Appendix to Subpart B of Part 18 - Reporter's Notes
29:1.1.1.1.19.2.66.64.7 :
Appendix to Subpart B of Part 18 - Reporter's Notes Reporter's
Introductory Note
The Rules of Evidence for the United States Department of Labor
modify the Federal Rules of Evidence for application in formal
adversarial adjudications conducted by the United States Department
of Labor. The civil nonjury nature of the hearings and the broad
underlying values and goals of the administrative process are given
recognition in these rules.
Reporter's Note to § 18.102
In all formal adversarial adjudications of the United States
Department of Labor governed by these rules, and in particular such
adjudications in which a party appears without the benefit of
counsel, the judge is required to construe these rules and to
exercise discretion as provided in the rules, see, e.g., § 18.403,
to secure fairness in administration and elimination of
unjustifiable expense and delay to the end that the truth may be
ascertained and the proceedings justly determined, § 18.102. The
judge shall also exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as to
(1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time,
and (3) protect witnesses from harassment or undue embarrassment, §
18.611(a).
Reporter's Note to § 18.103
Section 18.103(a) provides that error is not harmless, i.e., a
substantial right is affected, unless on review it is determined
that it is more probably true than not true that the error did not
materially contribute to the decision or order of the court. The
more probably true than not true test is the most liberal harmless
error standard. See Haddad v. Lockheed California
Corp., 720 F.2d 1454, 1458-59 (9th Cir. 1983):
The purpose of a harmless error standard is to enable an
appellate court to gauge the probability that the trier of fact was
affected by the error. See R. Traynor, [The Riddle of Harmless
Error] at 29-30. Perhaps the most important factor to consider in
fashioning such a standard is the nature of the particular
fact-finding process to which the standard is to be applied.
Accordingly, a crucial first step in determining how we should
gauge the probability that an error was harmless is recognizing the
distinction between civil and criminal trials. See Kotteakos
v. United States, 328 U.S. 750, 763, 66 S.Ct. 1239, 1247, 90
L.Ed. 1557 (1946); Valle-Valdez, 544 F.2d at 914-15. This
distinction has two facets, each of which reflects the differing
burdens of proof in civil and criminal cases. First, the lower
burden of proof in civil cases implies a larger margin of error.
The danger of the harmless error doctrine is that an appellate
court may usurp the jury's function, by merely deleting improper
evidence from the record and assessing the sufficiency of the
evidence to support the verdict below. See Kotteakos, 328
U.S. at 764-65, 66 S.Ct. at 1247-48; R. Traynor, supra, at
18-22. This danger has less practical importance where, as in most
civil cases, the jury verdict merely rests on a more probable than
not standard of proof.
The second facet of the distinction between errors in civil and
criminal trials involves the differing degrees of certainty owed to
civil and criminal litigants. Whereas a criminal defendant must be
found guilty beyond a reasonable doubt, a civil litigant merely has
a right to a jury verdict that more probably than not corresponds
to the truth.
The term
materially contribute was chosen as the most
appropriate in preference to
substantially swayed, Kotteakos
v.
United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed 1557
(1946) or
material effect. Holloway v.
Arkansas, 435
U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). The word
contribute was employed in
Schneble v.
Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972)
and
United States v.
Hastings, 461 U.S. 499, 103
S.Ct. 1974, 76 L.Ed.2d 96 (1983).
Error will not be considered in determining whether a
substantial right of a party was affected if the evidence was
admitted in error following a properly made objection, §
18.103(a)(1), and the judge explicitly states that he or she does
not rely on such evidence in support of the decision or order. The
judge must explicitly decline to rely upon the improperly admitted
evidence. The alternative of simply assuming nonreliance unless the
judge explicitly states reliance, goes too far toward emasculating
the benefits flowing from rules of evidence.
The question addressed in Richardson v. Perales,
402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) of whether
substantial evidence as specified in § 556(d) of the
Administrative Procedure Act requires that there be a residuum of
legally admissible evidence to support an agency determination is
of no concern with respect to these rules; only properly admitted
evidence is to be considered in determining whether the
substantial evidence requirement has been satisfied.
Reporter's Note to § 18.104
As to the standard on review with respect to questions of
admissibility generally, section 18.104(a), see In re Japanese
Electronic Products Antitrust Litigation, 723 F.2d 238, 265-66
(3d Cir. 1983) (“The scope of review of the trial court's
trustworthiness determination depends on the basis for the ruling.
When the trial court makes § 18.104(a) findings of historical fact
about the manner in which a report containing findings was compiled
we review by the clearly erroneous standard of Fed.R.Civ.P. 52. But
a determination of untrustworthiness, if predicated on factors
properly extraneous to such a determination, would be an error of
law * * * * There is no discretion to rely on improper factors.
