and the person to whom the communication was made. Rule 503(d) (3) specifically exempts from the privilege communications relevant to a claim of breach of duty by a lawyer or his client, whereas similar protection is not afforded psychotherapists in Rule 504 or clergy in Rule 506. Once again, there is no explanation for this difference although cynics might suggest the presence of lawyers (and the absence of physicians and clergy) in the drafting process may have been the determinative factor.

Probably the greatest source of controversy is that caused by Rule 509, which creates a privilege for "secrets of state" and other "official information.” ** In 1967, after considerable study, Congress enacted the Freedom of Information Act, 5 U.S.C. § 552, which establishes the right of every person to obtain documents in the possession of the Government, with certain specific exceptions clearly provided therein. It would seem sensible to start with the presumption that nothing which cannot be withheld under the Information Act (or which would fall into that category if it were in documentary form) should be denied to a participant to any litigation whether or not the Government was a party. The Information Act also provides for methods of determining whether a particular document is within any of the exemptions, and it would seem to make sense to utilize them in determining questions of privilege under Rule 509.

But instead of starting with the Information Act and then determining whether, notwithstanding these exemptions, certain information should be made available in litigation with the Government, the draftsmen appear to have operated as though the Information Act did not exist and made almost no use of it whatsoever. For instance, Rule 509(a)(i) defines a "secret of state" as a governmental secret relating to the national defense or the international relations of the United States." However, Section 552(b)(1) of the Information Act exempts only matters that are "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." Thus, Rule 509 has created a far broader category of privileged information than Congress did in Section 552(b) (1) of the Information Act.

Second, the Information Act requires a de novo determination by the court of any claimed exemption, whereas the procedure outlined in Rule 509 (c) gives much more weight to the determination by the Government official. When secrets of state are involved, opposing counsel may be forbidden from seeing even the showing to support that contention, and the Government may refuse to allow the court itself to see the privileged document. Even the Supreme Court's recent decision in Environmental Protection Administration v. Mink, Docket No. 71-900 (January 22, 1973), which narrowly construed § 552(b)(1), still requires the Government to show the court and opposing counsel that the document was properly classified before it can be withheld. Moreover, in the famous Pentagon Papers case, opposing counsel were permitted to inspect the Government's showing that secrecy was necessary to protect the national interest where the showing itself was classified, although they were forbidden from disclosing the contents of those showings, see United States v. New York Times, cert. granted, 403 U.S. 942 (1971).

The "official information" privilege of Rule 509 (a) (2) deals with other areas of exempt documents under the Information Act, and wisely, in my opinion requires that the disclosure of them be "contrary to the public interest," as well as meeting other specified limitations. The difficulty with the official information privilege is that it partially overlaps with the Information Act and does so in a way which suggests that the standards of the Information Act may apply, but the extent of their applicability is undetermined.

Finally (for purposes of this statement only), in those instances in which the Government is not a party, the right to have limiting instructions or other relief under Rule 509(e) is illusory, and the party in need of the evidence is irrevocably damaged by the assertion of the privilege. In such cases I suggest that even for a claim of official information, the head of the agency (and not merely any Government attorney) should be required to claim the privilege in order to insure that litigants are not unnecessarily deprived of relevant evidence in the possession of the Government.

There are other difficulties with the privileges in the Rules, but they are of lesser significance. While some attorneys may find that some of the above

40 The prior drafts contained only a privilege for secrets of state. See 46 F.R.D. at 272 and 51 F.R.D. at 375.

objections are not sufficiently serious to warrant rejection of this Article, others will undoubtedly point out further objections. What can hardly be doubted, however, is that the questions raised by the Article on privileges are not easy ones to decide and should be fully and openly debated, and I suggest that this can best take place in a legislative forum rather than in the meetings of an Advisory Committee or the chambers of the Supreme Court.

B. Hearsay

The Rules define hearsay to include non-verbal conduct intended as an assertion," and then provide three categories of evidence which are admissible notwithstanding their apparent hearsay qualities. The first of these encompasses prior out-of-court statements by witnesses who testify at the trial, and admissions by party opponents." Rule 803 excludes from the hearsay rule twenty-three specific types of out-of-court statements, even though the hearsay declarant is available as a witness but does not testify. Rule 804 then goes on to admit five categories of hearsay where the declarant is "unavailable as a witness." While many of the new exemptions make a great deal of sense, there are others which raise significant problems.

