adopted, that this body be given only 90 days in which to accept or reject a voluminous set of far-reaching changes that took over 7 years to draft.

A reading of the proposed rules changes lends even more credence to that argument. This proposal sent to Congress by the Supreme Court is a lengthy document entitled "Rules of Evidence," along with changes in the rules of civil and criminal procedure. Neither the enabling statutes, nor its legislative history, suggests that the Judicial Conference has the right to promulgate new rules of evidence.

Mr. Chairman, I suggest that Congress alone has the right to set rules of evidence or to delegate that authority by specific acts of Congress. Congress first asserted its authority to prescribe the law to be followed by the Federal courts in the Rules of Decision Act of 1789. I do not believe that this attempt to usurp that power should go unchallenged.

There has been great debate among the legal fraternity as to whether the Supreme Court even has the authority to promulgate such rules. In its various enabling acts, this Congress has given to the Supreme Court the right to promulgate rules of practice and procedure for our Federal courts.

Many distinguished members of the bar, including Associate Supreme Court Justice William O. Douglas, question whether rules of evidence are by their very nature procedural, in the sense of determining the conduct of trials, or whether they are instead substantive, in that they go to the very right that is being litigated in the courts. Substantive rights are clearly beyond the purview of the Supreme Court's rulemaking power. This, the enabling statutes make clear.

The effects of these new rules upon our system of justice could be disastrous. Rules of evidence determine whether a case is won or lost. They determine what testimony or documents a litigant can present in support of his case or defense.

These rules will replace the common law evidentiary rules which are currently employed by our courts, rules which were developed over a period of centuries of application and constant refinement.

The far-reaching consequences of these rules make it incumbent upon us to subject them to a detailed, searching inquiry. We cannot allow them to go into effect without first determining what the consequences of them will be on our courts and on our people.

Although the new rules are the work of eminent jurists, scholars, and lawyers, most members of the bar and other affected groups are unfamiliar with them, as are most Members of Congress.

Mr. Chairman, let me highlight just a few of the far-reaching changes proposed in the document before us, and what it will mean if the changes are not rejected.

1. The right to know.-The proposed rules establish a new "official information" privilege. In light of the controversy surrounding the Pentagon papers, Congress must decide whether it wants to allow the Government to have an increased power to classify documents.

This proposed privilege could be claimed by any executive department or any of its inferior officers on the grounds of "national

interest." There need be no showing that the national security would be damaged if the privilege was disallowed.

This seems to me to be in direct conflict with the Freedom of Information Act, because it enables the Government to keep from the public anything it considers to be not in the "national interest."

The ramifications of a privilege covering this ill-defined term must be closely studied, or 1984 will be that much closer.

2. The elimination of the doctor-patient privilege. This ancient privilege protects the confidence of statements made by a patient to his doctor in the course of medical diagnosis or treatment. The privilege is essential if citizens are to receive the best medical treatment available, for often people will reveal certain facts about themselves, facts which may be vital to diagnosis or cure, only if they know their confidences will be protected.

That means that the most intimate and private conversations between a patient and his physician could be forcibly revealed in court. This specific rule is opposed by the American Medical Association on the grounds that it would detract from the quality of medical care available to patients and thus limit the kinds of service a doctor could make available.

It could open doctors to harassment, and their records to public view. Patients may be reluctant to discuss such problems as sex, venereal disease, adoption, bastardy, epilepsy, and so forth.

In addition, forcing a doctor to reveal the confidences of his patients would be in violation of the Hippocratic Oath.

3. Admission of hearsay evidence.-This rule change would deny us the constitutional right to confront our accusers. Third-party testimony damaging to a defendant could be admitted into evidence, thereby denying the defendant the right to cross-examine.

Simply put, the new rule would give common gossip standing before the courts, in place of hard evidence and hard testimony. This change is revolutionary.

And this does, of course, require careful scrutiny, again, by the Congress.

4. Husband-wife privilege.-The new rules eliminate this bastion of privacy in all civil cases and in criminal cases under the Mann Act (procuring for prostitution across State lines).

