national defense and foreign policy and covered by Rule 509A, and the third, relating to information specifically exempted from disclosure by statute and covered by Rule 501, are incorporated by the rule as qualified privileges. The courts have recognized such an executive privilege, although expressing uncertainty as to its full scope. See Kaiser Alum. & Chem. Corp. v. United States, 141 Ct. Cl. 38, 157 F. Supp. 939 (1958); Machin v. Zuckert, 316 F.2d 336 (D.C. Cir.), cert. denied, 375 U.S. 896 (1963). The privilege also seems to be recognized by cases that seem to apply a stricter rule of relevance in evaluating demands for information from government departments. See Boeing Airplane Co. v. Coggeshall, 108 U.S. App. D.C. 106, 280 F.2d 654, 659 (1960) (Renegotiation Board); Freeman v. Seligson, 132 U.S. App. D.C. 56, 405 F.2d 1326, 1334 (1968) (Secretary of Agriculture). Subdivision (b). The requirement that the claim of privilege be made by the chief departmental officer is based on the same policy reasons as with respect to Rule 509A (b). See Wood v. Breier, 54 F.R.D. 7, 11 (E.D. Wis. 1972); Thill Securities Corp. v. New York Stock Exchange, 57 F.R.D. 133, 138 (E.D. Wis. 1972). Subdivision (c). The language is the same as in Rule 509A9 (d). Hon. WILLIAM L. HUNGATE, U.S. MAGISTRATE, U.S. DISTRICT COURT, DISTRICT OF COLUMBIA, Washington, D.C., May 11, 1973. Chairman, Special Subcommittee on Revision of Federal Criminal Laws, Committee on Judiciary, House of Representatives, Washington, D.C. DEAR SIR: As an attorney who had more than twenty years of intensive trial experience before being appointed to my present position, I would like to express my concern with two portions of the proposed Rules of Evidence presently being considered by your Subcommittee. Rule 609, dealing with impeachment of a witness troubles me: (a) (1) makes any prior conviction for an offense punishable by imprisonment for more than one year admissible, apparently without regard to whether the offense has any connection with the witness' credibility. It would seem that the admission of any crime goes contra to the rationale that prior convictions are admissible only for the light they may shed on the credibility of the witness, not to inflame the jury, or indicate that because he was convicted of any earlier offense he is more likely to have committed the present one. Subsection (b) of the same rule, with its provision that the time limit does not start running until the release of the witness also concerns me. I assume the reasoning is that if the witness has been in jail for the preceding ten years he has had no opportunity to get into further trouble, and accordingly does not deserve the ten year shelter. Even more questionable in my view is 801 (d) (1), which changes the rule on prior inconsistent statements to make them admissible as substantive evidence. The effect of this, as I am sure the Subcommittee recognizes, is to make a conviction, or the imposition of civil penalties possible without direct evidence. If a witness has made a false accusation, repented, and retracted it, the defendant could still (unjustly) be convicted, should the jury choose to believe the prior, false accusation rather than the retraction. If I can be of any assistance in connection with these matters, please do not hesitate to call on me. Sincerely yours, JEAN F. DWYER, U.S. Magistrate. MAY 11, 1973. Prof. EDWARD W. CLEARY, College of Law, Arizona State University, Tempe, Ariz. DEAR ED: At our meeting on May 9, I was directed to make some additional inquiries of you. First, with respect to Rule 902 (9), there was considerable discussion as to the meaning of "general commercial law." Although the members were of the view that in many States this would mean the Uniform Commercial Code, it was suggested that the Code had not been adopted in all States. Can you supply any information as to the meaning of "general commercial law" and any case or other reference which would allay the fear that the term is much too vague? I might add that the Subcommittee did discuss the Clearfield Trust Company case. With respect to Rule 1003, some concern was expressed about whether this rule constructed the "best evidence rule." Concern was also voiced about how a party would, as a practical matter, be able to challenge whether an alleged duplicate "accurately reproduces the original" [see Rule 1001 (4)] in situations in which that party has not had an opportunity to see the original. With respect to Rule 1004(1), a question was raised as to whether the wording of the paragraph would clearly embrace situations in which the proponent did lose or destroy originals, but in which such loss or destruction was the result of someone else acting at the instigation or direction of the proponent. Do