Such an error of law might, of course, in a given instance be
harmless within the meaning of Fed.R.Civ.P. 61. In weighing factors
which we consider proper, the trial court exercises discretion and
we review for abuse of discretion. Giving undue weight to
trustworthiness factors of slight relevance while disregarding
factors more significant, for example, might be an abuse of
discretion.”). Accord, United States v. Wilson, 798
F.2d 509 (lst Cir. 1986).
As to the standard on review with respect to relevancy,
conditional relevancy and the exercise of discretion, see, e.g.,
United States v. Abel, 469 U.S. 45, 54, 105 S.Ct.
465, 470, 83 L.Ed.2d 450 (1984) (“A district court is accorded a
wide discretion in determining the admissibility of evidence under
the Federal Rules. Assessing the probative value of common
membership in any particular group, and weighing any factors
counselling against admissibility is a matter first for the
district court's sound judgment under Rules 401 and 403 and
ultimately, if the evidence is admitted, for the trier of fact.”);
Alford v. United States, 282 U.S. 687, 694, 51 S.Ct.
218, 220, 75 L.Ed 624 (1931) (“The extent of cross-examination with
respect to an appropriate subject of inquiry is within the sound
discretion of the trial court. It may exercise a reasonable
judgment in determining when the subject is exhausted.”);
Hill v. Bache Halsey Stuart Shields Inc., 790 F.2d
817, 825 (10th Cir. 1986) (“We recognize that a trial court has
broad discretion to determine whether evidence is relevant, and its
decision will not be reversed on appeal absent a showing of clear
abuse of that discretion. Beacham v. Lee-Norse, 714
F.2d 1010, 1014 (10th Cir. 1983). The same standard of review
applies to a trial court's determination, under Fed.R.Evid. 403,
that the probative value of the evidence is outweighed by its
potential to prejudice or confuse the jury, or to lead to undue
delay. Id.”).
Reporter's Note to § 18.201
A.P.A. section 556(e) provides that “when an agency decision
rests on official notice of a material fact not appearing in the
evidence in the record, a party is entitled, on timely request, to
an opportunity to show the contrary.” No definition of “official
notice” is provided. An administrative agency may take official
notice of any adjudicative fact that could be judicially noticed by
a court. In addition “the rule is now clearly emerging that an
administrative agency may take official notice of any generally
recognized technical or scientific facts within the agency's
specialized knowledge, subject always to the proviso that the
parties must be given adequate advance notice of the facts which
the agency proposes to note, and given adequate opportunity to show
the inaccuracy of the facts or the fallacy of the conclusions which
the agency proposes tentatively to accept without proof. To satisfy
this requirement, it is necessary that a statement of the facts
noticed must be incorporated into the record. The source material
on which the agency relies should, on request, be made available to
the parties for their examination.” 1 Cooper, State Administrative
Law 412-13 (1965). Accord, Uniform Law Commissioners' Model State
Administrative Procedure Act section 10(4) (1961) (“Notice may be
taken of judicially cognizable facts. In addition, notice may be
taken of generally recognized technical or scientific facts within
the agency's specialized knowledge. Parties shall be notified
either before or during the hearing, or by reference in preliminary
reports or otherwise, of the material noticed, including any staff
memoranda or data, and they shall be afforded an opportunity to
contest the material so noticed. The agency's experience, technical
competence, and specialized knowledge may be utilized in the
evaluation of the evidence.”); Schwartz, Administrative Law § 7.16
at 375 (2d ed. 1984) (“Clearly an agency may take notice of the
same kinds of fact of which a court takes judicial notice. It has,
however, been recognized that the differences between agencies and
courts * * * may justify a broader approach. Under it, an agency
may be permitted to take ‘official notice’ not only of facts that
are obvious and notorious to the average man but also of those that
are obvious and notorious to an expert in the given field.” “A
commission that regulates gas companies may take notice of the fact
that a well-managed gas company loses no more than 7 percent of its
gas through leakage, condensation, expansion, or contraction, where
its regulation of gas companies, over the years has made the amount
of ‘unaccounted for gas’ without negligence obvious and notorious
to it as the expert in gas regulation. A workers' compensation
commission may similarly reject a claim that an inguinal hernia was
traumatic in origin where the employee gave no indication of pain
and continued work for a month after the alleged accident. The
agency had dealt with numerous hernia cases and was as expert in
diagnosing them as any doctor would be. Its experience taught it
that where a hernia was traumatic in origin, there was immediate
discomfort, outward evidences of pain observable to fellow
employees, and at least temporary suspension from work. The agency
could notice this fact based upon its knowledge as an expert and
reject uncontradicted opinion testimony that its own expertise
renders unpersuasive.”). Compare Uniform Law Commissioners' Model
State Administrative Procedure Act section 4-212(f) (1981)
(“Official notice may be taken of (i) any fact that could be
judicially noticed in the courts of this State, (ii) the record of
other proceedings before the agency, (iii) technical or scientific
matters within the agency's specialized knowledge, and (iv) codes
or standards that have been adopted by an agency of the United
States, of this State or of another state, or by a nationally
recognized organization or association. Parties must be notified
before or during the hearing, or before the issuance of any initial
or final order that is based in whole or in part on facts or
materials noticed, of the specific facts or material noticed and
the source thereof, including any staff memoranda and data, and be
afforded an opportunity to contest and rebut the facts or materials
so noticed.”). Contra Davis, Official Notice, 62 Harv. L. Rev. 537,
539 (1949) (“To limit official notice to facts which are beyond the
realm of dispute would virtually emasculate the administrative
process. The problem of official notice should not be one of
drawing lines between disputable and indisputable facts. Nor should
it even be one of weighing the importance of basing decisions upon
all available information against the importance of providing full
and fair hearings in the sense of permitting parties to meet all
materials that influence decision. The problem is the intensely
practical one of devising a procedure which will provide both
informed decisions and fair hearings without undue inconvenience or
expense.”).
