nonexempt information with no more of a showing than that he desires the information. While the convenient nature of proceedings under the Act has led to employing it for the purpose of obtaining evidence for use in litigation, it seems apparent that it was not designed for that purpose and that its nine exemptions were not meant as expressions of evidentiary privilege. It seems further apparent, however, that the congressional policy manifested in the Act would be violated by a rule calling for indiscriminate disclosure. For these reasons the rule allows a privilege with respect to the exemptions when disclosure would be contrary to the public interest, but not otherwise.

RULES' RECOGNITION OF CONGRESSIONAL POSITIONS

Rule 103(a). Advisory Committee's Note points out that the rule does not purport to change the law with respect to harmless error, citing 28 U.S.C. § 2111. (p. 12)

Rule 201(c). Advisory Committee's Note points out that the provision for hearing on timely request has a parallel in the Administrative Procedure Act, 5 U.S.C. § 556(e). (p. 22)

Rule 301. In stating the general effect of presumptions, the rule specifically excepts cases otherwise provided by Act of Congress. (p. 24)

Rule 303(a). Same provision as in Rule 301, supra. (p. 27)

Rule 303(b), (c). Advisory Committee's Note points out that the Congress may wish to enact legislation supplanting the rule with respect to presumptions. (p. 30)

Rule 402. The rule recognizes the continuing effects of Acts of Congress excluding relevant evidence in particular situations (p. 32), and the Advisory Committee's Note cites a number of these statutes. (p. 33)

Rule 501. The rule recognizes the continuing effect of privileges created by Act of Congress (p. 45), and the Advisory Committee's Note cites a number of these statutes. (p. 45)

Rule 504. The Advisory Committee's Note points out that the rule leaves undisturbed the provision against disclosure of the identity of persons who are the subjects of research on the use and effect of drug Abuse and Control Act of 1970, 42 U.S.C. 242(a)(2), and that the rule is consistent with the definition of "drug dependent person" in 42 U.S.C. 201(q), added by the Drug Abuse and Control Act of 1970. (p. 57) The note also points out that the rule is in harmony with other federal statutes pertaining to treatment for drug addiction. (p. 57) The note additionally states that the rule's provisions respecting court ordered mental examinations are in conformity with 18 U.S.C. § 4244 (statements by accused during examination into competency to stand trial not admissible at trial) and 42 U.S.C. § 3420 (physician conducting examination in drug addiction commitment proceeding competent and compellable witness).

Rule 505(c). The rule abandons the Supreme Court's conclusion in Hawkins v. United States, 358 U.S. 74 (1958), that the common law privilege continued to bar a wife from testifying against her husband in Mann Act cases (18 U.S.C. §§ 2421-2424), and adopts for all violations of this kind the contrary rule announced by Congress with respect to unlawful importation of aliens for immoral purposes, 8 U.S.C. § 1328. (pp. 59, 60).

Rule 509(a)(1). The term "national defense" in the rule is taken from statutes on the subject. 18 U.S.C. §§ 793, 794. See also 5 U.S.C. § 1002; 50 U.S.C. App. § 2152(d). (pp. 65, 66).

Rule 509(a)(2). The qualified privilege provided by the rule is based on the policies that underlie the Freedom of Information Act, 5 U.S.C. § 552, and the privilege is subject to the Jencks Act, 18 U.S.C. § 3500. Both statutes are cited in the rule (p. 65) and dwelt upon in the Advisory Committee's Note (pp. 66, 67). Rule 509(d). The requirement of notice to the government, when a claim of privilege might be appropriate but is not made, is based on the similar provision with respect to cases raising questions of the validity of an Act of Congress in 28 U.S.C. 2403. See Advisory Committee's Note. (p. 68).

Rule 603. The Advisory Committee's Note calls attention to certain governing federal statutes on the subject of oaths, affirmations, and perjury. (p. 76).

Rule 605. The Advisory Committee's Note suggests that, in view of the mandate of 28 U.S.C. § 455 requiring a judge to disqualify himself in a case in which he is or has been a material witness, the likelihood of questions of his competency to testify in a case over which he is presiding is slight. (p. 77).