you have any views on this? Again, in advance, the thanks of the Subcommittee. HERBERT E. HOFFMAN, Counsel, Special Subcommittee on Reform of Federal Criminal Laws. COMMITTEE ON RULES OF PRACTICE AND PROCEDURE, 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: In response to your letter of May 11th, I offer the following observations. (1) With regard to proposed Rule 902(9), you suggest that a question has been raised whether the term "general commercial law" might be too vague. The basic reference is, of course, to the Uniform Commercial Code. The Advisory Committee's Note points out the UCC provisions that are pertinent. As the Note indicates, any effort to determine the general commercial law today would of necessity begin with the UCC and would probably end there. The UCC is now in effect in every state except Louisiana, and the Congress has enacted it for the District of Columbia. My colleagues who are knowledgeable in Commercial Law tell me that Louisiana probably will not adopt the UCC as a whole but is taking over large portions of it. Local variations exist in the UCC as adopted by the various jurisdictions but in the area of proof of authentication I do not believe that they are significant. Only a few UCC provisions relate to authentication, and so the question naturally arises whether they should not simply be incorporated in the rules in haec verba. There are two objections to that procedure. First, the UCC provisions are unsuited for this use because they are far more specific than the proposed rules generally and because their meaning depends in a large measure upon the context within which they are found. Second, since the UCC has been adopted with some variations, questions might arise as to what version should be selected. The language of the proposed rule does not eliminate the problem of possible local variations but does tend to deemphasize it. While a possible solution might be found in referring to the Model UCC, a reference to a standard that has no official existence seems scarcely appropriate. Moreover, the Model UCC has itself undergone substantial modifications in the past and may do so in the future. The language in question appeared originally in the Preliminary Draft of 1969 and has remained unchanged. The Advisory Committee received only one comment respecting it, and that was from A Committee of New York Trial Lawyers. Their comment was the same as that raised in the Subcommittee, namely, ambiguity. See their report at pages 93, 239, 240. Their suggested solution was to refer expressly to the Model UCC, or, alternatively, to incorporate its provisions. The Advisory Committee had already considered and for reasons previously stated had rejected these approaches, and nothing presented by the New York group was believed to call into question the soundness of that decision. I am not able to furnish any citation of a case dealing with the meaning of "general commercial law." (2) With regard to proposed Rule 1003, you state that some concern was expressed that the rule constricts the best evidence rule. If by "constricts" it is meant that the rule relaxes the common law insistence that the original in the strict sense be either produced or accounted for, then I agree that the rule has that effect. In fact, that was the end in view in the drafting of the rule. The purpose of the best evidence rule has always been to secure the most reliable information in disputes over the contents of writings. In prediscovery and pre-Xerox days the means used to attain that objective was a strong preference for the "original." With the advent of discovery and of xerograpy, the objective remains the same but the means of achieving it must be reexamined in the light of procedural and technological inventions. In my opinion the rule as drafted, taken in the light of present procedure and technology, is well designed to accomplish the purpose of the best evidence rule without wasting a lot of time. over "originals" which no one really needs. John Strong and I wrote an article on the subject, and I am taking the liberty of enclosing a copy. (3) Further in connection with the best evidence rule, you mention also that concern has been expressed as to how a party could challenge the accuracy of a duplicate under Rule 1001(4) when he had not had an opportunity to see the original. The party complaining of lack of opportunity to see the original would, in my opinion, find in the exceptions of Rule 1003 any protection which the circumstances justified. One relevant circumstance might well be the source of the document. Thus an offer of duplicates of records of a disinterested third party, e.g. a bank, would be less likely to raise a question of genuiness or unfairness than would an offer of duplicates of a party's own