Section 18.201 adopts the philosophy of Federal Rule of Evidence
201. The Advisory Committee's Note to Fed.R.Evid. 201 (b)
states:
With respect to judicial notice of adjudicative facts, the
tradition has been one of caution in requiring that the matter be
beyond reasonable controversy. This tradition of circumspection
appears to be soundly based, and no reason to depart from it is
apparent. As Professor Davis says:
“The reason we use trial-type procedure, I think, is that we
make the practical judgment, on the basis of experience, that
taking evidence, subject to cross-examination and rebuttal, is the
best way to resolve controversies involving disputes of
adjudicative facts, that is, facts pertaining to the parties. The
reason we require a determination on the record is that we think
fair procedure in resolving disputes of adjudicative facts calls
for giving each party a chance to meet in the appropriate fashion
the facts that come to the tribunal's attention, and the
appropriate fashion for meeting disputed adjudicative facts
includes rebuttal evidence, cross-examination, usually
confrontation, and argument (either written or oral or both). The
key to a fair trial is opportunity to use the appropriate weapons
(rebuttal evidence, cross-examination, and argument) to meet
adverse materials that come to the tribunal's attention.” A System
of Judicial Notice Based on Fairness and Convenience, in
Perspectives of Law 69, 93 (1964).
The rule proceeds upon the theory that these considerations call
for dispensing with traditional methods of proof only in clear
cases. Compare Professor Davis' conclusion that judicial notice
should be a matter of convenience, subject to requirements of
procedural fairness. Id., 94. Section 18.201 of the Federal
Rules of Evidence incorporated the Morgan position on judicial
notice. The contrary position, expressed by Wigmore and Thayer, and
advocated by Davis, was rejected. See McNaughton, Judicial
Notice-Excerpts Relating to the Morgan-Wigmore Controversy, 14
Vand. L. Rev. 779 (1961) (“They do not differ with respect to the
application of the doctrine to ‘law’. Nor do they reveal a
difference with respect to so-called ‘jury notice.’ Their
difference relates to judicial notice of ‘facts.’ Here Wigmore,
following Thayer, insists that judicial notice is solely to save
time where dispute is unlikely and that a matter judicially noticed
is therefore only ‘prima facie,’ or rebuttable, if the opponent
elects to dispute it. It is expressed in Thayer and implicit in
Wigmore that (perhaps because the matter is rebuttable) judicial
notice may be applied not only to indisputable matters but also to
matters of lesser certainty. Morgan on the other hand defines
judicial notice more narrowly, and his consequences follow from his
definition. He limits judicial notice of fact to matters patently
indisputable. And his position is that matters judicially noticed
are not rebuttable. He asserts that it is wasteful to permit
patently indisputable matters to be litigated by way of formal
proof and furthermore that it would be absurd to permit a party to
woo a jury to an obviously erroneous finding contrary to the
noticed fact. Also, he objects to the Wigmorean conception on the
ground that it is really a ‘presumption’ of sorts attempting to
pass under a misleading name. It is, according to Morgan, a
presumption with no recognized rules as to how the presumption
works, what activates it, and who has the burden of doing how much
to rebut it.”).
Accordingly, notice that items (ii) and (iv) of the Uniform Law
Commissioners' Model State Administrative Procedure Act quoted
above are not included as separate items in § 18.201. However codes
and standards, (iv), to the extent not subject to reasonable
question fall within § 18.201(b)(2). To the extent such codes and
standards do not so fall, proof should be required. Official notice
of records of other proceedings before the agency would “permit an
agency to notice facts contained in its files, such as the revenue
statistics contained in the reports submitted to it by a regulated
company.” Schwartz, supra at 377. Once again, to the extent
such information is not capable of accurate and ready determination
by resort to sources whose accuracy cannot reasonably be
questioned, § 18.201(b)(2), proof should be required.
