tent of Rule 403 as transmitted to the Congress. The first sentence of the note to Rule 106 should be amended to read: A close relationship exists between this rule and Rule 403 which permits exclusion when "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Your comment serves also to raise the broader question of the ultimate status and treatment of the Advisory Committee's Notes. Any amendment to a rule presumably will require at least a pro tanto change in the note, which to that extent will then cease to be the Advisory Committee's note. When the California Evidence Code of 1965 was enacted this aspect was handled by labelling the original notes "Comment-Law Revision Commission" and those to revised sections "Comment-Assembly Committee on Judiciary." Sincerely, EDWARD W. CLEARY, Reporter. HERBERT E. HOFFMAN, LAW OFFICES, JAMES F. SCHAEFFER, Counsel, Special Subcommittee on Reform of Federal Criminal Laws, Committee on As Chairman of the Federal Evidence and Procedure Committee of ATL, by the authority of the Committee and with the advice and consultation of Professor Joe A. Moore of Memphis State University, we now wish to advise, subject to objection within five days from date of any member of our Committee, the following proposed Federal Rules of Evidence are considered to be acceptable in their present form and non-controversial. Article I. General Provisions: Rule 101. Scope. Rule 102. Purpose and construction. Rule 103. Rulings on evidence: (a) Effect of erroneous ruling: (1) Objection. (2) Offer of proof. (b) Record of offer and ruling. (c) Hearing of jury. (d) Plain error. Article II. Judicial Notice: Rule 201. Judicial notice of adjudicative facts: (a) Scope of rule. (b) Kinds of facts. (c) When Discretionary. (d) When mandatory. (e) Opportunity to be heard. (f) Time of taking notice. (g)_Instructing jury. Article IV. Relevancy and Its Limits: Rule 401. Definition of "relevant evidence". Rule 402. Relevant evidence generally admissible; irrelevant evidence inadmissible. Rule 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Rule 404. Character evidence not admissible to prove conduct; exceptions; (a) Character evidence generally: (2) Character of victim. (b) Other crimes, wrongs, or acts. Rule 407. Subsequent remedial measures. Rule 408. Compromise and offers to compromise. 21-191-73- -2 Rule 409. Payment of medical and similar expenses. Rule 410. Offer to plead guilty; nolo contendere; withdrawn plea of guilty. Article VI. Witnesses: Rule 602. Lack of personal knowledge. Rule 603. Oath of affirmation. Rule 604. Interpreters. Rule 605. Competency of judge as witness. Rule 606. Competency of juror as witness: (a) At the trial. Rule 610. Religious beliefs or opinions. Rule 614. Calling and interrogation of witnesses by judge. Rule 615. Exclusion of witnesses. Article VII. Opinions and Expert Testimony: Rule 702. Testimony by experts. Rule 705. Disclosure of facts or data underlying expert opinion. Article IX. Authentication and Identification: All proposed rules under this section are acceptable in their present form and non-controversial. Article X. Contents of Writings, Recordings, and Photographs: Rule 1001. Definitions: Rule 1007. Testimony or written admission of party. Article XI. Miscellaneous Rules: Rule 1101. Applicability of rules: (a) Courts of magistrates. (2) Grand jury. Concerted indepth analysis of those rules proposed not listed above is in process. ATL proposes to officially submit to your Committee on or before July 1, 1973, a complete critique and analysis of the remainder of the rules. It is our hope and request that final action will not be taken until our organization can be heard on those rules which we deem extremely questionable in their wisdom and widely controversial. Respectfully submitted, JAMES F. SCHAEFFER, Chairman, Federal Evidence and Procedure Committee. [From the Third Branch, April, 1973] A MESSAGE FROM THE CHIEF JUSTICE Congress has postponed, pending further action, the effective date of the Rules of Evidence promulgated by the Supreme Court last fall. These Rules were developed by an Advisory Committee, appointed by Chief Justice Warren in 1965 and acting under the rulemaking power Congress delegated to the judiciary. Some lawyers and District Judges have expressed concern over this action by Congress. There is no occasion for concern on this score for the rulemaking process is working as it should. It is important to recall the history of rulemaking. In 1934, Congress vested civil rulemaking power in the Supreme Court, and subsequently Congress granted broader authority including rulemaking for criminal procedure. This process of rulemaking includes, as a first step, the appointment of a Judicial Conference Advisory Committee. That Committee conducts studies, and develops rules; circulation of drafts to bench and bar follows. When the rules have been developed the Advisory Committee submits them to the Standing Committee on Rules of Practice and Procedure. If approved by the Standing Committee, the rules then go to the Judicial Conference of the United States. If the Conference approves them, they are submitted to the Supreme Court. If the Court in turn approves them, they are then transmitted to the Congress. Absent negative action by that body, the rules become law 90 days later, although a later date for their taking effect may be set by the Court or by the Congress to permit more time for Congressional scrutiny. It will readily be seen that this four-stage "screening" is as thorough and comprehensive as any legislative process could be. This is the mechanism the Congress devised nearly 40 years ago with the cooperation of the courts and the bar. It is a most effective one and certainly is as careful a technical screening as could be provided, especially given the multitudinous responsibilities with which Congress is burdened