For a witness to be "unavailable" for trial, the Advisory Committee's Notes to Rule 804 (a) 3 state that no effort need be made to take the witness' deposition, which is confirmed the absence of any mention of a deposition requirement in the Rule itself. All that is required is that the proponent of the statement have been unable to procure the attendance of the witness at the trial "by process or other reasonable means." Rule 804 (a) (5)." "

The decision to permit the substitution of hearsay testimony, when the possibility of deposition testimony with the right of cross-examination has not been precluded, would seem to be an unwise one. One of the kinds of hearsay permitted under this Rule is former testimony, which is not limited to prior testimony in the present action or in another case involving the same parties. In fact, the prior action need not even have been with a person in privity with the present party, as long as there was an opportunity for examination of the witness, and the person examining the witness had a "motive and interest similar to those of the party against whom [the statement is] now offered."" Admission of such testimony raises significant questions of fairness and may even constitute a denial of due process, particularly with no requirement that the proponent of the prior testimony first attempt to depose the hearsay declarant in the present litigation. Moreover, if the Advisory Committee's Notes are correct, and the issues in the former litigation need not have been the same as in the present case," the problems created by Rule 804 (b) (1) are even greater.

Similar objections can be made to the exception in Rule 804(b) (2) for statements of recent perception where no attempt is made to depose the person making the statement. The fact that the statement was made in good faith and was not made to a person investigating, litigating, or settling a claim or in contemplation of any litigation in which the witness was interested, all reduce the problem to some degree but do not eliminate it. Moreover, in the context of a criminal case, this exception would raise the gravest Sixth Amendment confrontation problems, notwithstanding the Advisory Committee's suggestion that the matter is within the exception for dying declarations.“

For the exceptions enumerated in Rule 803, under which it is immaterial whether the hearsay declarant is available as a witness, the only significant problem area not previously mentioned is under exception (5) relating to recorded recollection. Under it, a memorandum or other record may be read into evidence, but not received as an exhibit, where a witness has insufficient recollection to permit him to testify about the matters described therein, provided that he made the memorandum when the subject was fresh in his memory. If this exception is only intended to cover the familiar situation in which a

41 Rule 801 (a) (2).

42 Rule 801 (d). For reasons which are not readily apparent, these statements are not included as exceptions but are defined as not constituting hearsay.

43 56 F.R.D. at 323.

44 "Unavailability" means the assertion of a privilege, a refusal to testify despite a court's order to do so, a lack of memory, as well as death or illness. Rule 804 (a).

45 Rule 804 (b) (1).

48 56 F.R.D. at 324.

47 56 F.R.D. at 326.

witness testifies that he can no longer recall the facts, but that the memorandum prepared by him is an accurate recitation of them, the exception is a familiar one with no difficulties.

However, the exception applies whether or not the hearsay declarant, in this case the person who wrote the memorandum, is available as a witness, thus suggesting that the memorandum may come in through a witness other than the person who prepared it (i.e., one who was present when the memorandum was prepared). If that interpretation is correct, it would be a significant departure from the traditional use of such memoranda and would almost make the exception in Rule 804 (b) (2) (statements of recent perception by unavailable witnesses) into a surplusage. While the use of the present tense in exception (5) suggests that the hearsay declarant must still be alive, the matter is far from clear largely because this exception is contained in Rule 803 which makes the availability of the declarant irrelevant.

48

The Advisory Committee's Notes indicate that there was some debate as to the placement of this exception." Some members asserted that it could not be part of Rule 801(d) (1) because the witness would not be "subject to cross-examination" concerning the statement since he would have to acknowledge that he had no recollection of the facts in it. However, the placement of the exception would seem to be far less significant than the limitations and qualifications placed upon its use. One need not decide whether the witness is "subject to cross-examination" or whether he is "unavailable" because he can not recall the events described in it; all that needs to be done is to remove the exception from Rule 803, and place it elsewhere with appropriate language indicating the limits of its use.

CONCLUSION

The federal courts have worked tolerably well in spite of the absence of codified rules of evidence and will continue to do so until a truly good set of rules is adopted. There is much in the Federal Rules of Evidence that marks a real improvement over the present practice, but there are a number of significant problems that should not be allowed to go uncorrected. There is no need for great haste, and it would be ill-advised to adopt the Rules now with the hope of making any adjustments in the near future. In particular, the problems created by the Article dealing with privileges require a thorough examination by the Bar and the Congress. Unfortunately, many of us who should have spent more time examining the Rules in their early stages have not done so, but have waited for the Court to promulgate them in their final form before taking the time to concern ourselves with them. But the Rules are far too important to allow prior defaults by the Bar to stand in the way of a much needed analysis before they are put into effect.

Mr. HUNGATE. We have some groups that we would like to have come to the table together.

The American Orthopsychiatric Association, the National Association for Mental Health, Inc., and the American Psychological Association will be represented by Mrs. Patricia Wald, counsel of the Center for Law and Social Policy.

Also, the American Association of Physicians and Surgeons, represented by Dr. T. G. Dorrity, past president, and the National Association of Social Workers, represented by Col. Sherman Ragland. I see, Miss Wald, you have a prepared statement. Without objection that can be made a part of the record.

Dr. Dorrity of the Association of American Physicians and Surgeons, vou, too have a prepared statement that, without objection, will be made a part of the record.

And without objection, the statement on behalf of the National Association of Social Workers, Inc., represented by Col. Sherman Ragland. will be made a part of the record.