Again, the principle of a confidential relationship is attacked. When is a confidence not a confidence?

5. Nevsman's privilege.-The proposal now before us has no rule giving privilege to newsmen. Taken with other suggested changes here, it could have a gross effect on a newsman's freedom.

For example, in the case of a reporter charged in a State where he is protected by a "shield" law, the outcome of his case may well be decided by whether he is tried in State or Federal court.

6. Impeachment of witnesses.-New rules concerning the impeachment of witnesses, which could revolutionize the conduct of testimony in our courts, and the apparent effect which these rules will have on the evidentiary rules of the States, must be considered.

Under the present rule 43 of the Federal Rules of Civil Procedure, Federal courts must look to State as well as Federal rules in deter

mining whether evidence is admissible. Under the proposed rules, only the Federal evidentiary rules will determine admissibility.

This will have a profound effect on the outcome of litigation under diversity jurisdiction. So, therefore, residents of different States with more than $10,000 in controversy between them may bring suit in a Federal court. The litigants also have the option of suing in a State

court.

As presently constituted, the rules are designed to provide the same result in most situations, whether the case is heard in Federal or State court. If these rules go into effect, the results will be different, for the courts will be applying different rules of evidence. This will encourage forum-shopping. Litigants will race to the courthouse to file suit first in the court with the evidence rules which they feel most favor their

case.

Our courts are already faced with serious delays in hearing suits. Further delays almost surely will result if litigants try to have suits transferred from State to Federal court, or Federal to State court, because they feel the rules in one court will guarantee more favorable evidentiary treatment. Situations such as this could cause great confusion and a further breakdown of our judicial system.

One of the problems which will result if Congress does not determine the limits of the Supreme Court's rulemaking power is that a challenge to the authority of the Supreme Court to issue such rules could only be made in the courts. The problem with this, of course, is that the Supreme Court has already determined that it has the authority. The Court will, therefore, be required to decide the limits of its own authority. It is circular for the Court, which has already decided it has the power, to once again have to decide whether it has the power, when that power is challenged in the courts.

It amounts to a determination that, because the Supreme Court has issued the rules, it therefore had the power to issue the rules. Thus, a person convicted under the new rules who appealed to the Supreme Court that he was convicted on inadmissible evidence might find the Court sitting in judgment of itself, deciding without legislative recourse that the rules it had sanctioned were in fact legal.

What does all this mean? It means that if these rules-set under this procedure are allowed to stand, the Supreme Court will have established the right to make whatever changes in our court system it sees fit.

I contend that the changes proposed in this document are so profound and so far-reaching that many of them would never be approved by Congress in the form of a law. They are changes which neither Congress would accept, nor the President sign into law, if their full implications were understood.

It means that if these basic changes in the law are allowed to stand on the recommendation of the Judicial Conference, with the imprimatur of the Supreme Court, then our next message from them could be an announcement of the suspension of habeas corpus, or

worse.

The enabling statute, as presently written, does not prescribe the procedures to be followed by Congress in order for it to reject these rules, and it does not even say that Congress can reject the rules.

If these proposals are allowed to go into effect, with Congress not having the authority to challenge them, they will constitute out-andout judicial legislation, in violation of the Constitution.

The Constitution gives Congress the sole authority to pass laws. For Congress to allow another branch of government to take over its prime function would amount once again to a total abdication of authority, and the violation of its sacred trust.

In that light, the present enabling act may well be unconstitutional, for it delegates the authority to enact legislation, with no provision for congressional rejection of the enactments of the Court.

This document, on the heels of the current assault on Congress' power of the purse, contains what is perhaps the most open and most concerted attack on the powers of Congress in history.

If, through inaction, indifference, or lack of understanding, we allow our authority to be further eroded, and our powers further diminished, we will be desecrating a holy public trust, and we will have no one to blame but ourselves.

In view of that, I will today introduce two bills designed to correct the situation. The first will extend the time given Congress to consider the matter, from the 90 days set in the current statute, until such time as the rules may be specifically approved by Congress.

