Mr. HUNGATE. The first witness this morning is Judge Friendly. We appreciate your taking your time, and we thank you for the assistance you offer the committee in its study of these rules.

Without objection, your statement will be made part of the record. You may proceed as you see fit, Judge Friendly.

[The statement referred to is at p. 261.]

TESTIMONY OF HENRY J. FRIENDLY, CHIEF JUDGE, U.S. COURT OF APPEALS FOR THE SECOND CIRCUIT

Judge FRIENDLY. Thank you. It is always a problem how much to repeat what is in the statement. I will try to hit only the highlights and let the rest of my position rest on the statement. I wish to reemphasize that I am appearing here only for myself. I have not canvassed the other members of the Court of Appeals for the Second Circuit, and have no knowledge how they feel. If they run true to form, some will feel one way, some another, and some still a third. As I explained in the statement, I had thought I had done my duty by making my objections within the judicial branch; but when your chairman asked me to come and state my position, I did not think I could properly decline.

While I do disagree with many details of the proposed rules, my basic position is that it is now undesirable to have a Federal Code of Evidence in any form. Consequently, I won't devote any time to discussing whether the proposed rules or some of them are beyond the scope of the Rules Enabling Act, although I do share the doubts that Justice Douglas has expressed on that subject. If the country should have a Federal Evidence Code, there is nothing to prevent Congress from broadening the Enabling Act, or even, although I think it even less desirable, enacting a code of its own.

I also am not going to say much about whether some of the provisions, notably those which direct the Federal courts to disregard Statecreated privileges, even in actions for enforcement of State-created rights, are not unconstitutional under the famous decision in Erie Railroad Co. v. Tompkins, although I think a very strong case can be made that they are.

With the benefit of hindsight, the error seems to me to have lain in the too ready acceptance, without opportunity for any full debate of the preliminary report many years ago that Federal rules of evidence should be drafted. It was natural that there was not much debate. After all, the proposal was simply that a committee be appointed to attempt to draft rules, and it is hard to take the position that you should not even have a committee make the attempt. So that went through pretty rapidly and smoothly, and I think without any suf ficient comprehension of what the product might look like when it emerged. Once the Advisory Committee on Rules of Evidence was constituted and went to work, the project acquired its own momentum. The questions that were put to the profession when the drafted rules were circulated were not whether there should be such rules--an issue that apparently was regarded as having been settled-but what the rules should be. It is therefore very gratifying to me that this committee is addressing itself, among other things, to the basic question of whether we should have such rules at all, and not merely to details.

My first objection to these proposed rules is that there is no need for them. Someone once said-I wish I could remember who that in matters such as this, when it is not necessary to do anything, it is necessary to do nothing. I find that a very wise remark. We know the Federal courts are now having almost no serious problems with respect to evidence, certainly none that these rules would help us on, and we cannot tell how many problems the proposed rules will bring.

You may well ask then how did all this get started. I think that, if you look back at the history, the impetus for a Federal Evidence Code came largely from law professors who felt a natural conceptual dissatisfaction with rule 43A of Civil Procedure which deals with evidence. That rule had been drafted at the very end of the work of the Committee on the Federal Civil Rules for which the reporter was my former colleague, Judge Charles E. Clark, then Dean Charles E. Clark of the Yale Law School. At the very last minute, the committee felt something should be done about evidence and there was not time to do very much unless the rules were going to be held up for a long while, so they provided

All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdictions of the state in which the United States Court is held.

There was no trouble about the first clause, "which is admissible under the statutes of the United States" nor was there any trouble about the third, "Under the rules of evidence applied in the courts of general jurisdiction of the State in which the United States court is held." But the academics were concerned about the middle clause: "Under the rules of evidence heretofore applied in the courts in the United States on the hearing of suits in equity," which the committee put in as a loosening up provision without too clear an idea what it really meant. The professors felt, and I think they were right in feeling, that this was not a very good provision because nobody really knew what rules of evidence the Federal courts had been applying in suits in equity, and particularly as the years have gone on, antiquarian research into what had been done in a few cases that one could find before 1938 did not seem a fruitful effort. In fact, the provision has caused very much less trouble in the courts than it has in the academy. However, if conceptual dissatisfactions are deemed sufficiently serious to require revision of rule 43A of Civil Procedure, there are lots of ways of handling that without having a big book--or little book, as the committee likes to call it-of this sort.

