It has been brought to my attention, however, that by inadvertence my letter of August 12 and my exchange of correspondence with the Professor Charles Wright was not included in the attachments reprinted in the Record. The matter is not of large moment, but since these documents form a helpful bit of legislative history in the development of the Rules project, if you have additional days of hearings in which these items might conveniently be included, it would be appreciated if you would place them in your Record. Attached for your convenience is another copy of these items, and with kindest regards, I am Sincerely, Enclosure. JOHN L. MCCLELLAN, Chairman. EXHIBIT I U.S. SENATE, Hon. ALBERT B. MARIS, Committee on Rules of Practice and Procedure, Washington, D.C., August 12, 1971. DEAR JUDGE MARIS: I write to express my concern that the promulgation of the proposed Federal Rules of Evidence in their present form would seriously impair the administration of justice in the United States. In the main, I fully support your effort to secure for Federal courts compact, clear-cut, uniform, accessible and authoritative rules of evidence. But I must deprecate any effort which would go beyond such a codification, radically alter present law and further debilitate an already weak Federal system of criminal justice. My comments here represent my initial opinions on the Rules as now drafted. With full public hearings, in which the drafters of the Rules could be heard and the criticism and suggestions of others solicited, I recognize that I might be persuaded that other positions on these various issues ought to be adopted. Nevertheless, I thought it perhaps wise to share with you my thoughts at this stage in your reconsideration of the proposed Rules. RULE 103 Subdivision (a) of Rule 103 provides that error may not be predicated upon a ruling admitting or excluding evidence "unless a substantial right" of a party was affected. I would assume that this Rule does little more than codify the harmless error rule. See, e.g., Chapman v. California, 386 U.S. 18 (1967). It would be helpful, however, if language were added regulating the notion of "substantial right" to the probable effect of the error on the verdict or finding. Such a provision is found in the Model Code of Evidence §§6(b) and 7(b). To the degree that rules of evidence seek to implement policies other than those immediately associated with the just determination of judicial disputes, it will always be possible to envision that a "substantial right" (e.g., the invasion of privacy associated with the use of the product of an unlawful wiretap) may have been violated, even though it had no impact on the final outcome of the proceeding. In such cases, a retrial would be a needless expenditure of public resources and further contribute to the massive problem of delay in our courts. RULE 104 Subdivision (d) of Rule 104 limits the use that may be made of testimony of an accused given during a preliminary hearing on admissibility to "impeachment of clearly contradictory testimony by him at trial." This provision appears to be an unwarranted extension of Simmons v. United States, 390 U.S. 377 (1968) and a narrowing of Walder v. United States, 347 U.S. 62 (1954). Simmons held that the testimony of an accused, establishing ownership of a suitcase, given on a motion to suppress, may not be used to establish guilt in the Government's case in chief; it says nothing about its use to establish guilt by rebuttal testimony after the defendant has put in an inconsistent defense (e.g., to rebut alibi witnesses not including the accused himself). Walder held that evidence obtained contrary to the Fourth Amendment may be used to unmask by rebuttal testimony affirmative perjury on collateral issues by an accused who testifies in his own behalf. Following and extending Walder, Harris v. New York, 401 U.S. 222 (1971), held that evidence obtained contrary to the Fifth Amendment may be used to unmask by impeachment on cross-examination perjury by an accused who testifies in his own behalf. Neither Walder nor Harris limits the use of such evidence to "clearly contradictory" testimony. I would suggest, therefore, that, in the absence of some compelling showing of need, "clearly contradictory" be, changed to "inconsistent" and provision be made for the use of the evidence in cross-examination or rebuttal. If the purpose of a criminal trial "is to seek out and determine the truth or falsity of the charges brought against the defendant," Lopez v. United States, 373 U.S. 427, 440 (1963), the needless suppression of impeaching or rebuttal testimony ought to be avoided. RULE 303 Rule 303 deals with the effect of presumptions in criminal cases. As you may be aware, proposed Rule 303 differs in its treatment of presumptions from Section 103(4) of the proposed Federal Criminal Code of the National Commission on Reform of Federal Criminal Laws, the Brown Commission. I would urge on you acceptance of the Brown Commission's draft, with one reservation to preserve current law while Congress is considering the issue. In my judgment, Section 103(4) is superior to the draft of Rule 303 principally because it requires the court to instruct the jury that the "law regards the facts giving rise to the presumption as strong evidence of the fact presumed." Especially where statutory presumptions are at issue, any other course of action would deprive the jury of the special insight of experience that legally underpins the presumption itself. For present purposes, however, I would recommend that the alternative formulation of the last clause of subsection (4) (a) be substituted for the black letter text of the Brown Commission's recommendation. See Final Report of Commission, Comment pp. 159-60. This would be consistent with present law. See Curley v. United States, 160 F. 2d 229 (D.C. Cir.), cert. denied, 331 U.S. 837 (1947). Since Congress will face this issue as it processes the recommendations of the Brown Commission, it would be preferable to avoid making a change in present law that might be itself so soon reversed. Every effort should be made to coordinate the consideration of parallel or odentical areas of the law by those entrusted with parallel or overlapping responsibilities, and needless confusion by several changes in basic concepts in an already difficult area of the law ought to be avoided if at all practicable. RULE 403 Rule 403 codifies the familiar principle that evidence, even though relevant may be excluded if its probative value is substantially outweighted by such dangers as unfair prejudice, confusion of issues, delay, etc. Rule 403 also draws a distinction between those situations thought to require mandatory rather than discretionary exclusion. In my judgment, this distinction is without foundation either in prior case law or in reason, and I would recommend to you that the Rule be redrafted along the lines of Model Code of Evidence $ 303, where the discretionary character of the judgment to exclude is made explicit. See generally McCormick § 152 pp. 319-21. I recognize, of course, that a distinction may be validly drawn between general applications of the principle and the situation where delay is the point at issue. My quarrel is not with this distinction, which the Advisory Committee note indicates at p. 31, is at the bottom of the division of Rule 403 into two parts. My difficulty lies with the failure of Subdivision (a) to see the ultimate issue in terms that emphasize the sound discretion of the trial judge and to uphold his ruling on appeal, absent abuse of discretion, in what will always be a balancing situation. I see no reason to purport to draw a hard and fast line that no one will be able to trace in practice. The adoption of the present draft would only provide criminal defendants with another standard ground for appeal and lead to more needless reversals and retrials in criminal cases. RULE 404 Rule 404 deals with the inadmissibility of evidence of character or a trait of character to show conduct on a particular occasion. Subdivision (a)(2) makes possible, however, the use of evidence of the character of a victim of crime in instances where the accused first puts it in issue. In my judgment, this exception is not broad enough as it is presently drafted. The cases are not without conflict, but it seems to me altogether reasonable, in at least homicide prosecutions, to permit the Government to rebut evidence of -elf-defense with proof of the man's character for peace and good order, even though the accused has not put the dead man's character directly in issue. Both McCormick § 160 p. 339-40 and 3 Wigmore § 63 n. 2 support this view, and I urge your acceptance of it. Too little is said now in behalf of the victims of crime. When the dead man cannot speak in his own behalf, his good name in the community ought to speak for him, when either his character or his conduct is attacked by the accused. RULE 410 Rule 410 reflects the familiar principle that pleas of guilty or otherwise, later validly withdrawn, cannot be subsequently used. Two unwarranted changes, however, were introduced in Rule 410 from the March 1969 draft to the March 1971 version. The March 1969 draft limited the principle of unavailability to proceeding in which the person who made the plea was himself involved. The March 1971 version apparently broadened the Rule by omitting these words of limitation. When it is not being used against the person who made it, it is difficult for me to perceive what policy is served by an unwillingness to use, for example, a voluntary plea of guilty and its accompanying McCarthy (394 U.S. 459 (1969)) statements acknowledging guilt merely because the plea was later validly withdrawn. Proposed Rule 804(b)(4), criticized below, would make admissible statements against interest under certain conditions. Would Rule 410 so qualify proposed Rule 804(b) (4) that the plea and public confession of A could not be used by B to exculpate himself, where A's plea was validly withdrawn and he died before he could be re-tried? It makes sense to give meaning to the ability to withdraw a plea by prohibiting its subsequent use in such a fashion that would undermine the withdrawal itself. This is, of course, the thrust of the dictum of the Supreme Court in Kercheval v. United States, 274 U.S. 220 (1927) (withdrawn plea to be excluded in subsequent trial). But that salutary and necessary policy is distorted by the March 1971 drafts apparent willingness to write a rule that would suppress the truth. I suggest, therefore, the adoption of suitable language that would return the Rule to its original scope. The March 1971 version would also expand the March 1969 draft by extending the dictum of Kercheval on pleas to McCarthy statements made by the accused to the court when it takes a plea under Rule 11 Feb. Rules of Cri. Proc. I deprecate the suppression of voluntary statements by courts charged with finding truth, but I recognize the force of the logic that would extend the scope of Kercheval to meet the new rituals of plea-taking that require factual inquiries by the court to guarantee the voluntary character of the pleas. Nevertheless, I suggest that a rule of simple exclusion goes too far. As