the Marion County, West Virginia Medical Society. I appear today, however, as spokesman for none of these organizations, but, rather, in my own behalf, as a practicing physician, absorbed, for the most part, with the day to day problems of delivering medical services to ordinary people. I endorse and support the American Medical Association position on the question of confidentiality and physician-patient privilege before you, but I take exception to the legalistic and somewhat narrow approach of that organization with reference to these matters. Section 5-04 of the proposed rules provides for privileged communications between patients and doctors "made for the purpose of diagnosis and treatment of his mental or emotional condition" only. The distinction between psychotherapist and physician in practical terms is pure artifice. Under contemporary conditions of medical practice in the United States, most "psychotherapy," is done by general physicians and internists. Will it be required that only those with formal training and certification in psychotherapy or psychiatry treat the multiude of individuals with psychiatric, sociopathic and behavior disorders in the United States? Our entire system of care would break down virtually overnight. It is the rare patient indeed, being seen for any reason be it for diabetes, cardiac disease, blood disorders or the like, whose care does not involve a significant component of data that is personal, private, individual and emotional. If there is justification for a psychotherapist-client privilege, there is justification for a physician-patient privilege as well. This body would do well to seriously ponder the abrogation in medical practice that has been extant in all societies and all cultures for virtually 2500 years. The physician's office is one of the few places remaining in our society in which an individual's steadily eroded rights to privacy continue to be respected. If confidentiality of the relationship cannot be maintained, medical records will become sterile compendiums of dry fact, clinical practice and clinical science will suffer, and the real nature of many disorders that afflict our citizenry will elude us. I am frankly at a loss to understand what motivated the gentlemen who proposed the abrogation of the privilege. It will not cut down on crime nor increase the rate of successful prosecutions, but it will be disastrous to the practice of medicine. I am forced to look upon it as related in some way to the constraints upon newsmen that have preoccupied your committee in recent weeks. It seems that we are to be made, willy-nilly agents of the police power; a function from which physicians in all cultures have been traditionally exempt. I do not mean to overwork the analogy, but the revelations at Nuremburg and the more recent use of physicians as agents of state power in the Soviet Union, ought to constrain us from an ambiguous legal context of medical practice. The physician should be responsible to his patient and his patient alone if humanistic social goals are to be met. Should the patient-physician privilege be abrogated under the proposed rule making, the medical record, as we know it, may cease to exist. Physicians will simply no longer incorporate information relating to behavior or to social deviance as part of their medical record keeping. The patient will be the loser in the sense that his medical biography, thus blurred, and self-censored will be of little value to physicians and their associates in trying to bring to bear the full weight of benefit that a comprehensive approach to individuals can effectuate. Everyone is ambivalent about government. We look to government to protect our safety collectively, to prosecute evil doers, but at the same time we look to government to protect our rights as individuals. We expect not to become tyrannical in the pursuit of these social necessities. We expect government to collect information to help solve social problems, but we don't want our privacy invaded. The trade proposed herein, a pretty gain for the prosecution against the potential destruction of the feeling tones necessary to successful physician-patient interaction, is hardly worth even cursory consideration. I most strongly urge the committee to reject this proposal. There are already, in law, too many exceptions to the privilege. I would not like to witness the day when a physician will have to go to jail on a contempt citation in defense of the traditional rights of his patient that have been codified and honored since the beginnings of ethical medical practice in ancient times. Mr. HUNGATE. The next witness is Frank F. Jestrab of the National Commission on Uniform State Laws. Did I pronounce that correctly? TESTIMONY OF FRANK F. JESTRAB, NATIONAL CONFERENCE OF UNIFORM STATE LAWS, WILLISTON, COMMISSIONERS OF N. DAK. Mr. JESTRAB. You did, sir. Mr. HUNGATE. Mr. Jestrab, you have a prepared statement here. Without objection you may read the statement, or comment on it, as you wish. Mr. JESTRAB. Mr. Chairman, I note that a hearing will be held on Senate 583 by this committee on March 1, and I don't know whether I would be in order, but may I request that my statement be made a part of that hearing or shall I stay over until March 1 and offer it? Mr. HUNGATE. I don't know if the Chair stated it precisely enough or not. We are having an open subcommittee meeting because all committee meetings are open now. But it will not really take the form of a hearing. It will be our first examination of S. 583, and the subcommittee will be deciding what to do with it. I think, unless there is