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1/2/75 HR5463 Rules of Evidence
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1/2/75 HR5463 Rules of Evidence
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The original documents are located in Box 19, folder "1975/01/02 HR5463 Rules of
Evidence" of the White House Records Office: Legislation Case Files at the Gerald R. Ford
Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
Works prepared by U.S. Government employees as part of their official duties are in the public
domain. The copyrights to materials written by other individuals or organizations are presumed to
remain with them. If you think any of the information displayed in the PDF is subject to a valid
copyright claim, please contact the Gerald R. Ford Presidential Library.
Exact duplicates within this folder were not digitized.
from Box 19 of the White House Records Office Legislation Case Files at the Gerald R. Ford Presidential Library
Statement APPROVED74 1/1/3/15
ACTION
THE WHITE HOUSE
Last Day: January 4
WASHINGTON
December 31, 1974
Jo
archive
MEMORANDUM FOR
THE PRESIDENT
1/3
FROM:
KEN COLE
SUBJECT:
Enrolled Bill H.R. 5463
Rules of Evidence
Attached for your consideration is H.R. 5463, sponsored
by Representative Hungate and six others, which would
establish for the first time a uniform code of evidence
for use in Federal courts and make conforming amendments
to the Federal Rules of Civil Procedure and the Federal
Rules of Criminal Procedure.
OMB recommends approval and provides additional background
information in its enrolled bill report (Tab A).
Max Friedersdorf (Loen) and Phil Areeda both recommend approval.
Paul Theis has approved the text of the proposed signing
statement.
RECOMMENDATION
That you sign H.R. 5463 (Tab B).
Signing Statement (Tab C)
Approve AR7
Disapprove
ANTHEIT BERALD ? FURO
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
DEC 26 1974
MEMORANDUM FOR THE PRESIDENT
Subject: Enrolled Bill H.R. 5463 - Rules of Evidence
Sponsors - Rep. Hungate (D) Missouri and six
others
Last Day for Action
Jenuary 4, 1975
Purpose
To provide a uniform code of evidence for use in Federal courts
and to make conforming amendments to the Federal Rules of Civil
Procedure and the Federal Rules of Criminal Procedure.
Agency Recommendations
Office of Management and Budget
Approval
Department of Justice
Approval
Administrative Office of the
United States Courts
Approval can not be
recommended
Discussion
The enrolled bill would establish for the first time a uniform
code of evidence for use in Federal courts and make appropriate
conforming amendments to other rules.
In 1963 the Judicial Conference of the United States recom-
mended that the Chief Justice appoint an advisory committee on
rules of evidence for use in the Federal courts and such a
committee was appointed. After extensive consideration the
advisory committee recommended rules which were approved by
the Judicial Conference in 1970. The rules were promulgated
by the court in November 1972. The promulgated rules were
the culmination of 13 years of effort by a distinguished group
of judges, lawyers and legal scholars who worked with the
Supreme Court on this project.
YORD LIBRARY
2
In 1973 the Chief Justice, pursuant to the Supreme Court order
of November 1972, transmitted the proposed rules to the
Congress. However, because of the general importance of these
rules as well as questions which were raised with respect to
certain rules on privilege, and to insure a full opportunity
for review, Congress enacted a public law to defer the effective-
ness of the rules until they were expressly approved by Congress.
Extended hearings were held to consider the proposed rules.
The enrolled bill would codify, in large part, the rules as
proposed by the Supreme Court although there were some deletions
and changes made during consideration by Congress.
In addition, the enrolled bill would change the method by
which rules of evidence are promulgated and it would provide
that any further changes in the rules which may be proposed by
the Supreme Court and transmitted to the Congress would become
effective 180 days after such transmission unless either House
of Congress acts to defer the effective date. The one excep-
tion is that the law of privilege would be treated as a special
case and require affirmative Congressional action.
The Administrative Office of the United States Courts, in its
views letter on the enrolled bill, states that the product
of the Advisory Committee of the Judicial Conference of the
United States was a widely considered product and that:
"
The rules of evidence as incorporated in
enrolled bill H.R. 5463 represent a considerable
deletion as well as change in the rules as pro-
mulgated by the Supreme Court. While it is not
possible within the time available for the Judicial
Conference to consider the changes made by the
Congress, there is no doubt that the rules as
promulgated originally by the Supreme Court repre-
sent not only the considered judgment of the
Advisory Committee but also the views of the
Judicial Conference; accordingly, in the circum-
stances, with all deference, Executive approval
of this enrolled bill cannot be recommended by
the Judicial Branch. "
GERALD INVOSIT 1020
3
The Department of Justice, in its letter on the enrolled bill,
indicates some concern with certain provisions of the bill but
states in conclusion that:
"Notwithstanding our misgivings about certain of
the enacted Rules, however, we are of the view
that the bill as a whole is a satisfactory pro-
duct which will significantly reduce uncertainty
in federal trials as to the applicable rule of
evidence. We therefore recommend that the bill
be signed by the President."
In recommending approval of this bill, we are relying on the
Department of Justice's views and conclusions and its expertise
in the subject matter.
Welfred H. Rommel
Assistant Director for
Legislative Reference
Enclosures
FORD & LIBRARY
ASSISTANT ATTORNEY GENERAL
LEGISLATIVE AFFAIRS
Department of Justice
Washington, D.C. 20530
DEC 23 1974
Honorable Roy L. Ash
Director, Office of Management and Budget
Washington, D.C. 20503
Dear Mr. Ash:
This Department has carefully reviewed H.R. 5463, a bill to
enact Federal Rules of Evidence. On the whole, we are satisfied that
the Rules represent a fair codification of the principles that should
govern the reception of evidence and the weight to be accorded it in
federal judicial proceedings.
Certain advances in the law have been made. For example,
currently in all but one judicial circuit, prior inconsistent statements
are not admissible for their truth but only to impeach the declarant-
witness' credibility. Under Rule 801 (d) (1) (A), a prior inconsistent
statement of a witness, if made under oath and subject to the penalty
of perjury in a formal proceeding, will be admissible as substantive
evidence, enabling the jury to decide which statement to credit. This
will enable justice to be done in those cases where a witness has implicated
an accused in grand jury testimony but at trial, because of intervening
improper influences or threats, refuses to give adverse testimony.
On the other hand, the Department is disturbed about some of the
Rules as changed by Congress from the form submitted by the Supreme Court.
For instance, Rule 801 (d) (1) (c) as proposed by the Court would have codified
existing federal law and rendered admissible prior statements of a witness
relating to identification. Such prior statements have been generally
recognized as being substantively admissible on the ground that the prior
identification, e.g. at a lineup, is more likely to be reliable than the
witness' later in-court identification of an accused or other person at a
time far removed from the events that are the subject of the trial. Under
H.R. 5463, as the result of an unfortunate amendment, this salutary Rule
has been deleted, a result which may well have serious adverse consequences
with respect to the accuracy of identification evidence in criminal cases.
In addition, the Rules as enacted by Congress have added as a prerequisite
to a finding that a witness is "unavailable" a requirement that an effort
have been made to procure his testimony. We are concerned that this will
have the undesirable result of causing more frequent resort by parties to
the cumbersome and expensive processes of taking witnesses' depositions
or submitting interrogatories, as a precaution against their subsequent
absence.
FORD
03
UBRARY
- 2 -
Notwithstanding our misgivings about certain of the enacted
Rules, however, we are of the view that the bill as a whole is a
satisfactory product which will significantly reduce uncertainty in
federal trials as to the applicable rule of evidence. We therefore
recommend that the bill be signed by the President.
Sincerely,
WRakestraw
VINCENT RAKESTRAW
Assistant Attorney General
GERALD R. FORD
ADMINISTRATIVE OFFICE OF THE
UNITED STATES COURTS
SUPREME COURT BUILDING
WASHINGTON, D.C. 20544
ROWLAND F. KIRKS
DIRECTOR
December 23, 1974
WILLIAM E. FOLEY
DEPUTY DIRECTOR
W. H. Rommel
Assistant Director for
Legislative Reference
Office of Management and Budget
Washington, D. C.
Dear Mr. Rommel:
Reference is made to your Enrolled Bill Request of
December 20, 1974, transmitting for comment enrolled bill
H.R. 5463 establishing rules of evidence for certain courts
and proceedings.
The enrolled bill had its origin in proposed Federal
Rules of Evidence promulgated by the Supreme Court of the
United States on November 20, 1972, pursuant to the authority
contained in title 28, United States Code, section 331.
In order to explain the position of the Judiciary on
the subject of the enrolled bill, it is important to recite
the long history of this project which has its origin in
1958. Prior to that time there had been numerous requests
received by the Judicial Conference that a project be under-
taken to draft rules of evidence for the federal courts.
Upon favorable recommendation of its standing Committee on
Rules of Practice and Procedure, the Judicial Conference in
March 1961 authorized the appointment of an ad hoc advisory
committee to study and report upon the advisability and
feasibility of the proposal.
This ad hoc committee made an interim report which
was printed and widely circulated to the bench and bar and
after considering the comments received from the public this
ad hoc committee made its final report in 1963, expressing
its view that it was favorable and desirable to formulate
uniform rules of evidence to be adopted by the Supreme Court
for use in the district'courts of the United States.
in
Team
2
The Judicial Conference, upon consideration of this
report, recommended to the Chief Justice the appointment of
an advisory committee on rules of evidence and such a
committee was appointed, consisting of approximately fifteen
members broadly representative of all segments of the
profession with special emphasis on trial lawyers and trial
judges. This advisory committee held fourteen sessions,
usually of three or more days, between June 18, 1965 and
December 14, 1968 at which time members discussed, frequently
amended and approved or disapproved the draft rules prepared
by its Reporter. A preliminary draft was printed in pamphlet
form and widely circulated to the bench and bar and the
teaching profession in March of 1969 with a request that
comments and suggestions be transmitted to the Judicial Confer-
ence committee by April 1, 1970. Many comments and suggestions
were received and studied fully and as a result many changes
were made in the preliminary draft.
The rules as thus revised and approved were transmitted
to the Judicial Conference at its October 1970 session and
were in turn approved by the Conference and forwarded to the
Supreme Court with a recommendation that they be promulgated.
The Court, however, believing that the public should have an
opportunity to see and comment upon the rules in their revised
form, returned them for republication and further study. This
final draft was published in the advance sheets of the Supreme
Court Reporter, the Federal Reporter, Federal Supplement and
the Federal Rules Decisions. In addition a large number of
reprints were distributed.
Comments with respect to the final draft were received
from a number of individuals and organizations, including
the Department of Justice and the Chairman of the Subcommittee
on Criminal Laws and Procedures of the Senate Committee on
the Judiciary. After full consideration by the advisory
committee and subsequently by the standing committee of the
Conference, a number of additional changes were made. The
revised definitive draft was approved by the Judicial Conference
of the United States in its October 1971 session and transmitted
to the Supreme Court. They were promulgated by the Court on
November 20, 1972.
From the foregoing recital the Judicial Conference
believes it is apparent that the rules as promulgated by the
Supreme Court after eight years of study by a special Advisory
Committee of the Judicial Conference of the United States are
3
in a very real sense the product of the views of the members
of the bar, the bench and the legal scholars of the country.
The rules of evidence as incorporated in enrolled bill
H.R. 5463 represent a considerable deletion as well as change
in the rules as promulgated by the Supreme Court. While it is
not possible within the time available for the Judicial
Conference to consider the changes made by the Congress, there
is no doubt that the rules as promulgated originally by the
Supreme Court represent not only the considered judgment of
the Advisory Committee but also the views of the Judicial
Conference; accordingly, in the circumstances, with all
deference, Executive approval of this enrolled bill cannot
be recommended by the Judicial Branch.
Respectfully,
William E. Foley
Deputy City Director
THE WHITE HOUSE
WASHINGTON
December 31, 1974
WARREN HENDRIKS
MEMORANDUM FROM: Ven FOR: her for MAX L. FRIEDERSDORF
SUBJECT:
Action Memorandum - Log No. 932
The Office of Legislative Affairs concurs with the Agencies
that the enrolled bill should be signed. Representatives Hungate
and Dave Dennis were prime movers on this.
Attachments
FORDS is LIBRARY DEPART ARY
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
DEC 26 1974
MEMORANDUM FOR THE PRESIDENT
Subject: Enrolled Bill H.R. 5463 - Rules of Evidence
Sponsors - Rep. Hungate (D) Missouri and six
others
Last Day for Action
Jenuary 4, 1975
Purpose
To provide a uniform code of evidence for use in Federal courts
and to make conforming amendments to the Federal Rules of Civil
Procedure and the Federal Rules of Criminal Procedure.
Agency Recommendations
Office of Management and Budget
Approval
Department of Justice
Approval
Administrative Office of the
United States Courts
Approval can not be
recommended
Discussion
The enrolled bill would establish for the first time a uniform
code of evidence for use in Federal courts and make appropriate
conforming amendments to other rules.
In 1963 the Judicial Conference of the United States recom-
mended that the Chief Justice appoint an advisory committee on
rules of evidence for use in the Federal courts and such a
committee was appointed. After extensive consideration the
advisory committee recommended rules which were approved by
the Judicial Conference in 1970. The rules were promulgated
by the court in November 1972. The promulgated rules were
the culmination of 13 years of effort by a distinguished group
of judges, lawyers and legal scholars who worked with the
Supreme Court on this project.
BERALD
2
In 1973 the Chief Justice, pursuant to the Supreme Court order
of November 1972, transmitted the proposed rules to the
Congress. However, because of the general importance of these
rules as well as questions which were raised with respect to
certain rules on privilege, and to insure a full opportunity
for review, Congress enacted a public law to defer the effective-
ness of the rules until they were expressly approved by Congress.
Extended hearings were held to consider the proposed rules.
The enrolled bill would codify, in large part, the rules as
proposed by the Supreme Court although there were some deletions
and changes made during consideration by Congress.
In addition, the enrolled bill would change the method by
which rules of evidence are promulgated and it would provide
that any further changes in the rules which may be proposed by
the Supreme Court and transmitted to the Congress would become
effective 180 days after such transmission unless either House
of Congress acts to defer the effective date. The one excep-
tion is that the law of privilege would be treated as a special
case and require affirmative Congressional action.
The Administrative Office of the United States Courts, in its
views letter on the enrolled bill, states that the product
of the Advisory Committee of the Judicial Conference of the
United States was a widely considered product and that:
"
The rules of evidence as incorporated in
enrolled bill H.R. 5463 represent a considerable
deletion as well as change in the rules as pro-
mulgated by the Supreme Court. While it is not
possible within the time available for the Judicial
Conference to consider the changes made by the
Congress, there is no doubt that the rules as.
promulgated originally by the Supreme Court repre-
sent not only the considered judgment of the
Advisory Committee but also the views of the
Judicial Conference; accordingly, in the circum-
stances, with all deference, Executive approval
of this enrolled bill cannot be recommended by
the Judicial Branch.' "
3
The Department of Justice, in its letter on the enrolled bill,
indicates some concern with certain provisions of the bill but
states in conclusion that:
"Notwithstanding our misgivings about certain of
the enacted Rules, however, we are of the view
that the bill as a whole is a satisfactory pro-
duct which will significantly reduce uncertainty
in federal trials as to the applicable rule of
evidence. We therefore recommend that the bill
be signed by the President."
In recommending approval of this bill, we are relying on the
Department of Justice's views and conclusions and its expertise
in the subject matter.
Helfred H. Ronnel
Assistant Director for
Legislative Reference
Enclosures
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.: 871
Date:
December 27, 1974
Time: 8:00 p.m.
FOR ACTION: Geoff Shepard sign CC (for information): Warren Hendriks
Phil Areeda areedn
Jerry Jones
Max Friedersdorf oh
FROM THE STAFF SECRETARY
DUE: Date: Monday, December 30
Time: 1:00 p.m.
SUBJECT:
Enrolled Bill H.R. 5463 - Rules of Evidence
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
For Your Comments
Draft Remarks
REMARKS:
Possible 55
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
K. R. COLE, JR.
telephone the Staff Secretary immediately.
For the President
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.: 871
Date: December 27, 1974
Time: 8:00 p.m.
FOR ACTION: Geoff Shepard
CC (for information): Warren Hendriks
Phil Areeda
Jerry Jones
Max Friedersdorf
FROM THE STAFF SECRETARY
DUE: Date: Monday, December 30
Time: 1:00 p.m.
SUBJECT:
Enrolled Bill H.R. 5463 Rules of Evidence
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
For Your Comments
Draft Remarks
REMARKS:
approval
(no further unbes mmo Counsels
onff
A.C.S.
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
Warren K. Hendriks
For the President
telephone the Staff Secretary immediately.
THE WHITE HOUSE
WASHINGTON
MEMORANDUM FOR:
WARREN HENDRIKS
FROM: SUBJECT: Ven for MAX L. FRIEDERSDORF
Action Memorandum - Log No. 871
Enrolled Bill H.R. 5463
The Office of Legislative Affairs concurs in the attached proposal
and has no additional recommendations.
Attachment
FOR i DERALD
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.: 871
Date:
December 27, 1974
Time: 8:00 p.m.
FOR ACTION: Geoff Shepard
CC (for information): Warren Hendriks
Phil Areeda
Jerry Jones
Max Friedersdorf
FROM THE STAFF SECRETARY
DUE: Date: Monday, December 30
Time: 1:00 p.m.
SUBJECT:
Enrolled Bill H.R. 5463 - Rules of Evidence
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
For Your Comments
Draft Remarks
REMARKS:
1) 2) Sign Diaft signing statement Dauggested & attached.
P. Aved
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
Warren K. Hondriks
For the President
telephone the Staff Secretary immediately.
[DRAFT]
STATEMENT BY THE PRESIDENT
UPON THE SIGNING OF H.R. 5463,
THE FEDERAL RULES OF EVIDENCE
I have given my approval to H.R. 5463, a bill to establish for
the first time in our history uniform rules of evidence governing
the admissibility of proof in proceedings before our Federal courts.
In my Message to the Congress of November 18, I urged final
action, on this important measure prior to the close of the 93d
Congress. Enactment today represents the culmination of some
13 years of study by distinguished judges, lawyers, Members of
the Congress and others interested in and affected by the administration
of justice in the Federal system. This evidence code will lend greater
and
uniformity, accessibility, 1 intelligibility and a basis for reform
To the Federal rules of evidenu.
and growth in our evidentiary rules which are sadly lacking in
current law.
May I take this occasion to salute the efforts of the Advisory
Committee on Rules of Evidence and the Standing Committee on
Rules of Practice and Procedure of the Judicial Conference of the
United States, the Chief Justice and Associate Justices of the
Supreme Court, the members of the Senate Committee on the
2
Judiciary, the members of the House Subcommittee on Criminal
Their
Justice, and officials of the Department of Justice. Your joint
efforts in a healthy spirit of compromise were essential to the
this
completion of our new Federal code of evidence.
260
THE WHITE HOUSE
WASHINGTON
December 30, 1974
NOTE TO WALLY SCOTT
FROM Geoff Shepard
We need your approval of the final statement.
in
Newl One how
en wast
GENALD R. FORD
115
THE WHITE HOUSE
WASHINGTON
OH
December 30, 1974
AJ
NOTE TO PAUL THEIS
ge 1430/24
FROM Geoff Shepard
X 2562
We need your approval of the final statement.
1974 DEC 30 PM 3 41
[DRAFT]
STATEMENT BY THE PRESIDENT
UPON THE SIGNING OF H.R. 5463,
THE FEDERAL RULES OF EVIDENCE
I have given Napprovalte H.R. 5463, a bill establishing to establish for
approved
on
the first time in our history uniform rules of evidence governing
in
proceedings.
the admissibility of proof in proceedings before our Federal court
In
action, on gus.important measure
934
This code, culminates
Enactment today the culmination of some
13 years of study by distinguished judges, ixperts Members of
the Congress and others interested in and affected by the administr ati on
of justice X Federal judicial system. This bridence code It will lend greater
and
uniformity, accessibility intelligibility and a basis for reform
To Federal rules of evidence.
and growth in our evidentiary rules which are sadly lacking in
current law
l
May I this salute the efforts of the Advisory
Committee on Rules of Evidence and the Standing Committee on
Rules of Practice and Procedure of the Judicial Conference of the
United States, the Chief Justice and Associate Justices of the
Supreme Court, the members of the Senate Committee on the
2
Judiciary, the members of the House Subcommittee on Criminal
Their
Justice and officials of the Department of Justice.
Your
joint
efforts in 2 healthy spirit of compromise were essential to the
this
legal legislation
completion of our new Federal code of Movidence
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.: 932
Date:
December 31, 1974
Time: 10:00 a.m.
FOR ACTION: Phil Areeda
CC (for information): Warren Hendriks
Max Friedersdorf
FROM THE STAFF SECRETARY
DUE: Date: Tuesday, December 31
Time: 1:00 p.m.
SUBJECT:
H.R.
R.
Signing statement for & 5463 - Rules of Evidence
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
For Your Comments
Draft Remarks
REMARKS:
The attached statement has been edited by Paul Theis.
For your approval.
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
K. R. COLE, JR.
telephone the Staff Secretary immediately.
For the President
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.: 932
Date: December 31, 1974
Time:
10:00 a.m.
FOR ACTION: Phil Areeda
CC (for information): Warren Hendriks
Max Friedersdorf
FROM THE STAFF SECRETARY
DUE: Date: Tuesday, December 31
Time: 1:00 p.m.
SUBJECT:
H.R.
Signing statement for &. 5463 - Rules of Evidence
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
For Your Comments
Draft Remarks
REMARKS:
The attached statement has been edited by Paul Theis.
For your approval.
Please return to Judy Johnston, Ground Floor West Wing
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
telephone the Stoff Secretary immediately.
Warren K. Hendriks
For the President
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.: 932
Date: December 31, 1974
Time: 10:00 a.m.
FOR ACTION: Phil Areeda
cc (for information): Warren Hendriks
Max Friedersdorf
FROM THE STAFF SECRETARY
DUE: Date: Tuesday, December 31
Time: 1:00 p.m.
SUBJECT:
Signing statement for A.R. S. 5463 - Rules of Evidence
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
For Your Comments
Draft Remarks
REMARKS:
The attached statement has been edited by Paul Theis.
For your approval.
Please return to Judy Johnston, Ground Floor West Wing
OK
PAuld
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate a
delay in submitting the required material, please
telephone the Staff Secretary immediately.
Warren K. Hendriks
For the President
STATEMENT BY THE PRESIDENT
UPON THE SIGNING OF H.R. 5463,
THE FEDERAL RULES OF EVIDENCE
I have approved H.R. 5463, a bill establishing for the
first time in our history uniform rules of evidence on the admissability of
proof in Federal court proceedings.
Enactment of this code culminates some 13 years of study
by distinguished experts on the Federal judicial system. It will lend greater
uniformity, accessibility and intelligibility to Federal rules of evidence.
I salute the efforts of the Advisory Committee on Rules
of Evidence and the Standing Committee on Rules of Practice and Procedure
of the Judicial Conference of the United States, the Chief Justice and
Associate Justices of the Supreme Court, the members of the Senate
Committee on the Judiciary, the members of the House Subcommittee on
Criminal Justice, and officials of the Department of Justice. Their joint
efforts in a healthy spirit of compromise were essential to the completion
of this new legal legislation.
STATEMENT BY THE PRESIDENT
UPON THE SIGNING OF H.R. 5463,
THE FEDERAL RULES OF EVIDENCE
I have approved H.R. 5463, a bill establishing for the
first time in our history uniform rules of evidence on the admissability of
proof in Federal court proceedings.
Enactment of this code culminates some 13 years of study
by distinguished experts on the Federal judicial system. It will lend greater
uniformity, accessibility and intelligibility to Federal rules of evidence.
I salute the efforts of the Advisory Committee on Rules
of Evidence and the Standing Committee on Rules of Practice and Procedure
of the Judicial Conference of the United States, the Chief Justice and
Associate Justices of the Supreme Court, the members of the Senate
Committee on the Judiciary, the members of the House Subcommittee on
Criminal Justice, and officials of the Department of Justice. Their joint
efforts in a healthy spirit of compromise were essential to the completion
of this new legal legislation.
STATEMENT BY THE PRESIDENT
I have approved H.R. 5463, a bill establishing for
the first time in our history uniform rules of evidence
on the admissability of proof in Federal court proceedings.
Enactment of this code culminates some 13 years of
study by distinguished experts on the Federal judicial
system. It will lend greater uniformity, accessibility
and intelligibility to Federal rules of evidence.
I salute the efforts of the Advisory Committee on
Rules of Evidence and the Standing Committee on Rules of
Practice and Procedure of the Judicial Conference of the
United States, the Chief Justice and Associate Justices
of the Supreme Court, the members of the Senate Committee
on the Judiciary, the members of the House Subcommittee
on Criminal Justice, and officials of the Department of
Justice. Their joint efforts in a healthy spirit of com-
promise were essential to the completion of this new legal
legislation.
93D CONGRESS
HOUSE OF REPRESENTATIVES
REPORT
1st Session
No. 93-650
FEDERAL RULES OF EVIDENCE
NOVEMBER 15, 1973.-Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
Mr. HUNGATE, from the Committee on the Judiciary,
submitted the following
REPORT
together with
ADDITIONAL AND SEPARATE VIEWS
[To accompany H.R. 5463]
The Committee on Judiciary, to whom was referred the bill (H.R.
5463) to establish rules of evidence for certain courts and proceedings,
having considered the same, report favorably thereon with an amend-
ment, and recommend that the bill as amended do pass.
The amendment strikes out all after the enacting clause and inserts
in lieu thereof a substitute text which appears in italic type in the
reported bill.
PURPOSE
The purpose of this legislation is to provide a uniform code of evi-
dence for use in the Federal courts, and to make conforming amend-
ments to the Federal Rules of Civil Procedure and the Federal Rules
of Criminal Procedure.
STATEMENT
Judge Albert B. Maris, then Chairman of the Standing Committee
on Rules of Practice and Procedure of the Judicial Conference of the
United States, testified on February 7, 1973. He said: "[T]he adoption
of the Federal Rules of Evidence represents, and in the future will be
regarded as, a significant milestone on the road to the better adminis-
tration of justice in the Federal courts, by providing clear, precise,
and readily available rules for trial judges and trial lawyers to follow,
which will be uniformly applicable throughout the Federal judicial
system."
This view was echoed by Mr. Albert E. Jenner, Jr., Chairman of
the Advisory Committee on Rules of Evidence, Judicial Conference of
the United States. In his words: "I point to my own experience as a
99-006
2
trial lawyer throughout the Nation in the trial of cases, that really
this is what brought about the demand of the American Bar Associa-
tion, its Special Committee on Rules of Evidence that we must have,
in order to administer justice in the Federal Courts, uniform rules of
evidence that are applicable to all district courts." Mr. Jenner also
suggested that the uniform rules would be of particular assistance
to judges who are assigned to districts or circuits other than their own
to assist with congested calendars, and to the younger members of the
bar. As he said, we will for the first time in the history of the nation
have a pamphlet of rules in the "hands of the gladiators trying the case
in the courtroom" and on the judge's bench.
The case against an evidence code was ably stated by a number of
witnesses, including former Supreme Court Justice Arthur J. Gold-
berg and Chief Judge Henry J. Friendly of the United States Court
of Appeals for the Second Circuit. Judge Friendly voiced three major
objections-there is no need for the proposed rules, evidence is a sub-
ject which does not lend itself to codification but is peculiarly apt for
case-by-case development, and uniform rules in the Federal courts
which may overturn State social policies with respect to inter-per-
sonal relationships may well render equal protection of the law
impossible.
After six days of hearings, the Subcommittee on Criminal Justice
concluded that, on balance, there should be an evidence code.
However, recognizing that rules of evidence are in large measure
substantive in their nature or impact, the Subcommittee and the Full
Committee concluded they were not within the scope of the enabling
acts which authorize the Supreme Court to promulgate rules of "prac-
tice and procedure" (18 USC 3771, 3772, 3402; 28 USC 2072, 2075).
H.R. 5463 constitutes the Committee's demonstration of these two
conclusions, as well as its view as to what should be the content and
scope of a uniform code of evidence.
Within the Subcommittee and the Full Committee there was no dis-
pute with respect to many of the Rules. As a matter of fact, 27 of the
Rules were not amended at all. Non-substantive changes were made to
another 14. Thus, more than 50% of the Rules are substantively un-
changed from those submitted by the Supreme Court.
HISTORICAL BACKGROUND
H.R. 5463 is the culmination of almost thirteen years of study by
distinguished judges, Members of Congress, lawyers and others in-
terested in and affected by the administration of justice in the Federal
courts.
In 1961, the Judicial Conference of the United States authorized
Earl Warren, then Chief Justice of the United States, to appoint an
advisory committee to study the advisability and feasibility of uni-
form rules of evidence for use in the Federal courts. The Conference
expressed the view that if uniform rules were found to be advisable
and feasible, they should be promulgated.
The Chief Justice decided to move first toward a determination of
whether uniform rules were advisable and feasible. He appointed a
Special Committee on Evidence to make this initial exploration.
3
Because of the importance of the project and the fact that matters
of evidence and proof cross the jurisdictional and interest lines of all
of the Judicial Conference Advisory Committee, Chief Justice Warren
designated the chairmen of the Civil, Criminal, Bankruptcy, Ad-
miralty and Appellate Advisory Committees to serve on the Special
Committee on Evidence.
By December 11, 1961, the Special Committee on Evidence sub-
mitted its preliminary report to the Judicial Conference Standing
Committee on Rules of Practice and Procedure. In that report the
Special Committee on Evidence concluded that uniform rules of evi-
dence were advisable and feasible, and recommended that such rules
should be promulgated promptly.
This preliminary report of the Special Committee was circulated
for approximately one year with an invitation to the "bench and bar
for consideration and suggestions." Thereafter, at its March, 1963
meeting, the Judicial Conference approved the final report of the
Special Committee and recommended the appointment of an Advisory
Committee on Rules of Evidence to prepare uniform rules of evidence
for adoption and promulgation by the Supreme Court of the United
States.
A distinguished Advisory Committee composed of judges, lawyers
and teachers was appointed on March 8, 1965, and assigned the monu-
mental task of developing a uniform code of evidence for use in the
Federal courts.
Approximately four years later, in March. 1969, the Judicial Con-
ference Standing Committee on Rules of Practice and Procedure
printed and circulated widely for comment a preliminary draft of
proposed rules of evidence which had been developed by the Advisory
Committee. The draft was accompanied by detailed Advisory Com-
mittee notes.
After reviewing the numerous comments, suggests, and proposals
received on the preliminary draft, the Advisory Committee and, in
turn, the Judicial Conference, approved a revised draft which it sub-
mitted to the Sureme Court for promulgation in October, 1970.