Rule 606(b). The Advisory Committee's Note points out that the rule relates to competency, not nondisclosure, the latter being the subject of 18 U.S.C. § 3500. Rule 609. The rule is in accordance with Congressional policy manifested in the 1970 amendment of § 14-305 of the D.C. Code. P.L. 91-358, 84 Stat. 473. See Advisory Committee's Note. (p. 83)

Rule 612. The rule is expressly made subject to the Jencks Act, 18 U.S.C. § 3500. (p. 89) See also the Advisory Committee's Note. (pp. 89, 90)

Rule 802. The rule excepts from its operation such hearsay as is made admissible by Act of Congress. (p. 110) The Advisory Committee's Note calls attention to several of those acts. (pp. 110, 111)

Rule 803(6). The Advisory Committee's Note states that the rule is designed to preserve the advantages of 28 U.S.C. § 1732. (p. 118)

Rule 803(8). The Advisory Committee's Note observes that the rule expands upon 28 U.S.C. § 1733 so as to include records of nonfederal agencies as well as those of federal agencies. (p. 121) The note also lists a number of federal statutes under which evaluative reports are admissible and points out that statutes of this kind are left undisturbed by the rule. (pp. 122, 123)

Rule 803(10). The Advisory Committee's Note refers to several federal statutes as illustrative applications of the principle involved. (pp. 123, 124)

Rule 901(b)(3). The treatment of handwriting exemplars for comparison purposes is, as the Advisory Committee's Note observes, consistent with 28 U.S.C. § 1731. (p. 143)

Rule 901(b)(10). The rule expressly preserves methods of authentication provided by Act of Congress (p. 141), and the Advisory Committee's Note includes an illustration of such a statute. (p. 145)

Rule 902(10). The rule dispenses with preliminary proof of authenticity when so provided by Act of Congress. (p. 146) The Advisory Committee's Note cites several illustrative statutes. (p. 148)

Rule 1001(4). The Advisory Committee's Note refers to cited statutory provisions for support. (p. 150)

Rule 1002. The rule recognizes the continuing effect of Congressional exceptions to the requirement of producing the original of a document. (p. 150) Illustrative statutes are cited in the Advisory Committee's Note. (p. 151)

Rule 1005. As the Advisory Committee's Note observes, the rule expands the effect of 28 U.S.C. § 1733(b) to include records of nonfederal as well as those federal agencies. (p. 154)

Rule 1101. The rule and Advisory Committee's Note contain many references to applicable statutes. (pp. 155–161)

HERBERT E. HOFFMAN, Esq.,

Counsel for Subcommittee on Reform of Federal Criminal Laws,
Committee on the Judiciary, U.S. House of Representatives, Washington, D.C.

DEAR MR. HOFFMAN: In your telephone call of yesterday, you requested information with respect to changes made in proposed Federal Evidence Rules 104 (c) and (d) subsequent to the Revised Draft of March, 1971. These changes were made at the Advisory Committee meeting of September 3-5, 1971. As I explained in our conversation, the proceedings of this meeting have not been transcribed, and I will therefore have to depend upon the materials that were placed before the committee for its consideration and upon memory.

Rule 104(c)

The Revised Draft of March, 1971, was amended by striking the concluding phrase "or, when an accused is a witness, if he so requests." The basis for the amendment was that the matter had better be left to the discretion of the judge, as provided in the Preliminary Draft. Several factors underlay the discussion: much preliminary matter is harmless, regardless of the eventual ruling of the judge; much that is admissible on the issue of admissibility is also admissible as bearing on probative value, and repetition once before judge and again before jury may be needless and time wasting.

Rule 104(d)

The Revised Draft of March, 1971, was amended by deleting the final sentence: "Testimony given by him at a hearing in which he is asserting any constitutional right, or any right to have evidence suppressed or excluded, is not admissible against him as substantive evidence but may be used for impeachment if clearly contradictory of testimony given by him at the trial."

The Preliminary Draft of the rule had contained a provision of this kind but only with respect to preliminary hearings on confessions or unlawfully obtained evidence. The Revised Draft expanded the rule to include all grounds for suppression or exclusion, and the Advisory Committee concluded that this coverage was beyond what was justified by the competing interests involved. Moreover, after the publication of the Revised Draft in March, 1971, the Supreme Court handed down two decisions, Harris v. New York, 401 U.S. 222 (1971), and McGautha v. California, 402 U.S. 183 (1971), that substantially marked out the area along constitutional lines. The earlier estimate of the waning effect of Walder v. United States, 347 U.S. 62 (1954), proved to have been erroneous, and the Advisory Committee decided to abandon the area as one appropriate for constitutional determination.

