III. THE POWER OF THE FEDERAL COURTS TO CHANGE THE
RULES

Circuit Judge Fahy, in a statement filed January 29, 1959, dealing with the clergymen's privilege, Mullen v. U.S., decided December 4, 1958, U.S.C.A./D.C., Docket No. 14663, indicates that the Federal courts, even without legislation, could adopt the privilege. This, of course, raises the question of whether the Federal courts could, without legislation, change rules 26 and 43(a) to recognize the proposed newsmen's privilege.

1. THE SUPREME COURT

It would seem that with respect to rule 26 (criminal rules) the Supreme Court could change the rule. The change, however, would not be effective until after the expiration of 90 days from the date it reported the change to Congress. The United States Code, title 18, section 3771, provides:

§ 3771. Procedure to and including verdict.—The Supreme Court of the United States shall have the power to prescribe, from time to time, rules of pleading, practice, and procedure with respect to any or all proceedings prior to and including verdict, or finding of guilty or not guilty by the court if a jury has been waived, or plea of guilty, in criminal cases and proceedings to punish for criminal contempt of court in the United States district courts, in the district courts for the Territory of Alaska, the district of the Canal Zone and the Virgin Islands, in the Supreme Courts of Hawaii and Puerto Rico, and in proceedings before United States commissioners. Such rules shall not take effect until they have been reported to Congress by the Chief Justice at or after the beginning of a regular session thereof but not later than the first day of May, and until the expiration of ninety days after they have been thus reported. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. Nothing in this title, anything therein to the contrary notwithstanding, shall in any way limit, supersede, or repeal any such rules heretofore prescribed by the Supreme Court. As amended July 7, 1958, Pub. L. 85-508, § 12(k), 72 Stat. 248. The Supreme Court would also appear to have the same power with respect to rule 43(a) (civil rules). Section 2072 of tile 28 of the United States Code provides:

§ 2072. Rules of civil procedure for district courts.-The Supreme Court shall have the power to prescribe, by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure of the district courts of the United States in civil actions.

Such rules shall not abridge, enlarge or modify any substantive right and shall preserve the right of trial by jury as at common law and as declared by the Seventh Amendment to the Constitution.

Such rules shall not take effect until they have been reported to Congress by the Chief Justice at or after the beginning of a regular session thereof but not later than the first day of May, and until the expiration of ninety days after they have been thus reported. As amended May 10, 1950, c. 174, § 2, 64 Stat. 158; July 7, 1958, Pub. L. 85-508, § 12(m), 72 Stat. 348.

All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. Nothing in this title, anything therein to the contrary notwithstanding, shall in any way limit, supersede or repeal any such rules heretofore prescribed by the Supreme Court. June 25, 1948, c. 646, 62 Stat. 961, amended May 24, 1949, c. 139, § 103, 63 Stat. 104; July 18, 1949, c. 343, § 2, 63 Stat. 446.

In this connection note should also be taken of the fact that the Judicial Conference of the United States is charged with the responsibility for carrying on a continuous study of the rules. It is to recommend the changes it deems necessary to the Supreme Court for

its consideration and adoption, modification, or rejection, in accordance with law. The United States Code, title 28, section 331 provides:

§ 331. Judicial Conference of the United States.-The Conference shall also carry on a continuous study of the operation and effect of the general rules of practice and procedure now or hereafter in use as prescribed by the Supreme Court for the other courts of the United States pursuant to law. Such changes in and additions to those rules as the Conference may deem desirable to promote simplicity in procedure, fairness in administration, the just determination of litigation, and the elimination of unjustifiable expense and delay shall be recommended by the Conference from time to time to the Supreme Court for its consideration and adoption, modification or rejection, in accordance with law. Thus it would seem that the Supreme Court through the procedure provided in the three statutory provisions above, could change rules 23 and 43 (a).