The Court, however, returned the draft to the Judicial Conference
for further public circulation and opportunity to comment, and in
March, 1971, that draft was printed and widely circulated. The final
work product of the Advisory Committee of the Judicial Conference
and the Standing Committee on Rules of Practice and Procedure, was
forwarded to the Supreme Court in October, 1971.
On November 20, 1972, the Supreme Court promulgated the Federal
Rules of Evidence pursuant to the various enabling acts in title 18 and
28 of the United States Code, to take effect on July 1, 1973.
On February 5, 1973, Chief Justice Warren Burger, acting pursuant
to the Supreme Court order of November 20, 1972, transmitted the
proposed rules to the Congress. As transmitted, the proposed rules and
accompanying Advisory Committee notes occupied 168 closely printed
pages.
CONGRESSIONAL CONSIDERATION
Recognizing the importance and the enormity of the task before it,
and in light of the serious question raised by Mr. Justice Douglas, in
4
dissenting to the Supreme Court Order, as to the authority of the
Supreme Court to promulgate rules of evidence, the Congress
promptly enacted Public Law 93-12. This Public Law (which passed
the House 399 to 1) deferred the effectiveness of the rules until ex-
pressly approved by the Congress.
Two days after receipt of the proposed rules, on February 7, 1973,
the Subcommittee on Criminal Justice opened hearings and began to
take testimony on the desirability of a uniform code of evidence and
the merits of each individual rule. H.R. 5463 was introduced by the
Chairman of the Subcommittee, Congressman William L. Hungate,
and other Members, SO that the proposed rules would be before the
Committee in legislative form.
The Subcommittee held six days of hearings, heard twenty-eight
witnesses, received numerous written communications, and developed a
hearing record of approximately 600 pages. By March 21, the Subcom-
mittee was ready to begin its markup sessions with a view to developing
a Subcommittee draft. Between March 21 and June 22, the Subcommit-
tee held 17 markup sessions which culminated in a Committee Print
of H.R. 5463 dated June 28, 1973. The Committee Print was circulated
nationwide for comment and printed in the Congressional Record to
assure the widest distribution. Over the course of the next six weeks,
approximately 90 comments were received by the Subcommittee. By
and large, the Committee Print was well received, even by those indi-
viduals and organizations objecting to the Subcommittee treatment of
specific rules and those who objected to having uniform rules of any
kind. The American Bar Association House of Delegates, for exam-
ple, endorsed most of the provisions generally and "concurs in the
Hungate Subcommittee's Report
insofar as it omits Rules 803
(24), 804 (b) (6) ; all of the rules pertaining to privilege
and the
rule on summing up and comment by judges (105)' The American
College of Trial Lawyers "approves thoroughly". From the Associa-
tion of the Bar of the City of New York, "The Committee is to be com-
mended for a most thorough, scholarly revision of the Federal Rules
of Evidence". Chief Judge Friendly wrote "
if there are to be
Federal rules of evidence, I do not see how there could be much better
ones than your Subcommittee has proposed". Assistant Attorney Gen-
eral Robert Repasky of Wisconsin advised that "the balance the Com-
mittee has arrived at is a most reasonable balance between the rather
clear interest of the individual States and the interest of the Federal
courts in having some formalized Rules of Evidence to guide their
decisions." Similar comments were received from numerous other indi-
viduals and organizations in the legal field. Laudatory comments were
also received from non-legal groups, for example, the communications
media, the American Hospital Association, the National Association
of Social Workers, Inc., and others.
All comments were thoroughly considered and the Subcommittee de-
veloped a revised Committee Print in the course of five additional
markup sessions. This Print, dated October 10, 1973, was approved by
the Subcommittee and reported to the full Judiciary Committee for
its consideration.
On October 16 and 18 and on November 6, 1973, the full Committee
thoroughly debated H.R. 5463, amended it in several respects, and
ordered it favorably reported.
5
COMMITTEE AMENDMENTS
In some instances, the Committee has deleted entire rules or parts
of rules proposed by the Supreme Court; in other instances, rules have
been retained but significantly amended. The following explanatory
information reflects the Committee views in taking each individual
action.
PROPOSED RULES DELETED BY COMMITTEE
Proposed Rule 105
Rule 105 as submitted by the Supreme Court concerned the issue of
summing up and comment by the judge. It provided that after the close
of the evidence and the arguments of counsel, the presiding judge
could fairly and impartially sum up the evidence and comment to the
jury upon its weight and the credibility of the witnesses, if he also
instructed the jury that it was not bound thereby and must make its
own determination of those matters. The Committee recognized that
the Rule as submitted is consistent with long standing and current
federal practice. However, the aspect of the Rule dealing with the
authority of a judge to comment on the weight of the evidence and the
credibility of witnesses-an authority not granted to judges in most
State courts-was highly controversial. After much debate the Com-
mittee determined to delete the entire Rule, intending that its action be
understood as reflecting no conclusion as to the merits of the proposed
Rule and that the subject should be left for separate consideration at
another time.
Proposed Rule 303
Rule 303, as submitted by the Supreme Court was directed to the
issues of when, in criminal cases, a court may submit a presumption
to a jury and the type of instruction it should give. The Committee
deleted this Rule since the subject of presumptions in criminal cases is
addressed in detail in bills now pending before the Committee to re-
vise the federal criminal code. The Committee determined to consider
this question in the course of its study of these proposals.
Proposed Rule (b)
Rule 406 as submitted to Congress contained a subdivision (b) pro-
viding that the method of proof of habit or routine practice could be
"in the form of an opinion or by specific instances of conduct suffi-
cient in number to warrant a finding that the habit existed or that the
practice was routine." The Committee deleted this subdivision believ-
ing that the method of proof of habit and routine practice should be
left to the courts to deal with on a case-by-case basis. At the same time,
the Committee does not intend that its action be construed as sanction-
ing a general authorization of opinion evidence in this area.
Proposed Rules 803 (24) and 804(b)( (6)
The proposed Rules of Evidence submitted to Congress contained
identical provisions in Rules 803 and 804 (which set forth the various
hearsay exceptions), to the effect that the federal courts could admit
any hearsay statement not specifically covered by any of the stated ex-
ceptions, if the hearsay statement was found to have "comparable cir-
cumstantial guarantees of trustworthiness."
6
The Committee deleted these provisions (proposed Rules 803 (24)
and 804 (b) (6)) as injecting too much uncertainty into the law of evi-
dence and impairing the ability of practitioners to prepare for trial.
It was noted that Rule 102 directs the courts to construe the Rules of
Evidence SO as to promote "growth and development." The Committee
believed that if additional hearsay exceptions are to be created, they
should be by amendments to the Rules, not on a case-by-case basis.
Proposed Rule 804(b) (2)
Rule 804 (b) (2), a hearsay exception submitted by the Court, titled
"Statement of recent perception", read as follows:
A statement, not in response to the instigation of a person
engaged in investigating, litigating, or settling a claim, which
narrates, describes, or explains an event or condition recently
perceived by the declarant, made in good faith, not in contem-
plation of pending or anticipated litigation in which he was
interested, and while his recollection was clear.
The Committee eliminated this Rule as creating a new and unwar-
ranted hearsay exception of great potential breadth. The Committee
did not believe that statements of the type referred to bore sufficient
guarantees of trustworthiness to justify admissibility.
RULES SIGNIFICANTLY AMENDED
Rule 104 (c)
Rule 104 (c) as submitted to the Congress provided that hearings on
the admissibility of confessions shall be conducted outside the presence
of the jury and hearings on all other preliminary matters should be SO
conducted when the interests of justice require. The Committee
amended the Rule to provide that where an accused is a witness as to
a preliminary matter, he has the right, upon his request, to be heard
outside the jury's presence. Although recognizing that in some cases
duplication of evidence would occur and that the procedure could be
subject to abuse, the Committee believed that a proper regard for the
right of an accused not to testify generally in the case dictates that he
be given an option to testify out of the presence of the jury on prelimi-
nary matters.
The Committee construes the second sentence of subdivision (c) as
applying to civil actions and proceedings as well as to criminal cases,
and on this assumption has left the sentence unamended.
Rule 106
Rule 106 as submitted by the Supreme Court (now Rule 105 in the
bill) dealt with the subject of evidence which is admissible as to one
party or for one purpose but is not admissible against another party
or for another purpose. The Committee adopted this Rule without
change on the understanding that it does not affect the authority of a
court to order a severence in a multi-detendant case.
Rule 201 (g)
Rule 201 (g) as received from the Supreme Court provided that
when judicial notice of a fact is taken, the court shall instruct the jury
to accept that fact as established. Being of the view that mandatory
instruction to a jury in a criminal case to accept as conclusive any fact
7
judicially noticed is inappropriate because contrary to the spirit of
the Sixth Amendment right to a jury trial, the Committee adopted the
1969 Advisory Committee draft of this subsection, allowing a manda-
tory instruction in civil actions and proceedings and a discretionary
instruction in criminal cases.
Rule 301
Rule 301 as submitted by the Supreme Court provided that in all
cases a presumption imposes on the party against whom it is directed
the burden of proving that the nonexistence of the presumed fact is
more probable than its existence. The Committee limited the scope
of Rule 301 to "civil actions and proceedings" to effectuate its deci-
sion not to deal with the question of presumptions in criminal cases.
(See note on Rule 303 in discussion of Rules deleted). With respect
to the weight to be given a presumption in a civil case, the Committee
agreed with the judgment implicit in the Court's version that the so-
called "bursting bubble" theory of presumptions, whereby a presump-
tion vanishes upon the appearance of any contradicting evidence by
the other party, gives to presumptions too slight an effect. On the other
hand, the Committee believed that the Rule proposed by the Court,
whereby a presumption permanently alters the burden of persuasion,
no matter how much contradicting evidence is introduced-a view
shared by only a few courts-lends too great a force to presumptions.
Accordingly, the Committee amended the Rule to adopt an intermedi-
ate position under which a presumption does not vanish upon the in-
troduction of contradicting evidence, and does not change the burden
of persuasion; instead it is merely deemed sufficient evidence of the
fact presumed, to be considered by the jury or other finder of fact.
Rule 402
Rule 402 as submitted to the Congress contained the phrase "or by
other rules adopted by the Supreme Court". To accommodate the view
that the Congress should not appear to acquiesce in the Court's judg-
ment that it has authority under the existing Rules Enabling Acts to
promulgate Rules of Evidence, the Committee amended the above
phrase to read "or by other rules prescribed by the Supreme Court
pursuant to statutory authority" in this and other Rules where the
reference appears.
Rule 404(b)
The second sentence of Rule 404 (b) as submitted to the Congress
began with the words "This subdivision does not exclude the evidence
when offered". The Committee amended this language to read "It
may, however, be admissible", the words used in the 1971 Advisory
Committee draft, on the ground that this formulation properly placed
greater emphasis on admissibility than did the final Court version.
Rule 405(a)
Rule 405 (a) as submitted proposed to change existing law by allow-
ing evidence of character in the form of opinion as well as reputation
testimony. Fearing, among other reasons, that wholesale allowance of
opinion testimony might tend to turn a trial into a swearing contest
between conflicting character witnesses, the Committee decided to
delete from this Rule, as well as from Rule 608 (a) which involves a
related problem, reference to opinion testimony.
8
Rule 408
Under existing federal law evidence of conduct and statements
made in compromise negotiations is admissible in subsequent litigation
between the parties. The second sentence of Rule 408 as submitted by
the Supreme Court proposed to reverse that doctrine in the interest
of further promoting non-judicial settlement of disputes. Some agen-
cies of government expressed the view that the Court formulation was
likely to impede rather than assist efforts to achieve settlement of dis-
putes. For one thing, it is not always easy to tell when compromise
negotiations begin, and informal dealings end. Also, parties dealing
with government agencies would be reluctant to furnish factual in-
formation at preliminary meetings; they would wait until "compro-
mise negotiations" began and thus hopefully effect an immunity for
themselves with respect to the evidence supplied. In light of these con-
siderations, the Committee recast the Rule SO that admissions of liabil-
ity or opinions given during compromise negotiations continue
inadmissible, but evidence of unqualified factual assertions is admis-
sible. The latter aspect of the Rule is drafted, however, SO as to pre-
serve other possible objections to the introduction of such evidence.
The Committee intends no modification of current law whereby a
party may protect himself from future use of his statements by
couching them in hypothetical conditional form.
Rule 410
The Committee added the phrase "Except as otherwise provided by
Act of Congress" to Rule 410. as submitted by the Court in order to
preserve particular congressional policy judgments as to the effect
of a plea of guilty or of nolo contendere. See 15 U.S.C. 16 (a). The
Committee intends that its amendment refers to both present statutes
and statutes subsequently enacted.
Article V
Article V as submitted to Congress contained thirteen Rules. Nine
of those Rules defined specific non-constitutional privileges which the
federal courts must recognize (i.e. required reports, lawyer-client,
psychotherapist-patient, husband-wife, communications to clergymen,
political vote, trade secrets, secrets of state and other official informa-
tion, and identity of informer). Another Rule provided that only those
privileges set forth in Article V or in some other Act of Congress
could be recognized by the federal courts. The three remaining Rules
addressed collateral problems as to waiver of privilege by voluntary
disclosure, privileged matter disclosed under compulsion or without
opportunity to claim privilege, comment upon or inference from a
claim of privilege, and jury instruction with regard thereto.
The Committee amended Article V to eliminate all of the Court's
specific Rules on privileges. Instead, the Committee, through a single
Rule, 501, left the law of privileges in its present state and further
provided that privileges shall continue to be developed by the courts
of the United States under a uniform standard applicable both in
civil and criminal cases. That standard, derived from Rule 26 of the
Federal Rules of Criminal Procedure, mandates the application of the
principles of the common law as interpreted by the courts of the United
States in the light of reason and experience. The words "person, gov-
9
ernment, State, or political subdivision thereof" were added by the
Committee to the lone term "witnesses" used in Rule 26 to make clear
that, as under present law, not only witnesses may have privileges.
The Committee also included in its amendment a proviso modeled after
Rule 302 and similar to language added by the Committee to Rule 601
relating to the competency of witnesses. The proviso is designed to re-
quire the application of State privilege law in civil actions and pro-
ceedings governed by Erie R. Co. V. Tompkins, 304 U.S. 64 (1938),
a result in accord with current federal court decisions. See Republic
Gear Co. V. Borg-Warner Corp., 381 F2d 551, 555-556 n.2 (2nd Cir.
1967). The Committee deemed the proviso to be necessary in the light
of the Advisory Committee's view (see its note to Court Rule 501)
that this result is not mandated under Erie.
The rationale underlying the proviso is that federal law should not
supersede that of the States in substantive areas such as privilege
absent a compelling reason. The Committee believes that in civil cases
in the federal courts where an element of a claim or defense is not
grounded upon a federal question, there is no federal interest strong
enough to justify departure from State policy. In addition, the Com-
mittee considered that the Court's proposed Article V would have
promoted forum shopping in some civil actions, depending upon dif-
ferences in the privilege law applied as among the State and federal
courts. The Committee's proviso, on the other hand, under which the
federal courts are bound to apply the State's privilege law in actions
founded upon a State-created right or defense, removes the incentive
to "shop".
Rule 601
Rule 601 as submitted to the Congress provided that "Every person
is competent to be a witness except as otherwise provided in these
rules." One effect of the Rule as proposed would have been to abolish
age, mental capacity, and other grounds recognized in some State
jurisdictions as making a person incompetent as a witness. The great-
est controversy centered around the Rule's rendering inapplicable in
the federal courts the so-called Dead Man's Statutes which exist in
some States. Acknowledging that there is substantial disagreement as
to the merit of Dead Man's Statutes, the Committee nevertheless be-
lieved that where such statutes have been enacted they represent State
policy which should not be overturned in the absence of a compelling
federal interest The Committee therefore amended the Rule to make
competency in civil actions determinable in accordance with State law
with respect to elements of claims or defenses as to which State law
supplies the rule of decision. Cf. Courtland V. Walston & Co., Inc.,
340 F. Supp. 1076, 1087-1092 (S.D.N.Y. 1972).
Rule 606 (b)
As proposed by he Court, Rule 606 (b) limited testimony by a juror
in the course of an inquiry into the validity of a verdict or indictment.
He could testify as to the influence of extraneous prejudicial infor-
mation brought to the jury's attention (e.g. a radio newscast or a news-
paper account) or an outside influence which improperly had been
brought to bear upon a juror (e.g. a threat to the safety of a member
H. Rept. 93-650-2
10
of his family), but he could not testify as to other irregularities which
occurred in the jury room. Under this formulation a quotient verdict
could not be attacked through the testimony of a juror, nor could a
juror testify to the drunken condition of a fellow juror which SO dis-
abled him that he could not participate in the jury's deliberations.
The 1969 and 1971 Advisory Committee drafts would have per-
mitted a member of the jury to testify concerning these kinds of ir-
regularities in the jury room. The Advisory Committee note in the
1971
draft
stated
that
66*
*
*
the door of the jury room is not a satis-
factory dividing point, and the Supreme Court has refused to accept
it." The Advisory Committee further commented that-
The trend has been to draw the dividing line between testi-
mony as to mental processes, on the one hand, and as to the
existence of conditions or occurrences of events calculated im-
properly to influence the verdict, on the other hand, without
regard to whether the happening is within or without the jury
*
room.
* * The jurors are the persons who know what really
happened. Allowing them to testify as to matters other than
their own reactions involves no particular hazard to the values
sought to be protected. The rule is based upon this conclusion.
It makes no attempt to specify the substantive grounds for
setting aside verdicts for irregularity.
Objective jury misconduct may be testified to in California, Florida,
Iowa, Kansas, Nebraska, New Jersey, North Dakota, Ohio, Oregon,
Tennessee, Texas, and Washington.
Persuaded that the better practice is that provided for in the earlier
drafts, the Committee amended subdivision (b) to read in the text
of those drafts.
Rule 608 (a)
Rule 608 (a) as submitted by the Court permitted attack to be made
upon the character for truthfulness or untruthfulness of a witness
either by reputation or opinion testimony. For the same reasons under-
lying its decision to eliminate the admissibility of opinion testimony
in Rule 405 (a), the Commttee amended Rule 608(a) to delete the ref-
erence to opinion testimony.
Rule 608 (b)
The second sentence of Rule 608 (b) as submitted by the Court
permitted specific instances of misconduct of a witness to be inquired
into on cross-examination for the purpose of attacking his credibility,
if probative of truthfulness or untruthfulness, "and not remote in
time". Such cross-examination could be of the witness himself or of
another witness who testifies as to "his" character for truthfulness or
untruthfulness.
The Committee amended the Rule to emphasize the discretionary
power of the court in permitting such testimony and deleted the ref-
erence to remoteness in time as being unnecessary and confusing (re-
moteness from time of trial or remoteness from the incident in-
volved?). As recast, the Committee amendment also makes clear the
antecedent of "his" in the original Court proposal.
11
Rule 609 (a)
Rule 609 (a) as submitted by the Court was modeled after Section
133 (a) of Public Law 91-358. 14 D.C. Code 305 (b) (1), enacted in
1970. The Rule provided that:
For the purpose of attacking the credibility of a witness,
evidence that he has been convicted of a crime is admissible
but only if the crime (1) was punishable by death or impris-
onment in excess of one year under the law under which he
was convicted or (2) involved dishonesty or false statement
regardless of the punishment.
As reported to the Committee by the Subcommittee, Rule 609 (a)
was amended to read as follows:
For the purpose of attacking the credibility of a witness,
evidence that he has been convicted of a crime is admissible
only if the crime (1) was punishable by death or imprison-
ment in excess of one year, unless the court determines that
the danger of unfair prejudice outweighs the probative value
of the evidence of the conviction, or (2) involved dishonesty
or false statement.
In full committee, the provision was amended to permit attack
upon the credibility of a witness by prior conviction only if the prior
crime involved dishonesty or false statement. While recognizing that
the prevailing doctrine in the federal courts and in most States allows
a witness to be impeached by evidence of prior felony convictions
without restriction as to type, the Committee was of the view that,
because of the danger of unfair prejudice in such practice and the
deterrent effect upon an accused who might wish to testify, and even
upon a witness who was not the accused, cross-examination by evi-
dence of prior conviction should be limited to those kinds of convic-
tions bearing directly on credibility, i.e., crimes involving dishonesty
or false statement.
Rule 609 (b)
Rule 609 (b) as submitted by the Court was modeled after Section
133 (a) of Public Law 91-358, 14 D.C. Code 305 (b) (2) (B), enacted
in 1970. The Rule provided:
Evidence of a conviction under this rule is not admissible
if a period of more than ten years has elapsed since the date
of the release of the witness from confinement imposed for
his most recent conviction, or the expiration of the period of
his parole, probation, or sentence granted or imposed with re-
spect to his most recent conviction, whichever is the later
date.
Under this formulation, a witness' entire past record of criminal con-
victions could be used for impeachment (provided the conviction met
the standard of subdivision (a), if the witness had been most recently
released from confinement, or the period of his parole or probation
had expired, within ten years of the conviction.
The Committee amended the Rule to read in the text of the 1971
Advisory Committee version to provide that upon the expiration of
12
ten years from the date of a conviction of a witness, or of his release
from confinement for that offense, that conviction may no longer be
used for impeachment. The Committee was of the view that after ten
years following a person's release from confinement (or from the date
of his conviction) the probative value of the conviction with respect
to that person's credibility diminished to a point where it should no
longer be admissible.
Rule 609 (c)
Rule 609 (c) as submitted by the Court provided in part that evi-
dence of a witness' prior conviction is not admissible to attack his
credibility if the conviction was the subject of a pardon, annulment, or
other equivalent procedure, based on a showing of rehabilitation, and
the witness has not been convicted of a subsequent crime. The Commit-
tee amended the Rule to provide that the "subsequent crime" must have
been "punishable by death or imprisonment in excess of one year", on
the ground that a subsequent conviction of an offense not a felony is
insufficient to rebut the finding that the witness has been rehabilitated.
The Committee also intends that the words "based on a finding of the
rehabilitation of the person convicted" apply not only to "certificate
of rehabilitation, or other equivalent procedure", but also to "pardon"
and "annulment."
Rule 611 (b)
As submitted by the Court, Rule 611 (b) provided:
A witness may be cross-examined on any matter relevant
to any issue in the case, including credibility. In the interests
of justice, the judge may limit cross-examination with respect
to matters not testified to on direct examination.
The Committee amended this provision to return to the rule which
prevails in the federal courts and thirty-nine State jurisdictions. As
amended, the Rule is in the text of the 1969 Advisory Committee draft.
It limits cross-examination to credibility and to matters testified to on
direct examination, unless the judge permits more, in which event the
cross-examiner must proceed as if on direct examination. This tradi-
tional rule facilitates orderly presentation by each party at trial.
Further, in light of existing discovery procedures, there appears to be
no need to abandon the traditional rule.
Rule 611 (c)
The third sentence of Rule 611 (c) as submitted by the Court pro-
vided that
In civil cases, a party is entitled to call an adverse party or
witness identified with him and interrogate by leading ques-
tions.
The Committee amended this Rule to permit leading questions to be
used with respect to any hostile witness, not only an adverse party or
person identified with such adverse party. The Committee also sub-
stituted the word "When" for the phrase "In civil cases" to reflect the
possibility that in criminal cases a defendant may be entitled to call
witnesses identified with the government, in which event the Commit-
tee believed the defendant should be permitted to inquire with leading
questions.
13
Rule 612
As submitted to Congress, Rule 612 provided that except as set forth
in 18 U.S.C. 3500, if a witness uses a writing to refresh his memory for
the purpose of testifying, "either before or while testifying," an ad-
verse party is entitled to have the writing produced at the hearing, to
inspect it, to cross-examine the witness on it, and to introduce in evi-
dence those portions relating to the witness' testimony. The Committee
amended the Rule SO as still to require the production of writings used
by a witness while testifying, but to render the production of writings
used by a witness to refresh his memory before testifying discretion-
ary with the court in the interests of justice, as is the case under exist-
ing federal law. See Goldman V. United States, 316 U.S. 129 (1942).
The Committee considered that permitting an adverse party to re-
quire the production of writings used before testifying could result
in fishing expeditions among a multitude of papers which a witness
may have used in preparing for trial.
The Committee intends that nothing in the Rule be construed as
barring the assertion of a privilege with respect to writings used by a
witness to refresh his memory.
Rule 801 (d) (1)
Present federal law, except in the Second Circuit, permits the use
of prior inconsistent statements of a witness for impeachment only.
Rule 801 (d) (1) as proposed by the Court would have permitted all
such statements to be admissible as substantive evidence, an approach
followed by a small but growing number of State jurisdictions and
recently held constitutional in California V. Green, 399 U.S. 149
(1970). Although there was some support expressed for the Court
Rule, based largely on the need to counteract the effect of witness in-
timidation in criminal cases, the Committee decided to adopt a com-
promise version of the Rule similar to the position of the Second
Circuit. The Rule as amended draws a distinction between types of
prior inconsistent statements (other than statements of identification
of a person made after perceiving him which are currently admissible,
see United States V. Anderson, 406 F.2d 719, 720 (4th Cir.), cert.
denied, 395 U.S. 967 (1969)) and allows only those made while the
declarant was subject to cross-examination at a trail or hearing or in
a deposition, to be admissible for their truth. Compare United States
V. DeSisto, 329 F.2d 929 (2nd Cir.), cert. denied, 377 U.S. 979 (1964) ;
United States V. Cunningham, 446 F.2d 194 (2nd Cir. 1971) (restrict-
ing the admissibility of prior inconsistent statements as substantive
evidence to those made under oath in a formal proceeding, but not re-
quiring that there have been an opportunity for cross-examination).
The rationale for the Committee's decision is that (1) unlike in most
other situations involving unsworn or oral statements, there can be no
dispute as to whether the prior statement was made; and (2) the con-
text of a formal proceeding, an oath, and the opportunity for cross-
examination provide firm additional assurances of the reliability of
the prior statement.
Rule 803 (3)
Rule 803 (3) was approved in the form submitted by the Court to
Congress. However, the Committee intends that the Rule be construed
14
to limit the doctrine of Mutual Life Insurance Co. V. Hillmon, 145 U.S.
285, 295-300 (1892), SO as to render statements of intent by a declarant
admissible only to prove his future conduct, not the future conduct of
another person.
Rule 803 (4)
After giving particular attention to the question of physical exam-
ination made solely to enable a physician to testify, the Committee
approved Rule 803 (4) as submitted to Congress, with the understand-
ing that it is not intended in any way to adversely affect present priv-
ilege rules or those subsequently adopted.
Rule 803 (5)
Rule 803 (5) as submitted by the Court permitted the reading into
evidence of a memorandum or record concerning a matter about which
a witness once had knowledge but now has insufficient recollection to
enable him to testify accurately and fully, "shown to have been made
when the matter was fresh in his memory and to reflect that knowl-
edge correctly." The Committee amended this Rule to add the words
"or adopted by the witness" after the phrase "shown to have been
made", a treatment consistent with the definition of "statement" in
the Jencks Act, 18 U.S.C. 3500. Moreover, it is the Committee's under-
standing that a memorandum or report, although barred under this
Rule, would nonetheless be admissible if it came within another hear-
say exception. This last stated principle is deemed applicable to all
the hearsay rules.
Rule 803 (6)
Rule 803 (6) as submitted by the Court permitted a record made "in
the course of a regularly conducted activity" to be admissible in cer-
tain circumstances. The Committee believed there were insufficient
guarantees of reliability in records made in the course of activities
falling outside the scope of "business" activities as that term is broadly
defined in 28 U.S.C. 1732. Moreover, the Committee concluded that the
additional requirement of Section 1732 that it must have been the
regular practice of a business to make the record is a necessary further
assurance of its trustworthiness. The Committee accordingly amended
the Rule to incorporate these limitations.
Rule 803 (7)
Rule 803 (7) as submitted by the Court concerned the absence of
entry in the records of a "regularly conducted activity." The Commit-
tee amended this Rule to conform with its action with respect to Rule
803(6).
Rule 803 (8)
The Committee approved Rule 803 (8) without substantive change
from the form in which it was submitted by the Court. The Commit-
tee intends that the phrase "factual findings" be strictly construed and
that evaluations or opinions contained in public reports shall not be
admissible under this Rule.
15
Rule 803 (13)
The Committee approved this Rule in the form submitted by the
Court, intending that the phrase "Statements of fact concerning per-
sonal or family history" be read to include the specific types of such
statements enumerated in Rule 803 (11).
Rule 804(a) (3)
Rule 804 (a) (3) was approved in the form submitted by the Court.
However, the Committee intends no change in existing federal law
under which the court may choose to disbelieve the declarant's testi-
mony as to his lack of memory. See United States V. Insana, 423 F. 2d
1165, 1169-1170 (2nd Cir.), cert. denied, 400 U.S. 841 (1970).
Rule 804(a) (5)
Rule 804 (a) (5) as submitted to the Congress provided, as one type
of situation in which a declarant would be deemed "unavailable", that
he be "absent from the hearing and the proponent of his statement has
been unable to procure his attendance by process or other reasonable
means." The Committee amended the Rule to insert after the word
"attendance" the parenthetical expression" (or, in the case of a hearsay
exception under subdivision (b) (2), (3), or (4), his attendance or
testimony) The amendment is designed primarily to require that an
attempt be made to depose a witness (as well as to seek his attendance)
as a precondition to the witness being deemed unavailable. The Com-
mittee, however, recognized the propriety of an exception to this addi-
tional requirement when it is the declarant's former testimony that is
sought to be admitted under subdivision (b) (1).
Rule 804(b) (1)
Rule 804 (b) (1) as submitted by the Court allowed prior testimony
of an unavailable witness to be admissible if the party against whom
it is offered or a person "with motive and interest similar" to his had
an opportunity to examine the witness. The Committee considered
that it is generally unfair to impose upon the party against whom the
hearsay evidence is being offered responsibility for the manner in
which the witness was previously handled by another party. The sole
exception to this, in the Committee's view, is when a party's predeces-
sor in interest in a civil action or proceeding had an opportunity and
similar motive to examine the witness. The Committee amended the
Rule to reflect these policy determinations.
Rule 804 (b) (2)
Rule 804 (b) (3) as submitted by the Court (now Rule 804 (b) (2) in
the bill) proposed to expand the traditional scope of the dying declara-
tion exception (i.e. a statement of the victim in a homicide case as to
the cause or circumstances of his believed imminent death) to allow
such statements in all criminal and civil cases. The Committee did not
consider dying declarations as among the most reliable forms of hear-
say. Consequently, it amended the provision to limit their admissibility
in criminal cases to homicide prosecutions, where exceptional need for
the evidence is present. This is existing law. At the same time, the
16
Committee approved the expansion to civil actions and proceedings
where the stakes do not involve possible imprisonment, although not-
ing that this could lead to forum shopping in some instances.