Reporter's Note to § 18.301
Section 18.301 does not prevent an administrative agency by
either rule, regulation, or common law development from allocating
burdens of production and burdens of persuasion in an otherwise
permissible manner. See N.L.R.B. v. Transportation
Management Corp., 462 U.S. 400, 403 n.7, 103 S.Ct. 2469, 2475
n.7, 76 L.Ed.2d 667 (1983) (“Respondent contends that Federal Rule
of Evidence 301 requires that the burden of persuasion rest on the
General Counsel. Rule 301 provides:
In all civil actions and proceedings not otherwise provided for
by Act of Congress or by these rules, a presumption imposes on the
party against whom it is directed the burden of going forward with
evidence to rebut or meet the presumption, but does not shift to
such party the burden of proof in the sense of the risk of
nonpersuasion, which remains throughout the trial upon the party on
whom it was originally cast.
The Rule merely defines the term ‘presumption.’ It in no way
restricts the authority of a court or an agency to change the
customary burdens of persuasion in a manner that otherwise would be
permissible. Indeed, were respondent correct, we could not have
assigned to the defendant the burden of persuasion on one issue in
Mt. Healthy City Board of Education v. Doyle, 429
U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).”).
Reporter's Note to § 18.302
The Advisory Committee's Note to Federal Rule of Evidence 302,
56 F.R.D. 118, 211 states:
A series of Supreme Court decisions in diversity cases leaves no
doubt of the relevance of Erie Railroad Co. v.
Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938),
to questions of burden of proof. These decisions are Cities
Service Oil Co. v. Dunlap, 308 U.S. 208, 60 S.Ct. 201,
84 L.Ed. 196 (1939), Palmer v. Hoffman, 318 U.S. 477,
87 L.Ed. 645 (1943), and Dick v. New York Life Ins.
Co., 359 U.S. 437, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959). They
involved burden of proof, respectively, as to status as bona fide
purchaser, contributory negligence, and nonaccidental death
(suicide) of an insured. In each instance the state rule was held
to be applicable. It does not follow, however, that all
presumptions in diversity cases are governed by state law. In each
case cited, the burden of proof question had to do with a
substantive element of the claim or defense. Application of the
state law is called for only when the presumption operates upon
such an element. Accordingly the rule does not apply state law when
the presumption operates upon a lesser aspect of the case, i.e.
“tactical” presumptions.
The situations in which the state law is applied have been
tagged for convenience in the preceding discussion as “diversity
cases.” The designation is not a completely accurate one since
Erie applies to any claim or issue having its source in
state law, regardless of the basis of federal jurisdiction, and
does not apply to a federal claim or issue, even though
jurisdiction is based on diversity.
Vestal, Erie R. R. v. Tompkins: A Projection, 48
Iowa L.Rev. 248, 257 (1963); Hart and Wechsler, The Federal
Courts and the Federal System, 697 (1953); 1A Moore Federal
Practice p. 0.305[3] (2d ed. 1965); Wright, Federal Courts, 217-218
(1963). Hence the rule employs, as appropriately descriptive, the
phrase “as to which state law supplies the rule of decision.” See
A.L.I. Study of the Division of Jurisdiction Between State and
Federal Courts, 2344(c), p. 40, P.F.D. No. 1 (1965).
It is anticipated that § 18.302 will very rarely come into
play.
Reporter's Note to § 18.403
Rule 403 of the Federal Rules of Evidence provides for the
exclusion of relevant evidence on the grounds of unfair prejudice.
Since all effective evidence is prejudicial in the sense of being
damaging to the party against whom it is offered, prejudice which
calls for exclusion is given a more specialized meaning: An undue
tendency to suggest decision on an improper basis, commonly but not
necessarily an emotional one, such as bias, sympathy, hatred,
contempt, retribution or horror. Unfair prejudice is not, however,
a proper ground for the exclusive of relevant evidence under these
rules. Judges have shown over the years the ability to resist
deciding matters on such an improper basis. Accord Gulf States
Utilities Co. v. Ecodyne Corp., 635 F.2d 517, 519 (5th
Cir. 1981). (“The exclusion of this evidence under Rule 403's
weighing of probative value against prejudice was improper. This
portion of Rule 403 has no logical application to bench trials.
Excluding relevant evidence in a bench trial because it is
cumulative or a waste of time is clearly a proper exercise of the
judge's power, but excluding relevant evidence on the basis of
‘unfair prejudice’ is a useless procedure. Rule 403 assumes a trial
judge is able to discern and weigh the improper inferences that a
jury might draw from certain evidence, and then balance those
improprieties against probative value and necessity. Certainly, in
a bench trial, the same judge can also exclude those improper
inferences from his mind in reaching a decision.”)
