Both the Senate and the House passed bills in the 91st Congress that set aside the so-called Luck rule (121 U.S. App. D.C. 151, 348 F2d 763 (1965) which gave trial judges discretion, in the interest of avoiding undue prejudice, to permit criminal defendants to testify without impeachment by prior convictions. The Senate measure was passed by unanimous consent in December and consolidated in a more general bill in March (Cong. Rec., vol. 115, pt. 28, pp. 37183-37196; vol. 116, pt. 7, pp. 8913-8975). Although it set aside the so-called Luck rule, it did contain language limiting the character of the convictions that could be used for impeachment to those relevant to honesty or veracity. In contrast, the House measure allowed a broader approach; it was passed in March (Cong. Rec. vol. 116, pt. 6, pp. 8086-8221). Nevertheless, the record shows that during the debate Congressman Dennis of Indiana proposed that the House measure be limited in a fashion similar to the Senate measure, although he noted that his "amendment in nowise... [tried] to retain the Luck doctrine." (Cong. Rec., vol. 116, pt. 6, pp. 8151-8157.) The Dennis amendment, however, was defeated two to one. (Id. at p. 8157). The Luck rule was not, therefore, the impeachment issue that divided the House and Senate. Division existed on the issue of relevancy not undue prejudice. This can be seen most clearly in the statement of Managers on the Part of the Senate, 91st Cong. 2d Sess. 24-25 (1970), which noted: Both versions of the bill on impeachment of a witness (notably the defendant) by evidence of prior convictions sought to curtail the case law authority for a trial court in its discretion to exclude evidence of conviction whenever the prejudicial effect of the evidence "far outweights" its probative value as to credibility. See Luck v. United States, 348 F. 2d 736 (D.C. Cir. 1965). The Senate version would have codified the District of Columbia case law requirement that such conviction reflect upon the honesty or veracity of the witness; but the conferees receded to the House position which allows impeachment by proof of any felony conviction or any misdemeanor involving dishonesty or false statement. The House versionwhich is the rule in most states and which is supported by a draft of the Advisory Committee on Rules of Evidence to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States-is premised upon the conclusion that a felony conviction is "[a] demonstrated instance of willingness to engage in conduct is disregard of accepted patterns [which] is translatable into willingness to give false testimony." The recession by the Senate conferees was explicitly conditioned, however, upon a conference agreement to reconsider the rule on impeachment if the Advisory Committee's draft is substantially modified in the Federal rule adopted and promulgated by the Supreme Court. It would be clearly antithetical to have one rule for the District's local courts and a different rule for the Federal courts. The Senate conferees would indeed urge the appropriate judiciary subcommittees to reconsider this provision when the new Federal Rules of Evidence are adopted and become subject to congressional disapproval. Consequently, you are mistaken, I suggest, if you feel that anything in the legislative history of P.L. No. 91-358 manifests a willingness on the part of the Congress to return to the Luck rule, and it is more unfortunate if a possible ambiguity in the House Statement contributed to the Committee's adoption of the Luck rule. I was most disturbed to learn that you did not attend either of the meetings in which the proposed rules were considered and I had not realized that you took no part in the actions of the Standing Committee until you drew this to my attention in your letter. I am constrained to observe now, however, that my confidence in the March 1971 draft has been further undermined. I have long been aware of your admirable work in the area of Federal procedure and it was in no small part in reliance on the sound judgment and expertise of men such as yourself that I have been willing up until now to accept certain of the more radical changes proposed in the present draft of the rules. With all the best, I am Sincerely yours, JOHN L. MCCLELLAN, U.S. Senator. Hon. JOHN L. MCCLELLAN, Washington, D.C. THE UNIVERSITY OF TEXAS AT AUSTIN, SCHOOL OF LAW, Austin, Tex., September 13, 1971. DEAR SENATOR MCCLELLAN: I am extremely grateful to you for your very helpful letter of September 2d discussing the legislative history of that portion of P.L. 91-358 that deals with impeachment of witnesses by the use of prior convictions. I quite agree with you that the full history as you developed it and the statement of the Managers on the part of the Senate, which you quoted, do shed a different light than I had drawn from the statement of the House Manager. I do not now recall how I came to see the statement of the House Manager or why I saw it and not that of the Senate Manager. I had thought that perhaps I had relied for the legislative history on United States Code Congressional and Administrative News. I have it in my office and do frequently look only to it unless I am preparing a brief or an