records. The nature of the documents themselves and their apparent completeness or lack of it might also be factors. Other circumstances might in addition call for consideration. (4) Finally you raise the question whether Rule 1004 (1) would cover a case in which the original was lost or destroyed, not by the proponent but by someone acting at his instigation or direction. I have no difficulty in concluding that loss or destruction by another at the instigation of the proponent is loss or destruction by the proponent himself. Aphorisms may not solve many legal problems, but Broom had a good maxim in Qui facit per alium facit per se. Sincerely yours, DEAR ED: The Subcommittee has asked me to inquire of you what comments were received by the Advisory Committee to Rule 406. Many thanks. Sincerely, HERBERT E. HOFFMAN, Counsel. COMMITTEE ON RULES OF PRACTICE AND PROCEDURE, HERBERT E. HOFFMAN, Esq., SUPREME COURT BUILDING, Counsel, Special Subcommittee on Reform of Federal Criminal Laws, Committee on the Judiciary, Rayburn House Office Building, Washington, D.C. DEAR MR. HOFFMAN: Pursuant to your request of the 14th I enclose a copy of the several comments which my records indicate the Advisory Committee received on Rule 4-06 in the Preliminary Draft of 1969 and the single comment (a reiteration) on Rule 406 of the Revised Draft of 1971. Sincerely yours, EDWARD W. CLEARY, Reporter. COMMENTS RECEIVED BY ADVISORY COMMITTEE ON PROPOSED RULE 406- ASSOCIATION OF BAR OF CITY OF NEW YORK COMMITTEE ON FEDERAL COURTS Rule 4-06 (a) should be adopted as drafted. Rule 4-06(b) should be deleted. The basis of this decision is predicated on the belief that no particular method of proof need be set forth inasmuch as habit or routine practice of an organization is sufficiently like other factual issues in a case so that no specific mode or modes of proof need be provided for. Moreover, we were concerned about a general authorization of opinion evidence of habit. SECOND CIRCUIT CONFERENCE COMMITTEE ON TRIAL PRACTICE AND TECHNIQUE Rule 4-06. Habit; Routine Practice. Approved with the following modifications 1. The term "habit" should be stricken; the phrase "routine practice" should remain as the test. 2. In sub-section (a) the phrase "whether corroborated or not and regardless of the presence of eyewitnesses' should be amended to read "only if corroborated". 3. In sub-section (b) the term "opinion" should be stricken. NEW YORK COUNTY LAWYERS' ASSOCIATION COMMITTEE ON FEDERAL COURTS The provisions of Rule 4.04 (a) relating to character evidence seems incompatible with, or at least inconsistent with, the provisions of Rule 4.06(a) relating to evidence of habit or routine practices. Rule 4.04 (a) states broadly that character evidence is not admissible to prove that a person acted in conformity therewith, listing carefully defined exceptions relating to criminal proceedings and to impeachment of credibility of witnesses. However, Rule 4.06 (a) states just as broadly the reverse proposition with respect to evidence of habit-namely that such evidence is admissible "whether corroborated or not and regardless of the presence of eyewitnesses" to prove that the conduct of a person was in conformity with such habit or routine practice. In the comment to Rule 4-06, the Advisory Committee concedes what seems obvious-that "character and habit are close akin." Accordingly, it seems incongruous that evidence so related should be treated so differently in the two rules. In its comment to Rule 4-06, the Advisory Committee observes “While adequacy of sampling and uniformity of response are key factors (in establishing a habit or a routine practice) precise standards for measuring their sufficiency for evidence purposes cannot be formulated." Comment to Rule 4-06. It is this very difficulty in defining what constitutes "habit" or "routine practice" which should militate against a sweeping rule admitting evidence thereof. Aside from all this, Rule 4-06 seems to conflict with rules of law long settled in New York. In New York civil litigation evidence of similar acts is not relevant to prove the conduct in issue of that person, see e.g. Ross v. Ackerman, 46 N. Y. 210, 211 ( ); in re. Dale's Estate, 159 Misc 578 ( ). The reason for excluding similar acts is the danger of confusing the issue before the court, misleading the jury, and unfairly surprising the party against whom such evidence is offered. McLoughlin v. N.M.W. Bank, 139 N. Y. 514 ( ). See generally, Richardson on Evidence, § 189 (9th Ed). However, in New York contemporaneous transactions are admissible to show & in cases where damages for fraud is an issue. Matter of Booth's Will, 215 App. Div. 516 ( ); Chiba v. Kurtz 263 App. Div. 33 ( ). Similarly, collateral or contemperaneous acts are admissible in New York