These rules are effective thirty days after date of publication with
respect to formal adversarial adjudications as specified in Sec. 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.
Appendix to Subpart B--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 Sec. 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., Sec. 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, Sec. 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, Sec. 18.611(a).
Reporter's Note to Sec. 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, Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 18.201. However codes and
standards, (iv), to the extent not subject to reasonable question fall
within Sec. 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, Sec. 18.201(b)(2), proof should be required.
Reporter's Note to Sec. 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 Sec. 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 Sec. 18.302 will very rarely come into play.
Reporter's Note to Sec. 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 Sec. 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
Sec. 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, Sec. 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 Sec. 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 Sec. 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 Sec. 18.501 will very rarely
come into play.
Reporter's Note to Sec. 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 Sec. 18.601 will very rarely
come into play.
Reporter's Note to Sec. 18.609
Consistent with the position taken in Sec. 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 Sec. 18.801
Rule 801(d)(1)(A) of the Federal Rules of Evidence has been revised
in Sec. 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 Sec. 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 Sec. 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., Secs. 18.803(1)-18.803(24).
The hearsay exceptions which follow, i.e., Secs. 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
Sec. 18.902. Out of court statements admitted under Sec. 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, Secs. 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 Sec. 18.803 for
statements of self-authentication under Sec. 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
Sec. 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 Sec. 18.803(27) are satisfied. A report of physician
prepared with a view toward litigation, i.e., examining physician,
satisfying the requirements of Sec. 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 Sec. 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 Secs. 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 Sec. 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 Secs. 18.902(13) and 18.902(14) as applied to a
treating or examining physician, see Reporter's Note to Secs. 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 Secs. 18.803 (25)-(30) supra.
Reporter's Note to Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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]