48

[The statements referred to are at p. 465.]

the witness

fully and accurately. * *

49 56 F.R.D. at 307.

now has insufficient recollection to enable him to testify

Mr. HUNGATE. Now, unless there is vociferous objection here, we thought we would probably be addressing the same problems, the same general area, with this group. And you might sort of serve as a panel to help with some of the questions that the committee will have. Certainly that will facilitate us from the standpoint of time.

Despite the fact that this committee processed the constitutional amendment on equal rights for women, we are still going to let you go first, Miss Wald.

TESTIMONY OF PATRICIA WALD, ON BEHALF OF THE AMERICAN ORTHOPSYCHIATRIC ASSOCIATION, THE AMERICAN PSYCHOLOGICAL ASSOCIATION AND THE NATIONAL ASSOCIATION OF MENTAL HEALTH; THOMAS G. DORRITY, M.D., IMMEDIATE PASTPRESIDENT, ASSOCIATION OF AMERICAN PHYSICIANS AND SURGEONS; AND SHERMAN RAGLAND, PRESIDENT, D.C. METROPOLITAN CHAPTER OF THE NATIONAL ASSOCIATION OF SOCIAL WORKERS

Miss WALD. Thank you.

Let me identify the three groups which I am representing today. The American Orthopsychiatric Association, very briefly, is an organization of 3,600 professionals from lawyers, educators, psychiatrists, psychologists, and ordinary laymen, who are interested in mental health and behavioral and social problems.

The American Psychological Association represents 30,000 psychologists.

The National Association of Mental Health is a 1 million member organization, with both lay and mental health professionals who are dedicated to the advancement of both the professional standards and the rights of patients.

We are here concerned primarily and exclusively with rule 504, the psychotherapist-patient privilege. And very briefly, our position is

this:

No. 1, we do not believe that there ought to be a Federal rule with regard to this privilege at all. First, there are the legal grounds, that we are dealing here with a very substantive right, between a patient and a doctor or a therapist. We don't believe that that comes within the rulemaking authority of the statute.

We also believe that the latest abortion cases by the Supreme Court, which speak in very strong language about the right of privacy of a patient and a doctor, can throw some light on this problem.

We believe that there ought to be a Federal rule here only if there is a compelling Federal interest that needs somehow to be vindicated. In short, it is conceivable, for instance, that a Federal question might arise if you have social security hearings and a long record of experience to show that there was a very difficult problem with the doctor-patient privilege in that Federal question area.

But, as to a general privilege in the Federal courts, whose primary justification is uniformity between the Federal districts, we do not think that that is justified.

We would rather leave the area of privilege, which we believe is a very substantive one, concerning the rights of patients, and one which very definitely controls the relationship between the patient and their doctors or professionals of various sort-this ought to be left in the State area.

We think that we speak mostly from the patient's point of view or from the consumer's point of view. To expect a patient to go into a doctor's office and possibly have a privilege if somehow his disclosures come out in a State proceeding and not to have a privilege if they come out in a Federal proceeding is not in his best interest and very definitely undermines whatever privilege the State may have granted him.

Now, this principle can certainly work both ways. Mental health professionals and patients are not satitsfied with the status of the privilege in every State. The millenium is by no means reached or even approached. Nonetheless, it is the feeling of our members that this is a law which is evolving. It is a law in which they can work on in the State level with both legislatures, and in litigation in the State courts.

And, having two different sets governing a very substantive relationship of patient and doctor or professional in the same jurisdiction will only undermine whatever privileges or whatever trust relationships they are working toward.

However, if it were decided and we hope it will not be, that Congress should go ahead and legislate or the rules should be allowed to rule on a general Federal privilege, then certainly we are not satisfied with the one that is formulated in rule 504.

Very briefly, our particular public policy, the one we would espouse and the one we would hope would control, would be one of broadly encouraging people to seek help for both their mental and their emotional ills from professionals wherever they can.

We think that the state of violence in the country, and problems of child abuse, show that it is usually isolated people who don't have places to turn or don't feel they have places to turn for help, who are concerned in three-fourths of all homicides in family assaults; and in child abuse cases: that the policy that ought to predominate is one of encouraging a patient to go for diagnosis and treatment; and that the privilege ought to be cut into only when it is clearly necessary.

We feel that very specifically, this rule is deficient in several ways. Niggardly, I think, in terms of the patient's welfare, from our point of view.

The first area would be the definition of who is a psychotherapist. A person who is authorized to practice medicine or reasonably believed to be such a person, while engaged in the diagnosis or treatment of a mental or emotional condition, including drug addiction-what this leaves out is the ordinary doctor who is treating a patient for an ordinary medical illness. We do not think you can separate medical illnesses from emotional and mental illnesses.

In other words, if you are treating an ulcer are you treating the physical symptom or are you treating the emotional underlying causes of the physical symptom?

We think it is a very artificial distinction to say to a doctor: you decide when you are talking and when you are asking questions in a