I have made the suggestion in my statement as to one possibility that one could provide that in diverse citizenship cases:

"The Federal Court shall follow the State law of evidence except as an act of Congress or these rules otherwise require," whereas, in Federal question cases one should follow the model of rule 26 of Federal Criminal Procedure which says, in what I consider very moving language, that "the courts shall be guided except when an act of Congress or these rules otherwise provide, 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."

I do not wish to get bogged down in the question as to whether there should not be such simple amendments of the existing rules or could

not be better cnes, because I want to get back to my point that there is really no showing of any need for doing anything. I understand your committee has been told that with the increased mobility of the bar, it must be difficult for a lawyer in a civil case in a Federal court to have to acquaint himself with the evidence law of the State where the case is being tried. In most cases where evidence problems likely will arise, any out-of-State lawyer with any sense will have someone from the State sitting with him. Even if he does not, the State common law rules of evidence are not all that hard to discover and the State's statutory rules, such as rules of privilege, are even more readily ascertained. In any event, I have not heard any cry of protest on this score from the bar, although the bar is not notable for its reluctance to express grievances when it has any. Of course, there is no problem in criminal cases in view of the language of Criminal Rule 26 which I have quoted. Still, you can fairly ask what harm is there in a code of evidence provided it is a good code. My first answer is that evidence to me seems just not the kind of subject that lends itself very well to codification. Codes have properly been adopted in areas of the law where there is need for certainty, criminal and civil procedure, criminal law, commercial law, some phases of corporation law, distribution of decedents' estates and so on. But there is very little precedent for codes of evidence. When I last looked into the matter, there were only three of the 50 States that had such codes. The law of evidence has grown during the past generations with help from many sources. We have the greatest law treatise in the English language which now is being brought up to date. We have other writings by scholars, including Professor Cleary, the reporter. We have the illumination afforded by previous attempts of codification, the American Law Institute's Model Code, the Commissioners' Uniform Rules, and then we have had occasional helpful prods from legislatures such as the Federal Business Record Statute, and similar statutes in the States.

The proposed rules would, in my judgment, tend to freeze the law of evidence, except at intervals, which necessarily would be long, when the rules were being revised.

My second objection is that in my judgment, prescription of the rules will stimulate appeals and increase reversals on evidentiary rulings. We almost never get an appeal in a civil case based solely on a question of evidence. The lawyers know they simply are not going to get a reversal on such a ground if the court thinks that the proper result was reached and there were no other trial errors. But I think it is going to be a lot harder for a court to reach such a result if a lawyer comes and says, "The trial court violated a black letter rule that has been prescribed by the Supreme Court under authority of Congress," and the appellate court's only recourse would be to the doctrine of harmless error, which has been held to be rather limited. What the Federal courts need least at this time is an increase in business and especially in this sort of business.

I suppose it will be said in reply that these proposed rules should decrease appeals because they are so clear. My rejoinder is that they are not that clear and in the nature of things they cannot be that clear.

If you wish an example, I invite your attention to article 3 on presumptions which perhaps you understand, but I confess I don't. Coming down on the plane this morning, I took a look at rule 801 (d) (2) (E) which deals with the most frequent subject of evidence problems in the Federal courts, the admissibility of the declarations of a co-conspirator. While there is nothing wrong in the rule, it says nothing that would help anybody at all. It is just as bare as can be. It does not advance matters a bit. Therefore, I cannot believe the Chairman of the Advisory Committee was serious, if he said, as he has been widely quoted as saying, that this little book will enable a lawyer quickly to answer every evidence problem that can arise in a Federal trial.

