(a) General provision. These rules govern formal
adversarial adjudications conducted by the United States
Department of Labor before a presiding officer.
(1) Which are required by Act of Congress to be determined on
the record after opportunity for an administrative agency hearing
in accordance with the Administrative Procedure Act, 5 U.S.C.
554, 556 and 557, or
(2) Which by United States Department of Labor regulation are
conducted in conformance with the foregoing provisions.
Presiding officer, referred to in these rules as the
judge, means an Administrative Law Judge, an agency head, or
other officer who presides at the reception of evidence at a
hearing in such an adjudication.
(b) Rules inapplicable. The rules (other than with
respect to privileges) do not apply in the following
situations:
(1) Preliminary questions of fact. The determination of
questions of fact preliminary to admissibility of evidence when
the issue is to be determined by the judge under §
18.104.
(2) Longshore, black lung, and related acts. Other than
with respect to §§ 18.403, 18.611(a), 18.614 and
without prejudice to current practice, hearings held pursuant to
the Longshore and Harbor Workers' Compensation Act, 33 U.S.C.
901; the Federal Mine Safety and Health Act (formerly the Federal
Coal Mine Health and Safety Act) as amended by the Black Lung
Benefits Act, 30 U.S.C. 901; and acts such as the Defense Base
Act, 42 U.S.C. 1651; the District of Columbia Workmen's
Compensation Act, 36 DC Code 501; the Outer Continental Shelf
Lands Act, 43 U.S.C. 1331; and the Nonappropriated Fund
Instrumentalities Act, 5 U.S.C. 8171, which incorporate section
23(a) of the Longshore and Harbor Workers' Compensation Act by
reference.
(c) Rules inapplicable in part. These rules do not apply to
the extent inconsistent with, in conflict with, or to the extent
a matter is otherwise specifically provided 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, or pursuant to executive order.
These rules are effective thirty days after date of
publication with respect to formal adversarial adjudications as
specified in § 18.1101 except that with respect to hearings
held following an investigation conducted by the United States
Department of Labor, these rules shall be effective only where
the investigation commenced thirty days after publication.
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 govenered 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 certainity
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 (1st 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 postition, 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
unfiar 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 s4
(e) 4(e) and (f) of the Arizona Uniform Rules of Procedure for
Arbitration. Section 18.803(26)(f) is derived from Illinois
Supreme Court Rules 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.