article for which the full legislative history is of importance. Quite often it will print only a report from one house and not the other. I looked this morning to see if that could explain my mistake but so far as I can find it never printed any legislative history on P.L. 91-358. I appreciate very much the comments in the final paragraph of your letter. I am glad to say that I have now recovered completely from my knee operation and I will be present when the Standing Committee meets September 30th and October 1st. Do consider the evidence rules in the light of comments on the revised draft. I am sure that your concern will be given great weight by the Committee. I know that they will by me. I have never had the pleasure of meeting you but I did get to watch you in action two years ago when I attended the hearings before the Judiciary Committee for three days hoping unsuccessfully to testify in support of Judge Haynsworth. Sincerely, CHARLES ALAN WRIGHT. Re: Proposed Rules of Evidence for U.S. Courts Chairman, Special Subcommittee on Reform of Federal Criminal Laws, DEAR MR. CHAIRMAN: In connection with proposed Rules 608 and 609 dealing with impeachment of witnesses, I enclose a copy of the abridged report of the decision of the Court of Appeals for this Circuit in United States v. Maynard (March 26, 1973). Whether or not one agrees with the result, the Committee may wish to consider the Court's view that "Since the range of facts from which bias may be inferred is vast, hard and fast rules permitting or excluding specific types of impeachment might be unwise." The Committee may also wish to consider the appropriate evidentiary result under the Jencks Act, 18 U.S.C. § 3500 and Brady v. Maryland, 373 U.S. 83, where, as in Maynard, the prosecutor states that he "must have thrown away" the notes of a police interview of the complaining witness. Copies of this letter with the enclosure are going simultaneously to Congressman Dennis and Congresswoman Holtzman because they have expressed interest in these subjects during the hearings. With best regards, Enclosure. STUART H. JOHNSON, Jr. THE DAILY WASHINGTON, U.S. COURT OF APPEALS EVIDENCE BIAS Admission of evidence of indictment was prejudicial error requiring new trial where witness' motive was already shown in other evidence. United States v. Maynard, U.S. App. D.C. Nos. 24,938, 24,939, March 26, 1973. Reversed and remanded per Bazelon, C.J. (McGowan and Leventhal, J.J, concur). Ruth L. Prokop (appointed by this court) for appellant in No. 24,938. Preston Brown (appointed by this court) for appellant in No. 24,939. James A. Adams with Thomas A. Flannery, John A. Terry and Richard N. Stuckley for appellee. Trial Court-Pratt, J. BAZELON, C.J.: Charles Maynard and Kermit Gilbert were jointly tried and convicted of the assault and armed robbery of one Paul Gueory. During the course of their trial, evidence was admitted that Maynard's sole defense witness, Mrs. Constance Kemper, had been charged with obstruction of justice for her alleged efforts to persuade Gueory not to identify her brother, the appellant Gilbert. On the grounds that the admission of this evidence was error and worked substantial prejudice to Maynard's defense, we reverse Maynard's conviction. Gilbert contends that handwritten notes taken during a police interview of Gueory should have been available to his defense under the Jencks Act, 18 U.S.C. § 3500 (1970), and Brady v. Maryland [373 U.S. 83 (1963)]. These notes were delivered to the United States Attorney's office, but were unavailable at the time of trial. Since the record fails to disclose the reason for their disappearance, or any inquiry into the effect thereof, we remand Gilbert's case for a hearing to develop these facts and to consider the issues raised under the Jencks Act, Brady, and this court's decision in United States v. Bryant. [142 U.S. App. D.C. 132, 439 F.2d 642, aff'd after remand 145 U.S. App. D.C. 259, 448 F. 2d 1182 (1971).] In addition, we direct the trial court to consider whether the impeachment of Constance Kemper through reference to her arrest for obstruction of justice was prejudicial error as to Gilbert. The reasons for our decision follow. Appellant Maynard's principal contention on appeal arises out of the trial judge's ruling to admit evidence that Mrs. Kemper had been arrested and charged, but not convicted, for obstruction of justice. The Government specifically requested such a ruling, and indicated that it would ask Mrs. Kemper a direct question to this effect during her cross-examination. The theory under which the Government sought the admission of such evidence was that it indicated her bias, or motive for testifying in an exculpatory manner. Counsel for Maynard strenuously objected on the ground that the prejudice resulting from the admission of the charge would far outweigh its probative thrust. The trial court ruled that the evidence would be admitted on the Government's theory, at which point Maynard's defense counsel made the tactical decision to raise the issue of the arrest during his direct examination of Mrs. Kemper. *** Maynard now contends that the admission of [Mrs. Kemper's] statement was reversible error. As a general rule