Rule (b) (3)
Rule 804 (b) (4) as submitted by the Court (now Rule 804(b) (3) in
the bill) provided as follows:
Statement against interest.-A statement which was at the
time of its making SO far contrary to the declarant's pecuniary
or proprietary interest or so far tended to subject him to civil
or criminal liability or to render invalid a claim by him
against another or to make him an object of hatred, ridicule,
or disgrace, that a reasonable man in his position would not
have made the statement unless he believed it to be true. A
statement tending to exculpate the accused is not admissible
unless corroborated.
The Committee determined to retain the traditional hearsay excep-
tion for statements against pecuniary or proprietary interest. How-
ever, it deemed the Court's additional references to statements tend-
ing to subject a declarant to civil liability or to render invalid a claim
by him against another to be redundant as included within the scope
of the reference to statements against pecuniary or proprietary in-
terest. See Gichner V. Antonio Triano Tile and M arble Co., 410 F. 2d
238 (D.C. Cir. 1968). Those additional references were accordingly
deleted.
The Court's Rule also proposed to expand the hearsay limitation
from its present federal limitation to include statements subjecting
the declarant to criminal liability and statements tending to make him
an object of hatred, ridicule, or disgrace. The Committee eliminated
the latter category from the subdivision as lacking sufficient guarantees
of reliability. See United States V. Dovico, 380 F. 2d 325, 327nn.2,4
(2nd Cir.), cert. denied, 389 U.S. 944 (1967). As for statements against
penal interest, the Committee shared the view of the Court that some
such statements do possess adequate assurances of reliability and
should be admissible. It believed, however, as did the Court, that state-
ments of this type tending to exculpate the accused are more suspect
and SO should have their admissibility conditioned upon some further
provision insuring trustworthiness. The proposal in the Court Rule to
add a requirement of simple corrobation was, however, deemed inef-
fective to accomplish this purpose since the accused's own testimony
might suffice while not necessarily increasing the reliability of the
hearsay statement. The Committee settled upon the language "unless
corroborating circumstances clearly indicate the trustworthiness of the
statement" as affording a proper standard and degree of discretion. It
was contemplated that the result in such cases as Donnelly V. United
States, 228 U.S. 243 (1912), where the circumstances plainly indicated
reliability, would be changed. The Committee also added to the Rule
the final sentence from the 1971 Advisory Committee draft, designed
to codify the doctrine of Bruton v. United States, 391 U.S. 123 (1968).
The Committee does not intend to affect the existing exception to the
Bruton principle where the codefendant takes the stand and is subject
to cross-examination, but believed there was no need to make specific
17
provision for this situation in the Rule, since in that even the de-
clarant would not be "unavailable".
Rule 902(8)
Rule 902(8) as submitted by the Court referred to certificates of
acknowledgment "under the hand and seal of" a notary public or
other officer authorized by law to take acknowledgments. The Com-
mittee amended the Rule to eliminate the requirement, believed to be
inconsistent with the law in some States, that a notary public must affix
a seal to a document acknowledged before him. As amended the Rule
merely requires that the document be executed in the manner pre-
scribed by State law.
Rule 902 (9)
The Committee approved Rule 902 (9) as submitted by the Court.
With respect to the meaning of the phrase "general commercial law",
the Committee intends that the Uniform Commercial Code, which has
been adopted in virtually every State, will be followed generally, but
that federal commercial law will apply where federal commercial
paper is involved. See Clearfield Trust Co. V. United States, 318 U.S.
363 (1943). Further, in those instances in which the issues are gov-
erned by Erie R. Co. V. Tompkins, 304 U.S. 64 (1938), State law will
apply irrespective of whether it is the Uniform Commercial Code.
Rule 1001 (2)
The Committee amended this Rule expressly to include "video
tapes" in the definition of "photographs."
Rule 1003
The Committee approved this Rule in the form submitted by the
Court, with the expectation that the courts would be liberal in decid-
ing that a "genuine question is raised as to the authenticity of the
original."
Rule 1004(1)
The Committee approved Rule 1004(1) in the form submitted to
Congress. However, the Committee intends that loss or destruction of
an original by another person at the instigation of the proponent
should be considered as tantamount to loss or destruction in bad faith
by the proponent himself.
Rule 1101
Subdivision (a) as submitted to the Congress, in stating the courts
and judges to which the Rules of Evidence apply, omitted the Court
of Claims and commissioners of that Court. At the request of the Court
of Claims, the Committee amended the Rule to include the Court and
its commissioners within the purview of the Rules.
Subdivision (b) was amended merely to substitute positive law cita-
tions for those which were not.
ANALYSIS OF SECTIONS 2 AND 3 OF THE BILL
Section 2
Subsection (a) sets forth the method by which future amendments
may be made to the Rules of Evidence. The present Rules Enabling
18
Acts (18 U.S.C. 3771, 3772, 3402; 28 U.S.C. 2072, 2075), which the
Supreme Court invoked as the authority pursuant to which it pro-
mulgated the Rules of Evidence, provide that the Court may prescribe
rules of "practice and procedure" and submit them to Congress. The
rules then take effect automatically either at such time as the Court
directs, or after ninety days following their submission. An Act of
Congress is necessary to prevent any rule SO submitted from taking
effect.
The Committee believed that many of the Rules of Evidence, par-
ticularly in the privilege and hearsay fields, involve substantive policy
judgments as to which it is appropriate that the Congress play a great-
er role than that provided for in the present Enabling Acts. Accord-
ingly, the Committee concluded that it should provide for a new statu-
tory procedure by which amendments to the Rules of Evidence may be
made, designed to insure adequate congressional participation in the
evidence rule-making process. Section 2 (a) as adopted by the Com-
mittee adds a new section, 2076, to title 28, United States Code, permit-
ting the Court to prescribe amendments to the Rules of Evidence,
which amendments must be reported to the Congress. However, un-
like the situation under the present Rules Enabling Acts, either House
of Congress may, by resolution, prevent a rule from becoming opera-
tive. Moreover, rather than the ninety-day period allowed in the exist-
ing Rules Enabling Acts, a one hundred and eighty day period is pre-
scribed for Congressional action.
The committee considered the possibility of requiring congressional
approval of any rule of evidence submitted to it by the Court, and
recognized that a similar judgment inhered in Public Law 93-12,
pursuant to which the Court's proposed Rules of Evidence were barred
from taking effect until approved by Congress. However, the Com-
mittee determined that requiring affirmative congressional action was
appropriate to this first effort at codifying the Rules of Evidence, but
was not needed with respect to subsequent amendments which would
likely be of more modest dimension. Indeed, it believed that to require
affirmative congressional action with respect to amendments might
well result in some worthwhile amendments not being approved be-
cause of other pressing demands on the Congress. The Committee thus
concluded that the system of allowing Court-proposed amendments to
the Rules of Evidence to take effect automatically unless disapproved
by either House strikes a sound balance between the proper role of
Congress in the amendatory process and the dictates of convenience
and legislative priorities.
Subsection (b) strikes out Section 1732 (a) of title 28, United States
Code, since its subject matter is covered in Rule 803 (6) relating to
records of a regularly conducted business activity.
Subsection (c) amends Section 1733 of title 28, United States Code,
since that section is largely, if not entirely, encompassed by Rule 803
(8) relating to public records and reports. Because of the possibility
that Section 1733 may reach some matters not touched by Rule 803 (8),
subsection (c) does not repeal Section 1733 but merely provides that
the Section does not apply to actions, cases, and proceedings to which
the Rules of Evidence are applicable.
19
Section 3
Section 3 affirmatively approves conforming amendments, proposed
by the Court to the Federal Rules of Civil Procedure and the Federal
Rules of Criminal Procedure, which will be necessitated by the en-
actment into law of the Federal Rules of Evidence. These amendments
were submitted by the Court to Congress along with the proposed
Rules of Evidence. Affirmative congressional approval of them in
order to render them effective is required by the terms of Public Law
93-12.
COST
Enactment of H.R. 5463 will entail no cost to the Government of
the United States.
COMMUNICATION FROM THE CHIEF JUSTICE OF THE UNITED STATES
SUPREME COURT OF THE UNITED STATES,
Washington, D.C., February 5, 1973.
To the Senate and House of Representatives of the United States of
America in Congress assembled:
By direction of the Supreme Court, I have the honor to submit to
the Congress the Rules of Evidence 1 of the United States Courts and
Magistrates, amendments and further amendments to the Federal
Rules of Civil Procedure and amendments to the Federal Rules of
Criminal Procedure which have been adopted by the Supreme Court,
pursuant to Title 28, United States Code, Sections 2072 and 2075
and Title 18, United States Code, Sections 3402, 3771 and 3772.
Mr. Justice Douglas dissents from the adoption of these rules and
amendments.
Accompanying these amendments is the report of the Judicial Con-
ference of the United States submitted tothe Court for its consider-
ation, pursuant to Title 28, United States Code, Section 331.
Respectfully.
WARREN E. BURGER,
Chief Justice of the United States.
CHANGES IN EXISTING LAW MADE BY THE BILL, As REPORTED
In compliance with clause 3 of rule XIII of the Rules of the House
of Representatives, changes in existing law made by the bill, as re-
ported, are shown as follows (existing law proposed to be omitted is
enclosed in black brackets, new matter is printed in italic, existing
law in which no change is proposed is shown in roman) :
TITLE 28, UNITED STATES CODE
*
§ 1732. Record made in regular course of business; photographic
copies.
[(a) In any court of the United States and in any court established
by Act of Congress, any writing or record, whether in the form of an
1 The Rules of Evidence to which the Chief Justice refers have been printed as H. Doc.
93-46.
20
entry in a book or otherwise, made as a memorandum or record of
any act, transaction, occurrence, or event, shall be admissible as evi-
dence of such act, transaction, occurrence, or event, if made in regular
course of any business, and if it was the regular course of such busi-
ness to make such memorandum or record at the time of such act,
transaction, occurrence, or event or within a reasonable time thereafter.
[All other circumstances of the making of such writing or record,
including lack of personal knowledge by the entrant or maker, may
be shown to affect its weight, but such circumstances shall not affect
its admissibility.
[The term "business," as used in this section, includes business, pro-
fession, occupation, and calling of every kind.]
[(b)] If any business, institution, member of a profession or call-
ing, or any department or agency of government, in the regular course
of business or activity has kept or recorded any memorandum, writing,
entry, print, representation or combination thereof, of any act, trans-
action, occurrence, or event, and in the regular course of business has
caused any or all of the same to be recorded, copied, or reproduced by
any photographic, photostatic, microfilm, micro-card, miniature
photographic, or other process which accurately reproduces or forms
a durable medium for So reproducing the original, the original may be
destroyed in the regular course of business unless its preservation is
required by law. Such reproduction, when satisfactorily identified, is
as admissible in evidence as the original itself in any judicial or admin-
istrative proceeding whether the original is in existence or not and an
enlargement or facsimile of such reproduction is likewise admissible
in evidence if the original reproduction is in existence and available
for inspection under direction of court. The introduction of a repro-
duced record, enlargement, or facsimile does not preclude admission of
the original. This subsection shall not be construed to exclude from
evidence any document or copy thereof which is otherwise admissible
under the rules of evidence.
§ 1733. Government records and papers; copies.
(a) Books or records of account or minutes of proceedings of any
department or agency of the United States shall be admissible to prove
the act, transaction or occurrence as a memorandum of which the same
were made or kept.
(b) Properly authenticated copies or transcripts of any books, rec-
ords, papers or documents of any department or agency of the United
States shall be admitted in evidence equally with the originals thereof.
(c) This section does not apply to cases, actions, and proceedings to
which the Federal Rules of Evidence apply.
Chapter 131.-RULES OF COURTS
Sec.
2071. Rule-making power generally.
2072. Rules of civil procedure.
2075. Bankruptcy rules.
2076. Rules of evidence.
*
*
*
21
§ 2076. Rules of evidence
The Supreme Court of the United States shall have the power to
prescribe amendments to the Federal Rules of Evidence. Such amend-
ments shall not take effect until they have been reported to Congress by
the Chief Justice at or after the beginning of a regular session of Con-
gress but not later than the first day of May, and until the expiration
of one hundred and eighty days after they have been so reported; but
if either House of Congress within that time shall by resolution dis-
approve any amendment 80 reported it shall not take effect. Any pro-
vision of law in force at the expiration of such time and in conflict with
any such amendment not disapproved shall be of no further force or
effect after such amendment has taken effect.
ADDITIONAL VIEWS OF HON. LAWRENCE J. HOGAN
While I consider codification of the Proposed Federal Rules of
Evidence of highest importance, I nonetheless feel compelled to set
forth in these dissenting views my strenuous objection to the majority
of the Judiciary Committee's reformulation of Rule 609.
There are, of course, some other proposed rules which, in my opin-
ion, might have been improved upon but I want to focus in these dis-
senting views on my objection to Rule 609-Impeachment by Evidence
of Conviction of Crime. My objection extends not only to the fact that
the rule as drafted by the Judiciary Committee not only rejects the
version of the Rule recommended by the Advisory Committee on Rules
of Evidence of the Judicial Conference of the United States, but also
abrogates the prevailing view in the Federal and State courts, but I
object even more to the Judiciary Committee's clear disavowal of the
Congressional mandate expressed as recently as 1970 on the principle
underlying this rule.
I offered an amendment before the Subcommittee and full Com-
mittee to restore the version of the rule recommended by the Advisory
Committee on the Rules of Evidence of the Judicial Conference of the
United States. I believe it important to look at the policy behind the
formulations and reformulations which this impeachment rule has
undergone throughout the course of consideration of these Proposed
Federal Rules. There is set forth below the precise language of each of
these formulations:
March 1969 Draft: Rule 609 (a) General Rule. For the purpose
of attacking the credibility of a witness, evidence that he has been
convicted of a crime is admissible but only if the crime, (1) was
punishable by death or imprisonment in excess of one year under
the law under which he was convicted, or (2) involved dishonesty
or false statement regardless of the punishment.
March 1971 Draft: Rule 609 (a) General Rule. For the purpose
of attacking the credibility of a witness, evidence that he has been
convicted of a crime, except on a plea of nolo contendere, is admis-
sible but only if the crime (1) was punishable by death or im-
prisonment in excess of one year under the law under which he
was convicted or (2) involved dishonesty or false statement re-
gardless of the punishment, unless (3), in either case, the judge
determines that the probative value of the evidence of the crime
is substantially outweighed by the danger of unfair prejudice.
December 1972 Draft: Identical with March 1969 Draft.
Subcommittee Draft: Rule 609 (a) General Rule. For the pur-
pose of attacking the credibility of a witness, evidence that he has
been convicted of a crime is admissible only if the crime (1) was
punishable by death or imprisonment in excess of one year, un-
less the court determines that the danger of unfair prejudice out-
(23)
24
weighs the probative value of the evidence of the conviction, or
(2) involved dishonesty or false statement.
Judiciary Committee Draft: Rule 609 (a) General Rule. For
the purpose of attacking the credibility of a witness, evidence
that he has been convicted of a crime is admissable only if the
crime involved dishonesty or false statement.
The conventional and majority judicial view of the impeachment
rule has been that an accused who elects to take the stand is subject
to impeachment as any other witnesses, including impeachment by
proof of conviction. The raging debate over impeachment of the ac-
cused's credibility by conviction of crime exemplifies the continual at-
tempt by all involved with the judicial system to balance the scales
of justice between the rights of the individual and the rights of
society.
It is for this very reason that the draftsmen of the March 1969
draft of the Proposed Rules specifically undertook to study and eval-
uate every formulation of the impeachment rule brought to their
attention. Reduced to their essentials, these included the following
six alternatives:
(1) Allow no impeachment by conviction when the witness is
the accused.
(2) Allow only crimen falsi.
(3) Exclude if the crime is similar.
(4) Allow conviction evidence only if the accused first intro-
duces evidence of character for truthfulness.
(5) Leave the matter to the discretion of the trial judge.
(6) Allow impeachment by conviction when the witness is
the accused-the traditional and majority rule among the State
and Federal Courts.
After giving consideration to each of these six proposals, and con-
cluding that each was only a partial solution or, at the least, no clear
improvement, the Advisory Committee chose to promulgate the sixth
possibility, thereby retaining the rule of the overwhelming majority
of Federal and State courts as well as the views unhesitatingly
expoused by Dean Wigmore, renowned expert on evidence (See 3 Wig-
more, § 889-891). This formulation adopts the prevailing prosecu-
torial view that it would be misleading to permit the accused to
appear as a witness of blameless life on those occasions when the ac-
cused chooses to take the stand.
The first alternative above, that of excluding all convictions of the
accused for impeachment purposes, has been given short shrift be-
cause there is little dissent from the proposition that at least some
crimes are relevant to credibility. (See McCormick § 43 (2nd ed.
(1972) ; 2 Wright, Federal Practice and Procedure: Criminal § 416
(1969).
In the second draft disseminated in March 1971, the Advisory Com-
mittee on the Rules of Evidence, totally without explanation, reversed
its earlier position adopting the majority rule of Courts throughout
the country and instead adopted the fifth alternative above. In effect,
this was a particularized application of the Luck rule, expounded by
the United States Court of Appeals for the District of Columbia in
Luck V. U.S., (121 U.S. App. D.C. 151, 348 F.2d 763) in 1965. The most
25
significant feature of the rule is the requirement that the evidence of
conviction be excluded if the judge determines that its probative value
is outweighed by the danger of unfair prejudice. In July, 1969, the
Congress specifically repudiated the Luck rule when it enacted the
traditional rule as the impeachment rule to be followed in all criminal
trials in the District of Columbia. The D.C. Court Reorganization and
Criminal Procedure Act of 1970, incorporating the traditional im-
peachment rule, was approved by the House by a vote of 294-47.
The Advisory Committee took note of the 1969 Congressional pro-
nouncement on the impeachment question and returned to its original
position in endorsing the traditional rule in the third and final version
which was submitted to this Congress for our consideration and enact-
ment in December 1972.
In spite of the fact that the eminent members of the Bench and Bar
who made up the Advisory Committee on the Rules of Evidence made
their position clear, the majority of the House Committee on the
Judiciary rejected the majority rule in the State and Federal courts
and have changed the rule once again. But with this change the dimen-
sions of the rule are totally immeasurable either from a prosecutorial
or from a defense viewpoint. The Judiciary Committee has seen fit
not only to renounce the traditional rule which is that under which
their fellow members of the Bar labor in the majority of their Federal
courts and in 90% of their State courts but the majority of the full
Judiciary Committee has also defeated the compromise effected by the
Subcommittee on Criminal Justice after many hours of arguing the
merits and demerits of the various alternative formulations.
The rule which the majority has now settled upon is, of all the al-
ternatives set out above, the most unsettling. Allowing only evidence
of the crimen falsi to impeach the credibility of the accused adopts only
the worst feature of the Luck rule, i.e., unpredictability, without be-
stowing upon the Bench and Bar any useful new tool for coping with
the evidentiary problem which is at the heart of this debate.
When the draftsmen of the Advisory Committee on the Rules of
Evidence originally rejected the crimen falsi alternative for Rule 609,
they did so because most of the crimes regarded as having a substan-
tial impeaching effect would be excluded, resulting in virtually the
same effect as if the alternative allowing no prior convictions for im-
peachment purposes were adopted.
In the commentaries to the first draft, the Advisory Committee on
the Rules of Evidence noted:
"While it may be argued that considerations of relevancy should
limit provable convictions to those of crimes of untruthfulness, acts
are constituted major crimes because they entail substantial injury to
and disregard of the rights of other persons or the public. A demon-
strated instance of willingness to engage in conduct in disregard of
accepted patterns is translatable into willingness to give false testi-
mony.
A further argument against adoption of the crimen falsi alterna-
tive, as noted above, is that of its unpredictability and its uneven ap-
plication to criminal defendants across the board. One of the major
objections to the Luck rule in the District of Columbia, and one of the
major reasons that it has failed to be adopted in most of the other
26
Federal circuit courts, is that the discretionary authority which Luck
vests in the trial judge imposes another discriminatory element into
an already overly-criticized criminal justice system in this country.
Even more SO is this true of the crimen falsi alternative. What,
really, is dishonesty or false statement in judicial or legal terms? Un-
less one practices in a jurisdiction which has statutorily defined crimen
falsi, the common law definition of "any crime which may injuriously
affect the administration of justice, by the introduction of falsehood
and fraud" is applicable. This definition has been held to include
forgery, perjury, subornation of perjury, suppression of testimony by
bribery, conspiracy to procure the absence of a witness or to accuse of
crime, obtaining money under false pretenses, stealing, moral turpi-
tude, shoplifting, intoxication, petit larceny, jury tampering, embezzle-
ment and filing a false estate tax return. In other jurisdictions, some
of these same offenses have been found not to fit the crimen falsi
definition.
From the foregoing analyses undertaken by the eminent professors,
jurists and lawyers of the Advisory Committee, as well as by my col-
leagues on the Committee on the Judiciary, I am convinced that the
only viable alternative is that which has stood the test of time. If for
no other reason than that the other considered alternatives are no im-
provement over the shortcomings of the traditional, I shall offer an
amendment on the floor to reinstate the traditional, majority rule as
promulgated by the Advisory Committee on the Rules of Evidence of
the Judicial Conferences of the United States, and as it is known in
the majority of our American courts. I am hopeful that this amend-
ment will receive the support of the House as it did in 1970 when the
crimen falsi alternative was specifically voted down in the D.C. Court
Reorganization and Criminal Procedure Act of 1970.
LAWRENCE J. HOGAN.
SEPARATE VIEWS OF HON. ELIZABETH HOLTZMAN
The code of evidence proposed by the Judiciary Committee marks
a substantial improvement over the rules initially promulgated by the
Supreme Court-a fact attributable to the excellent and conscientious
work done by the Subcommittee on Criminal Justice chaired by Con-
gressman Hungate.
Although the Subcommittee did an extremely commendable job, I
still have substantial reservations about the final product.
1. IS THERE A NEED TO CODIFY RULES OF EVIDENCE?
At the present time, the rules of evidence in the federal courts are
not codified. Evidentiary matters are governed essentially by the com-
mon law, with a few exceptions, and rules have been developed on a
case-by-case basis.
Eminent jurists and lawyers have objected to any codification of
rules of evidence-or freezing them into black letter law. Judge
Friendly, former Chief Judge of the Court of Appeals for the Sec-
ond Circuit stated:
"Evidence to me seems just not the kind of subject that lends itself
very well to codification."
His position was supported by the Chairman of the Association of
Trial Lawyers of America and representatives of the American Col-
lege of Trial Lawyers.
I think it is fair to say that the testimony as a whole before the sub-
committee showed no overwhelming need to codify the rules. Instead,
the dangers of codification became apparent.
Black letter rules will make evidentiary points high profile. Pres-
ently, evidentiary rulings are generally not considered critical at a
trial. Once we adopt a "black letter" code, lawyers will have a field day
determining how many evidentiary angels can dance on the top of a
pin. A number of witnesses testified that the rules will generate appeals
and increase reversals on evidentiary rulings. (This is especially true
with the highly confused legislative history of these rules: three ad-
visory committee drafts, two subcommittee drafts, comments on sub-
committee drafts, etc.).
Another thorny problem this codification will produce is forum
shopping. Because this code substantially liberalizes the hearsay rules,
federal courts may become a more attractive forum for litigation. This
is not, however, a time to increase the work load of the already con-
gested federal courts. Nor is there any substantial justification on a
hearsay issue for a different outcome in a federal court when state
law is involved.
In short, many have argued that adoption of a rigid black letter
evidentiary code might constitute a step backwards. Problems might
(27)
28
include prolongation of trials, an increase in appellate reversals, the
denial to trial judges of flexibility, the difficulty of dealing with evi-
dentiary issues by black letter law and the disadvantage of cutting off
the development of the law in many areas where such development on
a case basis was presently desirable.
2. OBJECTIONS TO PARTICULAR RULES
The Committee's action on most of the controversial rules-privi-
leges, impeachment by prior convictions, use of opinion evidence and
the like-was in my opinion eminently correct. Part of the reason for
this was the fact that most of the comments we received were directed
to these rules.
Unfortunately, however, many of the other "minor" rules did not
receive very much attention from commentators or witnesses and Com-
mittee action on these was, in my opinion, much less persuasive.
I will cite a few examples.
Rule 803 (8) (b) permits an exception to the hearsay rule for records
of public officers or agencies "setting forth matters observed pursuant
to duty imposed by law." It would allow reports by police officers,
social workers, building inspectors and the like-instead of direct
testimony-as substantive evidence in criminal or civil trials. Thus, a
social worker's report of a random observation of a marital relation-
ship could be introduced in a criminal case against one of the spouses.
Similarly, a policeman's report containing an observation of an alleged
criminal offense could be used in the criminal trial instead of having
the police officer himself testify. This represents an extraordinary de-
parture from existing law. It gives more credibility to the observations
of government employees than are given to observations of private
citizens.
There are also problems with rules concerning the admission of un-
fairly prejudicial evidence (Rule 403), best evidence rule (Article 10),
use of accused is testimony on preliminary matters (Rule 104(d)),
statements in documents affecting an interest in property (Rule 803
(15)), authenticity of commercial paper (Rule 902 (9)), authenticity
of handwriting (Rule 901), hearsay use of telephone directories and
similar publications (Rule 803 (17)), and use of court appointed ex-
pert witnesses (Rule 706).
3. THE PROCEDURE FOR AMENDING THESE RULES IS UNWISE
Under the committee bill, the Supreme Court may propose an
amendment which becomes law unless the House or Senate vetoes that
amendment.
The dangers in this procedure are particularly apparent with respect
to evidentiary privileges: husband-wife, lawyer-client, doctor-patient
privilege. Decisions regarding privileges necessarily entail policy con-
siderations because, unlike most evidentiary rules, privileges protect
interpersonal relationships outside of the courtroom. Clearly, by creat-
ing a newspaperman's privilege or defining the limits of confidential
communications, we are expressing a desire to promote a social objec-
tive: e.g., promoting a free press, encouraging clients to be candid with
their lawyers, etc.
29
Rules creating, abolishing or limiting privileges are legislative.
Nonetheless, under the committee bill we would be allowing the
Supreme Court to legislate in the area of privilege subject only to a
congressional veto. This procedure is unwise since rules concerning
privilege, if enacted, should be done through an affirmative vote by
Congress.
The process is, I submit, unconstitutional as well. The Supreme
Court is not given the power under Article III of the Constitution to
legislate rules on substantive matters. It can pass such judgments only
in the context of a particular case or controversy. Yet, H.R. 5453
allows the Court to promulgate a rule in a substantive policy area
without the benefit of an adversary proceeding. We cannot (and should
not) delegate such rule-making power to the Supreme Court.
CONCLUSION
Unquestionably if we enact these rules of evidence we will be en-
acting a code substantially better than the one confronting Congress
earlier this year. Yet, we must balance the fine work done by the sub-
committee and the proported benefits of a uniform federal code of
evidence against the dangers of codification and the problems outlined
above.
In making our decision we should bear in mind the testimony of
Judge Friendly:
" (T) here is no need for [the proposed Rules]. Someone once said
that, in legal matters, when it is not necessary to do anything, it is ne-
cessary to do nothing. I find that a profoundly wise remark. We know
we are now having almost no serious problems with respect to evidence;
we cannot tell how many the Proposed Rules will bring."
ELIZABETH HOLTZMAN.
Calendar No. 1211
93D CONGRESS
SENATE
REPORT
2d Session
No. 93-1277
FEDERAL RULES OF EVIDENCE
OCTOBER 18, 1974.-Ordered to be printed
Filed under authority of the order of the Senate of October 11, 1974
Mr. HRUSKA, from the Committee on the Judiciary,
submitted the following
REPORT
[To accompany H.R. 5463]
The Committee on the Judiciary, to which was referred the bill
(H.R. 5463) to establish rules of evidence for certain courts and pro-
ceedings, having considered the same, reports favorably thereon with
amendments and recommends that the bill as amended do pass.
AMENDMENTS
Amendments made by the committee to the subject bill, other than
those of strictly technical and conforming nature, may be summarized
as follows:
(1) On page 10, line 18, after the word "evidence" delete the re-
mainder of the line and lines 19 through 21, inserting in lieu thereof
the following:
to rebut or meet the presumption, but does not shift to such
party the burden of proof in the sense of the risk of non-
persuasion, which remains throughout the trial upon the
party on whom it was originally cast.
(2) (a) On page 14, beginning on line 7, delete the words "admis-
sions of liability or opinions given during", inserting in lieu thereof
the words "conduct or statements made in".
(b) On page 14, beginning at line 9, delete the sentence beginning
with the word "Evidence" through line 11.
(c) On page 14, line 12, before the beginning of the sentence, insert
a new sentence to read as follows:
This rule does not require the exclusion of any evidence
otherwise discoverable merely because it is presented in the
course of compromise negotiations.
38-010
2
(d) On page 14, line 12, after the word "rule" insert the word
"also;" after the word "when" insert the word "the"; and delete on
lines 12 and 13, the words "conduct or statements made in compromise
negotiations".
(3) On page 15, at the end of line 6, add the following:
This rule shall not apply to the introduction of voluntary
and reliable statements made in court on the record in con-
nection with any of the foregoing pleas or offers where offered
for impeachment purposes or in a subsequent prosecution of
the declarant for perjury or false statement.
(4) (a) On page 15, strike line 24 and that portion of line 25 to
and including the comma following the word "decision", inserting in
lieu thereof the following:
arising under 28 U.S.C. § 1332 or 28 U.S.C. § 1335, or between
citizens of different States and removed under 28 U.S.C.
§ 1441 (b)
(b) On page 16, line 2, delete the words "shall be", inserting in lieu
thereof the word "is".
(c) On page 16, at the end of line 2, delete the period and insert the
following:
, unless with respect to the particular claim or defense, Fed-
eral law supplies the rule of decision.
(5) (a) On page 16, beginning at line 7, strike the words appearing
after the word "proceedings" through line 8, inserting in lieu thereof
the following:
arising under 28 U.S.C. § 1332 or 28 U.S.C. § 1335, or be-
tween citizens of different States and removed under 28
U.S.C. § 1441 (b).
(b) On page 16, line 9, delete the words "shall be", inserting in lieu
thereof the word "is".
(c) On page 16, at the end of line 10, delete the period and insert
the following:
unless with respect to the particular claim or defense,
Federal law supplies the rule of decision.
(6) (a) On page 17, line 17, delete the word "concerning", inserting
in lieu thereof the following:
as to any matter or statement occurring during the course of
the jury's deliberations or to.
(b) On page 17, line 21, delete the period, inserting in lieu thereof
the following:
, except that a juror may testify on the question whether ex-
traneous prejudicial information was improperly brought to
the jury's attention or whether any outside influence was im-
properly brought to bear upon any juror.
(c) On page 17, line 22, delete the words "indicating an effect of this
kind be received for", inserting in lieu thereof the words "concerning
3
a matter about which he would be precluded from testifying be re-
ceived for".