The second bill amends the civil enabling statute, section 2072 of title 28 of the United States Code, and the other enabling statutes, to eliminate the negative aspects contained in the Code.

As amended, the enabling legislation would require that such basic changes as those we are considering here today be approved by both Houses of Congress and signed by the President before they can become operative. Presently, the rules become binding automatically in a specific period after they have been reported to Congress.

Mr. Chairman, that is the conclusion of my statement. Thank you for your consideration and for your interest.

Mr. HUNGATE. The subcommittee appreciates your attention to and study of these matters that are of great concern to many of us, and you taking the time to be with us here today.

The Chair has a request for permission to take still photographs during these hearings. This is our first such request. I am inclined to permit the taking of photographs unless any member objects. If at any time the practice became obtrusive, a member could then object to it. And if a witness objected we would terminate it.

Mr. HOGAN. I don't see how photography can be unobtrusive. I would defer to the chairman, but I would prefer that no photographers be present.

The courts don't allow photography in the courtrooms, and I think if we are going to have photographers here, it would be obtrusive, no matter how unobtrusive the photographer tried to be.

Mr. HUNGATE. There has been objection. No photographs will be taken during the hearing. Mr. Smith.

Mr. SMITH. Thank you, Mr. Podell, for your comprehensive statement. That does raise a lot of questions that must be considered by this Congress.

Mr. HUNGATE. Mr. Mann.

Mr. MANN. The second bill to which you refer would amend section.

2072 of title 28, United States Code, and other enabling acts. Section 2072 authorizes the Supreme Court to prescribe by rules, pleadings, motions, appellate practices, and so forth. It is much more encompassing than the mere establishing of evidentiary rules.

Does your bill go to all of those powers of the Supreme Court, or is it on the right to establish evidentiary rules?

Mr. PODELL. It does go to all of those powers of the Court. It maintains the Court's position as the proposer of new rules, but requires congressional approval across the board. This approval often will be and should be routine, but it is always necessary precisely to prevent situations like the present one from recurring. There must be a mechanism whereby the Congress can decide on the importance and the substance of the Court's proposals.

Mr. HUNGATE. Mr. Mayne.

Mr. MAYNE. No questions.

Mr. HUNGATE. Ms. Holtzman.

Ms. HOLTZMAN. I want to thank you first for your very fine testimony before us.

I also would like to ask you if you have any thoughts as to the desirability of a codification of Federal rules of evidence.

Mr. PODELL. I think all of us are agreed that something has to be done in codifying the rules, so that we can make some semblance out of what is now a morass of concepts.

Certainly I feel my major objection-and I am not so sure that I even desire to contest the jurisdiction of the Conference, rather than the fact that we are not given as much time as we should be given to go into each of these things as we properly should.

They have worked on it several years, and we have 90 days, together with all of our other work. The chairman, Mr. Hungate, has a number of things. How can you develop that much effort in 90 days, which took scholars and jurists several years?

Someday I hope that the rules will be codified on a national basis. Mr. HUNGATE. Any further questions? Mr. Hogan.

Mr. HOGAN. I would like to thank our distinguished colleague for his contribution. And I certainly agree with him that I think we are now in this instance confronted with a constitutional crisis.

The order of the Supreme Court adopting the rules makes no allusion to any power of Congress in this regard, and just assumes it is a fait accompli.

I agree with the gentleman that we have to assert our prerogatives in this area. And with all due respect to the eminent legal scholars who did so much work in producing this body of material-we ought to be grateful for their effort-but it is my understanding that they held no hearings, and the Court itself, really, as you indicated, only put its imprimatur on these rules of evidence.

So I agree that we need to extend the time, or perhaps even start from scratch, with this as some groundwork for us to begin with. So I thank the gentleman for his contribution.

Mr. PODELL. I thank you very much.

Thank you, Mr. Chairman and members of the committee.

Mr. HUNGATE. The Chair now calls Judge Albert B. Maris, Chairman, Standing Committee on Rules of Practice and Procedure, Judi