Page Two
THE NEW BERN MIRROR, NEW BERN, N. C.
Friday, March 30, 1973
Federal rules of evidence,
which often deal with abstruce
legal matters, usually rate no
more than a passing glance on
the part of Congress and the
public. In the view of many,
such rules are primarily the
concern of judges, lawyers, and
legal scholars.
That would probably have
been the case on February 5,
1973, when the Chief Justice of
the United States sent to
Congress some seventy-seven
proposed Federal rules of
evidence had they not gone
beyond the ordinary
“housekeeping” procedures of
the courts. Thus, under the
enabling Acts of Congress and
the orders of the Supreme
Court, the rules would have
taken effect on July 1 unless
Congress had disapproved them
within 90 days. But, early in the
session, it was apparent that
due to the complexity of the
proposed rules it would be
im^ssible for Congress to
ad^uately review them within
the existing time frame. This
was so because they involved
substantial constitutional,
legal, and policy questions
which should be studied by the
Congress.
On January 29, 1973, I,
therefore, intr^uced S. 583, a
resolution to provide Congress
with adequate time to consider
the proposed rules. My bill
deferred the effective date of
the rules to the end of the flrst
session of the 93rd Congress
unless they were approv^ by
me v;ongress av an earuec Oave.
Subsequently, the House
modifi^ my bill slightly to
require the affirmative action
of the Congress before the rules
become q)erative. Last week,
the Senate concurred in that
amendment and sent the bUl to
the White House. This action is
commendable. In a real sense,
these rules propose changes in
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respect to major issues over
which there is now vast debate:
newsmen’s privilege, executive
secrecy, and individual
privacy.
For example, the proposed
rules forbid the use of the
newsmen’s privilege. They
restrict the traditional doctor-
patient privilege. They severely
narrow the long-established
ri^t of husbands and wives to
keep their conversations con
fidential in all civil cases and in
certain criminal cases in the
Federal Coufts. These changes
alone would have a vast impact
on the daily relationships of
many individuals.
By narrowing the husband-
wife privilege, the rules raise a
question of constitutional
^mension since they may
violate the right of privacy. By
narrowing the hearsay doc
trine, they raise a question as to
the abridgement of a criminal
defendant’s right under the
Sixth Amendment to confront
his accusers. And there is a
substantial question arising out
of Article III of the Constitution
which prohibits the Supreme
Court from promulgating
substantive rules of evidence
except where the Court is ruling
on a case or controversy.
Former Supreme Court Justice
Goldberg recently stated the
latter as follows:
“While the Court may have
some inherent power of its own
and some concurrent power
with Congress over matters of
procedure, the Constitution
vests in Congress ttie power to
initiate and enact legislation
concerning the rights and duties
of citizens of the United States
subject, of course, to con
stitutional limitations.”
To my mind, the many con
troversies raised by the
proposed Federal rules of
evidence simply cannot be
resolved properly witin 90 days.
It took a committee of eminent
scholars and lawyers eight
years to promulgate these
rules, and the gravity of the
issues raised by these proposed
ndes requires that Congress
carefully review them. Indeed,
it would be unwise for Congress
to abcUcate its responsibUity
and rubber-stamp the product
of many revisions, studies,
debates, and compromises.
These rules did not come to
Congress with the benefit of
wide-spread public discussion
and criticism. In fact, up to the
last minute major changes in
the rules were being made
without public comment.
I am pleased that Congress
has passed this bill. This is
particularly encouraging at a
time when there is much
evidence that the Executive and
Judicial branches have usurped
responsibUlties properly within
the Legislative domain.
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Hearty dry bean dishes are
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Dry beans are an excellent
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