(7) (a) On page 19, line 7, delete the words "is admissible", insert-
ing in lieu thereof the words "may be elicited from him or established
by public record during cross-examination but".
(b) On page 19, line 7, after the word "crime", insert the number
"(1)"
(c) On page 19, at the end of line 8, delete the period, inserting in
lieu thereof the following:
or (2) in the case of witnesses other than the accused, was
punishable by death or imprisonment in excess of one year
under the law under which he was convicted, unless the court
determines that the prejudicial effect of admitting this evi-
dence outweighs its probative value in which case the evi-
dence shall be excluded.
(8) On page 19, at the end of line 13, delete the period, inserting in
lieu thereof the following:
, unless the court determines, in the interests of justice, that
the probative value of the conviction supported by specific
facts and circumstances substantially outweigh its prejudicial
effect."
(9) On page 27, beginning with the word "and" on line 1, delete all
words through and including the word "deposition" on line 4.
(10) (a) On page 27, line 6, after the word "motive" delete the
comma and insert in lieu thereof a semicolon and the word "or."
(b) On page 27, line 7, delete all words through and including the
word "or" on line 8.
(11) (a) On page 29, line 18 delete the word "business."
(b) On page 29, line 19 delete the word "business."
(c) On page 29, delete the sentence beginning on line 24 and con-
cluding on line 2 of page 30.
(12) On page 30, line 29, insert after the comma, the words "unless
admissible under Rlue 804 (b) (5)."
(13) On page 34, after line 22, insert the following new subsection:
(24) OTHER EXCEPTIONS.-A statement not specifically cov-
ered by any of the foregoing exceptions but having equiva-
lent circumstantial guarantees of trustworthiness, if the
court determines that (i) the statement is offered as evidence
of a material fact; (ii) the statement is more probative on
the point for which it is offered than any other evidence
which the proponent can procure through reasonable efforts;
and (iii) the general purposes of these rules and the inter-
ests of justice will best be served by admission of the state-
ment into evidence."
(14) On page 35, at line 14, delete the parenthetical reference be-
ginning with the word "or" through the word "testimony" concluding
on line 16.
(15) (a) On page 36, line 17, before the word "criminal". insert
the words "civil or".
4
(b) On page 36, line 17, after the comma immediately following
the word "liability", insert the following:
or to render invalid a claim by him against another,".
(c) On page 36, delete the sentence beginning on line 23 and ending
on page 37, line 2.
(16) On page 37, after line 14, insert the following new subsection
(5) CRIMINAL LAW ENFORCEMENT RECORDS AND REPORTS.-
Records. reports, statements, or data, compilations, in any
form, of police officers and other law enforcement personnel
where such officer or person is unavailable, as unavailability
is defined in subparts (a) (4) and (a) (5) of this Rule.
(17) On page 37, after the new subsection (5) referred to immedi-
rately above, insert the following new subsection:
(6) OTHER Exceptions.-A statement not specifically cov-
ered by any of the foregoing exceptions but having equivalent
circumstantial guarantees of trustworthiness, if the court
determines that (i) the statement is offered as evidence of a
material fact; (ii) the statement is more probative on the
point for which it is offered than any other evidence which
the proponent can procure through reasonable efforts; and
(iii) the general purposes of these rules and the interests of
justice will best be served by admission of the statement into
evidence.
(18) On page 37, line 21, after the word statement insert the words
"or a statement defined in Rule 801 (d) (2)"
(19) (a) On page 51, lines 5 and 6 strike the words "one hundred
and eighty" and insert in lieu thereof "three hundred and sixty-five."
(b) On page 51, line 9, following the sentence ending with the word
"effect", insert the following new sentences:
The effective date of any amendment SO reported may be de-
ferred by either House of Congress to a later date or until
approved by act of Congress. Any rule whether proposed
or in force may be amended by Act of Congress.
(c) On page 51, line 12, beginning with the word "Any", delete
those words through and including the word "Congress" on line 15.
BACKGROUND
H.R. 5463 is the culmination of 13 years of study by distinguished
judges, Members of Congress, lawyers, and others interested in and
affected by the administration of justice in the Federal courts.
In 1961, the Judicial Conference of the United States authorized
the Honorable Earl Warren, then Chief Justice of the United States,
to appoint an advisory committee to study the advisability and feasi-
bility of uniform rules of evidence for use in the Federal courts. The
Conference expressed the view that if uniform rules were found to
be advisable and feasible, they should be promulgated.
The Chief Justice decided to move first toward a determination of
whether uniform rules were advisable and feasible. He appointed a
Special Committee on Evidence to make this initial exploration.
5
Because of the importance of the project and the fact that matters
of evidence and proof cross the jurisdictional and interest lines of all
of the Judicial Conference Advisory Committees, Chief Justice War-
ren designated the chairmen of the Civil, Criminal, Bankruptcy, Ad-
miralty and Appellate Advisory Committees to serve on the Special
Committee on Evidence.
By December 11, 1961, the Special Committee on Evidence submitted
its preliminary report to the Judicial Conference Standing Committee
on Rules of Practice and Procedure. In that report the Special Com-
mittee on Evidence concluded that uniform rules of evidence were
advisable and feasible, and recommended that such rules should be
promulgated promptly.
This preliminary report of the Special Committee was circulated
for approximately one year with an invitation to the "bench and bar
for consideration and suggestions." Thereafter, at its March, 1963,
meeting, the Judicial Conference approved the final report of the
Special Committee and recommended the appointment of an Advisory
Committee on Rules of Evidence to prepare uniform rules of evidence
for adoption and promulgation by the Supreme Court of the United
States.
A distinguished Advisory Committee composed of judges, lawyers
and teachers was appointed on March 8, 1965, and assigned the monu-
mental task of developing a uniform code of evidence for use in the
Federal courts.
Approximately 4 years later, in March, 1969, the Judicial Conference
Standing Committee on Rules of Practice and Procedure printed and
circulated widely for comment a preliminary draft of proposed rules
of evidence which had been developed by the Advisory Committee.
The draft was accompanied by detailed Advisory Committee notes.
After reviewing the numerous comments, suggestions and proposals
received on the preliminary draft, the Advisory Committee and, in
turn, the Judicial Conference, approved a revised draft which it sub-
mitted to the Supreme Court for promulgation in October, 1970.
The Court, however, returned the draft to the Judicial Conference
for further public circulation and opportunity to comment, and in
March, 1971, that draft was printed and widely circulated. The final
work product of the Advisory Committee of the Judicial Conference
and the Standing Committee on Rules of Practice and Procedure, was
forwarded to the Supreme Court in October, 1971.
On November 20, 1972, the Supreme Court promulgated the Federal
Rules of Evidence pursuant to the various enabling acts in the United
States Code (18 U.S.C., 3402, 3771, 3772; 28 U.S.C. 2072, 2075) to
take effect on July 1, 1973.
On February 5, 1973, Chief Justice Warren Burger, acting pursuant
to the Supreme Court order of November 20, 1972, transmitted the pro-
posed rules to the Congress.
Because of the general importance of these Rules as well as serious
questions which were raised with respect to certain Rules of Privilege
in particular, the Congress enacted Public Law 93-12 to insure that
Congress had a full opportunity to review them. This law deferred the
effectiveness of the Rules until expressly approved by Congress.
The Subcommittee on Criminal Justice of the House Judiciary Com-
mittee held 6 days of hearings on the proposed rules and after exten-
6
sive consideration in executive session published a committee print of
H.R. 5463, the legislative embodiment of the proposed rules, in June
of 1973. The subcommittee exerted extensive efforts to circulate widely
its subcommittee print to the bench and bar for consideration and
suggestions. After receiving further comments which were carefully
evaluated by the subcommittee, H.R. 5463 was approved by the full
committee and subsequently passed by the House on February 6, 1974.
NOTE ON PRIVILEGE
Clearly, the most far-reaching House change in the rules as pro-
mulgated, was the elimination of the Court's proposed rules on priv-
ilege contained in article V. Article V purported to define the priv-
ileges to be recognized in the Federal courts in all actions, cases, and
proceedings; any alleged privilege not enumerated in article V (e.g.,
that of a news reporter) was deemed not to exist and could not be given
effect unless of constitutional dimension. The privileges recognized
included trade secret, lawyer-client, husband-wife, doctor-patient (but
applicable only to psychotherapists), identity of informer, secrets of
state, and official information.
From the outset, it was clear that the content of the proposed pri-
vilege provisions was extremely controversial. Critics attacked, and
proponents defended, the secrets of state and official information
privileges. with the nub of the disagreement being whether the rule
defining them was merely codifying existing law. In addition. the
husband-wife privilege drew fire as a result of the conscious decision
of the Court to narrow its scope from that recognized under present
Federal decisions. The partial doctor-patient privilege seemed to
satisfy no one, either doctors or patients; and even the attorney-client
privilege as drafted came in for its share of criticism because of its
failure to define representative of the client, a critical issue for corpo-
rations and organizations. Much controversy also attended the failure
to include a newsman's privilege. Further, there was dissatisfaction
with the policy of the Court's rule not to require application of State
privilege in civil actions where the underlying issues were governed
by substantive State law, a result which many legal scholars deemed
mandated by Erie R. Co. V. Tompkins.1 Finally, some commentators
questioned the wisdom of promulgating rules of privilege under the
rules Enabling Act, on the ground that in their view, the codification
of the law of privilege should be left to the regular legislative process.
Since it was clear that no agreement was likely to be possible as to
the content of specific privilege rules, and since the inability to agree
threatened to forestall or prevent passage of an entire rules package,
the determination was made that the specific privilege rules proposed
by the Court should be eliminated and a single rule (rule 501) sub-
stituted. leaving the law in its current condition to be developed by
the courts of the United States utilizing the principles of the common
law. In addition, a proviso was approved requiring Federal courts to
recognize and apply state privilege law in civil cases governed by
Erie R. Co. V. Tompkins, supra, as under present Federal case law.2
b 304 U.S. 64 (1938).
2 See Republic Gear Co. V. Borg-Warner Corp., 381 F. 2d 551, 555-556 n. 2 (2d Cir.
1967).
7
The rationale underlying the proviso as passed by the House is that
Federal law should not supersede that of the States in substantive
areas such as privilege absent a compelling reason. This reflects the
view that in civil cases in the Federal courts, where a claim or defense
asserted is not grounded upon a Federal question, there is no Federal
interest in the application, or in its resolution, of a uniform law of
Federal privilege strong enough to justify departure from State
policy.³ Another rationale for the proviso is that the Court's proposal
would have prompted forum shopping in some civil actions, depend-
ing upon differences in the privilege law applied as among the State
and Federal courts. The House provision, on the other hand, under
which the Federal court is bound to apply the State's privilege law
in actions founded on a State-created right, might limit the incentive
to shop.
Your committee is in accord with the approach of the House with
respect to article V. Therefore, save for a technical amendment which
is discussed infra., rule 501, as passed by the House, was left
undisturbed.
OVERVIEW
On February 7, H.R. 5463 was referred to the Committee on the
Judiciary. In order to allow several interested subcommittees to par-
ticipate in the processing of the Rules, an agreement was reached to
retain the bill in full committee. Additionally, it was thought that this
approach would likely serve to expedite the measure.
Hearings on the subject bill were held by your committee on June 4
and 5, during which testimony and statements were presented by a
score of interested organizations and individuals.4
At the outset, it was evident that the members of the committee
viewed with general favor efforts of the House with respect to the
subject bill. In this regard, Senator Ervin, at the opening of the hear-
ings, noted:
*
While I have not as yet studied H.R. 5463 sufficiently to
have reached a final conclusion as to the wisdom of each par-
ticular rule, I am familiar enough with the bill to suggest
that the House Judiciary Committee has drafted a set of
rules, which, in my judgment, is greatly improved over what
was originally promulgated by the Supreme Court.⁵
*
This view was echoed by Senator Hruska who observed:
*
*
This Senator is hopeful that this Committee will act
promptly on
[H.R. 5463]
to ensure the emergence of
a public law codifying Federal rules of evidence prior to
the close of the 93d Congress. Towards this end, I would hope
that our hearings
will logically build upon the substantial
efforts of the House
6
3 Just the reverse is, of course, true in Federal criminal cases, all of which are of
necessity grounded upon Federal statutes.
4 "Rules of Evidence." Hearings Before the Committee on the Judiciary, U.S. Senate,
93d Cong., 2d Sess. (1974) (Hereinafter cited as Hearings.).
5 See Opening Statement of Senator Sam J. Ervin, Hearings at p. 2.
0 See Opening Statement of Senator Roman L. Hruska, Hearings at p. 3.
8
Therefore, rather than returning to the Rules as promulgated as a
work basis for Senate action, your committee focused upon the sub-
ject bill as passed by the House.
Although arguments to the contrary have been heard,⁷ the commit-
tee is of the view that there is a real need for a comprehensive code
of evidence intended to govern the admissibility of proof in all trials
before the Federal courts because of the lack of uniformity and clarity
in the present law of evidence on the Federal level.
In criminal cases and civil cases based on Federal question juris-
diction, the Federal courts now apply Federal statutes, rulings on
evidence previously decided in suits in equity or general common law
as interpreted by the Federal courts.
In civil cases based on diversity of citizenship, the courts apply
State rules of evidence contained in State statutes. and sometimes
State decisional law, unless there is an overriding Federal policy to
the contrary.
Consequently, the law of evidence varies from case to case, court to
court, and circuit to circuit.
Rules would provide uniformity, accessibility, intelligibility and a
basis for reform and growth. Therefore, arguments against codifica-
tion were by and large inapposite to the review by your committee.
Perhaps the most fundamental question considered by the committee
relevant to the subject bill revolved around the appropriate congres-
sional role in the rulemaking process (Sec. 2).
The general principle that day-to-day judicial procedure and prac-
tice is best regulated by the courts, subject only to general oversight
by legislative bodies, is a principle which is firmly rooted in Federal
statutory law and dates back to the Judiciary Act of 1789. That act
gave the Federal courts power to make necessary rules for the orderly
conduct of business.
For the purpose of rulemaking, this existing relationship between
Congress and the Federal courts is not unlike the relationship between
principal and agent. As Leland L. Tollman, one of the principal archi-
tects of the Rules of Civil Procedure, succinetly put it in testimony
before the House in 1938:
*
*
*
Court rule gets its vitality from Congress, and what Con-
gress may do, it may undo. (House Hearing on Civil Rules,
75th Cong., 1st Sess. 67 (1938).)
>
*
*
*
*
As discussed infra, the Congress must ensure that the rule-making
process is not delegated to the unbridled discretion of the courts-not
because of any distrust of the courts but because of the dictates of
sound government.
Other amendments adopted by the committee involve the appro-
priate scope of judicial discretion, the furtherance of compromise by
litigants, the necessity of growth in the law and notions of funda-
mental fairness within our criminal process. Hopefully, this attempt
by the committee to balance competing interests in the context of the
subject bill will meet with the general approval of members of the
bench and bar and litigants within the Federal system.
7 See Testimony of George A. Spiegelberg, Hearings at p. 96.
9
COMMITTEE AMENDMENTS
The committee has amended the subject bill in the following
respects:
Rule 301. Presumptions in General Civil Actions and Proceedings
This rule governs presumptions in civil cases generally. Rule 302
provides for presumptions in cases controlled by State law.
As submitted by the Supreme Court, presumptions governed by
this rule were given the effect of placing upon the opposing party
the burden of establishing the nonexistence of the presumed fact,
once the party invoking the presumption established the basic facts
giving rise to it.
Instead of imposing a burden of persuasion on the party against
whom the presumption is directed, the House adopted a provision
which shifted the burden of going forward with the evidence. They
further provided that "even though met with contradicting evidence,
a presumption is sufficient evidence of the fact presumed, to be con-
sidered by the trier of fact. The effect of the amendment is that
presumptions are to be treated as evidence.
The committee feels the House amendment is ill-advised. As the
joint committees (the Standing Committee on Practice and Procedure
of the Judicial Conference and the Advisory Committee on the Rules
of Evidence) stated: "Presumptions are not evidence, but ways of deal-
ing with evidence. 8 This treatment requires juries to perform the task
of considering "as evidence" facts upon which they have no direct
evidence and which may confuse them in performance of their duties.
California had a rule much like that contained in the House amend-
ment. It was sharply criticized by Justice Traynor in Speck V. Sarver 9
and was repealed after 93 troublesome years. 10
Professor McCormick gives a concise and compelling critique of the
presumption as evidence rule:
*
*
*
*
*
Another solution, formerly more popular than now, is to
instruct the jury that the presumption is 'evidence', to be
weighed and considered with the testimony in the case. This
avoids the danger that the jury may infer that the presump-
tion is conclusive, but it probably means little to the jury,
and certainly runs counter to accepted theories of the nature
of evidence.¹¹
For these reasons the committee has deleted that provision of the
House-passed rule that treats presumptions as evidence. The effect of
the rule as adopted by the committee is to make clear that while evi-
dence of facts giving rise to a presumption shifts the burden of coming
forward with evidence to rebut or meet the presumption, it does not
shift the burden of persuasion on the existence of the presumed facts.
The burden of persuasion remains on the party to whom it is allocated
under the rules governing the allocation in the first instance.
The court may instruct the jury that they may infer the existence of
the presumed fact from proof of the basic facts giving rise to the
8 Ibid.
9 20 Cal. 2d 585, 594, 128 P. 2d 16, 21 (1942).
10 Cal. Ev. Code 1965 § 600.
11 McCormick, Evidence, 669 (1954) ; id. 825 (2d ed. 1972).
S. Rept. 93-1277-2
10
presumption. However, it would be inappropriate under this rule to
instruct the jury that the inference they are to draw is conclusive.
Rule 408. Compromise and to compromise
This rule as reported makes evidence of settlement or attempted
settlement of a disputed claim inadmissible when offered as an admis-
sion of liability or the amount of liability. The purpose of this rule is
to encourage settlements which would be discouraged if such evidence
were admissible.
Under present law, in most jurisdictions, statements of fact made
during settlement negotiations, however, are excepted from this ban
and are admissible. The only escape from admissibility of statements
of fact made in a settlement negotiation is if the declarant or his repre-
sentative expressly states that the statement is hypothetical in nature
or it made without prejudice. Rule 408 as submitted by the Court
reversed the traditional rule. It would have brought statements of fact
within the ban and made them, as well as an offer of settlement,
inadmissible.
The House amended the rule and would continue to make evidence
of facts disclosed during compromise negotiations admissible: It thus
reverted to the traditional rule. The House committee report states
that the committee intends to preserve current law under which a
party may protect himself by couching his statements in hypothetical
form.¹² The real impact of this amendment, however, is to deprive the
rule of much of its salutary effect. The exception for factual admis-
sions was believed by the Advisory Committee to hamper free com-
munication between parties and thus to constitute an unjustifiable re-
straint upon efforts to negotiate settlements-the encouragement of
which is the purpose of the rule. Further, by protecting hypothetically
phrased statements, it constituted a preference for the sophisticated,
and a trap for the unwary.
Three States which had adopted rules of evidence patterned after
the proposed rules prescribed by the Supreme Court opted for ver-
sions of rule 408 identical with the Supreme Court draft with respect
to the inadmissibility of conduct or statements made in compromise
negotiations.13
For these reasons, the committee has deleted the House amendment
and restored the rule to the version submitted by the Supreme Court
with one additional amendment. This amendment adds a sentence to
insure that evidence, such as documents, is not rendered inadmissible
merely because it is presented in the course of compromise negotiations
if the evidence is otherwise discoverable. A party should not be able to
immunize from admissibility documents otherwise discoverable merely
by offering them in a compromise negotiation.
Rule 410. Offer to plead guilty; nolo contendere; withdrawn plea of
guilty
As adopted by the House, rule 410 would make inadmissible pleas of
guilty or nolo contendere subsequently withdrawn as well as offers to
make such pleas. Such a rule is clearly justified as a means of encourag-
12 See Report No. 93-650. dated November 15. 1973.
13 Nev. Rev. Stats. $ 48.105 N. Mex. Stats. Anno. (1973 Supp.) $ 20-4-408 West's
Wis. Stats. Anno (1973 Supp.) § 904.08.
11
ing pleading. However, the House rule would then go on to render in-
admissible for any purpose statements made in connection with these
pleas or offers as well.
The committee finds this aspect of the House rule unjustified. Of
course, in certain circumstances such statements should be excluded.
If, for example, a plea is vitiated because of coercion, statements made
in connection with the plea may also have been coerced and should be
inadmissible on that basis. In other cases, however, voluntary state-
ments of an accused made in court on the record, in connection with a
plea, and determined by a court to be reliable should be admissible
even though the plea is subsequently withdrawn. This is particularly
true in those cases where, if the House rule were in effect, a defendent
would be able to contradict his previous statements and thereby lie
with impunity.¹⁴ To prevent such an injustice, the rule has been modi-
fied to permit the use of such statements for the limited purposes
of impeachment and in subsequent perjury or false statement
prosecutions.
Rule 501. Privileges-General rule
Article V as submitted to Congress contained 13 rules. Nine of those
rules defined specific nonconstitutional privileges which the Federal
courts must recognize (i.e., required reports, lawyer-client, psycho-
therapist-patient, husband-wife, communications to clergymen, polit-
ical vote, trade secrets, secrets of state and other official information,
and identity of informer). Many of these rules contained controversial
modifications or restrictions upon common law privileges. As noted
supra, the House amended article V to eliminate all of the Court's
specific rules on privileges. Through a single rule, 501, the House pro-
vided that privileges shall be governed by the principles of the com-
mon law as interpreted by the courts of the United States in the light
of reason and experience (a standard derived from rule 26 of the Fed-
eral Rules of Criminal Procedure) except in the case of an element of
a civil claim or defense as to which State law supplies the rule of deci-
sion, in which event state privilege law was to govern.
The committee agrees with the main thrust of the House amend-
ment: that a federally developed common law based on modern reason
and experience shall apply except where the State nature of the issues
renders deference to State privilege law the wiser course, as in the
usual diversity case. The committee understands that thrust of the
House amendment to require that State privilege law be applied in
"diversity" cases (actions on questions of State law between citizens
of different States arising under 28 U.S.C. § 1332). The language of
the House amendment, however, goes beyond this in some respects,
and falls short of it in others: State privilege law applies even in non-
diversity, Federal question civil cases, where an issue governed by
State substantive law is the object of the evidence (such issues do
sometimes arise in such cases) ; and, in all instances where State
privilege law is to be applied, e.g., on proof of a State issue in a diver-
sity case, a close reading reveals that State privilege law is not to be
applied unless the matter to be proved is an element of that state claim
14 See Harris V. New York, 401 U.S. 222 (1971).
12
or defense, as distinguished from a step along the way in the proof
of it.
The committee is concerned that the language used in the House
amendment could be difficult to apply. It provides that "in civil
actions
with respect to an element of a claim or defense as to
which State law supplies the rule of decision," State law on privilege
applies. The question of what is an element of a claim or defense is
likely to engender considerable litigation. If the matter in question
constitutes an element of a claim, State law supplies the privilege
rule; whereas if it is a mere item of proof with respect to a claim,
then, even though State law might supply the rule of decision, Federal
law on the privilege would apply. Further, disputes will arise as to
how the rule should be applied in an antitrust action or in a tax case
where the Federal statute is silent as to a particular aspect of the
substantive law in question, but Federal cases had incorporated State
law by reference to State law.¹⁵ Is a claim (or defense) based on such
a reference a claim or defense as to which federal or State law supplies
the rule of decision?
Another problem not entirely avoidable is the complexity or diffi-
culty the rule introduces into the trial of a Federal case containing
a combination of Federal and State claims and defenses, e.g. an action
involving Federal antitrust and State unfair competition claims. Two
different bodies of privilege law would need to be consulted. It may
even develop that the same witness-testimony might be relevant on
both counts and privileged as to one but not the other.¹⁵a
The formulation adopted by the House is pregnant with litigious
mischief. The committee has, therefore, adopted what we believe will
be a clearer and more practical guideline for determining when courts
should respect State rules of privilege. Basically, it provides that in
criminal and Federal question civil cases, federally evolved rules on
privilege should apply since it is Federal policy which is being en-
forced. 16 Conversely, in diversity cases where the litigation in question
turns on a substantive question of State law, and is brought in the
Federal courts because the parties reside in different States, the com-
mittee believes it is clear that State rules of privilege should apply
unless the proof is directed at a claim or defense for which Federal
law supplies the rule of decision (a situation which would not com-
monly arise.) 17 It is intended that the State rules of privilege should
15 For a discussion of reference to State substantive law, see note on Federal Incorpora-
tion by Reference of State Law, Hart & Wechsler, The Federal Courts and the Federal
System, pp. 491-94 (2d ed. 1973).
15a The problems with the House formulation are discussed in Rothstein. The Pro-
posed Amendments to the Federal Rules of Evidence, 62 Georgetown University Law
Journal 125 (1973) at notes 25, 26 and 70-74 and accompanying text.
18 It is also intended that the Federal law of privileges should be applied with respect
to pendant State law clalms when they arise in a Federal question case.
17 While such a situation might require use of two bodies of privilege law, federal and
state, in the same case, nevertheless the occasions on which this would be required are
considerably reduced as compared with the House version, and confined to situations
where the Federal and State interests are such as to justify application of neither
privilege law to the case as a whole. If the rule proposed here results in two conflicting
bodies of privilege law applying to the same plece of evidence in the same case, it is
contemplated that the rule favoring reception of the evidence should be applied. This
policy is based on the present rule 43(a) of the Federal Rules of Civil Procedure which
provides In any case, the statute or rule which favors the reception of the evidence
governs and the evidence shall be presented according to the most convenient method
prescribed in any of the statutes or rules to which reference is herein made.
13
apply equally in original diversity actions and diversity actions
removed under 28 U.S.C. § 1441 (b).
Two other comments on the privilege rule should be made. The com-
mittee has received a considerable volume of correspondence from
psychiatric organizations and psychiatrists concerning the deletion of
rule 504 of the rule submitted by the Supreme Court. It should be
clearly understood that, in approving this general rule as to privileges,
the action of Congress should not be understood as disapproving any
recognition of a psychiatrist-patient, or husband-wife, or any other of
the enumerated privileges contained in the Supreme Court rules.
Rather, our action should be understood as reflecting the view that the
recognition of a privilege based on a confidential relationship and
other privileges should be determined on a case-by-case basis.
Further, we would understand that the prohibition against spouses
testifying against each other is considered a rule of privilege and cov-
ered by this rule and not by rule 601 of the competency of witnesses.
Rule 601. General Rule of Competency
The amendment to rule 601 parallels the treatment accorded rule
501 discussed immediately above.
Rule 606 (b). Competency of Juror as a Witness : Inquiry into Validity
of Verdict or Indictment
As adopted by the House, this rule would permit the impeachment
of verdicts by inquiry into, not the mental processes of the jurors, but
what happened in terms of conduct in the jury room. This extension
of the ability to impeach a verdict is felt to be unwarranted and
ill-advised.
The rule passed by the House embodies a suggestion by the Ad-
visory Committee of the Judicial Conference that is considerably
broader than the final version adopted by the Supreme Court, which
embodied long-accepted Federal law. Although forbidding the im-
peachment of verdicts by inquiry into the jurors' mental processes, it
deletes from the Supreme Court version the proscription against testi-
mony "as to any matter or statement occurring during the course of
the jury's deliberations." This deletion would have the effect of open-
ing verdicts up to challenge on the basis of what happened during the
jury's internal deliberations, for example, where a juror alleged that
the jury refused to follow the trial judge's instructions or that some
of the jurors did not take part in deliberations.
Permitting an individual to attack a jury verdict based upon the
jury's internal deliberations has long been recognized as unwise by
the Supreme Court. In McDonald V. Pless, the Court stated:
*
[L]et it once be established that verdicts solemnly made
and publicly returned into court can be attacked and set
aside on the testimony of those who took part in their publi-
cation and all verdicts could be, and many would be, followed
by an inquiry in the hope of discovering something which
might invalidate the finding. Jurors would be harassed and
beset by the defeated party in an effort to secure from them
evidence of facts which might establish misconduct sufficient
14
to set aside a verdict. If evidence thus secured could be thus
used, the result would be to make what was intended to be
a private deliberation, the constant subject of public investi-
gation-to the destruction of all frankness and freedom of
discussion and conference.18
As it stands then, the rule would permit the harassment of former
jurors by losing parties as well as the possible exploitation of dis-
gruntled or otherwise badly-motivated ex-jurors.
Public policy requires a finality to litigation. And common fairness
requires that absolute privacy be preserved for jurors to engage in
the full and free debate necessary to the attainment of just verdicts.
Jurors will not be able to function effectively if their deliberations
are to be scrutinized in post-trial litigation. In the interest of protect-
ing the jury system and the citizens who make it work, rule 606 should
not permit any inquiry into the internal deliberations of the jurors.
Rule 609 (a). Impeachment by Evidence of Conviction
As proposed by the Supreme Court, the rule would allow the use
of prior convictions to impeach if the crime was a felony or a mis-
demeanor if the misdemeanor involved dishonesty or false statement.
As modified by the House, the rule would admit prior convictions for
impeachment purposes only if the offense, whether felony or mis-
demeanor, involved dishonesty or false statement.
The committee has adopted a modified version of the House-passed
rule. In your committee's view, the danger of unfair prejudice is far
greater when the accused, as opposed to other witnesses, testifies, be-
cause the jury may be prejudiced not merely on the question of credi-
bility but also on the ultimate question of guilt or innocence. There-
fore, with respect to defendants, the committee agreed with the House
limitation that only offenses involving false statement or dishonesty
may be used. By that phrase, the committee means crimes such as
perjury or subornation of perjury, false statement, criminal fraud,
embezzlement or false pretense, or any other offense, in the nature of
crimen falsi the commission of which involves some element of un-
truthfulness, deceit or falsification bearing on the accused's propensity
to testify truthfully.
With respect to other witnesses, in addition to any prior conviction
involving false statement or dishonesty, any other felony may be used
to impeach if, and only if, the court finds that the probative value of
such evidence outweighs its prejudicial effect against the party offering
that witness.
Notwithstanding this provision, proof of any prior offense other-
wise admissible under rule 404 could still be offered for the purposes
sanctioned by that rule. Furthermore, the committee intends that not-
withstanding this rule, a defendant's misrepresentation regarding the
existence or nature of prior convictions may be met by rebuttal
evidence, including the record of such prior convictions. Similarly,
such records may be offered to rebut representations made by the
defendant regarding his attitude toward or willingness to commit a
general category of offense, although denials or other representations
18 238 U.S. 264, at 267 (1914).
15
by the defendant regarding the specific conduct which forms the basis
of the charge against him shall not make prior convictions admissible
to rebut such statement.