objection, we would appreciate a brief comment as to your views on it. We welcome the help. Mr. JESTRAB. Thank you very much, Mr. Chairman. The conference appreciates very much this opportunity to testify before the committee. We are grateful to the committee for giving us time. As will be seen from my prepared statement, I have been an advocate for 35 years of my life and it is hard now not to become involved in some of the testimony that has preceded me here this morning. But the national conference supports the principle of the Federal rules. We support the draft that has been submitted to the Congress by the Supreme Court. We support the submission under the Rules of Practice Act so that it will become effective on July 1 of 1973. The conference is now engaged in drafting, or in adapting, the proposed Rules of Evidence for use by the State courts. This will be, we hope, in final form and will be ready for adoption by the States at the conclusion of the annual meeting of the annual conference in August. We are opposed to any delay in the formalization of the Federal rules for the reason that at long last, after 50 years of effort it appears that there is a tide now running in favor of the adoption of a uniform set of rules of evidence. The testimony here was that the State of Wisconsin is working on proposed rules. California just finished adopting them within the past 2 or 3 years. The State of New Jersey has rules of evidence. The State of Iowa is working on rules of evidence. There are other States and surely this is an area where uniformity is highly desirable. There is a great deal of movement, of interstate practice of law, of people moving from trying cases in the State of North Dakota today and Texas tomorrow. Lawyers move a good deal more than they used to. But even more so, the movement from the State to the Federal court, in a given area. This will help the bar to become more efficient, to better administer, or to assist in the administration of justice. We have been working under uniform rules of evidence since 1938. Insofar as the 21 Rules of Civil Procedure that deal with evidentiary matters have been adopted in the States-and I think there are some 30 States that have adapted the Federal Rules of Civil Procedure to State practice-we have had that uniformity, and it has been enormously helpful. And the public, of course, is the beneficiary of increasing skill and knowledge on the part of lawyers. So, what we are seeking to do now is merely to expand something that has been existing since 1938. I think that if there is a delay, the result is that the delay is going to be a divergency rather than uniformity. There is already some divergency. Happily, the proposed Federal rules follow quite closely the California rules and the Uniform Rules of Evidence. We are much interested in the work that the California commission did, and we believe that if we get a set of rules we will have a workable set and we will have in, I think, most States in the United States, a uniform system of practice, not only with respect to rules of civil procedure, but also with respect to rules of evidence. It isn't my purpose to launch any defense of the rules. I don't think they need any defense and I would hope for, and I solicit, questions from the members of the committee when I finish here in just a moment. But the purpose, of course, of a judicial proceeding is to ascertain the truth, and nobody has to be afraid of the truth. You will be besieged by all kinds of testimony as to why this particular bit of the truth, this particular fact, shouldn't be received in evidence, but I submit to you that the only way you can ascertain the truth is to get all the information from every source, for the benefit of all of us, in the efficient administration of justice. I won't take any liberties and I won't volunteer any comments on testimony that was made here previously, but if anybody wants to ask me my views I will be very happy to give them. I would again urge you to do everything that you can to implement the adoption of the rules. I think that there are areas in the law of evidence that need to be the subject of attention from the profession and the public. I don't think we can make any genuine advances in the rules of evidence until we get uniformity. Now, this is contrary to what I believe about most areas of the law. I have always believed in State experimentation, and I have always believed in the area of State rights. But in the field of evidence, all we do is get more diversity. All we do, we get continued pressure groups coming in for one reason or another: "Please exclude us out; we feel that we should be separate; we shouldn't make a contribution to the truth-finding process." But, that has been the trouble with trying to get uniform rules of evidence. And all it does is result in a narrowing of the record and you get less, and less, and less, all the time, rather than what we would like to do-to expand the truth-finding process to get all of the facts so that we can indeed ascertain the truth. But the only way-the Congress itself has had the experience when it adopted the Freedom of Information Act-the purpose of all of these things is to make truth available. And as I say, you don't have to be afraid of the truth. That is about all I care to say and we think it is a good set of rules. There are all sorts of areas where I might personally feel that they could be improved but I am sure that that is true of almost all lawyers, that there are certain things that all of us are worried about, that we could do better, or something of that kind. And that concludes