and the specialized nature of procedure in federal litigation. After this extremely careful process of formulating rules, however, comes the time for review by the elected representatives of the people. Thus, rulemaking is a partnership, a joint enterprise, between Congress and the Judicial Branch. It was first carried to successful conclusion in 1938, with the adoption of the Federal Rules of Civil Procedure; then came the Federal Rules of Criminal Procedure. Later on Appellate Rules were adopted. All of these rules are under constant scrutiny of Judicial Conference Advisory Committees. The rulemaking enterprise has been one of the most successful and fruitful of any joint effort between branches of government in history. But, we must always remember that it is a joint enterprise, and while Congress has rendered us the compliment of general approval in the past, it does not mean that the Congress should accept blindly or on faith whatever we submit. Nor does the action of Congress in extending the time for consideration of the rules now submitted indicate more than an appropriate desire to give careful study to an important development in the law. The current Rules of Evidence have been under study for a total of eight years. They were completed more than two years ago by the Advisory Committee, approved by the Standing Committee on Rules of Practice and Procedure and the Judicial Conference, and then submitted to the Supreme Court. After initial consideration, the Supreme Court "remanded" them to the Rules Committee for further consideration and consultation with the bar. After this additional screening, certain of the rules were revised and resubmitted to the Supreme Court. The Court approved them in late 1972 and submitted them to the Congress in early 1973. It is well known that District Judges have been applying many of the proposed rules, very often as persuasive authority, while they were in the draft stage. This is not surprising since these rules are largely a codification of long-established and tested rules of evidence that state and federal judges have been using and developing for generations. I return to my basic point: the rulemaking process is functioning as its designers intended. The Congress is, as always, overwhelmed by many problems of an urgent nature, and is entitled to adequate time to study carefully any proposed rules submitted. The House Judiciary Committee is proceeding with this review in a sub-committee chaired by Congressman William L. Hungate of Missouri. The system is working and will do so as long as each component performs its assigned role. Dear Mr. PAULEY: Your letter of March 30th sets forth the following proposed addition to Rule 601: (b) Dead Man's Acts Recognized in Certain Cases. In any civil action in which a claim sued upon or issue pertaining thereto has its source in State law, the Federal courts shall apply the law as to the qualification or competency of a witness under a dead man's act which would be applied in the resolution of such claim or issue by the courts of the State in which the Federal court is located if the action had been properly commenced there. You then ask my comment on the Erie formulation as compared with that in Rule 302 as transmitted to the Congress. I comment as follows: (1) Your proposal purports to set forth a standard, viz. when "a claim sued upon or issue pertaining thereto has its source in state law," which determines that an Erie situation generally is involved, and then goes on to say that a state dead man's act may be included as part of the Erie package, somewhat in the fashion of the fleas going with the dog. The phrase "claim sued upon" has an adequately definite meaning, but the same can scarcely be said with respect to "issue pertaining thereto." See Wright, Law of Federal Courts §§ 55, 59 (2nd ed. 1970). The language in your version is akin to that appearing in the Advisory Committee's Note to Rule 302, but the latter was used discursively, not as a term of art in a rule. I doubt the wisdom of attempting to restate Erie in a rule dealing with the competency of witnesses. You might do better simply to adopt the phrasing of Rule 302, which was evolved by persons who gave much thought to the matter in formulating the ALI provision cited in the Advisory Committee's Note. (2) Your proposal then requires the federal court to apply the law of the state where the federal court is located in determining whether the or a dead man's act applies. In this regard you might wish to read the Commentary to § 2344 in the ALI Study of the Division of Jurisdiction Between State and Federal Courts 148-150, P.F.D. No. 1 (1965), pointing out certain difficulties in applying the Klaxon rule and suggesting that it is not constitutionally mandated. (3) In the first paragraph of your memorandum you state that the Advisory Committee's Note "recognizes that the effect is to nullify a substantive policy still followed in several States." [Italic supplied.] The Note is in fact devoid of any suggestion that dead man's acts are substantive, and the Committee consistently has taken the position that they are not. (4) Though you did not ask for comment on the merits of your proposal, I am taking the liberty of enclosing a memorandum submitted to the Advisory Committee on the subject of dead man's acts which may serve usefully to give some insight into the implications of the proposal. The memorandum was much too lengthy to include in the published notes. Sincerely yours, EDWARD W. CLEARY, Reporter. UNITED STATES COURT OF APPEALS, SIXTH CIRCUIT, Port Huron, Mich., April 4, 1973. Re Proposed Rules of Evidence for United States Courts Hon. JAMES HARVEY, Member of Congress, Washington, D.C. DEAR JIM: There is now before the Congress a proposal for adoption of Rules of Evidence for the United States Courts. Rule 803(18) provides as follows: "Learned Treatises.