In regard to either type of representation, of course, prior convic-
tions may be offered in rebuttal only if the defendant's statement is
made in response to defense counsel's questions or is made gratuitously
in the course of cross-examination. Prior convictions may not be offered
as rebuttal evidence if the prosecution has sought to circumvent the
purpose of this rule by asking questions which elicit such representa-
tions from the defendant.
One other clarifying amendment has been added to this subsection,
that is, to provide that the admissibility of evidence of a prior convic-
tion is permitted only upon cross-examination of a witness. It is not
admissible if a person does not testify. It is to be understood, however,
that a court record of a prior conviction is admissible to prove that
conviction if the witness has forgotten or denies its existence.
Rule 609 (b). Impeachment by Evidence of Conviction of Crime; Time
Limit
Although convictions over ten years old generally do not have much
probative value, there may be exceptional circumstances under which
the conviction substantially bears on the credibility of the witness.
Rather than exclude all convictions over 10 years old, the committee
adopted an amendment in the form of a final clause to the section
granting the court discretion to admit convictions over 10 years old,
but only upon a determination by the court that the probative value
of the conviction supported by specific facts and circumstances, sub-
stantially outweighs its prejudicial effect.
It is intended that convictions over 10 years old will be admitted
very rarely and only in exceptional circumstances. The rules provide
that the decision be supported by specific facts and circumstances thus
requiring the court to make specific findings on the record as to the
particular facts and circumstances it has considered in determining
that the probative value of the conviction substantially outweighs its
prejudicial impact. It is expected that, in fairness, the court will give
the party against whom the conviction is introduced a full and ade-
quate opportunity to contest its admission.
Rule 801 (d) (1) (A). Hearsay definitions; Prior Statement by Witness
Rule 801 defines what is and what is not hearsay for the purpose
of admitting a prior statement as substantive evidence. A prior state-
ment of a witness at a trial or hearing which is inconsistent with his
testimony is, of course, always admissible for the purpose of im-
peaching the witness' credibility.
As submitted by the Supreme Court, subdivision (d) (1) (A) made
admissible as substantive evidence the prior statement of a witness
inconsistent with his present testimony.
The House severely limited the admissibility of prior inconsistent
statements by adding a requirement that the prior statement must
have been subject to cross-examination, thus precluding even the use
of grand jury statements. The requirement that the prior statement
must have been subject to cross-examination appears unnecessary since
this rule comes into play only when the witness testifies in the present
16
trial. At that time, he is on the stand and can explain an earlier posi-
tion and be cross-examined as to both.
The requirement that the statement be under oath also appears un-
necessary. Notwithstanding the absence of an oath contemporaneous
with the statement, the witness, when on the stand, qualifying or deny-
ing the prior statement, is under oath. In any event, of all the many
recognized exceptions to the hearsay rule, only one (former testimony)
requires that the out-of-court statement have been made under oath.
With respect to the lack of evidence of the demeanor of the witness
at the time of the prior statement, it would be difficult to improve upon
Judge Learned Hand's observation that when the jury decides that
the truth is not what the witness says now but what he said before,
they are still deciding from what they see and hear in court.¹⁹
The rule as submitted by the Court has positive advantages. The
prior statement was made nearer in time to the events, when memory
was fresher and intervening influences had not been brought into
play. A realistic method is provided for dealing with the turncoat
witness who changes his story on the stand.20
New Jersey, California, and Utah have adopted a rule similar to
this one; and Nevada, New Mexico, and Wisconsin have adopted the
identical Federal rule.
For all of these reasons. we think the House amendment should be
rejected and the rule as submitted by the Supreme Court reinstated. 21
As submitted by the Supreme Court and as passed by the House, sub-
division (d) (1) (c) of rule 801 made admissible the prior statement
identifying a person made after perceiving him. The committee de-
cided to delete this provision because of the concern that a person
could be convicted solely upon evidence admissible under this
subdivision.
Rule 803 (6). Hearsay Exceptions; Records of Regularly Conducted
Activity
Rule 803 (6) as submitted by the Supreme Court permitted a record
made in the course of a regularly conducted activity to be admissible
in certain circumstances. This rule constituted a broadening of the
traditional business records hearsay exception which has been long
advocated by scholars and judges active in the law of evidence.
The House felt there were insufficient guarantees of reliability of
records not within a broadly defined business records exception. We
disagree. Even under the House definition of "business" including
profession, occupation, and "calling of every kind," the records of
many regularly conducted activities will, or may be, excluded from
evidence. Under the principle of ejusdem generis, the intent of "calling
of every kind" would seem to be related to work-related endeavors—
e.g., butcher, baker, artist, etc.
Thus, it appears that the records of many institutions or groups
might not be admissible under the House amendments. For example,
schools, churches, and hospitals will not normally be considered busi-
19 Di Carlo V. United States, 6 F. 2d 364 (2d Cir. 1925).
20 See Comment, California Evidence Code § 1235 McCormick, Evidence, § 38 (2nd ed.
1972).
21 It would appear that some of the opposition to this Rule is based on a concern that a
person could be convicted solely upon evidence admissible under this Rule. The Rule, how-
ever, is not addressed to the question of the sufficiency of evidence to send a case to the
jury, but merely as to its admissibility. Factual circumstances could well arise where, if
this were the sole evidence, dismissal would be appropriate.
17
nesses within the definition. Yet, these are groups which keep finan-
cial and other records on a regular basis in a manner similar to
business enterprises. We believe these records are of equivalent
trustworthiness and should be admitted into evidence.
Three states, which have recently codified their evidence rules,
have adopted the Supreme Court version of rule 803 (6), providing for
admission of memoranda of a "regularly conducted activity." None
adopted the words "business activity" used in the House amendment. 22
Therefore, the committee deleted the word "business" as it appears
before the word "activity". The last sentence then is unnecessary and
was also deleted.
It is the understanding of the committee that the use of the phrase
"person with knowledge" is not intended to imply that the party seek-
ing to introduce the memorandum, report, record, or data compilation
must be able to produce, or even identify, the specific individual upon
whose first-hand knowledge the memorandum, report, record or data
compilation was based. A sufficient foundation for the introduction of
such evidence will be laid if the party seeking to introduce the evi-
dence is able to show that it was the regular practice of the activity
to base such memorandums, reports, records, or data compilations
upon a transmission from a person with knowledge, e.g., in the case of
the content of a shipment of goods, upon a report from the company's
receiving agent or in the case of a computer printout, upon a report
from the company's computer programer or one who has knowledge
of the particular record system. In short, the scope of the phrase "per-
son with knowledge" is meant to be coterminous with the custodian of
the evidence or other qualified witness. The committee believes this
represents the desired rule in light of the complex nature of modern
business organizations.
Rules 803 (8) and 804(b) (5). Hearsay Exceptions; Public Records
and reports
The House approved rule 803(8), as submitted by the Supreme
Court, with one substantive change. It excluded from the hearsay ex-
ception reports containing matters observed by police officers and other
law enforcement personnel in criminal cases. Ostensibly, the reason
for this exclusion is that observations by police officers at the scene of
the crime or the apprehension of the defendant are not as reliable as
observations by public officials in other cases because of the adversarial
nature of the confrontation between the police and the defendant in
criminal cases.
The committee accepts the House's decision to exclude such recorded
observations where the police officer is available to testify in court about
his observation. However, where he is unavailable as unavailability
is defined in rule 804 (a) (4) and (a) (5), the report should be admitted
as the best available evidence. Accordingly, the committee has amended
rule 803 (8) to refer to the provision of rule 804(b) (5), which allows
the admission of such reports, records or other statements where the
police officer or other law enforcement officer is unavailable because of
death, then existing physical or mental illness or infirmity, or not
being successfully subject to legal process.
22 See Nev. Rev. Stats. § 15.135 N. Mex. Stats. (1973 Supp.) § 20-4-803(6) ; West's
Wis. Stats. Anno. (1973 Supp.) § 908.03(6).
18
The House Judiciary Committee report contained a statement of
intent that "the phrase 'factual findings' in subdivision (c) be strictly
construed and that evaluations or opinions contained in public reports
shall not be admissible under this rule." The committee takes strong
exception to this limiting understanding of the application of the
rule. We do not think it reflects an understanding of the intended
operation of the rule as explained in the Advisory Committee notes
to this subsection. The Advisory Committee notes on subsection (c)
of this subdivision point out that various kinds of evaluative reports
are now admissible under Federal statutes. 7 U.S.C. § 78, findings of
Secretary of Agriculture prima facie evidence of true grade of grain;
42 U.S.C. § 269 (b), bill of health by appropriate official prima facie
evidence of vessel's sanitary history and condition and compliance
with regulations. These statutory exceptions to the hearsay rule are
preserved. Rule 802. The willingness of Congress to recognize these
and other such evaluative reports provides a helpful guide in deter-
mining the kind of reports which are intended to be admissible under
this rule. We think the restrictive interpretation of the House over-
looks the fact that while the Advisory Committee assumes admissi-
bility in the first instance of evaluative reports, they are not admissible
if, as the rule states, "the sources of information or other circumstances
indicate lack of trustworthiness."
The Advisory Committee explains the factors to be considered:
*
*
*
*
*
Factors which may be assistance in passing upon the admissi-
bility of evaluative reports include: (1) the timeliness of the
investigation, McCormick, Can the Courts Make Wider Use
of Reports of Official Investigations? 42 Iowa L. Rev. 363
(1957) ; (2) the special skill or experience of the official, id.
(3) whether a hearing was held and the level at which con-
ducted, Franklin V. Skelly Oil Co., 141 F. 2d 568 (19th Cir.
1944) ; (4) possible motivation problems suggested by Palmer
V. Hoffman, 318 U.S. 109, 63 S. Ct. 477, 87 L. Ed. 645 (1943).
Others no doubt could be added.23
*
*
*
*
*
The committee concludes that the language of the rule together
with the explanation provided by the Advisory Committee furnish
sufficient guidance on the admissibility of evaluative reports.
Rules 803 (24) and 804 (b) (6). Hearsay Exceptions; Other Exceptions
The proposed Rules of Evidence submitted to Congress contained
identical provisions in rules 803 and 804 (which set forth the various
hearsay exceptions), admitting any hearsay statement not specifically
covered by any of the stated exceptions, if the hearsay statement was
found to have "comparable circumstantial guarantees of trustworthi-
ness. The House deleted these provisions (proposed rules 803 (24) and
804 (b) (6)) as injecting "too much uncertainty" into the law of evi-
dence and impairing the ability of practitioners to prepare for trial.
The House felt that rule 102, which directs the courts to construe the
Rules of Evidence SO as to promote growth and development, would
permit sufficient flexibility to admit hearsay evidence in appropriate
cases under various factual situations that might arise.
23 Advisory Committee's notes, to rule 803 (8) (c).
19
We disagree with the total rejection of a residual hearsay excep-
tion. While we view rule 102 as being intended to provide for a
broader construction and interpretation of these rules, we feel that,
without a separate residual provision, the specifically enumerated
exceptions could become tortured beyond any reasonable circum-
stances which they were intended to include (even if broadly con-
strued). Moreover, these exceptions, while they reflect the most typi-
cal and well recognized exceptions to the hearsay rule, may not en-
compass every situation in which the reliability and appropriateness
of a particular piece of hearsay evidence make clear that it should be
heard and considered by the trier of fact.
The committee believes that there are certain exceptional circum-
stances where evidence which is found by a court to have guarantees
of trustworthiness equivalent to or exceeding the guarantees reflected
by the presently listed exceptions, and to have a high degree of pro-
lativeness and necessity could properly be admissible.
The case of Dallas County V. Commercial Union Assoc. Co., Ltd.,
286 F.2d 388 (5th Cir. 1961) illustrates the point. The issue in that
case was whether the tower of the county courthouse collapsed because
it was struck by lightning (covered by insurance) or because of struc-
tural weakness and deterioration of the structure (not covered). In-
vestigation of the structure revealed the presence of charcoal and
charred timbers. In order to show that lightning may not have been
the cause of the charring, the insurer offered a copy of a local news-
paper published over 50 years earlier containing an unsigned article
describing a fire in the courthouse while it was under construction.
The Court found that the newspaper did not qualify for admission as
a business record or an ancient document and did not fit within any
other recognized hearsay exception. The court concluded, however,
that the article was trustworthy because it was inconceivable that a
newspaper reporter in a small town would report a fire in the court-
house if none had occurred. See also United States V. Barbati, 284 F.
Supp. 409 (E.D.N.Y.1968).
Because exceptional cases like the Dallas County case may arise
in the future, the committee has decided to reinstate a residual excep-
tion for rules 803 and 804 (b).
The committee, however, also agrees with those supporters of the
House version who felt that an overly broad residual hearsay excep-
tion could emasculate the hearsay rule and the recognized exceptions
or vitiate the rationale behind codification of the rules.
Therefore, the committee has adopted a residual exception for rules
803 and 804(b) of much narrower scope and applicability than the
Supreme Court version. In order to qualify for admission, a hearsay
statement not falling within one of the recognized exceptions would
have to satisfy at least four conditions. First, it must have "equivalent
circumstantial guarantees of trustworthiness." Second, it must be of-
fered as evidence of a material fact. Third, the court must determine
that the statement "is more probative on the point for which it is
offered than any other evidence which the proponent can procure
through reasonable efforts." This requirement is intended to insure
that only statements which have high probative value and necessity
may qualify for admission under the residual exceptions. Fourth, the
court must determine that "the general purposes of these rules and the
20
interests of justice will best be served by admission of the statement
into evidence."
It is intended that the residual hearsay exceptions will be used very
rarely, and only in execptional circumstances. The committee does not
intend to establish a broad license for trial judges to admit hearsay
statements that do not fall within one of the other exceptions con-
tained in rules 803 and 804 (b). The residual exceptions are not meant
to authorize major judicial revisions of the hearsay rule, including its
present exceptions. Such major revisions are best accomplished by
legislative action. It is intended that in any case in which evidence is
sought to be admitted under these subsections, the trial judge will
exercise no less care, reflection and caution than the courts did under
the common law in establishing the now-recognized exceptions to the
hearsay rule.
In order to establish a well-defined jurisprudence, the special facts
and circumstances which, in the court's judgment, indicates that the
statement has a sufficiently high degree of trustworthiness and neces-
sity to justify its admission should be stated on the record. It is ex-
pected that the court will give the opposing party a full and adequate
opportunity to contest the admission of any statement sought to be
introduced under these subsections.
Rule 804(a) (5). Hearsay Exceptions; Declarant Unavailable; Defi-
nition of Unavailability
Subdivision (a) of rule 804 as submitted by the Supreme Court de-
fined the conditions under which a witness was considered to be un-
available. It was amended in the House.
The purpose of the amendment, according to the report of the House
Committee on the Judiciary, is "primarily to require that an attempt
be made to depose a witness (as well as to seek his attendance) as a
precondition to the witness being unavailable." 25
Under the House amendment, before a witness is declared unavail-
able, a party must try to depose a witness (declarant) with respect to
dying declarations, declarations against interest, and declarations of
pedigree. None of these situations would seem to warrant this need-
less, impractical and highly restrictive complication. A good case can
be made for eliminating the unavailability requirement entirely for
declarations against interest cases.²⁶
In dying declaration cases, the declarant will usually, though not
necessarily, be deceased at the time of trial. Pedigree statements which
are admittedly and necessarily based largely on word of mouth are not
greatly fortified by a deposition requirement.
Depositions are expensive and time-consuning. In any event, deposi-
tion procedures are available to those who wish to resort to them.
Moreover, the deposition procedures of the Civil Rules and Criminal
Rules are only imperfectly adapted to implementing the amendment.
No purpose is served unless the deposition, if taken, may be used in
evidence. Under Civil Rule (a) (3) and Criminal Rule 15 (e), a deposi-
tion, though taken, may not be admissible, and under Criminal Rule
15 (a) substantial obstacles exist in the way of even taking a deposition.
For these reasons, the committee deleted the House amendment.
25 H. Rept. 93-650, at p. 15.
26 Uniform rule 63 (10) ; Kan. Stat. Anno. 60-460(j) ; 2A N.J. Stats. Anno. 84-63(10).
21
The committee understand that the rule as to unavailability, as ex-
plained by the Advisory Committee "contains no requirement that an
attempt be made to take the deposition of a declarent." In reflecting
the committee's judgment, the statement is accurate insofar as it goes.
Where, however, the proponent of the statement, with knowledge of
the existence of the statement, fails to confront the declarant with the
statement at the taking of the deposition, then the proponent should
not, in fairness, be permitted to treat the declarant as "unavailable"
simply because the declarant was not amenable to process compelling
his attendance at trail. The committee does not consider it necessary to
amend the rule to this effect because such a situation abuses, not con-
forms to, the rule. Fairness would preclude a person from introducing
a hearsay statement on a particular issue if the person taking the
deposition was aware of the issue at the time of the deposition but
failed to depose the unavailable witness on that issue.
Rule 804 (b) (3). Hearsay Exceptions; Declarant Unavailable; State-
ment Against Interest
The rule defines those statements which are considered to be against
interest and thus of sufficient trustworthiness to be admissible even
though hearsay. With regard to the type of interest declared against,
the version submitted by the Supreme Court included inter alia, state-
ments tending to subject a declarant to civil liability or to invalidate
a claim by him against another. The House struck these provisions as
redundant. In view of the conflicting case law construing pecuniary or
proprietary interests narrowly SO as to exclude, e.g., tort cases, this
deletion could be misconstrued.
Three States which have recently codified their rules of evidence
have followed the Supreme Court's version of this rule, i.e., that a
statement is against interest if it tends to subject a declarant to civil
liability.27
The committee believes that the reference to statements tending to
subject a person to civil liability constitutes a desirable clarification of
the scope of the rule. Therefore, we have reinstated the Supreme Court
language on this matter.
The Court rule also proposed to expand the hearsay limitation from
its present federal limitation to include statements subjecting the
declarant to statements tending to make him an object of hatred,
ridicule, or disgrace. The House eliminated the latter category from
the subdivision as lacking sufficient guarantees of reliability. Although
there is considerable support for the admissibility of such statements
(all three of the State rules referred to supra, would admit such state-
ments), we accept the deletion by the House.
Rule 804 (b) (3). Hearsay Exceptions; statement against interest
The House amended this exception to add a sentence making inad-
missible a statement or confession offered against the accused in a
criminal case, made by a codefendant or other person implicating both
himself and the accused. The sentence was added to codify the constitu-
tional principle announced in Bruton V. United States, 391 U.S. 123
(1968). Bruton held that the admission of the extrajudicial hearsay
27 Nev. Rev. Stats. § 51.345 N. Mex. Stats. (1973 supp.) § 20-4-804(4) ; West's Wis.
Stats. Anno. (1973 supp.) § 908.045(4).
22
statement of one codefendant inculpating a second codefendant vio-
lated the confrontation clause of the sixth amendment.
The committee decided to delete this provision because the basic
approach of the rules is to avoid codifying, or attempting to codify,
constitutional evidentiary principles, such as the fifth amendment's
right against self-incrimination and, here, the sixth amendment's right
of confrontation. Codification of a constitutional principle is unneces-
sary and, where the principle is under development, often unwise.
Furthermore, the House provision does not appear to recognize the
exceptions to the Bruton rule, e.g. where the codefendant takes the
stand and is subject to cross examination; where the accused confessed,
see United States V. M ancusi, 404 F. 2d 296 (2d Cir. 1968), cert. denied
397 U.S. 942 (1907) ; where the accused was placed at the scene of the
crime, see United States V. Zelker, 452 F. 2d 1009 (2d Cir. 1971). For
these reasons, the committee decided to delete this provision.
Rule 806. Attacking and Supporting Credibility of Declarant
Rule 906, as passed by the House and as proposed by the Supreme
Court provides that whenever a hearsay statement is admitted, the
credibility of the declarant of the statement may be attacked, and if
attacked may be supported, by any evidence which would be admissible
for those purposes if the declarant had testified as a witness. Rule 801
defines what is a hearsay statement. While statements by a person
authorized by a party-opponent to make a statement concerning the
subject, by the party-opponent's agent or by a coconspirator of a
party-see rule 801 (d) (2) (c), (d) and (e) traditionally defined
as exceptions to the hearsay rule, rule 801 defines such admission by a
party-opponent as statements which are not hearsay. Consequently,
rule 806 by referring exclusively to the admission of hearsay state-
ments, does not appear to allow the credibility of the declarant to be
attacked when the declarant is a coconspirator, agent or authorized
spokesman. The committee is of the view that such statements should
open the declarant to attacks on his credibility. Indeed, the reason
such statements are excluded from the operation of rule 806 is likely
attributable to the drafting technique used to codify the hearsay rule,
viz some statements, instead of being referred to as exceptions to the
hearsay rule, are defined as statements which are not hearsay. The
phrase "or a statement defined in rule 801 (d) (2) (c), (d) and (e) is
added to the rule in order to subject the declarant of such statements,
like the declarant of hearsay statements, to attacks on his credibility.28
Section 2. Enabling Act
The House, in order to clarify the power of the Supreme Court to
issue Rules of Evidence or amendments to them, added a new section
2076 to title 28, United States Code, specifying the Supreme Court's
authority. The present Rules Enabling Acts (18 U.S.C. §§ 3771, 3772,
3402; 28 U.S.C. 2072, 2075), which the Supreme Court invoked as the
authority pursuant to which it promulgated the Rules of Evidence,
provide that the Court may prescribe rules of "practice and pro-
cedure" and submit them to Congress. The rules then take effect auto-
28 The committee considered it unnecessary to include statements contained in rule
801 (d) (2) (A) and (B) statement by the party-opponent himself or the statement
of which he has manifested his adoption-because the credibility of the party-opponent
is always subject to an attack on his credibility.
23
matically either at such time as the Court directs, or after 90 days
following their submission. An act of Congress is necessary to prevent
any rule SO submitted from taking effect.
The House believed that the Rules of Evidence involve policy
judgments as to which it is appropriate for the Congress to play a
greater role than that provided in the present Enabling Acts. Accord-
ingly, the bill provides for a new statutory procedure by which amend-
ments to the Rules of Evidence may be made, designed to insure ade-
quate congressional participation in the evidence rulemaking process.
Section 2(a) adds a new section, 2076, to title 28, United States Code,
permitting the Court to prescribe amendments to the Rules of Evi-
dence, which amendments must be reported to the Congress. However,
three changes were made with respect to the role of Congress. First,
any rule, rather than the entire package of rules may be disapproved.
Second, either House of Congress, rather than the both Houses acting
together, can prevent a rule from becoming operative. Third, rather
than the 90-day period allowed in the existing Rules Enabling Acts, a
180-day period is prescribed for congressional action.
In order to augment the power of Congress to review rules of evi-
dence, the committee made two additional amendments. It decided to
extend the review period to 365 days-1 full year-and adopted a pro-
vision under which either House of Congress can defer the effective
date of a rule to permit further study, either until a later date or until
approved by Act of Congress. Thus, either House of Congress can
disapprove or defer consideration of any proposed rule or combination
of rules. The committee also added one clarifying amendment which
provides that either a proposed rule or a rule already in effect may be
amended by act of Congress. While this has been generally understood,
the committee feels it should be made clear.
The committee considered the possibility of requiring congressional
approval of any rule of evidence submitted to it by the Court. We
determined, however, that while requiring affirmative congressional
action was appropriate to this first effort at codifying the Rules of
Evidence, it was not needed with respect to subsequent amendments
which would likely be of more modest dimension. Indeed, the com-
mittee believed that to require affirmative congressional action with
respect to amendments might well result in some worthwhile amend-
ments not being approved because of other pressing demands on the
Congress. The committee thus concluded that the system of allowing
Court-proposed amendments to the Rules of Evidence to take effect
automatically unless disapproved by either House strikes a sound
balance between the proper role of Congress in the amendatory process
and the dictates of convenience and legislative priorities.
For the same reasons, the committee has deleted an amendment made
no the floor of the House providing that no amendment creating,
abolishing or modifying a privilege could take effect until aproved by
act of Congress. The basis for the House action was the belief that
rules of privilege constitute matters of substance that require affirma-
tive congressional approval. While matters of privilege are, in a sense,
substantive, and also involve particularly sensitive issues, the commit-
tee does not believe that privileges necessarily require different treat-
ment from other rules, provided there are adequate safeguards SO that
24
the Congress retains sufficient review power to review effectively pro-
posed changes in this area, as well as in others. By extending the pe-
riod of review from 90 to 365 days and by providing that any pro-
posed rule may be disapproved or its effective date deferred by either
House of Congress, the committee believes that the Congress does, in
fact retain sufficient review power to reflect its views on such matters.
Subsection (b) strikes out section 1732(a) of title 28, United States
Code, since its subject matter is covered in rule 803 (b) relating to rec-
ords of a regularly conducted activity.
Subsection (c) amends section 1733 of title 28, United States Code,
since that section is largely, if not entirely, encompassed by rule 803
(8) relating to public records and reports. Because of the possibility
that section 1733 may reach some matters not touched by rule 803 (9),
subsection (c) does not repeal section 1733 but merely provides that
the section does not apply to actions, cases, and proceedings to which
the Rules of Evidence are applicable.
ADDITIONAL COMMENTARIES
Additional commentary was deemed appropriate by the committee
with respect to certain rules left undisturbed in the subject bill.
Rule 104(d). Preliminary Questions: Testimony by accused
Under rule 104 (c) the hearing on a preliminary matter may at times
be conducted in front of the jury. Should an accused testify in such a
hearing, waiving his privilege against self-incrimination as to the
preliminary issue, rule 104 (d) provides that he will not generally be
subject to cross-examination as to any other issue. This rule is not,
however, intended to immunize the accused from cross-examination
where, in testifying about a preliminary issue, he injects other issues
into the hearing. If he could not be cross-examined about any issues
gratuitously raised by him beyond the scope of the preliminary mat-
ters, injustice might result. Accordingly, in order to prevent any such
unjust result, the committee intends the rule to be construed to provide
that the accused may subject himself to cross-examination as to issues
raised by his own testimony upon a preliminary matter before a jury.
Rule 105. Summing Up and Comment by Judge
This rule as submitted by the Supreme Court permitted the judge
to sum up and comment on the evidence. The House struck the rule.
The committee accepts the House action with the understanding that
the present Federal practice, taken from the common law, of the trial
judge's discretionary authority to comment on and summarize the
evidence is left undisturbed.
Rule 404 (b). Character Evidence Not Admissible To Prove Conduct;
Other crimes, wrongs, or acts
This rule provides that evidence of other crimes, wrongs, or acts is
not admissible to prove character but may be admissible for other
specified purposes such as proof of motive.
Although your committee sees no necessity in amending the rule
itself, it anticipates that the use of the discretionary word "may" with
respect to the admissibility of evidence of crimes, wrongs, or acts is
not intended to confer any arbitrary discretion on the trial judge.
25
Rather, it is anticipated that with respect to permissible uses for such
evidence, the trial judge may exclude it only on the basis of those con-
siderations set forth in Rule 403, i.e. prejudice, confusion or waste
of time.
Rule 611 (b). Mode and Order of Interrogation and Presentation;
Scope of Cross-examination
Rule 611 (b) as submitted by the Supreme Court permitted a broad
scope of cross-examination: "cross-examination on any matter relevant
to any issue in the case" unless the judge, in the interests of justice,
limited the scope of cross-examination.
The House narrowed the Rule to the more traditional practice of
limiting cross-examination to the subject matter of direct examina-
tion (and eredibility), but with discretion in the judge to permit in-
quiry into additional matters in situations where that would aid in
the development of the evidence or otherwise facilitate the conduct of
the trial.
The committee agrees with the House amendment. Although there
are good arguments in support of broad cross-examination from pros-
pectives of developing all relevant evidence, we believe the factors
of insuring an orderly and predictable development of the evidence
weigh in favor of the narrower rule, especially when discreation is
given to the trial judge to permit inquiry into additional matters. The
committee expressly approves this discretion and believes it will per-
mit sufficient flexibility allowing a broader scope of cross-examination
whenever appropriate.
The House amendment providing broader discretionary cross-
examination permitted inquiry into additional matters only as if on
direct examination. As a general rule, we concur with this limitation,
however, we would understand that this limitation would not preclude
the utilization of leading questions if the conditions of subsection (c)
of this rule were met, bearing in mind the judge's discretion in any
case to limit the scope of cross-examination.2³
Further, the committee has received correspondence from Federal
judges commenting on the applicability of this rule to section 1407
of title 28. It is the committee's judgment that this rule as reported
by the House is flexible enough to provide sufficiently broad cross-
examination in appropriate situations in multidistrict litigation.
Rule 611 1(c). Mode and Order of Interrogation and Presentation;
Leading Questions
As submitted by the Supreme Court, the rule provided: "In civil
cases, a party is entitled to call an adverse party or witness identified
with him and interrogate by leading questions."
The final sentence of subsection (c) was amended by the House
for the purpose of clarifying the fact that a "hostile witness"-that is
a witness who is hostile in fact-could be subject to interrogation by
leading questions. The rule as submitted by the Supreme Court de-
clared certain witnesses hostile as a matter of law and thus subject
to interrogation by leading questions without any showing of hostil-
ity in fact. These were adverse parties or witnesses identified with
adverse parties. However, the wording of the first sentence of sub-
29 See McCormick on Evidence, §§ 24-26 (especially 24) (2d ed. 1972).
26
section (c) while generally prohibiting the use of leading questions
on direct examination, also provides "except as may be necessary to
develop his testimony." Further, the first paragraph of the Advisory
Committee note explaining the subsection makes clear that they in-
tended that leading questions could be asked of a hostile witness or
a witness who was unwilling or biased and even though that witness
was not associated with an adverse party. Thus, we question whether
the House amendment was necessary.
However, concluding that it was not intended to affect the mean-
ing of the first sentence of the subsection and was intended solely to
clarify the fact that leading questions are permissible in the inter-
rogation of a witness, who is hostile in fact, the committee accepts
that House amendment.
The final sentence of this subsection was also amended by the House
to cover criminal as well as civil cases. The committee accepts this
amendment, but notes that it may be difficult in criminal cases to deter-
mine when a witness is "identified with an adverse party," and thus
the rule should be applied with caution.
Rule 615. Exclusion of Witnesses
Many district courts permit government counsel to have an investi-
gative agent at counsel table throughout the trial although the agent
is or may be a witness. The practice is permitted as an exception to the
rule of exclusion and compares with the situation defense counsel finds
himself in-he always has the client with him to consult during the
trial. The investigative agent's presence may be extremely important
to government counsel, especially when the case is complex or involves
some specialized subject matter. The agent, too, having lived with the
case for a long time, may be able to assist in meeting trial surprises
where the best-prepared counsel would otherwise have difficulty. Yet,
it would not seem the Government could often meet the burden under
rule 615 of showing that the agent's presence is essential. Furthermore,
it could be dangerous to use the agent as a witness as early in the case
as possible, SO that he might then help counsel as a nonwitness, since
the agent's testimony could be needed in rebuttal. Using another, non-
witness agent from the same nvestigative agency would not generally
meet government counsel's needs.