my statement. I will solicit questions. Mr. HUNGATE. Thank you very much, Mr. Jestrab. I am pleased to have you here with us and to get a North Dakota input, too. As I understand your testimony you support the rules as is, and urge that they become effective without delay. Mr. JESTRAB. Yes, sir. Mr. HUNGATE. Mr. Kastenmeier? Mr. KASTEN MEIER. I have no questions. I would inquire whether, if the rules of evidence were written differently you would still have come to the same conclusion. It is not the substance of the rules, but the necessity, the overriding necessity, for purposes of uniformity, of adopting some rules of evidence at an early date, that prompts your recommendation. Mr. JESTRAB. That is substantially correct. Most of the time it doesn't really make much difference what the rule is as long as you know. The only problem with the rules of evidence is that that isn't quite true, because the tendency is to narrow. You have prestige questions. But we don't have to testify in court. Our occupation is exonerated from that requirement. The result is a continuous narrowing. This is a secret. The government, the State government has secrets. I don't know what kind of secrets the State governments have except as to taxes. And if they want to make a provision that that should not be disclosed there is no problem about it. But the fact-finding, truth-finding process is not sup posed to be comfortable and it is not supposed to make people feel at ease and be happy. And usually it isn't; it is painful. Sometimes it is excruciatingly so, but I think we are dedicated to the idea that the truth comes first. Mr. HUNGATE. Mr. Mayne? Mr. MAYNE. Thank you, Mr. Chairman. It is a real pleasure to join you in welcoming this distinguished member of the National Conference on Uniform State Laws. Mr. Jestrab, I believe you have been a commissioner for a great many years, have you not? Mr. JESTRAB. About 16 or 17, I guess, sir; yes, sir. Mr. MAYNE. Were you not active in the work of the conference even before that in some capacity? Mr. JESTRAB. No; I don't think so. I think this is my 17th year, as I remember, or 18th. Mr. MAYNE. I am not from North Dakota. I assume that this is a non-remunerative post. I know it was in Iowa. Mr. JESTRAB. Yes; it is very much nonremunerative. I have subsidized the State of North Dakota for that long, but it has been a pleasure. I have been delighted to do it. Mr. MAYNE. This would be, then, your fifth term that you are now entering upon as a commissioner. Mr. JESTRAB. Well, we are appointed by our Governors, and I have been appointed by four Governors. Mr. MAYNE. Both Republican and Democrat? Mr. MAYNE. Could you tell me, Commissioner Jestrab, what actual work the Conference of Commissioners on Uniform State Laws has done on these proposed rules? Did they make any independent study of them? Mr. JESTRAB. Yes, sir. Mr. MAYNE. Could you give us some idea of the extent of the conference's actual evaluation and study of them? Mr. JESTRAB. In the first place, one of the chairmen of the original drafting committee, Albert Jenner, Jr., a lawyer from Chicago, is a past president of the National Conference on Uniform State Laws. And in addition to that, there are other members of that committee that I think are also members of the conference. The conference rules committee was appointed by the president and the executive committee of the National Conference. It consists of two commissioners from the State of Arkansas, one commissioner from the State of Pennsylvania, a member of a very large firm. The man from Pennsylvania, from Philadelphia, is a member of a large firm, an active practioner, a member of the American College of Trial Lawyers. There are two gentlemen from Arkansas; one is a teacher. Both are practitioners. One practices in a metropolitan area and the other in a small town. Another member of the committee is Professor Wayne Thode, from the University of Utah. He teaches procedure and evidence at the University of Utah. Since then, a recent addition to the committee has been Professor Robert Keeten of the Harvard Law School, a former practitioner from the State of Texas. And also a judge, a municipal judge from Washington, D.C., who had an active criminal practice. We have met and held one meeting and we go over the rules sectionby-section and line-by-line. We will have another meeting in April in San Francisco. We expect to have two more meetings before the annual meeting in August. The results of our efforts, that is wherever we have made changes, which we think should be made in order to adapt the rules to State practice-we send copies of all of our work to approximately 10 interested groups in the American Bar Association and solicit their comments. In addition to that, each of us solicits comments from our own colleagues and our own State insofar as we are able to do so. And this is the process that we will follow until we present them to the conference. At the conference, then, the commissioners of the 50 States, consisting of practicing lawyers, judges, officeholders, prosecuting attorneys and so on, will again reexamine the work that we submit, section-bysection and line-by-line, and the experience of the 50 States will be brought to bear then on our final product. And that will then be voted upon by rollcall of the States and will be promulgated for adoption by the States. Mr. MAYNE. Well, has the conference itself, as distinguished from the committee, taken any action with regard to these proposed rules? Mr. JESTRAB. No; they have not, Mr. Mayne. Mr. MAYNE. Really, the thrust of my questioning is as to what work |