to show the existence of a common scheme or plan, see Altman v. Ozdoba, 237 N. Y. 218, 222 ( ); (other forged indorsements on notes coming from the same person). In negligence cases, New York courts likewise exclude evidence of habit to establish conduct. Thus, in Warner v. N.Y. Central R.R. Co., 44 N. Y. 465 ( ); the court excluded evidence that the flagman at the crossing involved had been intoxicated and negligent on previous occasions. See also Grenedier Surface Transit Corp. of New York, 271 App. Div. 460 ( ). The admission of evidence of habit in a criminal proceeding is also severely limited in New York, see e.g. People v. Molineaux 168 N. Y. 264 ( generally, Richardson on Evidence § 175-77 (9th Ed.). ); see On the other hand, the New York rule admitting evidence of habits, routines, or practices of a business or professional character is more liberal. For example, ), the in Miller v. Hackley, 5 Johns (N. Y.) 375 ( ), the routine practice of a notary public was held admissible to prove an issue of fact at bar concerning the conduct of that notary. Similarly, in Beaks v. Da Cunha, 126 N. Y. 263 ( routine of a witness to be at home on a certain day of the month to transact business was held admissible to show that he had mailed certain notices on that day of the month. In the Matter of Kellum, 52 N. Y. 517 ( ), the routine practice of an attorney in drawing and executing wills generally was held admissible to show the propriety of execution of a particular will which the attorney had forgotten. To sum up, it appears that in New York evidence of personal habits, or personal practices in a negligence or criminal context are inadmissible to prove conduct at issue, while the reverse is true of routine practices and habits of a business or professional nature. We see no reason of policy to depart from these well settled principals developed over many years by the adoption of proposed Rule 4-06. Accordingly, we disapprove Rule 4-06 insofar as it authorizes admission of evidence to show the habits of a person. This proposed rule, vague in language but drastic in its effect upon settled practice would, in our judgment open up a Pandora's Box of questions which would have to be litigated, and would create an undesirable difference between the rules in New York State and federal district courts, encouraging forum shopping, with a resultant additional volume of cases on an already crowded federal docket. We recommend amending the rule to allow the admission of evidence of habits or routine practices only where they relate to an occupation, business or profession, but not otherwise. ARIZONA STATE BAR TRIAL PRACTICE SECTION As to Article IV, Rule 4-06 would make admissible evidence of habit of a person or of routine practice of an organization without regard to whether or not there were eyewitnesses to the occurrence in which the habitual conduct is involved. The committee points out to the Trial Section that this would change the Arizona rule which is set forth in Pacific Employers Insurance Co. v. Morris, (1954), 78 Ariz. 24, 275 P. 2d 389. See also Udall on Evidence, § 117. The present Arizona rule provides that, if there are eyewitnesses to the occurrence, it would not be permissible to establish the conduct of one of the parties to the accident by showing that habitually his conduct was of a certain nature. While the Committee has no strong reactions for or against Rule 4-06, we do believe that it will result in frequent testimony to the effect that participants in accidents habitually do not violate the particular law they are accused of violating in the particular instance. Further, the committee confesses that it does not understand how one would prove habit by opinion testimony, though Rule 4-06(b) provides that this is one method of proving habit. Perhaps an example should be attached to the rule to prevent misunderstanding of the meaning of the section. WASHINGTON STATE BAR ASSOCIATION COMMITTEE Rule 4.06(b). The committee believes that the reference to proof of habit by opinion is too broad. The provision for proof of habit by opinion should be deleted. (recommendation that provision for proof of habit by opinion be deleted) AMERICAN COLLEGE OF TRIAL LAWYERS COMMITTEE Paragraph (a) is endorsed as written. Re (b) delete [by testimony in the form of an opinion or] The committee views knowledge of habit or routine practice as being the result of observation which is not properly reported in the form of opinion. FLORIDA STATE BAR FEDERAL RULES COMMITTEE Rule 4-06. (b) be amended to read as follows: "(b) METHOD OF PROOF. Habit or routine practice may be proved by testimony in the form of specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine." DEPARTMENT OF JUSTICE 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 |