This problem is solved if it is clear that investigative agents are
within the group specified under the second exception made in the rule,
for "an officer or employee of a party which is not a natural person
designated as its representative by its attorney." It is our understand-
ing that this was the intention of the House committee. It is certainly
this committee's construction of the rule.
Rule 801 (d) (2) (E). Hearsay Definitions: Statements Which Are
Not Hearsay
The House approved the long-accepted rule that "a statement by a
coconspirator of a party during the course and in furtherance of the
conspiracy" is not hearsay as it was submitted by the Supreme Court.
While the rule refers to a coconspirator, it is this committee's under-
standing that the rule is meant to carry forward the universally
accepted doctrine that a joint venturer is considered as a coconspirator
for the purposes of this rule even though no conspiracy has been
charged. United States V. Rinaldi, 393 F.2d 97, 99 (2d Cir.), cert.
27
denied 393 U.S. 913 (1968) ; United States V. Spencer, 415 F.2d 1301,
1304 (7th Cir., 1969).
Rule 803 (4). Hearsay Exceptions; Statements for the Purposes of
Medical Diagnosis or Treatment
The House approved this rule as it was submitted by the Supreme
Court "with the understanding that it is not intended in any way to
adversely affect present privilege rules." We also approve this rule,
and we would point out with respect to the question of its relation to
privileges, it must be read in conjunction with rule 35 of the Federal
Rules of Civil Procedure which provides that whenever the physical
or mental condition of a party (plaintiff or defendant) is in con-
troversy, the court may require him to submit to an examination by a
physician. It is these examinations which will normally be admitted
under this exception.
Rule 803 (5). Hearsay Exceptions; Recorded recollection
Rule 803 (5) as submitted by the Court permitted the reading into
evidence of a memorandum or record concerning a matter about which
a witness once had knowledge but now has insufficient recollection to
enable him to testify accurately and fully, "shown to have been made
when the matter was fresh in his memory and to reflect that knowledge
correctly." The House amended the rule to add the words "or adopted
by the witness" after the phrase "shown to have been made," language
parallel to the Jencks Act.30
The committee accepts the House amendment with the understand-
ing and belief that it was not intended to narrow the scope of applica-
bility of the rule. In fact, we understand it to clarify the rule's
applicability to a memorandum adopted by the witness as well as one
made by him. While the rule as submitted by the Court was silent on
the question of who made the memorandum, we view the House amend-
ment as a helpful clarification, noting, however, that the Advisory
Committee's note to this rule suggests that the important thing is the
accuracy of the memorandum rather than who made it.
The committee does not view the House amendment as precluding
admissibility in situations in which multiple participants were
involved.
When the verifying witness has not prepared the report, but merely
examined it and found it accurate, he has adopted the report, and it is
therefore admissible. The rule should also be interpreted to cover
other situations involving multiple participants, e.g., employer dictat-
ing to secretary, secretary making memorandum at direction of em-
ployer, or information being passed along a chain of persons, as in
Curtis V. Bradley.³¹
The committee also accepts the understanding of the House that a
memorandum or report, although barred under this rule, would none-
theless be admissible if it came within another hearsay exception. We
consider this principle to be applicable to all the hearsay rules.
30 18 U.S.C. § 3500.
31) 65 Conn. 99, 31 Atl. 591 (1894). See also, Rathbun V. Brancatella, 93 N.J.L. 222, 107
Atl. 279 (1919) ; see also McCormick on Evidence, § 303 (2d ed. 1972).
28
Rule 804(b) (1). Hearsay Exceptions; Declarant unavailable; Former
testimony
Former testimony.-Rule 804(b) (1) as submitted by the Court al-
lowed prior testimony of an unavailable witness to be admissible if the
party against whom it is offered or a person "with motive and interest
similar" to his had an opportunity to examine the witness.
The House amended the rule to apply only to a party's predecessor
in interest. Although the committee recognizes considerable merit to
the rule submitted by the Supreme Court, a position which has been
advocated by many scholars and judges, we have concluded that the
difference between the two versions is not great and we accept the
House amendment.
Section 3
Section 3 affirmatively approves conforming amendments, proposed
by the Court to the Federal Rules of Civil Procedure and the Federal
Rules of Criminal Procedure, which will be necessitated by the en-
actment into law of the Federal Rules of Evidence. These amendments
were submitted by the Court to Congress along with the proposed
Rules of Evidence. Affirmative congressional approval of them in
order to render them effective is required by the terms of Public Law
93-12.
COST
Enactment of H.R. 5463 will entail no cost to the Government of
the United States.
COMMUNICATION FROM THE CHIEF JUSTICE OF THE UNITED STATES
SUPREME COURT OF THE UNITED STATES,
Washington, D.C., February 5, 1973.
To the Senate and House of Representatives of the United States of
America in Congress Assembled:
By direction of the Supreme Court. I have the honor to submit to
the Congress the Rules of Evidence of the United States Courts and
Magistrates, amendments and further amendments to the Federal
Rules of Civil Procedures and amendments to the Federal Rules of
Criminal Procedures which have been adopted by the Supreme Court,
pursuant to Title 28. United States Code, Sections 2072 and 2075
and Title 18, United States Code, Sections 3402, 3771 and 3772.
Mr. Justice Douglas dissents from the adoption of these rules and
amendments.
Accompanying these amendments is the report of the Judicial Con-
ference of the United States submitted to the Court for its considera-
tion, pursuant to Title 28, United States Code, Section 331.
Respectfully.
WARREN E. BURGER,
Chief Justice of the United States.
CHANGES IN EXISTING LAW
In compliance with subsection 4 of rule XXIX of the Standing
Rules of the Senate, changes in existing law made by the bill as re-
29
ported are shown as follows (existing law proposed to be omitted is
enclosed in black brackets, new matter is printed in italic, existing
law in which no change is proposed is shown in roman) :
*
*
*
*
§ 1732. Record made in regular course of business; photographic
copies.
[(a) In any court of the United States and in any court established
by Act of Congress, any writing or record, whether in the form of an
entry in a book or otherwise, made as a memorandum or record of
any act, transaction, occurrence, or event, shall be admissible as evi-
dence of such act, transaction, occurrence, or event, if made in regular
course of any business, and if it was the regular course of such busi-
ness to make such memorandum or record at the time of such act,
transaction, occurrence, or event or within a reasonable time thereafter.
[All other circumstances of the making of such writing or record,
including lack of personal knowledge by the entrant or maker, may
be shown to affect its weight, but such circumstances shall not affect
its admissibility.
[The term "business," as used in this section, includes business, pro-
fession, occupation, and calling of every kind.]
[(b)] If any business, institution, members of a profession or call-
ing, or any department or agency of government, in the regular course
of business or activity has kept or recorded any memorandum, writing,
entry, print, representation or combination thereof, of any act, trans-
action, occurrence. or event, and in the regular course of business has
caused any or all of the same to be recorded, copied, or reproduced by
any photographic, photostatic, microfilm, micro-card, miniature
photographic. or other process which accurately reproduces or forms
a durable medium for SO reproducing the original, the original may be
destroyed in the regular course of business unless its preservation is
required by law. Such reproduction, when satisfactorily identified, is
as admissible in evidence as the original itself in any judicial or admin-
istrative proceeding whether the original is in existence or not and an
enlargement or facsimile of such reproduction is likewise admissible
in evidence if the original reproduction is in existence and available
for inspection under direction of court. The introduction of a repro-
duced record, enlargement, or facsimile does not preclude admission of
the original. This subsection shall not be construed to exclude from
evidence any document or copy thereof which is otherwise admissible
under the rules of evidence.
§ 1733. Government records and papers; copies.
(a) Books or records of account or minutes of proceedings of any
department or agency of the United States shall be admissible to prove
the act, transaction or occurrence as a memorandum of which the same
were made or kept.
(b) Properly authenticated copies or transcripts of any books, rec-
ords, papers or documents of any department or agency of the United
States shall be admitted in evidence equally with the originals thereof.
(c) This section does not apply to cases, actions, and proceedings to
which the Federal Rules of Evidence apply.
*
30
Chapter 131.-RULES OF COURTS
Sec.
2071. Rulé-making power generally.
2072. Rules of civil procedure.
2075. Bankruptcy rules.
2076. Rules of evidence.
*
*
*
*
Section 2076. Rules of Evidence.
The Supreme Court of the United States shall have the power to
prescribe amendments to the Federal Rules of Evidence. Such amend-
ments shall not take effect until they have been reported to Congress
by the Chief Justice at or after the beginning of a regular session of
Congress but not later than the first day of May, and until the expira-
tion of one hundred and eighty days after they have been 80 reported;
if either House of Congress by resolution disapprove any amendment
so reported prior to its effective date it shall not take effect. Any rule
whether proposed or in force may be amended by Act of Congress.
Any provision of law in force at the expiration of such time and in
conflict with any such amendment not disapproved shall be of no
further force or effect after such amendment has taken effect.
93D CONGRESS
HOUSE OF REPRESENTATIVES
2d Session
-
REPORT
No. 93-1597
FEDERAL RULES OF EVIDENCE
DECEMBER 14, 1974.-Ordered to be printed
Mr. HUNGATE, from the committee of conference,
submitted the following
CONFERENCE REPORT
[To accompany H.R. 5463]
The committee of conference on the disagreeing votes of the two
Houses on the amendments of the Senate to the bill (H.R. 5463) to
establish rules of evidence for certain courts and proceedings, having
met, after full and free conference, have agreed to recommend and
do recommend to their respective Houses as follows:
That the Senate recede from its amendments numbered 2, 15, 16,
17, 18, 19, 20, 30, 31, 33, 35, 39, 42, 44.
That the House recede from its disagreement to the amendments
of the Senate numbered 1, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 21, 22, 23, 24,
25, 36, 37, 38, 41, 43, and agree to the same.
Amendment numbered 3:
That the House recede from its disagreement to the amendment of
the Senate numbered 3, and agree to the same with an amendment as
follows:
In lieu of the matter proposed to be inserted by the Senate amend-
ment, insert the following: (5) Other exceptions.
And the Senate agree to the same.
Amendment numbered 14:
That the House recede from its disagreement to the amendment of
the Senate numbered 14, and agree to the same with an amendment as
follows:
At the end of the matter proposed to be inserted by the Senate
amendment insert the following:
This rule shall not take effect until August 1, 1975, and shall be
superseded by any amendment to the Federal Rules of Criminal Pro-
cedure which is inconsistent with this rule, and which takes effect after
the date of the enactment of the Act establishing these Federal Rules
of Evidence.
And the Senate agree to the same.
*38-006 o
2
Amendment numbered 26
That the House recede from its disagreement to the amendment of
the Senate numbered 26, and agree to the same with an amendment as
follows:
In lieu of the matter proposed to be inserted by the Senate amend-
ment insert the following:
(1) was punishable by death or imprisonment in excess of one year
under the law under which he was convicted, and the court determines
that the probative value of admitting this evidence outweighs its pre-
judicial effect to the defendant, or (2) involved dishonesty or false
statement, regardless of the punishment
And the Senate agree to the same.
Amendment numbered 27
That the House recede from its disagreement to the amendment of
the Senate numbered 27, and agree to the same with an amendment as
follows:
At the end of the matter proposed to be inserted by the Senate
amendment insert the following:
H owever, evidence of a conviction more than 10 years old as calcu-
lated herein, is not admissible unless the proponent gives to the adverse
party sufficient advance written notice of intent to use such evidence
to provide the adverse party with a fair opportunity to contest the
use of such evidence.
And the Senate agree to the same.
Amendment numbered 28
That the House recede from its disagreement to the amendment of
the Senate numbered 28, and agree to the same with an amendment as
follows:
Strike out the period at the end of Senate amendment numbered
28 and insert in lieu thereof the following:
and insert in lieu thereof the following :
and was given under oath subject to the penalty of perjury at a trial,
hearing, or other proceeding, or in a deposition.
And the Senate agree to the same.
Amendment numbered 29
That the House recede from its disagreement to the amendment of
the Senate numbered 29, and agree to the same with an amendment, as
follows:
In lieu of the matter proposed to be stricken by the Senate amend-
ment, insert the following: or
And the Senate agree to the same.
Amendment numbered 32 :
That the House recede from its disagreement to the amendment of
the Senate numbered 32, and agree to the same with an amendment as
follows:
3
Strike out the period at the end of the Senate amendment numbered
32 and insert in lieu thereof the following:
and insert in lieu thereof the following :
The term "business" as used in this paragraph includes business,
institution, association, profession, occupation, and calling of every
kind, whether or not conducted for profit.
And the Senate agree to the same.
Amendment numbered 34:
That the House recede from its disagreement to the amendment of
the Senate numbered 34, and agree to the same with an amendment
as follows:
At the end of the matter proposed to be inserted by the Senate
amendment insert the following:
However, a statement may not be admitted under this exception
unless the proponent of it makes known to the adverse party sufficiently
in advance of the trial or hearing to provide the adverse party with
a fair opportunity to prepare to meet it, his intention to offer the
statement and the particulars of it, including the name and address of
the declarant.
And the Senate agree to the same.
Amendment numbered 40:
That the House recede from its disagreement to the amendment of
the Senate numbered 40, and agree to the same with an amendment
as follows:
In lieu of the matter proposed to be inserted by the Senate amend-
ment insert the following:
(5) Other exceptions.-A statement not specifically covered by any
of the foregoing exceptions but having equivalent circumstantial guar-
antees of trustworthiness, if the court determines that (A) the state-
ment is offered as evidence of a material fact; (B) the statement is
more probative on the point for which it is offered than any other
evidence which the proponent can procure through reasonable efforts;
and (C) the general purposes of these rules and the interests of justice
will best be served by admission of the statement into evidence. How-
ever, a statement may not be admitted under this exception unless the
proponent of it makes known to the adverse party sufficiently in ad-
vance of the trial or hearing to provide the adverse party with a fair
4
opportunity to prepare to meet it, his intention to offer the statement
and the particulars of it, including the name and address of the
declarant.
And the Senate agree to the same.
WILLIAM L. HUNGATE,
BoB KASTENMEIER,
DON EDWARDS,
HENRY P. SMITH III,
DAVID W. DENNIS,
Mangers on the part of the House.
JAMES O. EASTLAND,
JOHN L. MCCLELLAN,
P. A. HART,
SAM J. ERVIN, Jr.,
QUENTIN N. BURDICK,
ROMAN L. HRUSKA,
STROM THURMOND,
HUGH SCOTT,
Managers on the part of the Senate.
JOINT EXPLANATORY STATEMENT OF THE
COMMITTEE OF CONFERENCE
The managers on the part of the House and the Senate at the con-
ference on the disagreeing votes of the two houses on the amendments
of the Senate to the bill (H.R. 5463) to establish rules of evidence for
certain courts and proceedings, submit the following joint statement
to the House and the Senate in explanation of the effect of the action
agreed upon by the managers and recommended in the accompanying
conference report:
The House and Senate conferees met twice to discuss the differences
in the Senate and House versions of H.R. 5463. The first meeting took
place in the afternoon of Wednesday, December 11, 1974, and the
second took place in the afternoon of Thursday, December 12, 1974.
The Senate made 44 amendments to the House bill, seven of which
are of a technical or conforming nature. Of these seven, the Conference
adopts 5, the Senate recedes from 1, and the Conference adopts one
of the technical amendments with an amendment.
The more significant differences in the House and Senate versions
of the bill were resolved as follows:
RULE 103. RULINGS ON EVIDENCE
The House bill contains the word "judge". The Senate amendment
substitutes the word "court" in order to conform with usage elsewhere
in the House bill.
The Conference adopts the Senate amendment.
RULE 301. PRESUMPTIONS IN GENERAL IN CIVIL ACTIONS AND PROCEEDINGS
The House bill provides that a presumption in civil actions and pro-
ceedings shifts to the party against whom it is directed the burden
of going forward with evidence to meet or rebut it. Even though
evidence contradicting the presumption is offered, a presumption is
considered sufficient evidence of the presumed fact to be considered
by the jury. The Senate amendment provides that a presumption shifts
to the party against whom it is directed the burden of going forward
with evidence to meet or rebut the presumption, but it does not shift
to that party the burden of persuasion on the existence of the presumed
fact.
Under the Senate amendment, a presumption is sufficient to get a
party past an adverse party's motion to dismiss made at the end of his
case-in-chief. If the adverse party offers no evidence contradicting the
presumed fact, the court will instruct the jury that if it finds the basic
facts, it may presume the existence of the presumed fact. If the adverse
party does offer evidence contradicting the presumed fact, the court
(5)
6
cannot instruct the jury that it may presume the existence of the pre-
sumed fact from proof of the basic facts. The court may, however,
instruct the jury that it may infer the existence of the presumed fact
from proof of the basic facts.
The Conference adopts the Senate amendment.
RULE 405. METHODS OF PROVING CHARACTER
The Senate makes two language changes in the nature of conforming
amendments. The Conference adopts the Senate amendments.
RULE 408. COMPROMISE AND OFFERS TO COMPROMISE
The House bill provides that evidence of admissions of liability or
opinions given during compromise negotiations is not admissible, but
that evidence of facts disclosed during compromise negotiations is not
inadmissible by virtue of having been first disclosed in the compro-
mise negotiations. The Senate amendment provides that evidence of
conduct or statements made in compromise negotiations is not admis-
sible. The Senate amendment also provides that the rule does not
require the exclusion of any evidence otherwise discoverable merely
because it is presented in the course of compromise negotiations.
The House bill was drafted to meet the objection of executive agen-
cies that under the rule as proposed by the Supreme Court, a party
could present a fact during compromise negotiations and thereby
prevent an opposing party from offering evidence of that fact at trial
even though such evidence was obtained from independent sources.
The Senate amendment expressly precludes this result.
The Conference adopts the Senate amendment.
RULE 410. OFFER TO PLEAD GUILTY; NOLO CONTENDERE; WITHDRAWN PLEA
OF GUILTY
The House bill provides that evidence of a guilty or nolo contendere
plea, of an offer of either plea, or of statements made in connection
with such pleas or offers of such pleas, is inadmissible in any civil
or criminal action, case or proceeding against the person making such
plea or offer. The Senate amendment makes the rule inapplicable
to a voluntary and reliable statement made in court on the record
where the statement is offered in a subsequent prosecution of the
declarant for perjury or false statement.
The issues raised by Rule 410 are also raised by proposed Rule
11 (e) (6) of the Federal Rules of Criminal Procedure presently pend-
ing before Congress. This proposed rule, which deals with the ad-
missibility of pleas of guilty or nolo contendere, offers to make such
pleas, and statements made in connection with such pleas. was promul-
gated by the Supreme Court on April 22, 1974, and in the absence of
congressional action will become effective on August 1, 1975. The con-
ferees intend to make no change in the presently-existing case law
until that date, leaving the courts free to develop rules in this area
on a case-by-case basis.
The Conferees further determined that the issues presented by the
use of guilty and nolo contendere pleas, offers of such pleas, and state-
ments made in connection with such pleas or offers, can be explored
7
in greater detail during Congressional consideration of Rule 11 (e) (6)
of the Federal Rules of Criminal Procedure. The Conferees believe,
therefore, that it is best to defer its effective date until August 1, 1975.
The Conferees intend that Rule 410 would be superseded by any sub-
sequent Federal Rule of Criminal Procedure or Act of Congress with
which it is inconsistent, if the Federal Rule of Criminal Procedure or
Act of Congress takes effect or becomes law after the date of the enact-
ment of the act establishing the rules of evidence.
The conference adopts the Senate amendment with an amendment
that expresses the above intentions.
RULE 501. GENERAL RULE (OF PRIVILEGE)
Rule 501 deals with the privilege of a witness not to testify. Both
the House and Senate bills provide that federal privilege law applies
in criminal cases. In civil actions and proceedings, the House bill pro-
vides that state privilege law applies "to an element of a claim or
defense as to which State law supplies the rule of decision." The Senate
bill provides that "in civil actions and proceedings arising under
28 U.S.C. § 1332 or 28 U.S.C. § 1335, or between citizens of different
States and removed under 28 U.S.C. § 1441 (b) the privilege of a
witness, person, government, State or political subdivision thereof is
determined in accordance with State law, unless with respect to the
particular claim or defense, Federal law supplies the rule of decision."
The wording of the House and Senate bills differs in the treatment
of civil actions and proceedings. The rule in the House bill applies to
evidence that relates to "an element of a claim or defense." If an item
of proof tends to support or defeat a claim or defense, or an element of
a claim or defense, and if state law supplies the rule of decision for that
claim or defense, then state privilege law applies to that item of proof.
Under the provision in the House bill, therefore, state privilege law
will usually apply in diversity cases. There may be diversity cases,
however, where a claim or defense is based upon federal law. In such
instances, federal privilege law will apply to evidence relevant to the
federal claim or defense. See Sola Electric Co. V. Jefferson Electric Co.,
317 U.S. 173 (1942).
In nondiversity jurisdiction civil cases, federal privilege law will
generally apply. In those situations where a federal court adopts or
incorporates state law to fill interstices or gaps in federal statutory
phrases, the court generally will apply federal privilege law. As Jus-
tice Jackson has said:
A federal court sitting in a non-diversity case such as this
does not sit as a local tribunal. In some cases it may see fit for
special reasons to give the law of a particular state highly
persuasive or even controlling effect, but in the last analysis
its decision turns upon the law of the United States, not that
of any state.
D'Oench, Duhme & Co. V. Federal Deposit Insurance Corp., 315 U.S.
447, 471 (1942) (Jackson, J., concurring). When a federal court
chooses to absorb state law, it is applying the state law as a matter of
federal common law. Thus, state law does not supply the rule of de-
cision (even though the federal court may apply a rule derived from
8
state decisions), and state privilege law would not apply. See C. A.
Wright, Federal Courts 251-252 (2d ed. 1970) ; Holmberg V. Arm-
brecht, 327 U.S. 392 (1946) ; DeSylva V. Ballentine, 351 U.S. 570, 581
(1956) 9 Wright & Miller, Federal Rules and Procedure § 2408.
In civil actions and proceedings, where the rule of decision as to a
claim or defense or as to an element of a claim or defense is supplied
by state law, the House provision requires that state privilege law
apply.
The Conference adopts the House provision.
RULE 601. GENERAL RULE OF COMPETENCY
Rule 601 deals with competency of witnesses. Both the House and
Senate bills provide that federal competency law applies in criminal
cases. In civil actions and proceedings, the House bill provides that
state competency law applies "to an element of a claim or defense as
to which State law supplies the rule of decision." The Senate bill pro-
vides that "in civil actions and proceedings arising under 28 U.S.C.
§ 1332 or 28 U.S.C. § 1335, or between citizens of different States and
removed under 28 U.S.C. § 1441 (b) the competency of a witness,
person, government, State or political subdivision thereof is deter-
mined in accordance with State law, unless with respect to the partic-
ular claim or defense, Federal law supplies the rule of decision."
The wording of the House and Senate bills differs in the treatment
of civil actions and proceedings. The rule in the House bill applies to
evidence that relates to "an element of a claim or defense." If an item
of proof tends to support or defeat a claim or defense, or an element
of a claim or defense, and if state law supplies the rule of decision
for that claim or defense, then state competency law applies to that
item of proof.
For reasons similar to those underlying its action on Rule 501, the
Conference adopts the House provision.
RULE 606. COMPETENCY OF JUROR AS WITNESS
Rule 606 (b) deals with juror testimony in an inquiry into the
validity of a verdict or indictment. The House bill provides that a
juror cannot testify about his mental processes or about the effect of
anything upon his or another juror's mind as influencing him to
assent to or dissent from a verdict or indictment. Thus, the House bill
allows a juror to testify about objective matters occurring during the
jury's deliberation, such as the misconduct of another juror or the
reaching of a quotient verdict. The Senate bill does not permit juror
testimony about any matter or statement occurring during the course
of the jury's deliberations. The Senate bill does provide, however,
that a juror may testify on the question whether extraneous prejudi-
cial information was improperly brought to the jury's attention and
on the question whether any outside influence was improperly brought
to bear on any juror.
The Conference adopts the Senate amendment. The Conferees be-
lieve that jurors should be encouraged to be conscientious in promptly
reporting to the court misconduct that occurs during jury
deliberations.
9
RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS
The Senate amendment adds the words "opinion or" to conform
the first sentence of the rule with the remainder of the rule.
The Conference adopts the Senate amendment.
RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME
Rule 609 defines when a party may use evidence of a prior conviction
in order to impeach a witness. The Senate amendments make changes
in two subsections of Rule 609.
A. Rule 609(a)-General Rule
The House bill provides that the credibility of a witness can be
attacked by proof of prior conviction of a crime only if the crime
involves dishonesty or false statement. The Senate amendment pro-
vides that a witness' credibility may be attacked if the crime (1) was
punishable by death or imprisonment in excess of one year under the
law under which he was convicted or (2) involves dishonesty or false
statement, regardless of the punishment.
The Conference adopts the Senate amendment with an amendment.
The Conference amendment provides that the credibility of a witness,
whether a defendant or someone else, may be attacked by proof of a
prior conviction but only if the crime: (1) was punishable by death
or imprisonment in excess of one year under the law under which he
was convicted and the court determines that the probative value of
the conviction outweighs its prejudicial effect to the defendant; or
(2) involved dishonesty or false statement regardless of the punish-
ment.
By the phrase "dishonesty and false statement" the Conference
means crimes such as perjury or subornation of perjury, false state-
ment, criminal fraud, embezzlement, or false pretense, or any other
offense in the nature of crimen falsi, the commission of which involves
some element of deceit, untruthfulness, or falsification bearing on the
accused's propensity to testify truthfully.
The admission of prior convictions involving dishonesty and false
statement is not within the discretion of the Court. Such convictions
are peculiarly probative of credibility and, under this rule, are always
to be admitted. Thus, judicial discretion granted with respect to the
admissibility of other prior convictions is not applicable to those in-
volving dishonesty or false statement.
With regard to the discretionary standard established by paragraph
(1) of rule 609 (a), the Conference determined that the prejudicial
effect to be weighed against the probative value of the conviction is
specifically the prejudicial effect to the defendant. The danger of
prejudice to a witness other than the defendant (such as injury to
the witness' reputation in his community) was considered and re-
jected by the Conference as an element to be weighed in determining
admissibility. It was the judgment of the Conference that the danger
of prejudice to a nondefendant witness is outweighed by the need for
the trier of fact to have as much relevant evidence on the issue of
credibility as possible. Such evidence should only be excluded where
it presents a danger of improperly influencing the outcome of the trial
10
by persuading the trier of fact to convict the defendant on the basis
of his prior criminal record.
B. Rule 609(b)-Time Limit
The House bill provides in subsection (b) that evidence of conviction
of a crime may not be used for impeachment purposes under subsec-
tion (a) if more than ten years have elapsed since the date of the
conviction or the date the witness was released from confinement
imposed for the conviction, whichever is later. The Senate amendment
permits the use of convictions older than ten years, if the court deter-
mines, in the interests of justice, that the probative value of the
conviction, supported by specific facts and circumstances, substantially
outweighs its prejudicial effect.
The Conference adopts the Senate amendment with an amendment
requiring notice by a party that he intends to request that the court
allow him to use a conviction older than ten years. The Conferees
anticipate that a written notice, in order to give the adversary a fair
opportunity to contest the use of the evidence, will ordinarily include
such information as the date of the conviction, the jurisdiction, and
the offense or statute involved. In order to eliminate the possibility
that the flexibility of this provision may impair the ability of a party-
opponent to prepare for trial, the Conferees intend that the notice
provision operate to avoid surprise.
RULE 801. DEFINITIONS
Rule 801 supplies some basic definitions for the rules of evidence
that deal with hearsay. Rule 801 (d) (1) defines certain statements as
not hearsay. The Senate amendments make two changes in it.
A. Rule 801 (d) (1) (A)
The House bill provides that a statement is not hearsay if the
declarant testifies and is subject to cross-examination concerning the
statement and if the statement is inconsistent with his testimony and
was given under oath subject to cross-examination and subject to the
penalty of perjury at a trial or hearing or in a deposition. The Senate
amendment drops the requirement that the prior statement be given
under oath subject to cross-examination and subject to the penalty
of perjury at a trial or hearing or in a deposition.
The Conference adopts the Senate amendment with an amendment,
SO that the rule now requires that the prior inconsistent statement be
given under oath subject to the penalty of perjury at a trial, hearing,
or other proceeding, or in a deposition. The rule as adopted covers
statements before a grand jury. Prior inconsistent statements may,
of course, be used for impeaching the credibility of a witness. When
the prior inconsistent statement is one made by a defendant in
a criminal case, it is covered by Rule 801 (d) (2).
B. Rule 801 (d) (1) (C)
The House bill provides that a statement is not hearsay if the declar-
ant testifies and is subject to cross-examination concerning the state-
ment and the statement is one of identification of a person made after
perceiving him. The Senate amendment eliminated this provision.
The Conference adopts the Senate amendment.
11
RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT
IMMATERIAL
Rule 803 defines when hearsay statements are admissible in evi-
dence even though the declarant is available as a witness. The Senate
amendments make three changes in this rule.
A. Rule 803(6)-Records of Regularly Conducted Activity
The House bill provides in subsection (6) that records of a regularly
conducted "business" activity qualify for admission into evidence as
an exception to the hearsay rule. "Business" is defined as including
"business, profession, occupation and calling of every kind." The
Senate amendment drops the requirement that the records be those of
a "business" activity and eliminates the definition of "business." The
Senate amendment provides that records are admissible if they are
records of a regularly conducted "activity."
The Conference adopts the House provision that the records must
be those of a regularly conducted "business" activity. The Conferees
changed the definition of "business" contained in the House provision
in order to make it clear that the records of institutions and associ-
ations like schools, churches and hospitals are admissible under this
provision. The records of public schools and hospitals are also covered
by Rule 803 (8), which deals with public records and reports.
B. Rule 803(8)-Public Records and Reports
The Senate amendment adds language, not contained in the House
bill, that refers to another rule that was added by the Senate in
another amendment (Rule 804 (b) (5)-Criminal law enforcement
records and reports).
In view of its action on Rule 804(b)(5) (Criminal law enforcement
records and reports), the Conference does not adopt the Senate amend-
ment and restores the bill to the House version.
C. Rule 803(24)-Other exceptions
The Senate amendment adds a new subsection, (24), which makes
admissible a hearsay statement not specifically covered by any of the
previous twenty-three subsections, if the statement has equivalent
circumstantial guarantees of trustworthiness and if the court deter-
mines that (A) the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for which it is
offered than any other evidence the proponent can procure through
reasonable efforts; and (C) the general purposes of these rules and
the interests of justice will best be served by admission of the state-
ment into evidence.
