adequately serves to establish reputation and the point at which reputation testimony becomes unnecessarily cumulative is not difficult to discern. If individual opinion testimony is relevant, it could never be cumulative and would be difficult to terminate. SUGGESTIONS RECEIVED BY ADVISORY COMMITTEE CONCERNING PROPOSED EVIDENCE RULE 405 FOLLOWING PUBLICATION OF PRELIMINARY DRAFT OF MARCH, 1969 Rule 4-05. Methods of Proving Character. Approved with the following modifications: 1. In subsections (a) and (b) the phrase "character or a trait of character" should read only "a trait of character", the words "character or" being stricken. 2. In sub-section (a) the phrase "or in the form of an opinion” should be removed. The Committee expressed the view that "opinion" evidence should be excluded when at trial the trait of a person's character is relevant. * Rule IV-05. Methods of proving character. Rule 1V-05 (A) provides that in all cases in which evidence of character or a trait of character of a person is admissible, proof may be made not only by testimony as to reputation, but also in form of an opinion of a witness as to such character. We believe the use of opinion of a witness as to a character or character traits is an improvement on the California Rule which apparently permits proof of character by a testimony as to a reputation alone. Evidence of reputation of a person in the community for a character trait seems to be the rankest form of hearsay and easily would be unreliable. A person might well know the character and character traits of a party or witness in an action through many years of experience, and yet be unable to testify as to reputation in the community since the character traits may not be the subject of reputation in the community. The witness who testifies as to an opinion as to character traits would be subjected to a cross examination under which the said opinion could be evaluated and weighed quite like any other opinion of a witness might be tested. Rule 4-05(a), line 4. After the word "reputation" there should be inserted the language, “subject to Rule 6–08(b)”. RULE 4-05. METHODS OF PROVING CHARACTER The Committee again urges the same considerations for a review and reevaluation of Section 4-05 as was mentioned with regard to Rule 4-04(b), to-wit: that every effort be made to determine that a proposed rule of evidence incorporated herein not have any adverse effect on the rights of accuseds in criminal proceedings. RULES 4-04, 4-05, 4-06, AND 6-08, CHARACTER AND HABIT As presently drafted these rules give rise to some confusion, particularly with regard to their inter-relationship. Since the problems which we perceive would require an overall reworking of these rules, we have not suggested particular language changes. We will attempt, however, to state some of the problems which we find in the present draft. Rule 4-04(a) (3) allows evidence of the character of a witness. It is apparently the intent of the drafters that admissibility of character evidence under this rule be limited to those instances specified in Rule 6-08. If this is the intent, then it seems that Rule 4-04 (a) (3) should state specifically that the exception it creates is limited to those instances specified in Rule 6-08. Without such a clear expression of intent, there will remain room for argument that Rule 6-08 was not intended to provide the exclusive guide to determining the admissibility of evidence concerning the character of a witness. Similarly, the present draft of Rule 4-05 could give rise to some confusion concerning the admissibility of proof of specific instances of conduct. It is ap parently the purpose of the rule to limit proof of specific instances of conduct to situations where the trait of character is an essential element of a charge, claim or defense. If that is the intent, should not the rule state this specifically rather than rely on a negative implication as it presently does. In addition, the provision of Rule 4-05 seems somewhat inconsistent with the provision of Rule 6-08(b) that specific instances of conduct may be inquired into on cross-examination. By limiting proof of character, except as to witnesses, to criminal cases, Rule 4-04 could give rise to the anomalous situation that a defendant in a criminal assault trial could introduce evidence of the victim's pugnacious character to support a claim of self-defense but could not introduce the same evidence if the victim brought a civil suit for assault. It seems that in such a situation the trial judge should at least have the discretion to admit evidence of this type. Similarly, the trial judge should have discretion to admit, at least on crossexamination, testimony of an individual's routine which did not meet the standard of habit established in Rule 4-06. For example, an individual may be known to stop routinely for a drink on his way home from work so that he normally did not arrive home until 7:30 p.m. If he testified that he was home at 6:30 p.m., and this was material to his testimony, it would seem that he should at least be subject to cross-examination on the reasons why he departed from his usual routine on this particular occasion. The rules on evidence of the character of the accused make no reference to the proper scope of cross-examination of character witnesses. Since Rule 6-08 does provide that a witness testifying as to the character of a witness may be questioned about specific instances relevant to truthfulness, the absence of any similar provision governing the cross-examination of witnesses who testify as to the character of the accused may lead to the conclusion that such testimony is not to be