2. THE LOWER COURTS AND CRIMINAL RULE 26

With respect to criminal procedure, Judge Fahy, in the Mullen case, supra, seems to imply that the lower Federal courts, with ultimate authority in the Supreme Courts, could recognize a new privilege as a matter of decision through "a proper application of rule 26." He states:

*** However, as we shall see, recognition of the privilege in Federal courts does not depend upon finding that it has either existed uniformly at common law or has been approved in terms by act of Congress. Before enlarging upon this it is worth noting that even during the post-Reformation period, when religious and political tensions largely set the pattern in such matters, judicial decisions and legal writings were not uniformly hostile to the privilege.1

The resolution of the problem today for Federal courts is to be found in a proper application of rule 25, Federal Rules of Criminal Procedure, adopted in 1948 under the authority of Congress. This rule provides:

*** The admissibility of evidence and the competency and privileges of witnesses shall be governed, except when an act of Congress or these rules otherwise provide, by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

This was decisional law even before thus formalized in a rule. See notes of the Advisory Committee on the Rules, where it is stated that rule 26 reflects the decisions of the Supreme Court in Funk v. United States, 290 U.S. 371, and in Wolfle v. United States, 291 U.S. 7. And see Hawkins v. United States, 358 U.S. 74, decided as recently as November 24, 1958, where, though adhering to the rule disqualifying a wife from testifying in a criminal case against her husband, the Court restated the authority conferred upon the Federal courts by rule 26 "to determine admissibility of evidence under the 'principles of the common law as they may be interpreted *** in the light of reason and experience.'"

The developments and governing principles are explained in Lutwak v. United States, 344 U.S. 604, 613-15, as follows:

The Funk case left the rules of evidence as to the competency of witnesses to be formulated by the Federal courts or Congress in accordance with reason and experience. Wolfle v. United States, 291 U.S. 7, 12. There followed the promulgation by this Court of rule 26 of the Federal Rules of Criminal Procedure * *

This rule was a paraphrase of Mr. Justice Stone's statement in Wolfle, at 12. Under this rule, the competency of witnesses is to be governed by the principles of the common law as they may be interpreted by the courts in the light of reason and experience. The governing principles are not necessarily as they had existed at common law. Congress has not acted, and has specifically authorized this Court to prescribe rules of criminal procedure, but the rules do not specifically answer the problem here. Therefore, it is open to us to say whether we shall go

Coke, sometimes cited as standing against the privilege, seems to have recognized it except in treason trials (2 Institutes 629). And see 8 "Wigmore Evidence" (third edition) where at pp. 844-845 the author sets forth a letter from Coleridge to Gladstone discussing the privilege and, at pp. 848-849, a statement of Bentham, reputed to be the greatest opponent of privileges in general, in which he justifies recognition of this particular privilege.

further and abrogate this common law rule disqualifying one spouse from testifying in criminal cases against the other spouse.

"It has been said so often as to have become axiomatic that the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions" (Funk v. United States, supra, at 383).2

Funk v. United States, supra, involved the competency of a wife to testify on behalf of her husband on trial for crime in a Federal court. In departing from the common law rule which would have rendered her incompetent the Court quoted approvingly from the opinion in Rosen v. United States, 245 U.S. 467, 471, where in a case involving the old rule disqualifying a witness convicted of crime, the Court had concluded "that the dead hand of the common law rule of 1789 should no longer be applied to such cases * * *."

The decisions to which we have referred, as well as rule 26, leave the Federal courts, with ultimate authority in the Supreme Court, free to resolve our present question without additional legislation. It is true that the trend of decisions has been chiefly in the direction of enlarging rather than restricting the area of admissibility of evidence, but the governing principle is the same. When reason

and experience call for recognition of a privilege which has the effect of restricting evidence the dead hand of the common law will not restrain such recognition.

IV. THE GENERAL DUTY TO TESTIFY

The duty to testify which everyone owes to the state is fundamental to our system of justice. Its roots lie far back in the history of the common law; see Holdsworth, "A History of English Law," volumn 1, pages 325-326, volume 5, pages 192-193, and numerous other pages.