While § 18.403, like Rule 403 of the Federal Rules of Evidence,
does speak in terms of both confusion of the issues and misleading
of the trier of fact, the distinction between such terms is unclear
in the literature and in the cases. McCormick, Evidence section 185
at 546 (3d ed. 1984), refers to the probability that certain proof
and the answering evidence that it provokes might unduly distract
the trier of fact from the main issues. 2 Wigmore, Evidence section
443 at 528-29 (Chadbourn rev. 1979), describes the concept as
follows:
In attempting to dispute or explain away the evidence thus
offered, new issues will arise as to the occurrence of the
instances and the similarity of conditions, new witnesses will be
needed whose cross-examination and impeachment may lead to further
issues; and that thus the trial will be unduly prolonged, and the
multiplicity of minor issues will be such that the jury will lose
sight of the main issue, and the whole evidence will be only a mass
of confused data from which it will be difficult to extract the
kernel of controversy.
Both commentators are clearly describing the notion of confusion
of the issues. The notion of confusion of the issues of course
applies as well to a reviewing body considering a record in such
condition. While a trier of fact or reviewing body confused in the
foregoing manner can also be said to have been misled, it is
suggested that the concept of misleading refers primarily to the
possibility of the trier of fact overvaluing the probative value of
a particular item of evidence for any reason other than the
emotional reaction associated with unfair prejudice. To illustrate,
evidence of the results of a lie detector, even where an attempt is
made to explain fully the significance of the results, is likely to
be overvalued by the trier of fact. Similarly, the test of
Frye v. United States, 293 F.1013, 1014 (D.C. Cir.
1923), imposing the requirement with respect to the admissibility
of scientific evidence that the particular technique be shown to
have gained “general acceptance in the particular field in which it
belongs,” is an attempt to prevent decision makers from being
unduly swayed by unreliable scientific evidence. Demonstrative
evidence in the form of a photograph, map, model, drawing or chart
which varies substantially from the fact of consequence sought to
be illustrated similarly may mislead. Finally, any trier of fact
may be misled by the sheer amount of time spent upon a question
into believing the issue to be of major importance and accordingly
into attaching too much significance to it in its determination of
the factual issues involved. While clearly of less import where the
judge is the trier of fact and with respect to the state of the
record on review, the danger of confusion of the issues or
misleading the judge as trier of fact, together with such risks on
review, are each of sufficient moment especially when considered in
connection with needless consumption of time to warrant inclusion
in § 18.403.
Occasionally evidence is excluded not because distracting side
issues will be created but rather because an unsuitable amount of
time would be consumed in clarifying the situation. Concerns
associated with the proper use of trial time also arise where the
evidence being offered is relevant to a fact as to which
substantial other evidence has already been introduced, including
evidence bearing on the question of credibility, where the evidence
itself possesses only minimal probative value, such as evidence
admitted as background, or where evidence is thought by the court
to be collateral. In recognition of the legitimate concern of the
court with expenditures of time, § 18.403 provides for exclusion of
evidence where its incremental probative value is substantially
outweighed by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence. Roughly speaking
undue delay can be argued to refer to delay caused by the failure
of the party to be able to produce the given evidence at the
appropriate time at trial but only at some later time. Waste of
time may be taken to refer to the fact that the evidence possesses
inadequate incremental probative value in light of the time its
total exploration will consume. Cumulative refers to multiple
sources of different evidence establishing the same fact of
consequence as well as multiple same sources, such as ten witnesses
all testifying to the same speed of the car or the same character
of a witness.
Reporter's Note to § 18.501
The Conference Report to Federal Rule of Evidence 501, 1975 U.S.
Code Cong. & Ad. News 7098, 7100 states:
Rule 501 deals with the privilege of a witness not to testify.
Both the House and Senate bills provide that federal privilege law
applies in criminal cases. In civil actions and proceedings, the
House bill provides that state privilege law applies “to an element
of a claim or defense as to which State law supplies the rule of
decision.” The Senate bill provides that “in civil actions and
proceedings arising under 28 U.S.C. 1332 or 28 U.S.C. 1335, or
between citizens of different States and removed under 28 U.S.C.
1441(b) the privilege of a witness, person, government, State or
political subdivision thereof is determined in accordance with
State law unless with respect to the particular claim or defense,
Federal law supplies the rule of decision.”
The wording of the House and Senate bills differs in the
treatment of civil actions and proceedings. The rule in the House
bill applies to evidence that relates to “an element of a claim or
defense.” If an item of proof tends to support or defeat a claim or
defense, or an element of a claim or defense, and if state law
supplies the rule of decision for that claim or defense, then state
privilege law applies to that item of proof.
Under the provision in the House bill, therefore, state
privilege law will usually apply in diversity cases. There may be
diversity cases, however, where a claim or defense is based upon
federal law. In such instances, federal privilege law will apply to
evidence relevant to the federal claim or defense. See Sola
Electric Co. v. Jefferson Electric Co., 317 U.S. 173
(1942).
In nondiversity jurisdiction civil cases, federal privilege law
will generally apply. In those situations where a federal court
adopts or incorporates state law to fill interstices or gaps in
federal statutory phrases, the court generally will apply federal
privilege law.