The House bill eliminated a similar, but broader, provision because
of the conviction that such a provision injected too much uncertainty
into the law of evidence regarding hearsay and impaired the ability
of a litigant to prepare adequately for trial.
The Conference adopts the Senate amendment with an amendment
that provides that a party intending to request the court to use a
statement under this provision must notify any adverse party of
this intention as well as of the particulars of the statement, including
the name and address of the declarant. This notice must be given
12
sufficiently in advance of the trial or hearing to provide any adverse
party with a fair opportunity to prepare to contest the use of the
statement.
RULE 804. HEARSAY EXCEPTIONS: DECLARANT UNAVAILABLE
Rule 804 defines what hearsay statements are admissible in evidence
if the declarant is unavailable as a witness. The Senate amendments
make four changes in the rule.
A. Rule 804 (a) (5)-Definition of Unavailabilty
Subsection (a) defines the term "unavailability as a witness". The
House bill provides in subsection (a) (5) that the party who desires
to use the statement must be unable to procure the declarant's attend-
ance by process or other reasonable means. In the case of dying de-
clarations, statements against interest and statements of personal or
family history, the House bill requires that the proponent must also
be unable to procure the declarant's testimony (such as by deposition
or interrogatories) by process or other reasonable means. The Senate
amendment eliminates this latter provision.
The Conference adopts the provision contained in the House bill.
B. Rule 804 (b) (3)-Statement against Interest
The Senate amendment to subsection (b) (3) provides that a state-
ment is against interest and not excluded by the hearsay rule when the
declarant is unavailable as a witness, if the statement tends to subject
a person to civil or criminal liability or renders invalid a claim by him
against another. The House bill did not refer specifically to civil lia-
bility and to rendering invalid a claim against another. The Senate
amendment also deletes from the House bill the provision that sub-
section (b) (3) does not apply to a statement or confession, made by
a codefendant or another, which implicates the accused and the person
who made the statement, when that statement or confession is offered
against the accused in a criminal case.
The Conference adopts the Senate amendment. The Conferees intend
to include within the purview of this rule, statements subjecting a per-
son to civil liability and statements rendering claims invalid. The
Conferees agree to delete the provision regarding statements by a co-
defendant, thereby reflecting the general approach in the Rules of
Evidence to avoid attempting to codify constitutional evidentiary
principles.
C. Rule (b) (5)--Criminal Law Enforcement Records and Reports
The Senate amendment adds a new hearsay exception, not contained
in the House bill, which provides that certain law enforcement records
are admissible if the officer-declarant is unavailable to testify or
be present because of (1) death or physical or mental illness or in-
firmity or (2) absence from the proceeding and the proponent of the
statement has been unable to procure his attendance by process or other
reasonable means.
The Conference does not adopt the Senate amendment, preferring
instead to leave the bill in the House version, which contained no such
provision.
13
D. Rule 804 (b) (6)-Other Exceptions
The Senate amendment adds a new subsection, (b) (6), which makes
admissible a hearsay statement not specifically covered by any of the
five previous subsections, if the statement has equivalent circumstan-
tial guarantees of trustworthiness and if the court determines that
(A) the statement is offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered than
any other evidence the proponent can procure through reasonable
efforts; and (C) the general purposes of these rules and the interests
of justice will best be served by admission of the statement into
evidence.
The House bill eliminated a similar, but broader, provision because
of the conviction that such a provision injected too much uncertainty
into the law of evidence regarding hearsay and impaired the ability
of a litigant to prepare adequately for trial.
The Conference adopts the Senate amendment with an amendment
that renumbers this subsection and provides that a party intending to
request the court to use a statement under this provision must notify
any adverse party of this intention as well as of the particulars of the
statement, including the name and address of the declarant. This no-
tice must be given sufficiently in advance of the trial or hearing to
provide any adverse party with a fair opportunity to prepare to con-
test the use of the statement.
RULE 806. ATTACKING AND SUPPORTING CREDIBILITY OF DECLARANT
The Senate amendment permits an attack upon the credibility of the
declarant of a statement if the statement is one by a person authorized
by a party-opponent to make a statement concerning the subject, one by
an agent of a party-opponent, or one by a coconspirator of the party-
opponent, as these statements are defined in Rules 801 (d) (2) (C), (D)
and (E). The House bill has no such provision.
The Conference adopts the Senate amendment. The Senate amend-
ment conforms the rule to present practice.
SECTION 2. ENABLING ACT
Section 2 of the bill adds a new section to title 28 of the United
States Code that establishes a procedure for amending the rules of
evidence in the future. The House bill provides that the Supreme
Court may promulgate amendments, and these amendments become
effective 180 days after being reported to Congress, However, any
amendment that creates, abolishes or modifies a rule of privilege does
not become effective until approved by Act of Congress. The Senate
amendments changed the length of time that must elapse before an
amendment becomes effective to 365 days. The Senate amendments
also added language, not contained in the House provision, that (1)
either House can defer the effective date of a proposed amendment to
a later date or until approved by Act of Congress and (2) an Act of
Congress can amend any rule of evidence, whether proposed or in
effect. Finally, the Senate amendments struck the provision requiring
14
that amendments creating, abolishing or modifying a privilege be
approved by Act of Congress.
The Conference adopts the House provision on the time period (180
days) and the House provision requiring that an amendment creating,
abolishing or modifying a rule of privilege cannot become effective
until approved by Act of Congress. The Conference adopts the Senate
amendment providing that either House can defer the effective date
of an amendment to the rules of evidence and that any rule, either
proposed or in effect, can be amended by Act of Congress. In making
these changes in the enabling Act, Conference recognizes the continu-
ing role of the Supreme Court in promulgating rules of evidence.
WILLIAM L. HUNGATE,
BoB KASTENMEIER,
DON EDWARDS,
HENRY P. SMITH III,
DAVID W. DENNIS,
Managers on the part of the House.
JAMES O. EASTLAND,
JOHN L. McCLELLAN,
P. A. HART,
SAM J. ERVIN, Jr.,
QUENTIN N. BURDICK,
ROMAN L. HRUSKA,
STROM THURMOND,
HUGH SCOTT,
Managers on the part of the Senate.
o
FORD
CERTATO
H. R. 5463
Ninety-third Congress of the United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Monday, the twenty-first day of January,
one thousand nine hundred and seventy-four
An Act
To establish rules of evidence for certain courts and proceedings.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the following
rules shall take effect on the one hundred and eightieth day beginning
after the date of the enactment of this Act. These rules apply to
actions, cases, and proceedings brought after the rules take effect.
These rules also apply to further procedure in actions, cases, and pro-
ceedings then pending, except to the extent that application of the
rules would not be feasible, or would work injustice, in which event
former evidentiary principles apply.
TABLE OF CONTENTS
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.
Rule 104. Preliminary questions:
(a) Questions of admissibility generally.
(b) Relevancy conditioned on fact.
(c) Hearing of jury.
(d) Testimony by accused.
(e) Weight and credibility.
Rule 105. Limited admissibility.
Rule 106. Remainder of or related writings on recorded statements.
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 III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS
Rule 301. Presumptions in general civil actions and proceedings.
Rule 302. Applicability of State law in civil actions and proceedings.
ARTICLE IV. RELEVANCY AND ITS LIMITS
Rule 401. Definition of "relevant evidence".
Rule 402. Relevant evidence generally admissible; irrelevant evidence inadmis-
sible.
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; other
crimes:
(a) Character evidence generally
(1) Character of accused.
(2) Character of victim.
(3) Character of witness.
(b) Other crimes, wrongs, or acts.
Rule 405. Methods of proving character:
(a) Reputation.
(b) Specific instances of conduct.
Rule 406. Habit; routine practice.
H. R. 5463-2
Rule 407. Subsequent remedial measures.
Rule 408. Compromise and offers to compromise.
Rule 409. Payment of medical and similar expenses.
Rule 410. Offer to plead guilty ; nolo contendere; withdrawn plea of guilty.
Rule 411. Liability insurance.
ARTICLE V. PRIVILEGES
Rule 501. General Rule.
ARTICLE VI. WITNESSES
Rule 601. General rule of competency.
Rule 602. Lack of personal knowledge.
Rule 603. Oath or affirmation.
Rule 604. Interpreters.
Rule 605. Competency of judge as witness.
Rule 606. Competency of juror as witness
(a) At the trial.
(b) Inquiry into validity of verdict or indictment.
Rule 607. Who may impeach.
Rule 608. Evidence of character and conduct of witness
(a) Reputation evidence of character.
(b) Specific instances of conduct.
Rule 609. Impeachment by evidence of conviction of crime:
(a) General rule.
(b) Time limit.
(c) Effect of pardon, annulment, or certificate of rehabilitation.
(d) Juvenile adjudications.
(e) Pendency of appeal.
Rule 610. Religious beliefs or opinions.
Rule 611. Mode and order of interrogation and presentation:
(a) Control by court.
(b) Scope of cross-examination.
(c) Leading questions.
Rule 612. Writing used to refresh memory.
Rule 613. Prior statements of witnesses:
(a) Examining witness concerning prior statement.
(b) Extrinsic evidence of prior inconsistent statement of witness.
Rule 614. Calling and interrogation of witnesses by court:
(a) Calling by court.
(b) Interrogation by court.
(c) Objections.
Rule 615. Exclusion of witnesses.
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY
Rule 701. Opinion testimony by lay witnesses.
Rule 702. Testimony by experts.
Rule 703. Bases of opinion testimony by experts.
Rule 704. Opinion on ultimate issue.
Rule 705. Disclosure of facts or data underlying expert opinion.
Rule 706. Court appointed experts:
(a) Appointment.
(b) Compensation.
(c) Disclosure of appointment.
(d) Parties' experts of own selection.
ARTICLE VIII. HEARSAY
Rule 801. Definitions:
(a) Statement.
(b) Declarant.
(e) Hearsay.
(d) Statements which are not hearsay
(1) Prior statement by witness.
(2) Admission by party-opponent.
Rule 802. Hearsay rule.
Rule 803. Hearsay exceptions availability of declarant immaterial:
(1) Present sense impression.
(2) Excited utterance.
(3) Then existing mental, emotional, or physical condition.
(4) Statements for purposes of medical diagnosis or treatment.
(5) Recorded recollection.
(6) Records of regularly conducted activity.
H. R. 5463-3
(7) Absence of entry in records kept in accordance with the provisions
of paragraph (6).
(8) Public records and reports.
(9) Records of vital statistics.
(10) Absence of public record or entry.
(11) Records of religious organizations.
(12) Marriage, baptismal, and similar certificates.
(13) Family records.
(14) Records of documents affecting an interest in property.
(15) Statements in documents affecting an interest in property.
(16) Statements in ancient documents.
(17) Market reports, commercial publications.
(18) Learned treatises.
(19) Reputation concerning personal or family history.
(20) Reputation concerning boundaries or general history.
(21) Reputation as to character.
(22) Judgment of previous conviction.
(23) Judgment as to personal, family, or general history, or boundaries.
(24) Other exceptions.
Rule 804. Hearsay exceptions; ; declarant unavailable
(a) Definition of unavailability.
(b) Hearsay exceptions:
(1) Former testimony.
(2) Statement under belief of impending death.
(3) Statement against interest.
(4) Statement of personal or family history.
(5) Other exceptions.
Rule 805. Hearsay within hearsay.
Rule 806. Attacking and supporting credibility of declarant.
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
Rule 901. Requirement of authentication or identification:
(a) General provision.
(b) Illustrations:
(1) Testimony of witness with knowledge.
(2) Nonexpert opinion on handwriting.
(3) Comparison by trier or expert witness.
(4) Distinctive characteristics and the like.
(5) Voice identification.
(6) Telephone conversations.
(7) Public records or reports.
(8) Ancient documents or data compilations.
(9) Process or system.
(10) Methods provided by statute or rule.
Rule 902. Self-authentication:
(1) Domestic public documents under seal.
(2) Domestic public documents not under seal.
(3) Foreign public documents.
(4) Certified copies of public records.
(5) Official publications.
(6) Newspapers and periodicals.
(7) Trade inscriptions and the like.
(8) Acknowledged documents.
(9) Commercial paper and related documents.
(10) Presumptions under Acts of Congress.
Rule 903. Subscribing witness' testimony unnecessary.
ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
Rule 1001. Definitions:
(1) Writings and recordings.
(2) Photographs.
(3) Original.
(4) Duplicate.
Rule 1002. Requirement of original.
Rule 1003. Admissibility of duplicates.
Rule 1004. Admissibility of other evidence of contents:
(1) Originals lost or destroyed.
(2) Original not obtainable.
(3) Original in possession of opponent.
(4) Collateral matters.
H. R. 5463-4
Rule 1005. Public records.
Rule 1006. Summaries.
Rule 1007. Testimony or written admission of party.
Rule 1008. Functions of court and jury.
ARTICLE XI. MISCELLANEOUS RULES
Rule 1101. Applicability of rules:
(a) Courts and magistrates.
(b) Proceedings generally.
(c) Rules of privilege.
(d) Rules inapplicable:
(1) Preliminary questions of fact.
(2) Grand jury.
(3) Miscellaneous proceedings.
(e) Rules applicable in part.
Rule 1102. Amendments.
Rule 1103. Title.
RULES OF EVIDENCE FOR UNITED STATES
COURTS AND MAGISTRATES
ARTICLE I. GENERAL PROVISIONS
Rule 101. Scope
These rules govern proceedings in the courts of the United States
and before United States magistrates, to the extent and with the excep-
tions stated in rule 1101.
Rule 102. Purpose and Construction
These rules shall be construed to secure fairness in administration,
elimination of unjustifiable expense and delay, and promotion of
growth and development of the law of evidence to the end that the
truth may be ascertained and proceedings justly determined.
Rule 103. Rulings on Evidence
(a) Effect of erroneous ruling.-Error may not be predicated upon
a ruling which admits or excludes evidence unless a substantial right
of the party is affected, and
(1) Objection.-In case the ruling is one admitting evidence,
a timely objection or motion to strike appears of record, stating
the specific ground of objection, if the specific ground was not
apparent from the context; or
(2) Offer of proof.-In case the ruling is one excluding evidence,
the substance of the evidence was made known to the court by
offer or was apparent from the context within which questions
were asked.
(b) Record of offer and ruling.-The court may add any other or
further statement which shows the character of the evidence, the form
in which it was offered, the objection made, and the ruling thereon.
It may direct the making of an offer in question and answer form.
(c) Hearing of jury.-In jury cases, proceedings shall be con-
ducted, to the extent practicable, SO as to prevent inadmissible evi-
dence from being suggested to the jury by any means, such as making
statements or offers of proof or asking questions in the hearing of
the jury.
(d) Plain error.-Nothing in this rule precludes taking notice of
plain errors affecting substantial rights although they were not
brought to the attention of the court.
H. R. 5463-5
Rule 104. Preliminary Questions
(a) Questions of admissibility generally.-Preliminary questions
concerning the qualification of a person to be a witness, the existence
of a privilege, or the admissibility of evidence shall be determined by
the court, subject to the provisions of subdivision (b). In making its
determination it is not bound by the rules of evidence except those
with respect to privileges.
(b) Relevancy conditioned on fact.-When the relevancy of evi-
dence depends upon the fulfillment of a condition of fact, the court
shall admit it upon, or subject to, the introduction of evidence suffi-
cient to support a finding of the fulfillment of the condition.
(c) Hearing of jury-Hearings on the admissibility of confessions
shall in all cases be conducted out of the hearing of the jury. Hearings
on other preliminary matters shall be SO conducted when the interests
of justice require or, when an accused is a witness, if he SO requests.
(d) Testimony by accused.-The accused does not, by testifying
upon a preliminary matter, subject himself to cross-examination as to
other issues in the case.
(e) Weight and credibility.-This rule does not limit the right of a
party to introduce before the jury evidence relevant to weight or
credibility.
Rule 105. Limited Admissibility
When evidence which is admissible as to one party or for one pur-
pose but not admissible as to another party or for another purpose is
admitted, the court, upon request, shall restrict the evidence to its
proper scope and instruct the jury accordingly.
Rule 106. Remainder of or Related Writings or
Recorded Statements
When a writing or recorded statement or part thereof is introduced
by a party, an adverse party may require him at that time to intro-
duce any other part or any other writing or recorded statement
which ought in fairness to be considered contemporaneously with it.
ARTICLE II. JUDICIAL NOTICE
Rule 201. Judicial Notice of Adjudicative Facts
(a) Scope of rule.-This rule governs only judicial notice of adju-
dicative facts.
(b) Kinds of facts.-A judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable
of accurate and ready determination by resort to sources whose accu-
racy cannot reasonably be questioned.
(c) When discretionary.-A court may take judicial notice, whether
requested or not.
(d) When mandatory.-A court shall take judicial notice if
requested by a party and supplied with the necessary information.
(e) Opportunity to be heard.-A party is entitled upon timely
request to an opportunity to be heard as to the propriety of taking
judicial notice and the tenor of the matter noticed. In the absence of
prior notification, the request may be made after judicial notice has
been taken.
(f) Time of taking notice.-Judicial notice may be taken at any
stage of the proceeding.
H. R. 5463-6
(g) Instructing jury.-In a civil action or proceeding, the court
shall instruct the jury to accept as conclusive any fact judicially
noticed. In a criminal case, the court shall instruct the jury that it
may, but is not required to, accept as conclusive any fact judicially
noticed.
ARTICLE III. PRESUMPTIONS IN CIVIL ACTIONS AND PROCEEDINGS
Rule 301. Presumptions in General in Civil Actions and Proceedings
In all civil actions and proceedings not otherwise provided for by
Act of Congress or by these rules, a presumption imposes on the party
against whom it is directed the burden of going forward with evidence
to rebut or meet the presumption, but does not shift to such party
the burden of proof in the sense of the risk of nonpersuasion, which
remains throughout the trial upon the party on whom it was
originally cast.
Rule 302. Applicability of State Law in Civil Actions and Proceedings
In civil actions and proceedings, the effect of a presumption respect-
ing a fact which is an element of a claim or defense as to which State
law supplies the rule of decision is determined in accordance with
State law.
ARTICLE IV. RELEVANCY AND ITS LIMITS
Rule 401. Definition of "Relevant Evidence"
"Relevant evidence" means evidence having any tendency to make
the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without
the evidence.
Rule 402. Relevant Evidence Generally Admissible;
Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided by
the Constitution of the United States, by Act of Congress, by these
rules, or by other rules prescribed by the Supreme Court pursuant to
statutory authority. Evidence which is not relevant is not admissible.
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice,
Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice, con-
fusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative
evidence.
Rule 404. Character Evidence Not Admissible To Prove Conduct;
Exceptions; Other Crimes
(a) Character evidence generally.-Evidence of a person's character
or a trait of his character is not admissible for the purpose of proving
that he acted in conformity therewith on a particular occasion, except:
(1) Character of accused.-Evidence of a pertinent trait of his
character offered by an accused, or by the prosecution to rebut the
same;
H. R. 5463-7
(2) Character of victim.-Evidence of a pertinent trait of char-
acter of the victim of the crime offered by an accused, or by the
prosecution to rebut the same, or evidence of a character trait of
peacefulness of the victim offered by the prosecution in a homicide
case to rebut evidence that the victim was the first aggressor;
(3) Character of witness.-Evidence of the character of a
witness, as provided in rules 607, 608, and 609.
(b) Other crimes, wrongs, or acts.-Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in
order to show that he acted in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake
or accident.
Rule 405. Methods of Proving Character
(a) Reputation or opinion.-In all cases in which evidence of
character or a trait of character of a person is admissible, proof may
be made by testimony as to reputation or by testimony in the form
of an opinion. On cross-examination, inquiry is allowable into relevant
specific instances of conduct.
(b) Specific instances of conduct.-In cases in which character
or a trait of character of a person is an essential element of a charge,
claim, or defense, proof may also be made of specific instances of his
conduct.
Rule 406. Habit; Routine Practice
Evidence of the habit of a person or of the routine practice of an
organization, whether corroborated or not and regardless of the
presence of eyewitnesses, is relevant to prove that the conduct of the
person or organization on a particular occasion was in conformity
with the habit or routine practice.
Rule 407. Subsequent Remedial Measures
When, after an event, measures are taken which, if taken previously,
would have made the event less likely to occur, evidence of the sub-
sequent measures is not admissible to prove negligence or culpable
conduct in connection with the event. This rule does not require the
exclusion of evidence of subsequent measures when offered for another
purpose, such as proving ownership, control, or feasibility of pre-
cautionary measures, if controverted, or impeachment.
Rule 408. Compromise and Offers to Compromise
Evidence of (1) furnishing or offering or promising to furnish, or
(2) accepting or offering or promising to accept, a valuable considera-
tion in compromising or attempting to compromise a claim which
was disputed as to either validity or amount, is not admissible to prove
liability for or invalidity of the claim or its amount. Evidence of
conduct or statements made in compromise negotiations is likewise
not admissible. This rule does not require the exclusion of any evi-
dence otherwise discoverable merely because it is presented in the
course of compromise negotiations. This rule also does not require
exclusion when the evidence is offered for another purpose, such as
proving bias or prejudice of a witness, negativing a contention of
undue delay, or proving an effort to obstruct a criminal investigation
or prosecution.
H. R. 5463-8
Rule 409. Payment of Medical and Similar Expenses
Evidence of furnishing or offering or promising to pay medical,
hospital, or similar expenses occasioned by an injury is not admissible
to prove liability for the injury.
Rule 410. Offer To Plead Gulity; Nolo Contendere;
Withdrawn Plea of Guilty
Except as otherwise provided by Act of Congress, evidence of a plea
of guilty, later withdrawn, or a plea of nolo contendere, or of an offer
to plead guilty or nolo contendere to the crime charged or any other
crime, or of statements made in connection with any of the foregoing
pleas or offers, is not admissible in any civil or criminal action, case, or
proceeding against the person who made the plea or offer. This rule
shall not apply to the introduction of voluntary and reliable state-
ments made in court on the record in connection with any of the
foregoing pleas or offers where offered for impeachment purposes or
in a subsequent prosecution of the declarant for perjury or false
statement.
This rule shall not take effect until August 1, 1975, and shall be
superseded by any amendment to the Federal Rules of Criminal Pro-
cedure which is inconsistent with this rule, and which takes effect after
the date of the enactment of the Act establishing these Federal Rules
of Evidence.
Rule 411. Liability Insurance
Evidence that a person was or was not insured against liability is
not admissible upon the issue whether he acted negligently or other-
wise wrongfully. This rule does not require the exclusion of evidence
of insurance against liability when offered for another purpose, such
as proof of agency, ownership, or control, or bias or prejudice of a
witness.
ARTICLE V. PRIVILEGES
Rule 501. General Rule
Except as otherwise required by the Constitution of the United
States or provided by Act of Congress or in rules prescribed by the
Supreme Court pursuant to statutory authority, the privilege of a
witness, person, government, State, or political subdivision thereof
shall be governed by the principles of the common law as they may be
interpreted by the courts of the United States in the light of reason
and experience. However, in civil actions and proceedings, with
respect to an element of a claim or defense as to which State law
supplies the rule of decision, the privilege of a witness, person,
government, State, or political subdivision thereof shall be determined
in accordance with State law.
ARTICLE VI. WITNESSES
Rule 601. General Rule of Competency
Every person is competent to be a witness except as otherwise pro-
vided in these rules. However, in civil actions and proceedings, with
respect to an element of a claim or defense as to which State law
supplies the rule of decision, the competency of a witness shall be
determined in accordance with State law.
H. R. 5463-9
Rule 602. Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced
sufficient to support a finding that he has personal knowledge of the
matter. Evidence to prove personal knowledge may, but need not,
consist of the testimony of the witness himself. This rule is subject to
the provisions of rule 703, relating to opinion testimony by expert
witnesses.
Rule 603. Oath or Affirmation
Before testifying, every witness shall be required to declare that he
will testify truthfully, by oath or affirmation administered in a form
calculated to awaken his conscience and impress his mind with his
duty to do SO.
Rule 604. Interpreters
An interpreter is subject to the provisions of these rules relating to
qualification as an expert and the administration of an oath or affirma-
tion that he will make a true translation.
Rule 605. Competency of Judge as Witness
The judge presiding at the trial may not testify in that trial as a
witness. No objection need be made in order to preserve the point.
Rule 606. Competency of Juror as Witness
(a) At the trial.-A member of the jury may not testify as a wit-
ness before that jury in the trial of the case in which he is sitting as
a juror. If he is called SO to testify, the opposing party shall be
afforded an opportunity to object out of the presence of the jury.
(b) Inquiry into validity of verdict or indictment.-Upon an
inquiry into the validity of a verdict or indictment, a juror may not
testify as to any matter or statement occurring during the course of
the jury's deliberations or to the effect of anything upon his or any
other juror's mind or emotions as influencing him to assent to or
dissent from the verdict or indictment or concerning his mental proc-
esses in connection therewith, except that a juror may testify on the
question whether extraneous prejudicial information was improperly
brought to the jury's attention or whether any outside influence was
improperly brought to bear upon any juror. Nor may his affidavit or
evidence of any statement by him concerning a matter about what
he would be precluded from testifying be received for these purposes.
Rule 607. Who May Impeach
The credibility of a witness may be attacked by any party, including
the party calling him.
Rule 608. Evidence of Character and Conduct of Witness
(a) Opinion and reputation evidence of character.-The credibility
of a witness may be attacked or supported by evidence in the form of
opinion or reputation, but subject to these limitations: (1) the evi-
dence may refer only to character for truthfulness or untruthfulness,
and (2) evidence of truthful character is admissible only after the
H. R. 5463-10
character of the witness for truthfulness has been attacked by opinion
or reputation evidence or otherwise.
(b) Specific instances of conduct.-Specific instances of the conduct
of a witness, for the purpose of attacking or supporting his credibility,
other than conviction of crime as provided in rule 609, may not be
proved by extrinsic evidence. They may, however, in the discretion of
the court, if probative of truthfulness or untruthfulness, be inquired
into on cross-examination of the witness (1) concerning his character
for truthfulness or untruthfulness, or (2) concerning the character for
truthfulness or untruthfulness of another witness as to which character
the witness being cross-examined has testified.
The giving of testimony, whether by an accused or by any other
witness, does not operate as a waiver of his privilege against self-
incrimination when examined with respect to matters which relate
only to credibility.
Rule 609. Impeachment by Evidence of Conviction of Crime
(a) General rule.-For the purpose of attacking the credibility of a
witness, evidence that he has been convicted of a crime shall be
admitted if elicited from him or established by public record during
cross-examination but only if the crime (1) was punishable by death
or imprisonment in excess of one year under the law under which he
was convicted, and the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to the defend-
ant, or (2) involved dishonesty or false statement, regardless of the
punishment.
(b) Time limit-Evidence of a conviction under this rule is not
admissible if a period of more than ten years has elapsed since the
date of the conviction or of the release of the witness from the con-
finement imposed for that conviction, whichever is the later date, unless
the court determines, in the interests of justice, that the probative value
of the conviction supported by specific facts and circumstances sub-
stantially outweighs its prejudicial effect. However, evidence of a con-
viction more than 10 years old as calculated herein, is not admissible
unless the proponent gives to the adverse party sufficient advance
written notice of intent to use such evidence to provide the adverse
party with a fair opportunity to contest the use of such evidence.
(c) Effect of pardon, annulment, or certificate of rehabilitation.-
Evidence of a conviction is not admissible under this rule if (1) the
conviction has been the subject of a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure based on a finding of the
rehabilitation of the person convicted, and that person has not been
convicted of a subsequent crime which was punishable by death or
imprisonment in excess of one year, or (2) the conviction has been the
subject of a pardon, annulment, or other equivalent procedure based
on a finding of innocence.
(d) Juvenile adjudications.-Evidence of juvenile adjudications is
generally not admissible under this rule. The court may, however,
in a criminal case allow evidence of a juvenile adjudication of a wit-
ness other than the accused if conviction of the offense would be
admissible to attack the credibility of an adult and the court is satis-
fied that admission in evidence is necessary for a fair determination of
the issue of guilt or innocence.
(e) Pendency of appeal.-The pendency of an appeal therefrom
does not render evidence of a conviction inadmissible. Evidence of
the pendency of an appeal is admissible.
H. R. 5463-11
Rule 610. Religious Beliefs or Opinions
Evidence of the beliefs or opinions of a witness on matters of
religion is not admissible for the purpose of showing that by reason
of their nature his credibility is impaired or enhanced.
Rule 611. Mode and Order of Interrogation and Presentation
(a) Control by court.-The court shall exercise reasonable control
over the mode and order of interrogating witnesses and presenting
evidence SO as to (1) make the interrogation and presentation effective
for the ascertainment of the truth, (2) avoid needless consumption
of time, and (3) protect witnesses from harassment or undue embar-
rassment.
(b) Scope of cross-examination.-Cross-examination should be lim-
ited to the subject matter of the direct examination and matters affect-
ing the credibility of the witness. The court may, in the exercise of
discretion, permit inquiry into additional matters as if on direct
examination.
(c) Leading questions.-Leading questions should not be used on
the direct examination of a witness except as may be necessary to
develop his testimony. Ordinarily leading questions should be per-
mitted on cross-examination. When a party calls a hostile witness, an
adverse party, or a witness identified with an adverse party, interro-
gation may be by leading questions.
Rule 612. Writing Used To Refresh Memory
Except as otherwise provided in criminal proceedings by section
3500 of title 18, United States Code, if a witness uses a writing to
refresh his memory for the purpose of testifying, either-
(1) while testifying, or
(2) before testifying, if the court in its discretion determines
it is necessary in the interests of justice,
an adverse party is entitled to have the writing produced at the hear-
ing, to inspect it, to cross-examine the witness thereon, and to intro-
duce in evidence those portions which relate to the testimony of the
witness. If it is claimed that the writing contains matters not related
to the subject matter of the testimony the court shall examine the
writing in camera, excise any portions not SO related, and order deliv-
ery of the remainder to the party entitled thereto. Any portion with-
held over objections shall be preserved and made available to the
appellate court in the event of an appeal. If a writing is not produced
or delivered pursuant to order under this rule, the court shall make
any order justice requires, except that in criminal cases when the
prosecution elects not to comply, the order shall be one striking the
testimony or, if the court in its discretion determines that the interests
of justice SO require, declaring a mistrial.
Rule 613. Prior Statements of Witnesses
(a) Examining witness concerning prior statement.-In examining
a witness concerning a prior statement made by him, whether written
or not, the statement need not be shown nor its contents disclosed to
him at that time, but on request the same shall be shown or disclosed
to opposing counsel.
H. R. 5463-12
(b) Extrinsic evidence of prior inconsistent statement of witness.-
Extrinsic evidence of a prior inconsistent statement by a witness is
not admissible unless the witness is afforded an opportunity to explain
or deny the same and the opposite party is afforded an opportunity to
interrogate him thereon, or the interests of justice otherwise require.