it is improper to impeach a witness by showing an outstanding indictment without a final conviction. The reasons behind this rule are that the mere fact of arrest or indictment is still consistent with innocence; an indictment involves repetition of someone else's assertion of the witness' guilt; and it raises a confusing, collateral issue to the case at trial. In certain situations, however, external facts from which may be inferred a specific bias, or motive to testify in a particular way, are admissible to impeach a witness-e.g., facts which show a familial, employment, or litigious relationship. Since the range of facts from which bias may be inferred is vast, hard and fast rules permitting or excluding specific types of impeachment evidence might be unwise. Thus it may be argued in some cases that the pendency of an indictment against a witness produces a discernible motivation to falsify testimony such as: ill feeling for the person who procured the indictment; interest in currying a favorable disposition from the prosecution; or, as in this case, the self-serving need to exculpate oneself concerning the events charged as a crime. The Government argues that the trial court's decision to admit the arrest evidence to impeach Mrs. Kemper was not error, since the scope of cross-examina tion to elicit bias must be broad and is within the discretion of the trial judge. Further, the use of an indictment to show this particular type of bias has been approved in other Circuits. As there appears to be no direct precedent in this Circuit, however, we are persuaded by appellant's argument that the prejudicial effect of the admission of the arrest and charge in this case outweighed its probative substance. Admission of these facts was simply not necessary to show that Mrs. Kemper had good. reason to testify as she did. Gueory's own testimony had already revealed to the jury all the facts on the basis of which Mrs. Kemper could be charged with a crime. Her motive for denying Gueory's accusations and for testifying about her own actions in an exculpatory manner was unmistakeable. Finally, her being charged with a crime was probative of no more than that the prosecutor, or the grand jury, chose to believe Gueory and not Mrs. Kemper. We disagree with the trial court's characterization of any prejudice which might have resulted as "minimal." After a careful scrutiny of the entire record, we are not assured that "the judgment was not substantially swayed by the error.' Mrs. Kemper was Maynard's principle defense witness. It was her word against Gueory's. It seems highly probable that the jury would be swayed by the knowledge that she was charged with obstruction of justice into discrediting her crucial testimony about the hospital confrontation. Therefore, Maynard's substantial rights to a fair trial were prejudiced and his conviction must be reversed. IV Appellants Gilbert and Maynard contend that the rough notes taken by Detective Caldwell during his initial interrogation of Gueory in the hospital should have been made available to the defense under Brady v. Maryland and the Jencks Act. Trial counsel for both appellants repeatedly requested production. At the pre-trial hearing to suppress Gueory's identification of Maynard, Detective Caldwell testified that Gueory first responded to his questions about the shooting on October 20, 1969. At that time Gueory also indicated that he did not want to prosecute. Caldwell testified that during this interview Gueory identified one assailant by the name "Big" Gilbert, and described the others as follows: "Another was a Negro male of about six foot with a bush haircut and had glasses on. The other two subjects, he said, were short. He had never seen them in his life. He didn't know any of them." Caldwell further testified that he had taken rough notes consisting of at least four or five pages, that he would have written down any descriptions given to him, and that he had turned over these notes to the Assistant United States Attorney in charge of the case a few months before trial. At the conclusion of the direct examination of Gueory, which included his identification of both appellants, counsel for Maynard and Gilbert moved to strike Gueory's testimony on the ground that the rough notes had not been produced. A search of the Government's file had revealed no notes, and the Assistant United States Attorney prosecuting the case stated that they must have been "thrown away." The trial court did not rule that the notes would not be subject to production, but stated that he would not hold up the cross-examination of Gueory at that time. If the documents were located, Gueory would be re-called for additional cross-examination. The trial court's only statement at trial concerning the Government's duty, and failure, to preserve and produce such notes was that the Government should make every effort to locate them and that there "would be no conspiracy to withhold it." Further inquiry into the disappearance of the notes took place during a hearing on appellants' motions for a new trial on October 14, 1970. The court at that time ruled that Detective Caldwell's notes were not producible under the Jencks Act because the