The modern witness was practically unknown in jury trials until about the 1400's and not until the 1500's was he a common figure in the trial and an important source of information for the jury. Up until that time the jury had fulfilled the double duty of triers of fact and of witness. Their own knowledge of the affair, acquired as neighbors of the parties or by searching about for evidence before the trial, was the chief source of information, which is nowadays furnished to the jury by the ordinary witness, "Wigmore on Evidence" (3d ed., sec. 2190).

By the statute of 5 Elizabeth (c. 9, sec. 12), persons involved in civil causes were given the right to compel the attendance of witnesses in their behalf, but the accused in the criminal cause was not allowed to have witnesses at all, much less to have compulsory process for them. However, by the statutes of 7 and 8 William ÎIÎ (c. 3, sec. 7, 1695-96), and 1 Anne (c. 9, sec. 3), he was guaranteed this right by general statutes (Wigmore, sec. 2190). The right to witnesses in the Bill of Rights of the Federal Constitution was founded upon the recommendations of the Constitutional Convention of New York and of North Carolina, July 26 and August 1, 1788; see "Elliot's Debates," volume I, pages 328, 334, 339, volume IV, page 243. As incorporated in the Constitution of the United States by the sixth amendment, it provides:

In all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor ***

2 The Lutwak case had to do with the competency of women who had gone through marriage ceremonies as part of a plan to evade the immigration laws to testify against their "ostensible" spouses. Their testimony was permitted.

See concurring opinion of Mr. Justice Stewart in Hawkins v. United States, supra.

It has now been recognized for more than three centuries as a fundamental maxim that the public has a right to every man's evidence (Wigmore, sec. 2192).

With respect to this duty and the rights of witnesses, the U.S. Supreme Court has stated, Blair v. U.S., 250 U.S. 279-281 (1918):

Long before the separation of the American Colonies from the mother country, compulsion of witnesses to appear and testify had become established in England. By act of 5 Eliz. (c. 9, § 12 (1562)), provision was made for the service of process out of any court of record requiring the person served to testify concerning any cause or matter pending in the court, under a penalty of 10 pounds besides damages to be recovered by the party aggrieved. See Havithbury v. Harvey, Cro. Eliz. 130; 1 Leon. 122; Goodwin (or Goodman) v. West, Cro. Car. 522, 540; March 18. When it was that grand juries first resorted to compulsory process for witnesses is not clear. But as early as 1612, in the Countess of Shrewsbury's case, Lord Bacon is reported to have declared that "all subjects, without distinction of degrees, owe to the King tribute and service, not only of their deed and hand, but of their knowledge and discovery" (2 How. St. Tr. 769, 778). And by act of 7 and 8 Wm. III (c. 3, § 7 (1695)), parties indicted for treason or misprision of treason were given the like process to compel their witnesses to appear as was usually granted to compel witnesses to appear against them; clearly evincing that process for crown witnesses was already in familiar use.

At the foundation of our Federal Government the inquisitorial function of the grand jury and the compulsion of witnesses were recognized as incidents of the judicial power of the United States. By the fifth amendment a presentment or indictment by grand jury was made essential to hold one to answer for a capital or otherwise infamous crime, and it was declared that no person should be compelled in a criminal case to be a witness against himself; while, by the sixth amendment, in all criminal prosecutions the accused was given the right to a speedy and public trial, with compulsory process for obtaining witnesses in his favor.

In all of these provisions, as in the general law upon the subject, it is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform upon being properly summoned, and for performance of which he is entitled to no further compensation than that which the statutes provide. The personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public. The duty, so onerous at times, yet so necessary to the administration of justice according to the forms and modes established in our system of government (Wilson v. United States, 221 U.S. 361, 372, quoting Lord Ellenborough), is subject to mitigation in exceptional circumstances; there is a constitutional exemption from being compelled in any criminal case to be a witness against oneself, entitling the witness to be excused from answering anything that will tend to incriminate him (see Brown v. Walker, 161 U.S. 591); some confidential matters are shielded from considerations of policy, and perhaps in other cases for special reasons a witness may be excused from telling all that he knows.