This provision does not apply to admissions of a party-opponent as
defined in rule 801 (d) (2).
Rule 614. Calling and Interrogation of Witnesses by Court
(a) Calling by court.-The court may, on its own motion or at the
suggestion of a party, call witnesses, and all parties are entitled to
cross-examine witnesses thus called.
(b) Interrogation by court.-The court may interrogate witnesses,
whether called by itself or by a party.
(c) Objections.-Objections to the calling of witnesses by the court
or to interrogation by it may be made at the time or at the next avail-
able opportunity when the jury is not present.
Rule 615. Exclusion of Witnesses
At the request of a party the court shall order witnesses excluded SO
that they cannot hear the testimony of other witnesses, and it may
make the order of its own motion. This rule does not authorize exclu-
sion of (1) a party who is a natural person, or (2) an officer or
employee of a party which is not a natural person designated as its
representative by its attorney, or (3) a person whose presence is shown
by a party to be essential to the presentation of his cause.
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY
Rule 701. Opinion Testimony by Lay Witnesses
If the witness is not testifying as an expert, his testimony in the
form of opinions or inferences is limited to those opinions or inferences
which are (a) rationally based on the perception of the witness and
(b) helpful to a clear understanding of his testimony or the determina-
tion of a fact in issue.
Rule 702. Testimony by Experts
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence, or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience, train-
ing, or education, may testify thereto in the form of an opinion or
otherwise.
Rule 703. Bases of Opinion Testimony by Experts
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known to
him at or before the hearing. If of a type reasonably relied upon by
experts in the particular field in forming opinions or inferences upon
the subject, the facts or data need not be admissible in evidence.
Rule 704. Opinion on Ultimate Issue
Testimony in the form of an opinion or inference otherwise admis-
sible is not objectionable because it embraces an ultimate issue to be
decided by the trier of fact.
H. R. 5463-13
Rule 705. Disclosure of Facts or Data Underlying Expert Opinion
The expert may testify in terms of opinion or inference and give his
reasons therefor without prior disclosure of the underlying facts or
data, unless the court requires otherwise. The expert may in any event
be required to disclose the underlying facts or data on cross-
examination.
Rule 706. Court Appointed Experts
(a) Appointment.-The court may on its own motion or on the
motion of any party enter an order to show cause why expert wit-
nesses should not be appointed, and may request the parties to submit
nominations. The court may appoint any expert witnesses agreed upon
by the parties, and may appoint expert witnesses of its own selection.
An expert witness shall not be appointed by the court unless he con-
sents to act. A witness SO appointed shall be informed of his duties by
the court in writing, a copy of which shall be filed with the clerk, or at
a conference in which the parties shall have opportunity to partici-
pate. A witness SO appointed shall advise the parties of his findings,
if any; his deposition may be taken by any party; and he may be
called to testify by the court or any party. He shall be subject to cross-
examination by each party, including a party calling him as a witness.
(b) Compensation.-Expert witnesses SO appointed are entitled to
reasonable compensation in whatever sum the court may allow. The
compensation thus fixed is payable from funds which may be pro-
vided by law in criminal cases and civil actions and proceedings
involving just compensation under the fifth amendment. In other civil
actions and proceedings the compensation shall be paid by the parties
in such proportion and at such time as the court directs, and there-
after charged in like manner as other costs.
(c) Disclosure of appointment.-In the exercise of its discretion, the
court may authorize disclosure to the jury of the fact that the court
appointed the expert witness.
(d) Parties' experts of own selection.-Nothing in this rule limits
the parties in calling expert witnesses of their own selection.
ARTICLE VIII. HEARSAY
Rule 801. Definitions
The following definitions apply under this article:
(a) Statement.-A "statement" is (1) an oral or written assertion
or (2) nonverbal conduct of a person, if it is intended by him as an
assertion.
(b) Declarant.-A "declarant" is a person who makes a statement.
(c) Hearsay.-"Hearsay" is a statement, other than one made by
the declarant while testifying at the trial or hearing, offered in evi-
dence to prove the truth of the matter asserted.
(d) Statements which are not hearsay.-A statement is not hearsay
if-
(1) Prior statement by witness.-The declarant testifies at the
trial or hearing and is subject to cross-examination concerning the
statement, and the statement is (A) inconsistent with his testi-
mony, and was given under oath subject to the penalty of perjury
at a trial, hearing, or other proceeding, or in a deposition, or (B)
consistent with his testimony and is offered to rebut an express or
implied charge against him of recent fabrication or improper
influence or motive, or
H. R. 5463-14
(2) Admission by party-opponent.-The statement is offered
against a party and is (A) his own statement, in either his indi-
vidual or a representative capacity or (B) a statement of which he
has manifested his adoption or belief in its truth, or (C) a state-
ment by a person authorized by him to make a statement concern-
ing the subject, or (D) a statement by his agent or servant
concerning a matter within the scope of his agency or employment,
made during the existence of the relationship, or (E) a statement
by a coconspirator of a party during the course and in furtherance
of the conspiracy.
Rule 802. Hearsay Rule
Hearsay is not admissible except as provided by these rules or by
other rules prescribed by the Supreme Court pursuant to statutory
authority or by Act of Congress.
Rule 803. Hearsay Exceptions; Availability of
Declarant Immaterial
The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
(1) Present sense impression.-A statement describing or
explaining an event or condition made while the declarant was
perceiving the event or condition, or immediately thereafter.
(2) Excited utterance.-A statement relating to a startling
event or condition made while the declarant was under the stress
of excitement caused by the event or condition.
(3) Then existing mental, emotional, or physical condition.-A
statement of the declarant's then existing state of mind, emotion,
sensation, or physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health), but not including
a statement of memory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation, identifica-
tion, or terms of declarant's will.
(4) Statements for purposes of medical diagnosis or treat-
ment.-Statements made for purposes of medical diagnosis or
treatment and describing medical history, or past or present symp-
toms, pain, or sensations, or the inception or general character of
the cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment.
(5) Recorded recollection.-A memorandum or record concern-
ing a matter about which a witness once had knowledge but now
has insufficient recollection to enable him to testify fully
and accurately, shown to have been made or adopted by the wit-
ness when the matter was fresh in his memory and to reflect that
knowledge correctly. If admitted, the memorandum or record
may be read into evidence but may not itself be received as an
exhibit unless offered by an adverse party.
(6) Records of regularly conducted activity.-A memorandum,
report, record, or data compilation, in any form, of acts, events,
conditions, opinions, or diagnoses, made at or near the time by,
or from information transmitted by, a person with knowledge, if
kept in the course of a regularly conducted business activity, and
if it was the regular practice of that business activity to make the
memorandum, report, record, or data compilation, all as shown
by the testimony of the custodian or other qualified witness, unless
the source of information or the method or circumstances of
preparation indicate lack of trustworthiness. The term "business"
H. R. 5463-15
as used in this paragraph includes business, institution, associa-
tion, profession, occupation, and calling of every kind, whether
or not conducted for profit.
(7) Absence of entry in records kept in accordance with the
provisions of paragraph (6).-Evidence that a matter is not
included in the memoranda reports, records, or data compilations,
in any form, kept in accordance with the provisions of paragraph
(6), to prove the nonoccurrence or nonexistence of the matter,
if the matter was of a kind of which a memorandum, report,
record, or data compilation was regularly made and preserved,
unless the sources of information or other circumstances indicate
lack of trustworthiness.
(8) Public records and reports.-Records, reports, statements,
or data compilations, in any form, of public offices or agencies,
setting forth (A) the activities of the office or agency, or (B)
matters observed pursuant to duty imposed by law as to which
matters there was a duty to report, excluding, however, in criminal
cases matters observed by police officers and other law enforcement
personnel, or (C) in civil actions and proceedings and against
the Government in criminal cases, factual findings resulting from
an investigation made pursuant to authority granted by law,
unless the sources of information or other circumstances indicate
lack of trustworthiness.
(9) Records of vital statistics.-Records or data compilations,
in any form, of births, fetal deaths, deaths, or marriages, if the
report thereof was made to a public office pursuant to require-
ments of law.
(10) Absence of public record or entry.-To prove the absence
of a record, report, statement, or data compilation, in any form,
or the nonoccurrence or nonexistence of a matter of which a
record, report, statement, or data compilation, in any form, was
regularly made and preserved by a public office or agency, evidence
in the form of a certification in accordance with rule 902, or testi-
mony, that diligent search failed to disclose the record, report,
statement, or data compilation, or entry.
(11) Records of religious organizations.-Statements of births,
marriages, divorces, deaths, legitimacy, ancestry, relationship by
blood or marriage, or other similar facts of personal or family
history, contained in a regularly kept record of a religious
organization.
(12) Marriage, baptismal, and similar certificates.-Statements
of fact contained in a certificate that the maker performed a
marriage or other ceremony or administered a sacrament, made
by a clergyman, public official, or other person authorized by the
rules or practices of a religious organization or by law to perform
the act certified, and purporting to have been issued at the time
of the act or within a reasonable time thereafter.
(13) Family records.-Statements of fact concerning personal
or family history contained in family Bibles, genealogies, charts,
engravings on rings, inscriptions on family portraits, engravings
on urns, crypts, or tombstones, or the like.
(14) Records of documents affecting an interest in property.-
The record of a document purporting to establish or affect an
interest in property, as proof of the content of the original
recorded document and its execution and delivery by each person
by whom it purports to have been executed, if the record is a
record of a public office and an applicable statute authorizes the
recording of documents of that kind in that office.
H. R. 5463-16
(15) Statements in documents affecting an interest in prop-
erty.-A statement contained in a document purporting to estab-
lish or affect an interest in property if the matter stated was
relevant to the purpose of the document, unless dealings with the
property since the document was made have been inconsistent
with the truth of the statement or the purport of the document.
(16) Statements in ancient documents.-Statements in a docu-
ment in existence twenty years or more the authenticity of which
is established.
(17) Market reports, commercial publications.-Market quota-
tions, tabulations, lists, directories, or other published compila-
tions, generally used and relied upon by the public or by persons
in particular occupations.
(18) 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
treatises, periodicals, or pamphlets on a subject of history, medi-
cine, 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.
(19) Reputation concerning personal or family history.-
Reputation among members of his family by blood, adoption, or
marriage, or among his associates, or in the community, con-
cerning a person's birth, adoption, marriage, divorce, death, legiti-
macy, relationship by blood, adoption, or marriage, ancestry, or
other similar fact of his personal or family history.
(20) Reputation concerning boundaries or general history.-
Reputation in a community, arising before the controversy, as to
boundaries of or customs affecting lands in the community, and
reputation as to events of general history important to the com-
munity or State or nation in which located.
(21) Reputation as to character.-Reputation of a person's
character among his associates or in the community.
(22) Judgment of previous conviction.-Evidence of a final
judgment, entered after a trial or upon a plea of guilty (but
not upon a plea of nolo contendere), adjudging a person guilty
of a crime punishable by death or imprisonment in excess of one
year, to prove any fact essential to sustain the judgment, but
not including, when offered by the Government in a criminal
prosecution for purposes other than impeachment, judgments
against persons other than the accused. The pendency of an appeal
may be shown but does not affect admissibility.
(23) Judgment as to personal, family or general history, or
boundaries.-Judgments as proof of matters of personal, family
or general history, or boundaries, essential to the judgment, if the
same would be provable by evidence of reputation.
(24) Other exceptions.-A statement not specifically covered
by any of the foregoing exceptions but having equivalent cir-
cumstantial guarantees of trustworthiness, if the court determines
that (A) the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for which it is
offered than any other evidence which the proponent can procure
through reasonable efforts; and (C) the general purposes of these
rules and the interests of justice will best be served by admission
of the statement into evidence. However, a statement may not be
admitted under this exception unless the proponent of it makes
known to the adverse party sufficiently in advance of the trial
H. R. 5463-17
or hearing to provide the adverse party with a fair opportunity
to prepare to meet it, his intention to offer the statement and
the particulars of it, including the name and address of the
declarant.
Rule 804. Hearsay Exceptions: Declarant Unavailable
(a) Definition of unavailability.-"Unavailability as a witness"
includes situations in which the declarant—
(1) is exempted by ruling of the court on the ground of
privilege from testifying concerning the subject matter of his
statement; or
(2) persists in refusing to testify concerning the subject matter
of his statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of his
statement; or
(4) is unable to be present or to testify at the hearing because
of death or then existing physical or mental illness or infirmity;
or
(5) is absent from the hearing and the proponent of his state-
ment has been unable to procure his attendance (or in the case of
a hearsay exception under subdivision (b) (2), (3), or (4), his
attendance or testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if his exemption, refusal,
claim of lack of memory, inability, or absence is due to the procure-
ment or wrongdoing of the proponent of his statement for the purpose
of preventing the witness from attending or testifying.
(b) Hearsay exceptions.-The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony.-Testimony given as a witness at
another hearing of the same or a different proceeding, or in a dep-
osition taken in compliance with law in the course of the same
or another proceeding, if the party against whom the testimony
is now offered, or, in a civil action or proceeding, a predecessor in
interest, had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination.
(2) Statement under belief of impending death.-In a prosecu-
tion for homicide or in a civil action or proceeding, a statement
made by a declarant while believing that his death was imminent,
concerning the cause or circumstances of what he believed to be
his impending death.
(3) Statement against interest.-A statement which was at the
time of its making SO far contrary to the declarant's pecuniary
or proprietary interest, or SO far tended to subject him to civil or
criminal liability, or to render invalid a claim by him against
another, that a reasonable man in his position would not have
made the statement unless he believed it to be true. A statement
tending to expose the declarant to criminal liability and offered
to exculpate the accused is not admissable unless corroborating
circumstances clearly indicate the trustworthiness of the
statement.
(4) Statement of personal or family history.-(A) A state-
ment concerning the declarant's own birth, adoption, marriage,
divorce, legitimacy, relationship by blood, adoption, or marriage,
ancestry, or other similar fact of personal or family history, even
though declarant had no means of acquiring personal knowledge
of the matter stated; or (B) a statement concerning the fore-
going matters, and death also, of another person, if the declar-
ant was related to the other by blood, adoption, or marriage or
H. R. 5463-18
was SO intimately associated with the other's family as to be
likely to have accurate information concerning the matter
declared.
(5) Other exceptions.-A statement not specifically covered by
any of the foregoing exceptions but having equivalent circumstan-
tial guarantees of trustworthiness, if the court determines that
(A) the statement is offered as evidence of a material fact; (B)
the statement is more probative on the point for which it is offered
than any other evidence which the proponent can procure through
reasonable efforts; and (C) the general purposes of these rules and
the interests of justice will best be served by admission of the
statement into evidence. However, a statement may not be admit-
ted under this exception unless the proponent of it makes known
to the adverse party sufficiently in advance of the trial or hearing
to provide the adverse party with a fair opportunity to prepare
to meet it, his intention to offer the statement and the particulars
of it, including the name and address of the declarant.
Rule 805. Hearsay Within Hearsay
Hearsay included within hearsay is not excluded under the hearsay
rule if each part of the combined statements conforms with an excep-
tion to the hearsay rule provided in these rules.
Rule 806. Attacking and Supporting Credibility of Declarant
When a hearsay statement, or a statement defined in Rule 801 (d)
(2), (C), (D), or (E), has been admitted in evidence, the credibility
of the declarant may be attacked, and if attacked may be supported,
by any evidence which would be admissible for those purposes if
declarant had testified as a witness. Evidence of a statement or con-
duct by the declarant at any time, inconsistent with his hearsay
statement, is not subject to any requirement that he may have been
afforded an opportunity to deny or explain. If the party against
whom a hearsay statement has been admitted calls the declarant as
a witness, the party is entitled to examine him on the statement as
if under cross-examination.
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION
Rule 901. Requirement of Authentication or Identification
(a) General provision.-The requirement of authentication or
identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question
is what its proponent claims.
(b) Illustrations.-By way of illustration only, and not by way
of limitation, the following are examples of authentication or identifi-
cation conforming with the requirements of this rule:
(1) Testimony of witness with knowledge.-Testimony that
a matter is what it is claimed to be.
(2) Nonexpert opinion on handwriting.-Nonexpert opinion
as to the genuineness of handwriting, based upon familiarity
not acquired for purposes of the litigation.
(3) Comparison by trier or expert witness.-Comparison by
the trier of fact or by expert witnesses with specimens which have
been authenticated.
H. R. 5463-19
(4) Distinctive characteristics and the like.-Appearance,
contents, substance, internal patterns, or other distinctive char-
acteristics, taken in conjunction with circumstances.
(5) Voice identification.-Identification of a voice, whether
heard firsthand or through mechanical or electronic transmission
or recording, by opinion based upon hearing the voice at any
time under circumstances connecting it with the alleged speaker.
(6) Telephone conversations.-Telephone conversations, by
evidence that a call was made to the number assigned at the time
by the telephone company to a particular person or business, if
(A) in the case of a person, circumstances, including self-identi-
fication, show the person answering to be the one called, or (B)
in the case of a business, the call was made to a place of business
and the conversation related to business reasonably transacted
over the telephone.
(7) Public records or reports.-Evidence that a writing author-
ized by law to be recorded or filed and in fact recorded or filed
in a public office, or a purported public record, report, statement,
or data compilation, in any form, is from the public office where
items of this nature are kept.
(8) Ancient documents or data compilation.-Evidence that
a document or data compilation, in any form, (A) is in such
condition as to create no suspicion concerning its authenticity,
(B) was in a place where it, if authentic, would likely be, and
(C) has been in existence 20 years or more at the time it is offered.
(9) Process or system.-Evidence describing a process or sys-
tem used to produce a result and showing that the process or
system produces an accurate result.
(10) Methods provided by statute or rule.-Any method of
authentication or identification provided by Act of Congress or
by other rules prescribed by the Supreme Court pursuant to
statutory authority
Rule 902. Self-authentication
Extrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to the following:
(1) Domestic public documents under seal.-A document bear-
ing a seal purporting to be that of the United States, or of any
State, district, Commonwealth, territory, or insular possession
thereof, or the Panama Canal Zone, or the Trust Territory of
the Pacific Islands, or of a political subdivision, department,
officer, or agency thereof, and a signature purporting to be an
attestation or execution.
(2) Domestic public documents not under seal.-A document
purporting to bear the signature in his official capacity of an
officer or employee of any entity included in paragraph (1)
hereof, having no seal, if a public officer having a seal and having
official duties in the district or political subdivision of the officer
or employee certifies under seal that the signer has the official
capacity and that the signature is genuine.
(3) Foreign public documents.-A document purporting to be
executed or attested in his official capacity by a person authorized
by the laws of a foreign country to make the execution or attes-
tation, and accompanied by a final certification as to the genuine-
ness of the signature and official position (A) of the executing
or attesting person, or (B) of any foreign official whose certif-
icate of genuineness of signature and official position relates to
H. R. 5463-20
the execution or attestation or is in a chain of certificates of
genuineness of signature and official position relating to the exe-
cution or attestation. A final certification may be made by a sec-
retary of embassy or legation, consul general, consul, vice consul,
or consular agent of the United States, or a diplomatic or con-
sular official of the foreign country assigned or accredited to the
United States. If reasonable opportunity has been given to all
parties to investigate the authenticity and accuracy of official
documents, the court may, for good cause shown, order that they
be treated as presumptively authentic without final certification
or permit them to be evidenced by an attested summary with or
without final certification.
(4) Certified copies of public records.-A copy of an official
record or report or entry therein, or of a document authorized by
law to be recorded or filed and actually recorded or filed in a
public office, including data compilations in any form, certified as
correct by the custodian or other person authorized to make the
certification, by certificate complying with paragraph (1), (2),
or (3) of this rule or complying with any Act of Congress or
rule prescribed by the Supreme Court pursuant to statutory
authority.
(5) Official publications.-Books, pamphlets, or other publica-
tions purporting to be issued by public authority.
(6) Newspapers and periodicals.-Printed materials purport-
ing to be newspapers or periodicals.
(7) Trade inscriptions and the like.-Inscriptions, signs, tags,
or labels purporting to have been affixed in the course of business
and indicating ownership, control, or origin.
(8) Acknowledged documents.-Documents accompanied by a
certificate of acknowledgment executed in the manner provided
by law by a notary public or other officer authorized by law to take
acknowledgments.
(9) Commercial paper and related documents.-Commercial
signatures
documents
to
the
extent provided by general commercial law.
(10) Presumptions under Acts of Congress.-Any signature,
document, or other matter declared by Act of Congress to be
presumptively or prima facie genuine or authentic.
Rule 903. Subscribing Witness' Testimony Unnecessary
The testimony of a subscribing witness is not necessary to authenti-
cate a writing unless required by the laws of the jurisdiction whose
laws govern the validity of the writing.
ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
Rule 1001. Definitions.
For purposes of this article the following definitions are applicable:
(1) Writings and recordings.-"Writings" and "recordings"
consist of letters, words, or numbers, or their equivalent, set down
by handwriting, typewriting, printing, photostating, photograph-
ing, magnetic impulse, mechanical or electronic recording, or other
form of data compilátion.
(2) Photographs.-Photographs". include still photographs,
X-ray films, video tapes, and motion pictures.
(3) Original.-An "original" of a writing or recording is the
writing or recording itself or any counterpart intended to have
H. R. 5463-21
the same effect by a person executing or issuing it. An. "original"
of a photograph includes the negative or any print therefrom. If
data are stored in a computer or similar device, any printout or
other output readable by sight, shown to reflect the data accu-
rately, is an "original".
(4) Duplicate.-A "duplicate" is a counterpart produced by
the same impression as the original, or from the same matrix, or
by means of photography, including enlargements and minia-
tures, or by mechanical or electronic re-recording, or by chemical
reproduction, or by other equivalent techniques which accurately
reproduces the original.
Rule 1002. Requirement of Original
To prove the content of a writing, recording, or photograph, the
original writing, recording, or photograph is required, except as other-
wise provided in these rules or by Act of Congress.
Rule 1003. Admissibility of Duplicates
A duplicate is admissible to the same extent as an original unless (1)
a genuine question is raised as to the authenticity of the original or
(2) in the circumstances it would be unfair to admit the duplicate in
lieu of the original.
Rule 1004. Admissibility of Other Evidence of Contents
The original is not required, and other evidence of the contents of
a writing, recording, or photograph is admissible if-
(1) Originals lost or destroyed.-All originals are lost or have
been destroyed, unless the proponent lost or destroyed them in bad
faith; or
(2) Original not obtainable.-No original can be obtained by
any available judicial process or procedure: or
(3) Original in possession of opponent.-At a time when an
original was under the control of the party against whom offered,
he was put on notice, by the pleadings or otherwise, that the con-
tents would be a subject of proof at the hearing, and he does not
produce the original at the hearing; or
(4) Collateral matters.-The writing, recording, or photograph
is not closely related to a controlling issue.
Rule 1005. Public Records
The contents of an official record, or of a document authorized to be
recorded or filed and actually recorded or filed, including data com-
pilations in any form, if otherwise admissible, may be proved by copy,
certified as correct in accordance with rule 902 or testified to be correct
by a witness who has compared it with the original. If a copy which
complies with the foregoing cannot be obtained by the exercise of
reasonable diligence, then other evidence of the contents may be given.
Rule 1006. Summaries
The contents of voluminous writings, recordings, or photographs
which cannot conveniently be examined in court may be presented in
the form of a chart, summary, or calculation. The originals, or dupli-
cates, shall be made available for examination or copying, or both, by
other parties at reasonable time and place. The court may order that
they be produced in court.
H. R. 5463-22
Rule 1007. Testimony or Written Admission of Party
Contents of writings, recordings, or photographs may be proved by
the testimony or deposition of the party against whom offered or by
his written admission, without accounting for the nonproduction of
the original.
Rule 1008. Functions of Court and Jury
When the admissibility of other evidence of contents of writings,
recordings, or photographs under these rules depends upon the ful-
fillment of a condition of fact, the question whether the condition has
been fulfilled is ordinarily for the court to determine in accordance
with the provisions of rule 104. However, when an issue is raised (a)
whether the asserted writing ever existed, or (b) whether another writ-
ing, recording, or photograph produced at the trial is the original, or
(c) whether other evidence of contents correctly reflects the contents,
the issue is for the trier of fact to determine as in the case of other issues
of fact.
ARTICLE XI. MISCELLANEOUS RULES
Rule 1101. Applicability of Rules
(a) Courts and magistrates.-These rules apply to the United States
district courts, the District Court of Guam, the District Court of the
Virgin Islands, the District Court for the District of the Canal Zone,
the United States courts of appeals, the Court of Claims, and to United
States magistrates, in the actions, cases, and proceedings and to the
extent hereinafter set forth. The terms "judge" and "court" in these
rules include United States magistrates, referees in bankruptcy, and
commissioners of the Court of Claims.
(b) Proceedings generally.-These rules apply generally to civil
actions and proceedings, including admiralty and maritime cases, to
criminal cases and proceedings, to contempt proceedings except those
in which the court may act summarily, and to proceedings and cases
under the Bankruptcy Act.
(c) Rule of privilege.-The rule with respect to privileges applies
at all stages of all actions, cases, and proceedings.
(d) Rules inapplicable.-The rules (other than with respect to
privileges) do not apply in the following situations:
(1) Preliminary questions of fact.-The determination of ques-
tions of fact preliminary to admissibility of evidence when the
issue is to be determined by the court under rule 104.
(2) Grand jury.-Proceedings before grand juries.
(3) Miscellaneous proceedings.-Proceedings for extradition or
rendition; preliminary examinations in criminal cases; sentencing,
or granting or revoking probation; issuance of warrants for arrest,
criminal summonses, and search warrants; and proceedings with
respect to release on bail or otherwise.
(e) Rules applicable in part.-In the following proceedings these
rules apply to the extent that matters of evidence are not provided for
in the statutes which govern procedure therein or in other rules
prescribed by the Supreme Court pursuant to statutory authority the
trial of minor and petty offenses by United States magistrates; review
of agency actions when the facts are subject to trial de novo under
section 706(2) (F) of title 5, United States Code; review of orders of
the Secretary of Agriculture under section 2 of the Act entitled "An
Act to authorize association of producers of agricultural products"
approved February 18, 1922 (7 U.S.C. 292), and under sections 6 and
7(c) of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C.
H. R. 5463-23
499f, 499g(c)) ; naturalization and revocation of naturalization under
sections 310-318 of the Immigration and Nationality Act (8 U.S.C.
1421-1429) ; prize proceedings in admiralty under sections 7651-7681
of title 10, United States Code; review of orders of the Secretary
of the Interior under section 2 of the Act entitled "An Act
authorizing associations of producers of aquatic products" approved
June 25, 1934 (15 U.S.C. 522) ; review of orders of petroleum control
boards under section 5 of the Act entitled "An Act to regulate inter-
state and foreign commerce in petroleum and its products by
prohibiting the shipment in such commerce of petroleum and its
products produced in violation of State law, and for other purposes",
approved February 22, 1935 (15 U.S.C. 715d) ; actions for fines,
penalties, or forfeitures under part V of title IV of the Tariff Act of
1930 (19 U.S.C. 1581-1624), or under the Anti-Smuggling Act (19
U.S.C. 1701-1711); criminal libel for condemnation, exclusion of
imports, or other proceedings under the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 301-392) ; disputes between seamen under
sections 4079, 4080, and 4081 of the Revised Statutes (22 U.S.C.
256-258; habeas corpus under sections 2241-2254 of title 28, United
States Code; motions to vacate, set aside or correct sentence under
section 2255 of title 28, United States Code; actions for penalties for
refusal to transport destitute seamen under section 4578 of the Revised
Statutes (46 U.S.C. 679) ; actions against the United States under the
Act entitled "An Act authorizing suits against the United States in
admirality for damage caused by and salvage service rendered to
public vessels belonging to the United States, and for other purposes",
approved March 3, 1925 (46 U.S.C. 781-790), as implemented by
section 7730 of title 10, United States Code.
Rule 1102. Amendments
Amendments to the Federal Rules of Evidence may be made as
provided in section 2076 of title 28 of the United States Code.
Rule 1103. Title
These rules may be known and cited as the Federal Rules of
Evidence.
SEC. 2. (a) Title 28 of the United States Code is amended-
(1) by inserting immediately after section 2075 the following
new section:
"§ 2076. Rules of evidence
"The Supreme Court of the United States shall have the power to
prescribe amendments to the Federal Rules of Evidence. Such amend-
ments shall not take effect until they have been reported to Congress
by the Chief Justice at or after the beginning of a regular session of
Congress but not later than the first day of May, and until the expira-
tion of one hundred and eighty days after they have been SO reported:
but if either House of Congress within that time shall by resolution
disapprove any amendment SO reported it shall not take effect. The
effective date of any amendment SO reported may be deferred by either
House of Congress to a later date or until approved by Act of Con-
gress. Any rule whether proposed or in force may be amended by Act
of Congress. Any provision of law in force at the expiration of such
time and in conflict with any such amendment not disapproved shall
be of no further force or effect after such amendment has taken effect.
Any such amendment creating, abolishing, or modifying a privilege
shall have no force or effect unless it shall be approved by act of
Congress"; and
H. R. 5463-24
(2) by adding at the end of the table of sections of chapter
131 the following new item:
"2076. Rules of evidence."
(b) Section 1732 of title 28 of the United States Code is amended
by striking out subsection (a), and by striking out "(b)".
(c) Section 1733 of title 28 of the United States Code is amended
by adding at the end thereof the following new subsection: :
(c) This section does not apply to cases, actions, and proceedings
to which the Federal Rules of Evidence apply."
SEC. 3. The Congress expressly approves the amendments to the
Federal Rules of Civil Procedure, and the amendments to the Federal
Rules of Criminal Procedure, which are embraced by the orders entered
by the Supreme Court of the United States on November 20, 1972,
and December 18, 1972, and such amendments shall take effect on
the one hundred and eightieth day beginning after the date of the
enactment of this Act.
Speaker of the House of Representatives.
Vice President of the Onlied States and
President of the Senate.
FOR IMMEDIATE RELEASE
JANUARY 3, 1975
Office of the White House Press Secretary
THE WHITE HOUSE
STATEMENT BY THE PRESIDENT
I have approved H.R. 5463, a bill establishing for the first time in our
history uniform rules of evidence on the admissibility of proof in
Federal court proceedings.
Enactment of this code culminates some 13 years of study by distinguished
experts on the Federal judicial system. It will lend greater uniformity,
accessibility and intelligibility to Federal rules of evidence.
I salute the efforts of the Advisory Committee on Rules of Evidence
and the Standing Committee on Rules of Practice and Procedure of the
Judicial Conference of the United States, the Chief Justice and Associate
Justices of the Supreme Court, the members of the Senate Committee
on the Judiciary, the members of the House Subcommittee on Criminal
Justice, and officials of the Department of Justice. Their joint efforts
in a healthy spirit of compromise were essential to the completion
of this new legal legislation.
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