Rule 102

You also raise a question as to the reference to growth and development in proposed Rule 102. An illustration may be found in Judge Weinstein's opinion in United States v. Lopez, 328 F. Supp. 1077 (E.D.N. Y., 1971), drawing upon the procedure specified in proposed Rule 510, which deals with informers, to resolve the question whether the government's profile of potential hijackers must be disclosed in a search and seizure case. It seems essential that the rules contain at some point a provision allowing expansion by analogy to cover new or unanticipated situations, and the provision in question should serve this purpose.

Sincerely yours,

HERBERT E. HOFFMAN, Esq.,

EDWARD W. CLEARY, Reporter.

ARIZONA STATE UNIVERSITY,

COLLEGE OF LAW, Tempe, Ariz., March 28, 1973.

Counsel, Special Subcommittee on Reform of Federal Criminal Laws, Committee on the Judiciary, Rayburn House Office Building, Washington, D.Ć.

DEAR MR. HOFFMAN: Your letter of March 23rd asks me to comment upon a suggested revision of proposed rule 107 which would (1) substitute "of the same" in lieu of "or any other," and (2) insert after "which" the phrase "relates to the same subject matter or.'

I comment as follows.

(1) The first of the suggested amendments would substantially narrow the rule by limiting its application to situations involving only a single document. The effect would be to deny the benefit of the rule in other situations where a just result would require its application. For example, the meaning of a letter may be affected greatly by the tenor of a letter to which it was written in reply. Or again, the effect of a written contract may be changed substantially by a subsequent modifying agreement. I believe the rule ought to apply in such cases.

(2) The second suggested amendment may appear to have as its purpose some expansion of the rule. If it were not for the first suggested amendment the broadening effect would be very substantial, probably undesirable so. However, when read with the first suggested amendment, the effect is negligible. It may be worth noting that the predecessor of present Rule 32 (a) (4) of the Rules of Civil Procedure contained the word "relevant"; this was abandoned as being inconsistent

with the purpose of the rule, and "fairness" was substituted as the test of when other parts of a deposition might be called for.

The suggested reformulation also contains some internal inconsistency. When the entire writing is introduced, it seems scarcely possible to require him to introduce any other part.

My recommendation is against the suggested amendments.

Perhaps I might take this occasion to call to the attention of yourself and the Subcommittee an aspect of the situation with respect to the proposed rules dealing with privilege. Since the Enabling Acts refer only to district courts and magistrates, the applicability of the privilege rules as transmitted to the Congress was limited to proceedings in district courts and before magistrates. The Congress, however, suffers from no limitation in this regard, and the Subcommittee may wish to consider making rules of privilege applicable in proceedings before administrative agencies and in congressional hearings.

Sincerely yours,

Hon. WILLIAM L. HUNGATE,

EDWARD W. CLEARY, Reporter.

PUBLIC CITIZEN, INC.,

Washington, D.C., March 28, 1973.

Chairman, Special Subcommittee on Reform of Federal Criminal Laws, Committee on the Judiciary, U.S. House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: When I testified before your Committee on March 9, 1973, Congressman David W. Dennis requested that I put my supplemental recommendations dated March 9, 1973, into the form of a statute for your consideration. Accordingly, I have prepared a proposed statute which I am enclosing for your use.

Certain matters occurred to me in connection with the preparation of this proposal which may be of some assistance to you in evaluating it and which may help clarify its intent. I have made this single statute applicable to rules for civil, criminal, and bankruptcy matters although the other rule making authority for those types of actions are contained in separate provisions. I saw no reason for separate treatment, and in fact I believe that it would be useful to consolidate all rule making powers of the Supreme Court under one chapter in Title 28 rather than have them spread out in their present form. This would help insure that the standards for rule making in all three areas are the same except when Congress specifically decided that differences are appropriate.

The definition of a privilege in Section 2073(b) (1) is intended to be all inclusive. It is taken largely from Rule 501, with the final phrase in subpart (D) and the final sentence in Section 2073(b) (2) intended to bring under the prohibition laws such as the Dead Man's Acts which are purportedly abolished by Rule 601. The procedures outlined in Section 2073 (c) for the use of an advisory committee are, of course, flexible ones, particularly with respect to the minimum time limits described therein.

I have deliberately omitted any procedure that would require the Supreme Court to publish its proposed changes in the drafts sent to it by the advisory committee before transmitting the rules to Congress because it seemed somewhat inappropriate to direct the Court to follow detailed procedures after most of the significant work has been done by the advisory committee. The legislative history should make it clear that the Court is not prohibited from publishing for comment any proposed changes, and that Congress encourages it to do so.