As Justice Jackson has said:
A federal court sitting in a nondiversity case such as this does
not sit as a local tribunal. In some cases it may see fit for
special reasons to give the law of a particular state highly
persuasive or even controlling effect, but in the last analysis its
decision turns upon the law of the United States, not that of any
state.
D'Oench, Duhme & Co. v. Federal Deposit Insurance
Corp., 315 U.S. 447, 471 (1942) (Jackson, J., concurring). When
a federal court chooses to absorb state law, it is applying the
state law as a matter of federal common law. Thus, state law does
not supply the rule of decision (even though the federal court may
apply a rule derived from state decisions), and state privilege law
would not apply. See C.A. Wright, Federal Courts 251-252 (2d ed.
1970); Holmberg v. Armbrecht, 327 U.S. 392 (1946);
DeSylva v. Ballentine, 351 U.S. 570, 581 (1956); 9
Wright & Miller, Federal Rules and Procedures § 2408.
In civil actions and proceedings, where the rule of decision as
to a claim or defense or as to an element of a claim or defense is
supplied by state law, the House provision requires that state
privilege law apply.
The Conference adopts the House provision.
It is anticipated that the proviso in § 18.501 will very rarely
come into play.
Reporter's Note to § 18.601
The Conference Report to Federal Rule of Evidence 601, 1975 U.S.
Code Cong. & Ad. News 7051, 7059 states:
Rule 601 deals with competency of witnesses. Both the House and
Senate bills provide that federal competency law applies in
criminal cases. In civil actions and proceedings, the House bill
provides that state competency law applies “to an element of a
claim or defense as to which State law supplies the rule of
decision.” The Senate bill provides that “in civil actions and
proceedings arising under 28 U.S.C. 1332 or 28 U.S.C. 1335, or
between citizens of different States and removed under 28 U.S.C.
1441(b) the competency of a witness, person, government, State or
political subdivision thereof is determined in accordance with
State law, unless with respect to the particular claim or defense,
Federal law supplies the rule of decision.”
The wording of the House and Senate bills differs in the
treatment of civil actions and proceedings. The rule in the House
bill applies to evidence that relates to “an element of a claim or
defense.” If an item of proof tends to support or defeat a claim or
defense, or an element of a claim or defense, and if state law
supplies the rule of decision for that claim or defense, then state
competency law applies to that item of proof.
For reasons similar to those underlying its action on Rule 501,
the Conference adopts the House provision.
It is anticipated that the proviso to § 18.601 will very rarely
come into play.
Reporter's Note to § 18.609
Consistent with the position taken in § 18.403, unfair prejudice
is not felt to be a proper reason of the exclusion of relevant
evidence in a hearing where the judge is the trier of fact.
Sections 18.609 (a) and (b) provide for the use of every prior
conviction punishable by death or imprisonment in excess of one
year under the law under which the witness was convicted and every
prior conviction involving dishonesty or false statement,
regardless of punishment, provided not more than ten years has
elapsed since the date of the conviction or the release of the
witness from the confinement imposed for that conviction, whichever
is the later date. Convictions more than ten years old are felt to
be too stale to be admitted to impeach the credibility of a witness
testifying in any hearing to which these rules apply.
Reporter's Note to § 18.801
Rule 801(d)(1)(A) of the Federal Rules of Evidence has been
revised in § 18.801(d)(1)(A) to permit the substantive
admissibility of all prior inconsistent statements. The added
protection of certainty of making and circumstances conducive to
trustworthiness provided by the restriction that the prior
inconsistent statement be “given under oath subject to the penalty
of perjury at a trial, hearing, in other proceeding, or in a
deposition” were added by Congress to Federal Rule of Evidence
801(d)(1)(A) for the benefit of the criminal defendant. See Graham,
Employing Inconsistent Statements for Impeachment and as
Substantive Evidence: A Critical Review and Proposed Amendments of
Federal Rules of Evidence 801(d)(1)(A), 613 and 607, 75 Mich L.
Rev. 565 (1977).
Reporter's Note to § 18.802
An “administrative file” is admissible as such to the extent so
provided by rule or regulation of the administrative agency
prescribed pursuant to statutory authority, or pursuant to
executive order, or by Act of Congress. If a program provides for
the creation of an “administrative file” and for the submission of
an “administrative file” to the judge presiding at a formal
adversarial adjudication governed by these rules, see section
18.1101, the “administrative file” would fall outside the bar of
the hearsay rule. Similarly, such “administrative file” is
self-authenticating, section 18.902(10).
Reporter's Note to § 18.803
Section 18.803(24) provides that the “equivalent circumstantial
guarantees of trustworthiness” required to satisfy the “other
[reliable] hearsay” exception is that possessed solely by the
“aforementioned hearsay exceptions,” i.e., §§ 18.803(1)-18.803(24).
The hearsay exceptions which follow, i.e., §§
18.803(25)-18.803(30), rely too greatly upon necessity and
convenience to serve as a basis to judge “equivalent circumstantial
guarantees of trustworthiness.”