contents of the notes had not been clarified, and because there was no indication that Gueory had adopted or approved Caldwell's transcription of his statements pursuant to section (e) (1) of the Jencks Act. These reasons, and the Government's assertion in its brief that it is "highly speculative" that these rough notes contained substantially verbatim statements producible under section (e) (2) of the Act, do not meet the thrust of appellants' arguments and this court's ruling in United States v. Bryant. First, defense counsel did attempt to clarify the contents of the notes as discussed above. It appears that the notes might well have contained Gueory's statements of a descriptive nature, or statements about "Big" Gilbert which might have been favorable to the defense. This court has previously discussed the importance of such notes and the information they might contain. Second, while it is clear that the duty of the Government to produce notes under the Jencks Act and under Brady cannot be definitely resolved because the notes cannot be scrutinized, the trial court's inquiry should not founder on impossibility. In Bryant, this court held that the Government's "duty of disclosure is operative as a duty of preservation" which extends to all "discoverable" evidence, defined as including all evidence which "might" have to be produced under Brady or the Act. Bryant further held that "sanctions for non-disclosure based on loss of evidence will be invoked in the future unless the Government can show that it has promulgated, enforced and attempted in good faith to follow rigorous and systematic procedures" for preserving evidence. Since there were no such regular procedures in force at times relevant to these cases, as in Bryant the trial court must employ a case-by-case determination of the degree of bad faith, negligence or inadvertence which led to the nondisclosure of arguably discoverable evidence. It is particularly important to note that the police officer preserved the notes and transmitted them to the United States Attorney's Office. Thus the usual administrative reasons which might have once justified, or at least excused, the police department's failure to preserve such notes are not applicable. The trial court below failed to focus on whether a different or higher duty to preserve evidence ought to apply to the prosecutorial branch of the Government. If the notes were "thrown away" and not just lost, this showing of bad faith, negligence or inadvertence cannot be ignored. Further, there was no consideration of the appropriate sanction which might have been applied in light of a violation of the duty of preservation. The Jencks Act calls for exclusion of the testimony of the witness whose statements were recorded. What portion of Gueory's testimony would be affected must be determined. It has also been suggested that in a case where notes have been discarded, the "absence of notes may be. . . best handled by instructing the jury with an adaptation of the kind of instruction used in case of a missing witness, that the jury is free to infer that the missing original notes would have been different from the testimony at trial and would have been helpful to defendant." The trial judge is in the best position to determine what the circumstances of this case require, after consideration of the actions of the United States Attorney and the importance for the impeachment of Gueory which the notes might have served. Accordingly, it is necessary that appellant Gilbert's case be remanded for an inquiry into these points, to determine whether a sanction for nonproduction should have been imposed; and to determine whether Gilbert must receive a new trial. If appellant Maynard is re-tried, the trial court must undertake a similar inquiry if Gueory testifies and if Detective Caldwell's notes are not produced. Accordingly, the judgment in No. 24,938, United States v. Maynard, is reversed and No. 24,939, United States v. Gilbert, is remanded pursuant to this opinion. AMERICAN HOSPITAL ASSOCIATION, Washington Service Bureau Hon. WILLIAM L. HUNGATE, Chairman, Special Subcommittee on Reform of Federal Criminal Laws, Committee on the Judiciary, Rayburn House Office Building, Washington, D.C. DEAR MR. CHAIRMAN: On behalf of the American Hospital Association which represents more than 7000 hospitals and other health care institutions located in all parts of the country I am writing to place before you and your Subcommittee the views and concerns of our membership with regard to proposed Rule No. 504 as contained in H.R. 5463, a bill to establish rules of evidence for certain courts and proceedings. This proposed rule would recognize a psychotherapist-patient privilege but does not provide for a general physician-patient privilege. While we favor recognition of a psychotherapist-patient privilege, we are strongly opposed to adoption of proposed Rule 504 because such action would eliminate the traditional general physician-patient privilege and impact adversely on the best interests of patients. Information given to a physician in the course of examining or treating a patient is almost universally regarded by patients and by courts as highly confidential and |