I noted above in connection with Rule 104, there are instances involving impeachment or rebuttal testimony where truth should outweigh the desire to make meaningful the judgment that a plea ought to be able to be withdrawn effectively. Consequently, I suggest that suitable language be added to the Rule itself or that the commentary at least reflects that the scope of the exclusion is not without limitation. RULE 502 Rule 502 creates a Federal privilege to refuse to disclose and to prevent the disclosure of reports required by Federal or State law to be filed by persons, associations or corporations, where such is provided in the Federal or State statute requiring the report to be filed. I am somewhat troubled by the apparent scope of this new privilege. It apparently has no counterpart in the Model Code of Evidence. The cases cited in the Advisory Committee's Note, moreover, are not particularly enlightening. To uphold values found in the privilege against self-incrimination, it may be necessary to accord protection against disclosure of information required to be filed by an individual, but why extend the privilege to an association or a corporation? Neither comes with the protection of the privilege against self-incrimination. Wilson v. United States, 221 U.S. 361 (1911) (corporations); United States v. White, 322 U.S. 694 (1944) (unions). Where Federal law is at issue, Rule 501, of course, controls. Information privileged by Federal statute ought to be accorded appropriate status under the rules. But why should the rules incorporate wholesale State law? If the litigation were between private parties or civil in character, I might readily agree that due deference to policies grounded in Federalism ought to control. See Wright, Federal Courts § 93 p. 415. But the administration of Federal criminal justice has never been thought to be generally subject to State privileges, See Funk v. United States, 290 U.S. 371 (1933); Wolfle v. United States, 291 U.S. 7 (1934); Rule 26 Fed. Rules of Crim. Proc. Why should a required reports exception be carved out of this salutary general principle? I am not willing to suggest that in particular instances the courts ought not recognize such a privilege, but this should take place on a case by case basis; I would be reluctant to support a wholesale adoption of State law in this area without knowing quite what it was that was being adopted. McCormick § 149 pp. 311-12, for example, suggests that "in legislative halls when bills requiring such reports are proposed, the need for encouraging frank and full reports looms large to the proponents, but the judges and lawyers who would urge the need for truth in litigation are not alerted to oppose the privilege. The need might not be all that it appears to be. Consequently, I suggest that Rule 502 be deleted; it seems, in short, to hold out promise of more unforeseen difficulty than needed benefit. Finally, in reference to the wording of the last sentence of Rule 502, I call your attention to the comparable and preferable language of 18 U.S.C. § 6002: "for perjury, giving a false statement, or otherwise failing to comply" with the statute. RULE 504 Rule 504 adopts, subject to certain exceptions, in general Federal jurisprudence, not a doctor-patient, but a psychotherapist-patient privilege. I am troubled by the omission in the Rules of any recognition of the general doctor-patient privilege. Although I recognize that the weight of scholarly opinion argues against its adoption, its support in the community is attested to by its inclusion in the Model Code of Evidence §§ 220-23 over the objections of the Reporter and Chief Consultant and its acceptance in a majority of states. Nevertheless, because of my general opposition to any rule of evidence that suppresses the truth, I am willing, at least at this juncture, to see the rule written in its present draft form. It ought to be pointed out, however, that the shift in language from the March 1969 draft to the March 1971 version redefining “psychotherapist" from a doctor "who devotes a substantial portion of his time" to one "who devotes all or a part of his time" to psychotherapy virtually undermines your professed policy of not writing a general privilege. All doctors face and must treat in some fashion those whose illnesses are more psychosomatic than organie. If you are going to adopt the rule that you argue for, I would suggest, therefore, that you return to the language of the March 1969 draft. RULE 505 Rule 505 recognizes in Federal criminal jurisprudence a limited privilege of a person to prevent his spouse from testifying against him. Several aspects of this rule trouble me. The failure to write a rule protecting confidential communications seems a sharp break with tradition, but if a broad enough privilege against testimony is written, the same ground will be covered, at least in criminal cases, and the failure may not be crucial. But I am concerned that neither the text of the Rule nor the Advisory Committee Note offers any definition of "spouse." Compare Model Code of Evidence § 214(a). The matter could be handled either on the face of the Rule or in the comment, but it ought to be made unequivocal that the Rule is inapplicable where the marriage is a sham, Lutwak v. United States, 344 U.S. 604 (1953) or is at an end, through divorce or separation. See, e.g., Barsky v. United States, 339 F. 2d 980 (9th Cir. 1964). If the rationale of the rule is the desire to achieve "the prevention of marital dissension and the repugnancy of requiring a person to condemn or be condemned by his spouse," Advisory Committee Note at