-To the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination, statements contained in published treaties, 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." I have written numerous letters to the original committee which proposed adoption of these rules. I attach a copy of a letter which I wrote on May 14, 1971. May I, without repetition, submit for your consideration the thoughts expressed in that letter. There are many other provisions of the Rules of Evidence which reflect the ever-increasing impairment of traditional rules which have stood the test of time as very valuable. I opposed some of the other rules, but I do not propose to further contend against them. Inasmuch as the ultimate responsibility for adoption of these rules is that of the Congress, I respectfully urge rejection of this proposed Rule 18 relating to "learned treatises." It may be urged that these rules are the product of careful consideration by the judicial conferences of the United States and eminent members of the bar, including those in the academic. This is usually the beginning and, too often, the end of consideration of such proposals. The rules are actually written many times by single academicians whose conceptions find approval notwithstanding the eminence of committees appointed to review them. I doubt that the Judicial Conference of the United States was able to give the time needed for contemplative consideration of these rules. As lawyers, we know how frequently rules will be the product not of the entire prestigious committee appointed, but of the man who prepared them in the quiet of academic precincts, oftimes a man who has had little exposure to the actual trial of lawsuits. Revered rules of evidence are the product of experience provided by actual trials. In a recent conference with a member of the committee that compiled these rules, I asked the question as to who is to resolve a contest as to which books may be, and which may not be, learned treatises. I was told the plan would be that the initial resolution of such question would be for the District Judge. Just how a District Judge is going to be able to find time during the trial of a lawsuit, or on pre-trial, to read and appraise the qualification of a particular "learned treatise" escapes me. Is each judge to interrupt a trial long enough to study such writing and come to a conclusion as to its standing as a "learned treatise"? This will indeed but add further difficulties to the trial of cases in the United States District Courts. May I, therefore, perhaps as a last ditch stand, ask that you and others to whom I am writing give consideration to whether the Rule I mention should be adopted. Sincerely yours, Enclosures. CLIFFORD O'SULLIVAN. Enclosed is a xerox copy of a dissenting opinion written by Justice Eugene F. Black of the Michigan Supreme Court. I agree with Justice Black. [NOTE.-Letters were also sent to Congressmen O'Hara, and Hutchinson by Judge O'Sullivan. Both were subsequently forwarded to Chairman Hungate.] DISSENTING OPINION BY BLACK, J. BLACK, J. (dissenting). This suit for medical malpractice was tried to a jury in 1969. The jury's verdiet was negative. Judgment entered accordingly. Bypass of the Court of Appeals was granted September 23, 1970 (384 Mich 760). The appeal was subjected to conference and finally submitted June 10, 1971. Since then our majority must have labored, conferred, caucused and searched— surely without surcease and in mighty unison-to find some or any colorable way to overrule as now due for entry; the Court's opinion not having been delivered to the writer until July 11, 1972, some ten days ago. Recalling a fair aphorism of some despairing writer upon the injustice of delayed justice,' I hasten to respond― partly from notes made when the appeal with salient issue was fresh in mind—in time for the filing of these pro and con opinions on our next "Judgment Day" (July 26, 1972). Our reports, printed thus far in 1971-1972, are on the shelves of thousands of lawyers and judges. They bear now undeniable witness of both a profaning and deplorable fact; that this temporally seated and largely fledgling Court is bent purposefully upon progressive destruction of all or near all of the great canons and precedential precepts which the nationally revered COOLEY Court, and the succeeding FELLOWS Court, have bequeathed to Michigan. In this latest case the employed means of destruction are drawn prominently from Professor Wigmore's gratuitous invention of a new legal term- "Learned Treatises" (which I accept for present purposes)-and from a naked dixit which the professor has hurled at targeted decisions expressly including People v Hall, 48 Mich 482 (1882). By this Topic IX, the professor alleges that the applied reasoning of those decisions amounts only to "ignorant exaggeration", despite acknowledgment that what he 1 "Some regard must be had for the shortness of human life." Perhaps, at this stage, the thoughtful reader of our respective contributions might well pause for comparison of the Court's opinion of People v Hall with the professor's creed (VI Wigmore on Evience. 3d ed, "Topic IX: Learned Treatises", pp 2-22). There he will find in perfect array the real and the practical on one hand, and the visionary notions of a professional theorizer on the other. If any Brother can find in Topic IX any inkling of actual experience in the presentation of evidence, or of having learned what one may only learn by years spent on the lower level of trial courtrooms, doubtless he will trot it forth by amendment or addition to the Court's opinion. No better support for the decisions the Brothers are set now to overrule can be found or made than that which appears in Wigmore's own stilted criticism thereof. I mean later to pluck out a few of these curious gems for unceremonious comment. |