One other modification in existing procedures for handling changes in the draft rules seems appropriate, but I decided not to include it as a direction to the advisory committee because it seemed an undue interference with its operations. It would be extremely helpful for everyone if the advisory committee would "red-line" its changes so that modifications in both the language of the rule and in the advisory committee's notes, could be readily identified. This was not done for these rules of evidence, thus greatly complicating the job of reviewing each new draft. I believe that a statement in the committee report to this effect would insure future compliance by the advisory committee.

Sections 2073 (d) and (e) outline the procedures for actually putting the rules into effect and hopefully clarify the rights of Congress in this regard. I have chosen the vehicle of a Concurrent Resolution for the method of disapproval in order to eliminate a Presidential Veto. However, if Congress should wish to disapprove a rule after it had gone into effect, it would still be able to do so by passing a statute to override the rule, but that statute would be subject to the

normal legislative process. Although Sections 2073 (d) and (e) are applicable only to the rules of evidence, it is my recommendation that these procedures be made applicable to all rule making powers of the Supreme Court. Specifically, this would require the elimination/amendment to the third paragraphs in Sections 2072 and 2075 of Title 28 and the second sentence in 18 U.S.C. § 3771. The confusion caused by those provisions applies not only to the rules of evidence, and this would seem to be a proper time to eliminate it.

The change in Section 460 of Title 28 is intended to insure that the Supreme Court has the power to issue rules applicable to the United States District Courts for the Canal Zone, Guam and the Virgin Islands, which are not included in the definition of "district court" under Section 451. There appears to be a deficiency in this regard now in Section 2072, since it refers to rules for the "district courts' which are defined in Section 451. No comparable problem exists for the bankruptcy rules since Section 2075 makes no reference to the district courts, but speaks only in terms of the power of the Supreme Court to issue rules "under the Bankruptcy Act."

Finally, I have one additional recommendation which I have not embodied in a statute, but which I believe would be appropriate for your Committee to consider. Some of the opposition to the rules of evidence was concerned with the closed-door procedures of the advisory committee. Rumors have circulated indicating that the committee was often closely divided on very controversial questions, and yet such differences are rarely evident in the final committee notes or elsewhere.

In my opinion, there is no need for such secrecy, and it would be healthy for the committee and the public to have all drafting sessions and meetings of the committee open to anyone who wished to attend, and, if minutes were kept, to have those minutes made publicly available. Just last year Congress passed the Federal Advisory Committee Act, Public Law 92-463, which opened the doors of the numerous committees which provide policy inputs into the Executive Branch of Government. The role of an advisory committee to the Supreme Court in connection with its rule making functions performs a far more crucial task than the advisory committees do for the Executive, since they actually draft the rules which become law with little or no modification by the Court. It surely seems appropriate that these committees be subject to the same rules of openness that now prevail for other committees which perform far less crucial functions in our law making process.

The 1972 Advisory Committee Act does not now apply to committees advising the judiciary, but I recommend that it be amended to make it applicable not only to committees advising the Supreme Court on rules, but to all other advisory committees respecting the Federal Judiciary. While some modifications in the 1972 Act may be appropriate to take account of differences between the two branches of Government, the presumption should be against any changes that would reduce openness from the standard applicable to the Executive. In this connection, hearings should probably be held before any specific legislation is proposed, and it is for that reason that I have not prepared any statutory language for your consideration at this time. In my opinion, had the advisory committee meetings on the rules of evidence been open to the public, many of the problems that were aired before your Committee would have been eliminated or would have surfaced long before the rules were put into final form.

Thank you for the opportunity to submit these additional comments and the enclosed statute, and if there are any questions raised by this submission, I would be pleased to try to answer them.

Respectfully submitted,

Enclosures.

ALAN B. MORRISON.

ARIZONA STATE UNIVERSITY,

COLLEGE OF LAW, Tempe, Ariz., March 30, 1973.

HERBERT E. HOFFMAN, Esq.,

Counsel, Special Subcommittee on Reform of Federal Criminal Laws,

Committee on the Judiciary,

Rayburn House Office Building,

Washington, D.C.

DEAR MR. HOFFMAN: Your letter of March 26th is quite correct in calling attention to the discrepancy between the description of Rule 403 contained in the first sentence of the Advisory Committee's Note to Rule 106 and the actual con