allowed. Since this would be a radical departure from existing law, see Michelson v. United States, 355 U.S. 469, we believe that the rules or, at least the comments, should be changed to show that no departure from the present rule is intended. COMMITTEE ON RULES OF PRACTICE & PROCEDURE, Washington, D.C. GENTLEMEN: We are enclosing herewith a copy of the report of the Washington State Bar Association's Committee on the New Federal Rules relative to the proposed Rules of Evidence. This report has been approved by the Board of Governors of the Washington State Bar Association. Very truly yours, ALICE RALLS, Rule 4-05(a). The committee does not believe that proof of character by opinions of laymen should be permitted. On a practical level, the committee is convinced that weaknesses of such opinion testimony cannot be exposed except with difficulty by cross-examination of the witness, and that challenging of his answers on cross-examination by extrinsic evidence would usually be barred. The danger mentioned seems very real. The committee recognizes that reputation evidence may not be completely realistic and that it may in effect disguise the opinion of the witness who testifies to reputation. However, again on a practical level, it seems preferable to lay opinion testimony, because it can much more easily and clearly be tested by cross-examination of the witness. Expert opinion would appear to involve opinions of psychiatrists or psychologists. As a minimum protection, the committee believes that expert opinion based only upon observation of a person in the courtroom should be excluded, even though the expert might testify that such observation was sufficient basis for him to form a relevant opinion. The committee therefore recommends that the words "or in the form of an opinion" be deleted (recommendation that the words, "or in the form of an opinion" be deleted). Rule 4-05(b). The scope of this paragraph is not sufficiently defined by the language referring to "an essential element of a charge, claim, or defense." This matter should be clarified (recommendation that language be clarified). ALBERT E. JENNER, Jr., Esq., SPENCER A. GARD, ATTORNEY AT LAW, Iola, Kans., October 8, 1969. (On Board SS UNITED STATES). DEAR MR. JENNER: Before leaving for England in May I did not have time to study the Preliminary Draft of Proposed Rules of Evidence for United States District Courts. But I took the pamphlet along and have spent the major portion of the return voyage on the SS United States going over it. Most of the doubts that arose in the course of reading vanished as I continued to read, so there is little left to criticize. What I must say is that the whole work is amazingly good-better than I thought would be possible in a field where individual opinions are often too uncompromising. Rule 4-05(a) should recite that it is subject to Rule 6-08. And I believe that it would be better to sav in (a) "in all cases where evidence of character is circumstantially relevant" instead of "is admissible," and to say that proof in such cases may be made only by testimony of reputation or opinion. DEAR BOB: Pursuant to our conversation at lunch, I am enclosing a memorandum of some of the problems that struck as I read the Proposed Rules of Evidence. These are largely problems of drafting rather than the rightness of the Committee's choice of rule. As I suggested, there are a few rules that I am unhappy with and I will try to put together some additional remarks about those. After you have had a chance to go over them I would be happy to discuss the memo-in fact, I would very much like to do so. Please feel free to do anything you want with it-send it or any part to the other members of the Committee. Lest this letter or the memo be misconstrued, let me hasten to repeat that I also think it is a superb job; I would like to help get it adopted in any way I can; and I am confident that it will be. Sincerely, DAVID DOW, I am not sure as to the intended status of the classic problems of the Michelson case: To what extent does the Rule permit the opponent to suggest specific instances of conduct contrary to the claimed character? JANUARY 5, 1970. Re: Preliminary Draft of Proposed Rules of Evidence for U.S. District Courts Chairman, Federal Civil Procedure Committee (Chicago Bar Association), Chicago, Ill. DEAR CHAIRMAN HANSON: I have examined Article IV of the Proposed Rules referred to above. Article IV is concerned with relevancy of evidence, and its limits. The rules contained in Article IV, numbered 4-1 thru 4-11, basically codify existency common law. Two minor changes from the common law may be worthy of mention. The first is found in hule 4-05, which provides that evidence of character may be made in the form of an opinion. In my judgment, this is an improvement over the common law rule. Our urban society, where a man may reside in a large apartment building for years and never get to know his neighbors-nor they him-has been largely responsible for making the concept of "reputation in the community" non-viable. JUNE 24, 1969. Hon. JACK B. WEINSTEIN, Brooklyn, N.Y. DEAR JUDGE WEINSTEIN: It was a pleasure to see you again at the Judiciary Conference in Manchester, so many years after our panel discussion at Columbia. I have the following comments on the proposed federal rules of evidence. You, or the committee, or your staff might find them of some relevance. I preface these comments by saying that I believe the rules well-drawn and to be a helpful and desirable advance. ** Rule 4-05. This rule deals with evidence of character, and provides inter alia that it may be proved by evidence of reputation. There seems to