V. EXEMPTIONS FROM THE DUTY TO TESTIFY

Since in our system of law the testimony of witnesses is essential to the establishment of the truth it would logically follow that exemptions would be granted rarely, if at all, and only on the basis of sound public policy. Wigmore states that exemptions should be discouraged (sec. 2192):

***There must be good reason, plainly shown, for their existence. In the interest of developing scientifically the details of the various recognized privileges, judges and lawyers are apt to forget this exceptional nature. The presumption against their extension is not observed in spirit. The trend of the day is to expand them as if they were large and fundamental principles, worthy of pursuit into the remotest analogies. This attitude is an unwholesome one. The investigation of truth and the enforcement of testimonial duty demand the restriction, not the expansion, of these privileges. They should be recognized only within the

narrowest limits required by principle. Every step beyond these limits helps to provide, without any real necessity, an obstacle to the administration of justice.

1. PRIVILEGED COMMUNICATIONS

The privileges most frequently alluded to by proponents and opponents of the newsmen's privilege are two, the attorney-client privilege, and that of physician-patient.

(a) Attorney and client

The oldest of the privileges is that between attorney and client: its history dates back to the reign of Queen Elizabeth when it already was unquestioned, see Berd v. Lovelace, Cory 88 (1577) cited in note 1, Wigmore, section 2290. The public policy upon which this privilege rests is stated by Wigmore in section 2291:

The policy of the privilege has been plainly grounded, since the latter part of the 1700's, on subjective considerations. In order to promote freedom of consultation of legal advisers by clients, the apprehension of compelled disclosure by the legal adviser must be removed; and hence the law must prohibit such disclosure except on the client's consent. Such is the modern theory.

In Forster v. Hall, 12 Pick., Mass. 89, 97, the court stated that the rule of privilege, having a tendency to prevent the full disclosure of the truth, ought to be construed strictly. In truth the privilege is not actually a general privilege; it is available to clients within strict limits, see also Prichard v. U.S., 181 F. 2d, 326; affirmed 339 U.S. 974. Wigmore defines the privilege as follows (sec. 2292):

(1) Where legal advice of any kind is sought, (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.

(b) Physician and patient

This privilege never succeeded at common law in gaining acceptance. From an early day to the present, English judges have accepted the fact that confidences given to a physician stand on no better legal footing than others, Wigmore, section 2380 and note 1. This was also the state of the law in the United States at first. In 1828, however, New York State adopted the physician-patient privilege (N. Y. Rev. Stat. 1828, II, 406). About one-half of the States now recognize such privilege for the physician-patient relationship except in various situations, such as industrial accidents (workmen's compensation types of cases), and in sanitary legislation, in part, for venereal disease, and narcotic drugs, Wigmore, section 2380.

The reasoning of the statute revision commissioners in New York in 1836 was (see Wigmore, sec. 2380a):

1836, Commissioners on Revision of the Statutes of New York, III, 737: The ground on which communications to counsel are privileged, is the supposed necessity of a full knowledge of the facts, to advise correctly, and to prepare for the proper defense or prosecution of a suit. But surely the necessity of consulting a medical adviser, when life itself may be in jeopardy, is still stronger. And unless such consultations are privileged, men will be incidentally punished by being obliged to suffer the consequences of injuries without relief from the medical art, and without conviction of any offense. Besides, in such cases, during the struggle between legal duty on the one hand, and professional honor on the other, the latter, aided by a strong sense of the injustice and inhumanity of the rule, will, in most cases, furnish a temptation to the perversion or concealment of truth, too strong for human resistance.