Section 18.803(25) provides a hearsay exception for the
self-authenticating aspect of documents and other items as provided
in § 18.902. Out of court statements admitted under § 18.902 for
the purpose of establishing that the document or other item offered
into evidence is as purported to be are received in evidence to
establish the truth of the matter stated, §§ 18.801(a)-(c). Section
18.802 provides that “hearsay is not admissible except as provided
by these rules * * *” Section 18.902 thus operates as a hearsay
exception on the limited question of authenticity. Section 18.902
does not, however, purport to create a hearsay exception for
matters asserted to be true in the self-authenticated exhibit
itself. As a matter of drafting consistency, it is preferable to
have a specific hearsay exception in § 18.803 for statements of
self-authentication under § 18.902 than to have a hearsay exception
exist in these rules not bearing an 18.800 number.
Sections 18.803(26) and 18.803(27) are derived from Rules 4(e)
and (f) of the Arizona Uniform Rules of Procedure for Arbitration.
Section 18.803(26)(f) is derived from Illinois Supreme Court Rule
90(c)(4).
Sections 18.803(27) and 18.803(28) maintain the common law
distinction between a treating physician, i.e., medical treatment,
and an examining or nontreating physician, i.e., medical diagnosis.
A treating physician provides or acts with a view toward providing
medical treatment. An examining physician is one hired with a view
toward testifying on behalf of a party and not toward treating a
patient. As such, written reports of the examining physician are
not felt to be sufficiently trustworthy to be given the preferred
treatment of § 18.803(27). Thus a report of a physician made for
the purpose of medical treatment, i.e., treating physician, is
admissible if the requirements of § 18.803(27) are satisfied. A
report of physician prepared with a view toward litigation, i.e.,
examining physician, satisfying the requirements of § 18.802(28) is
also admissible. The reports of a given physician may, of course,
fall within either or both categories. Reports of any medical
surveillance test the purpose of which is to detect actual or
potential impairment of health or functional capacity and autopsy
reports fall within § 18.803(28).
Section 18.803(28) is derived from Rule 1613(b)(1) of the
California Rules of Court. A summary of litigation experience of
the expert is required to assist the evaluation of credibility.
Section 18.803(29) is derived from Rule 1613(b)(2) of the
California Rules of Court.
Section 18.803(30) is derived from Rule 1613(b)(3) of the
California Rules of Court.
Sections 18.803(26)-18.803(30) each provide that the adverse
party may call the declarant of the hearsay statement, if
available, as a witness and examine the witness as if under
cross-examination. The proviso relating to the calling of witnesses
is derived from Rule 1305(b) of the Pennsylvania Rules of Court
Procedure Governing Compulsory Arbitration. See also §§
18.902(12)-18.902(16) infra.
These rules take no position with respect to which party must
initially bear the cost of lay witness and expert witness fees nor
as to the ultimate disposition of such fees. Ordinarily, however,
it is anticipated that the adverse party calling the witness should
initially pay statutory witness fees, mileage, etc., and reasonable
compensation to an expert witness in whatever sum and at such time
as the judge may allow. Such witness fees, mileage, etc., and
reasonable expert witness compensation should thereafter be charged
to the same extent and in like manner as other such costs.
Reporter's Note to § 18.902
Section 18.902(11) is modeled upon Uniform Rule of Evidence
902(11). The requirement of a final certification with respect to a
foreign record has been deleted as unnecessary in accordance with
the position adopted in 18 U.S.C. 3505 which governs the
self-authentication of a foreign record offered in a federal
criminal proceeding. The “Comment” to Uniform Rule of Evidence
902(11) states:
Subsection 11 is new and embodies a revised version of the
recently enacted federal statute dealing with foreign records of
regularly conducted activity, 18 U.S.C. 3505. Under the federal
statute, authentication by certification is limited to foreign
business records and to use in criminal proceedings. This
subsection broadens the federal provision so that it includes
domestic as well as foreign records and is applicable in civil as
well as criminal cases. Domestic records are presumably no less
trustworthy and the certification of such records can more easily
be challenged if the opponent of the evidence chooses to do so. As
to the federal statute's limitation to criminal matters, ordinarily
the rules are more strictly applied in such cases, and the
rationale of trustworthiness is equally applicable in civil
matters. Moreover, the absence of confrontation concerns in civil
actions militates in favor of extending the rule to the civil side
as well.
The rule requires that the certified record be made available
for inspection by the adverse party sufficiently in advance of the
offer to permit the opponent a fair opportunity to challenge it. A
fair opportunity to challenge the offer may require that the
proponent furnish the opponent with a copy of the record in advance
of its introduction and that the opponent have an opportunity to
examine, not only the record offered, but any other records or
documents from which the offered record was procured or to which
the offered record relates. That is a matter not addressed by the
rule but left to the discretion of the trial judge.
Sections 18.902 (12) and (13) are derived from Rule 4 (e) and
(f) of the Arizona Uniform Rules of Procedure for Arbitration.