p. 56, I find it strange, moreover, that Subdivision (c)(2) excludes events occurring prior to the marriage. Would not such testimony equally promote dissension and give rise to repugnancy? I would suggest, therefore, that this limitation be omitted to maintain consistency with your professed policy. At the same time, I suggest that the testifying spouse be made the holder of the privilege. I recognize that Hawkins v. United States, 358 U.S. 74 (1958) may be cited for the contrary position, but if the rationale is the prevention of dissension, the goal is already beyond attainment where the spouse is willing to cooperate. To shut the mouth of a spouse willing to testify on the motion of the other is not to prevent or to heal a marriage break-up-that has already occurred-but to suppress the truth with no countervailing social gain. See McCormick § 66 p. 145. I note, too, that this is already the position that has been adopted by the Congress for the District of Columbia in 14 D.C. Code 306(a) (1964). Finally, I would suggest a return to the original language of Subdivision (a) of the March 1969 draft, which writes the privilege in terms of "testifying against". No issue is presented of marital dissension or repugnancy where the spouse as such does not testify. The use of testimony taken from another proceeding, where the privilege did not obtain, ought to be permitted. In theory or practice, it differs little from well recognized exceptions to the doctrine of privileged communications, where the privilege is not to suppress the truth of a communication, but merely to prevent the testimony of the spouse from being compelled. See, e.g., Dickerson v. United States, 65 F.2d 824 (1st Cir. 1933) (trial of husband for murder of wife; letter of wife found by third person among her effects held admissible). Problems may be presented by testimony in grand juries, but there is an ample number of precedents in related areas to make practical the drawing of the necessary distinctions to protect a person from having to testify there against his spouse. See, e.g., People v. Tomasello, 21 N. Y. 2d 143 234 N.E. 2d 190 (1967) (prospective defendant called before grand jury); see generally Birzon and Gerard, "The Prospective Defendant Rule and the Privilege against Self-Incrimination in New York," 15 Buff. L. Rev. 595 (1966). Finally, I suggest that "or other similar statute" be added to Subdivision (c) (3). There are a number of statutes comparable to either 8 U.S.C. § 1328 and 18 U.S.C. §§ 242-24 in that they deal with prostitution or vice that might be logically added. See e.g., 18 U.S.C. § 1952. Coverage can be obtained over them by general language without fear that another one is overlooked by inadvertance. RULE 506 Rule 506 recognizes a privilege for confidential communications made to a clergyman. Few can quarrel with the motivation that leads to the adoption in Federal law of this privilege. Indeed, it may be a necessary implication of the First Amendment itself. Compare United States v. Caldwell, 8 Crim. L. Reptr. 2124 (9th Cir. 1970), cert. granted, 9 Crim. L. Reptr. 4028 (5-5-71). Nevertheless, I am troubled by the possible implications of extending it beyond its roots in the discipline or accustomed practice or a religious community. Compare the formulation of the privilege found in Model Code of Evidence § 219. I recognize, of course, that the role of a clergyman extends beyond the custom of confession. As the Advisroy Committee Note indicates at p. 58, many "clergyman now receive training in marriage counseling and the handling of personality problems." But so do marriage counselors and social workers. If we are protecting confidential communications in these areas, why should the rule be limited to spiritual advisors? I am not willing at the present time to write a rule quite so broad. No defensible rationale for distinguishing between those who wear the cloth and those who do not in these sensitive areas suggests itself to me. Consequently, I would suggest that Rule 506 be given a much more narrow and defensible scope, along the lines of the Model Code of Evidence § 219. On the other hand, should you go forward with the text of the present rule, I would seriously urge on you the need to recognize, at least in those areas beyond "penitential communications,” see Model Code of Evidence § 219(1)(c), some sort of countervailing weight. As Rule 506 is now drafted, it is an absolute. Yet exceptions are recognized in Rule 504 to the psychotherapist-patient privilege and in Rule 503 to the lawyer-client privilege. At least where communications, not penitential in character, concern a inental illness and there is a need for hospitalization, see Rule 504(d) (1), or are in furtherance of crime or fraud, see Rule 503 (d) (1), I can see no justification for writing the Rule in its present unlimited form. It is fashionable in some quarters today, for example, for clergymen to protect real and imagined defects in our society, not through constitutionally protected speech or assembly, but through criminal conduct, sometimes dangerous not only to property but also to life and limb. I so no reason why the law should offer them a shield behind which they can seek to overturn unlawfully our traditional institutions free of legal responsibility. I urge on you, therefore, the need to reconsider the unwarranted scope of the present draft. RULE 509 Rule 509 recognizes a Governmental privilege in military and state secrets. As presently drafted, this Rule raises a number of serious issues in my mind, although I am not prepared, at this juncture, to venture an opinion on how I |