My third and my most serious objection to the proposed rules is in their application to a Federal system. The overwhelming bulk of civil litigation is conducted in the State courts, which have developed what they consider suitable evidentiary rules. Some of those rules, particularly those with respect to privilege, affect the conduct of citizens outside the courtroom. To me, it is offensive for the Federal Government to take action that would deprive conduct such as communications between physician and patient or between husband and wife of protection the state has chosen to afford, and particularly offensive, when the action in the Federal court is to enforce a State created right. I feel much the same way about a State rule such as the statutes that are in force in my own State of New York and in many other States, which prohibit a party from testifying with respect to a transaction with another party now deceased. Recognizing that there are strong considerations of policy on either side, I would have voted for repeal of the New York statute if I had been a member of the New York legislature when the New York Civil Practice Act was last revised. But the legislature, after very thorough consideration, decided otherwise. I fail to understand why a person should be able to avoid that policy decision of the New York Legislature by suing the estate of a New York decedent on an oral contract in a New York Federal court. Apart from what I consider the inequity of the rule, this and other differences between the State and the Federal rules would revive the forum shopping that the decision in the Erie case was aimed to end. Like the general Federal law which that decision abrogated, the proposed rules seem to me, Mr. Justice Brandeis' words, "To render impossible equal protection of the law." I understand it has been said that this will be a temporary thing because all the states will rush to adopt these proposed rules as many ultimately did adopt the Federal Rules of Civil Procedure, but I very seriously doubt that they will do that and in fact I don't believe it would be desirable to do it.

It would therefore require a much stronger showing of need for these rules than anything I have heard to enable me to view with equanimity the kinds of injustice and the promotion of forum shopping that I believe these rules would entail.

I don't want to take too much of your time with detailed criticism of the rules, both because you can get those from the statement and because emphasizing those criticisms in some way tends to detract from my basic objections. Of course, if I am right about the criticisms,

they could be cured, but I will cite just a few of them to illustrate at least the point that in my judgment a great deal more work would have to be done on these rules before Congress could properly allow them to go into effect.

One of the rules that I am sure you have heard a good deal about is rule 501 which bans all privileges except as otherwise required by the Constitution, save for the ones that are mentioned in these rules. Newsmen's privilege is very much in the public eye today. Many States have adopted statutes conferring that in greater or lesser degree. Yet those statutes would be disregarded in the Federal courts if these rules took effect. Of course, one of the points about a privilege of any sort is that it is not of much use unless it goes across the board. I am not talking about the privilege against self-incrimination, but of these privileges for confidential communications which are intended to stimulate people talking. There is not much stimulation if a person has to be advised, "Yes, you will be protected in such and such a court, but you won't be protected in another one."

Many States recognize an accountant-client privilege and while I personally would not vote for that, as a member of a legislature, I fail to see what reason there is for a Federal court not to recognize it at least in an action based on State-created rights. States may decide, and some of them have decided, to establish still other privileges, such as for social workers. Again, I ask why those should be unavailable in any Federal action based on a State-created right. Again, in the field of privilege, it would seem to me the committee really over-stepped itself when it abolished the traditional physician-patient privilege and ten substituted a psychotherapist-patient privilege. This seems to me a striking example of the committee's inability to resist making changes when none have been demonstrated to be needed.

Again, a matter that I am sure you are going to hear more about is rule 509 (c), where I limit myself to saying that whatever the right solution is, it does not seem to me that the exemptions of the Freedom of Information Act are necessarily the proper measure of the bounds. of what may be properly withheld by the government at a trial.

I will move on to rule 606 (b), inquiring into the validity of verdict or indictment. This again, seems to me to be a perfect example of a situation that is much better left to case by case development than to rulemaking. As I read the rule, it would allow a juror to testify concerning any remark by another juror that displayed any sentiment that could not be shown to be derived from evidence of record. In some cases that may be desirable, but there are others where the matter is just too trivial to justify opening up a verdict. I do not think courts should have to spend time on this kind of thing without some preliminary showing that if the allegations are true, the permeation of the jury room by extraneous influence was really serious.

I also find difficulty in rule 606 (b), dealing with prior convictions which sets an arbitrary 10-year limit after release as the standard. I fully agree that it would be wrong to rake up some 30-year-old or even for that matter a 5-year-old conviction of a crime that just managed to get across the line of being a felony, but why ban an 11-year-old conviction of an adult for some serious offense such as a murder or arson or even perjury. It is much better, I think, to leave