Section 18.902(12)(f) is derived from Illinois Supreme Court Rule
90(c)(4).
Section 18.902(14) is derived from Rule 1613(b)(1) of the
California Rules of Court. A summary of litigation experience of
the expert is required to assist the evaluation of credibility.
With respect to §§ 18.902(13) and 18.902(14) as applied to a
treating or examining physician, see Reporter's Note to §§
18.803(27) and 18.803(28) supra.
Section 18.902(15) is derived from Rule 1613(b)(2) of the
California Rules of Court.
Section 18.902(16) is derived from Rule 1613(b)(3) of the
California Rules of Court.
Sections 18.902 (12)-(16) each provide that the adverse party
may call the declarant of the hearsay statement, if available, as a
witness and examine the witness as if under cross-examination. The
proviso relating to the calling of witnesses is derived from Rule
1305(b) of the Pennsylvania Rules of Civil Procedure Governing
Compulsory Arbitration.
These rules take no position with respect to which party must
initially bear the cost of lay witness and expert witness fees nor
as to the ultimate disposition of such fees. Ordinarily, however,
it is anticipated that the adverse party calling the witness should
initially pay statutory witness fees, mileage, etc., and reasonable
compensation to an expert witness in whatever sum and at such time
as the judge may allow. Such witness fees, mileage, etc., and
reasonable expert witness compensation should thereafter be charged
to the same extent and in like manner as other such costs. See also
§§ 18.803 (25)-(30) supra.
Reporter's Note to § 18.1001
Section 18.1001(3) excludes prints made from X-ray film from the
definition of an original. A print made from X-ray film is not felt
to be equivalent to the X-ray film itself when employed for
purposes of medical treatment or diagnosis.
Reporter's Note to § 18.1101
Section 23(a) of the Longshore and Harbor Workers' Compensation
Act, 33 U.S.C. 922, provides as follows:
In making an investigation or inquiry or conducting a hearing
the deputy commissioner or Board shall not be bound by common law
or statutory rules of evidence or by technical or formal rules of
procedure, except as provided by this chapter; but may make such
investigation or inquiry or conduct such hearing in such manner as
to best ascertain the rights of the parties. Declarations of a
deceased employee concerning the injury in respect of which the
investigation or inquiry is being made or the hearing conducted
shall be received in evidence and shall, if corroborated by other
evidence, be sufficient to establish the injury.
Other acts such as the Defense Base Act, 42 U.S.C. 1651, adopt
section 23(a) of the Longshore and Harbor Workers' Compensation Act
by reference. In addition 20 CFR 725.455(b) provides as follows
with respect to the Black Lung Benefits Act, 30 U.S.C. 901:
Evidence. The administrative law judge shall at the
hearing inquire fully into all matters at issue, and shall not be
bound by common law or statutory rules of evidence, or by technical
or formal rules of procedure, except as provided by 5 U.S.C. 554
and this subpart. The administrative law judge shall receive into
evidence the testimony of the witnesses and parties, the evidence
submitted to the Office of Administrative Law Judges by the deputy
commissioner under § 725.421, and such additional evidence as may
be submitted in accordance with the provisions of this subpart. The
administrative law judge may entertain the objections of any party
to the evidence submitted under this section.
Section 18.1101(c) provides that these rules do not apply to the
extent inconsistent with, in conflict with, or to the extent a
matter is otherwise specifically provided for by an Act of Congress
or by a rule or regulation of specific application prescribed by
the United States Department of Labor pursuant to statutory
authority. Whether section 23(a) and § 725.455(b) are in fact
incompatible with these rules, while unlikely for various reasons
including their lack of specificity, is nevertheless arguable.
Without regard to section 23(a) and § 725.455(b), various other
considerations support the conclusion to exclude hearings under
Longshore, Black Lung, and related acts from coverage of these
rules at this time. Longshore, Black Lung, and related acts involve
entitlements. Claimants in such hearings benefit from proceeding
pursuant to the most liberal evidence rules that are consistent
with the orderly administration of justice and the ascertainment of
truth. Claimants in such hearings on occasion appear pro se.
While the modifications made by these rules are clearly designed to
further liberalize the already liberal Federal Rules of Evidence,
it is nevertheless unclear at this time whether even conformity
with minimal requirements with respect to the introduction of
evidence would present a significant barrier to the successful
prosecution of meritorious claims. Rather than speculate as to the
impact adoption of these rules would have upon such entitlement
programs, it was decided to exclude hearings involving such
entitlement programs from coverage of these rules. It is
anticipated that application of these rules to hearings involving
such entitlement programs will be reconsidered in the future
following careful study. Notice that the inapplicability of these
rules in such hearings at this time is specifically stated in §
18.1101(b)(2) to be without prejudice to the continuation of
current practice with respect to application of rules of evidence
in such hearings.
[55 FR 13229, Apr. 9, 1990; 55 FR 24227, June 15, 1990]