be no rule specifying how reputation may be proved. There are problems in the proof of reputation which perhaps might be resolved by a rule on that subject. Cf. Michelson v. United States, 335 U.S. 469. HON. PETER W. RODINO, Jr., ILLINOIS STATE MEDICAL SOCIETY, DEAR REPRESENTATIVE RODINO: Recently proposed to Congress were new Federal Rules of Evidence, Rule 504, by the Judicial Conference of the United States. These would replace Rule 27, which protects the confidential nature of the physician-patient relationship. The Illinois State Medical Society recommends that there should be continued recognition and incorporation of a qualified physician-patient privilege. It is suggested that Rule 27 of the Uniform Rules of Evidence be maintained. Enclosed is a copy of a resolution recently adopted by the policy-making Illinois State Medical Society House of Delegates. In it the basic rationale of physicians in Illinois is enunciated. This is supportive of the position forwarded to you from the AMA last January 31. Congress, in its wisdom, has enacted PL 93-12, delaying implementation of proposed Rule 504 until the end of the current session. ISMS encourages your continued critical appraisal of this matter. We understand that Rep. Hungate of Missouri has introduced HR 5463 which incorporates the tenets of Rule 504. The full ramifications of this should be explored. Be assured that the Illinois State Medical Society is available to you should you need any further comment or suggestion in this matter. Sincerely yours, WILLIAM M. LEES, M.D., Introduced by: William M. Lees, Chairman, Board of Trustees. Referred to: Reference Committee on Governmental Affairs and Medical Legal. Whereas, the proposed Rule 5-04 would eliminate most provisions of confidentiality except in mental illness; and Whereas, confidentiality is the right of the patient and the physician is obligated to respect this confidence; and Whereas, the Congress has guaranteed confidentiality and immunity for persons testifying to closed congressional committees; and Whereas, certain areas of medical inquiry might result in disclosures by a patient that should be kept secret and disclosure of non-relevant personal information could be harmful and grossly embarrassing; and Whereas, curtailment of free expression by the patient could interfere with good medical diagnosis and care; and Whereas, individual rights must be protected; therefore be it Resolved, That the Illinois State Medical Society indicate its complete support for the vigorous position of the American Medical Association in opposing new Rule 5-04; and be it further Resolved, That support for present Rule 27 which guarantees confidentiality of patient communications be endorsed; and be it further Resolved, That a personal copy of this Resolution be transmitted to each member of the Illinois Congressional Delegation; and be it further Resolved, That this matter be given publicity to all citizens of Illinois, professional and laity, and that all ISMS members be encouraged to write to their personal representatives. Herbert E. Hoffman, Esq., ARIZONA STATE UNIVERSITY, COLLEGE OF LAW, Tempe, Ariz., April 30, 1973. Counsel, Special Subcommittee on Reform of Federal Criminal Laws, Committee on the Judiciary, Rayburn House Office Building, Washington, D.C. DEAR MR. HOFFMAN: On Friday and Saturday of last week I participated in a program in San Francisco on the proposed Federal Rules of Evidence sponsored by the Joint Committee on Continuing Legal Education of the American Law Institute and the American Bar Association. As you know, many programs on the rules have been given since the publication of the Preliminary Draft in 1969. The noteworthy feature of this particular presentation, as you can see from the enclosed copy of the program, is that the participants were almost entirely persons who had no connection with the process of drafting the rules. They were, with minor exceptions, not merely receptive to but highly enthusiastic about the rules. Moreover, the presentations were thoughtful, practical, and in depth. The entire program was videotaped, and I would urge it upon you and the Subcommittee as a valuable source of information about the rules and about the reception that they have met and are meeting in most quarters. I am certain that Mr. Paul Wolkin, director of the program, would make the videotapes available. Sincerely yours, HERBERT E. HOFFMAN, ESQ., EDWARD W. CLEARY, Counsel, Special Subcommittee on Reform of Federal Criminal Laws, Committee on the Judiciary, Rayburn House Office Building, Washington, D.C. DEAR MR. HOFFMAN: You will be interested to know that the Supreme Court of New Mexico within the last few days adopted the proposed Federal Rules of Evidence virtually without change. Nevada adopted the rules (Preliminary Draft) in 1971 with some changes in the area of privilege. The Supreme Court of Wisconsin, I am reliably informed, is expected within the next few weeks to adopt rules substantially as set forth in the Winter 1973 issue of the Marquette Law Review. These are the proposed Federal Rules with what I would describe as minor changes, and I am told that a few additional changes "not of much consequence" have been made. Sincerely yours, EDWARD W. CLEARY, Reporter. U.S. SENATE, COMMITTEE ON THE JUDICIARY, SUBCOMMITTEE ON CRIMINAL LAWS AND PROCEDURES, Hon. WILLIAM L. HUNGATE, Chairman, Special Subcommittee on Reform of Federal Criminal Laws, House Committee on the Judiciary, Washington, D.C. DEAR MR. CHAIRMAN: I want to thank you for your courtesy in incorporating my letter of February 16, 1973, and its attachments in your hearings record on the Rules of Evidence. |