After paying particular attention to the question of physical examination, which was intended solely to allow a physician to testify, the Committee approved rule 803, paragraph 4, as submitted to Congress, on the understanding that it was in no way intended to interfere with the rules of privilege present or subsequently adopted. With respect to other witnesses, in addition to a previous conviction for misrepresentation or dishonesty, any other crime may be invoked for the indictment if, and only if, the court considers that the probative value of the evidence outweighs its prejudicial effect on the party presenting the witness. Exception (17). A broad common law authority has supported the admission of sections that fall into this category. While Wigmore`s text is tightly on lists, etc. 6 Wigmore § 1702, authorities covering other types of publications, such as newspaper market reports, telephone directories and municipal bulletins, are cited. Id. §§1702–1706. The foundation of reliability is the general confidence of the public or a particular segment of it and the compiler`s motivation to promote trust through accuracy. However, the committee also agrees with proponents of the House version that a residual hearsay exception that is too broad could invalidate the hearsay rule and recognized exceptions, or distort the reasons for codifying the rules. If the recording is admitted, it may be read as evidence, but may only be accepted as evidence if offered by an opposing party. Exception (7). The fact that a document does not mention a matter that would normally be mentioned is satisfactory evidence of its non-existence.
Uniform Rule 63 (14), commentary. While it is unlikely to be hearsay within the meaning of Rule 801, decisions may be made that classify the evidence not only as hearsay but also as non-exceptional. In order to clarify the question in favour of admissibility, it is dealt with specifically here. McCormick, § 289, p. 609; Morgan, Basic Problems of Evidence 314 (1962); 5 Wigmore § 1531; Uniform Rule 63 (14); California Proof Code §1272; Kansas Code of Civil Procedure §60-460(n); New Jersey Evidence Rule 63(14). The refusal of the Common Law to admit proof of the absence of registration or registration by certificate has no apparent justification, 5 Wigmore § 1678(7), at p. 752. The article takes the opposite view, as does section 63 (17); California Evidence Code §1284; Kansas Code of Civil Procedure §60-460(c); New Jersey Evidence Rule 63(17). Congress recognized certification as evidence of no record. 8 U.S.C. § 1360(d), a certificate from the Attorney General or other designated officer stating that no Immigration and Naturalization Service document of a particular nature or entry is found that is authorized in cases involving aliens.
To cast doubt on a witness`s credibility, evidence that he or she was convicted of a crime is admissible, but only if the offense (1) was punishable by death or imprisonment for more than one year under the law under which he or she was convicted, or (2) regardless of the sentence involved dishonesty or perjury. 2. For any offence, whatever the penalty, evidence shall be admitted if the court can easily establish that the finding of the constituent elements requires proof – or admission by the witness – of an unfair act or false testimony. The House Bill provides in clause (b) that evidence of conviction of a crime may not be used for the purpose of indictment under clause (a) if more than ten years have elapsed since the date of conviction or the date on which the witness was released from conviction for conviction, whichever is later. The Senate amendment allows for the use of sentences of more than ten years if the court finds, in the interests of justice, that the probative value of the conviction, based on certain facts and circumstances, far outweighs its prejudicial effect. Rule 609 sets out when a party may use evidence of a previous conviction to charge a witness. The Senate amendments make changes to two paragraphs of section 609. The amendment applies the general balancing test of Rule 403 to protect all litigants from unfair witness calling. The balancing test protects civil parties, the government in criminal cases and the defendant in criminal proceedings who calls other witnesses. The amendment refers to previous convictions under section 609, not for other purposes, and therefore does not contradict Davis v. Alaska, 415 U.S.
308 (1974). Davis implied the use of an earlier minor judgment, not to prove a previous violation of the law, but to prove bias. In a criminal case, the accused has the right to prove the bias of a witness and to be assured of a fair trial, without unduly prejudice to a trier of fact. See general article 412. Of course, in all cases where the trial court finds that adversarial rights require the admission of evidence of impeachment, the Constitution would prevail over the rule. Exception (18). The authors have generally advocated the admissibility of scholarly treatises, McCormick, § 296, p. 621; Morgan, Basic Problems of Evidence 366 (1962); 6 Wigmore §1692, assisted by occasional decisions and rules, City of Dothan v.
Hardy, 237 Ala. 603, 188 So. 264 (1939); Lewandowski vs. Preferred Risk Mut. Ins. Co., 33 Wis.2d 69, 146 N.W.2d 505 (1966), 66 Mich.L.Rev. 183 (1967); Uniform Rule 63 (31); Kansas Code of Civil Procedure §60-460 (ce), but the great weight of authority was that scholarly treatises are not admissible as substantial evidence, although they can be used in expert cross-examination. The basis of the minority view is that the hearsay objection must be considered discrete when directed against treaties, as a high level of accuracy is generated by various factors: the treatise is written primarily and impartially for professionals subject to scrutiny and denunciation for inaccuracy, with the reputation of the writer at stake. 6 Wigmore §1692. As reasonable as this position may be in terms of reliability, there is an additional difficulty in the likelihood that the treaty will be misunderstood and misapplied without the help and supervision of experts. This difficulty is recognized in cases where the reluctance to uphold findings of disability on the basis of medical texts identified by the court is demonstrated. Ross v.
Gardner, 365 F.2d 554 (6th cir. 1966); Sayers v. Gardner, 380 F.2d 940 (6th Cir. 1967); Colwell v. Gardner, 386 F.2d 56 (6th Cir. 1967); Glendenning v. Ribicoff, 213 F.Supp. 301 (W.D.Mo. 1962); Koch v. Celebrezze, 217 F.Supp. 366 (W.D.Mo. 1963); Sosna v.
Celebrezze, 234 F.Supp. 289 (E.D.Pa. 1964); and see McDaniel v. Celebrezze, 331 F.2d 426 (4th cir. 1964). The rule avoids the risk of misunderstanding and misapplication by limiting the use of treaties as substantive evidence to situations where an expert is on the witness stand and available to explain and assist in the implementation of the treaty, if explained. The limitation in the last sentence to the preservation of the publication itself as evidence is intended to promote this policy. The amendment to Article 609(a) contains two amendments to the Rules of Procedure. The First Amendment removes from the rule the restriction that conviction can only be invoked by cross-examination, a restriction that virtually all circuits have found unenforceable.
It is common for witnesses to reveal their beliefs during direct questioning in order to eliminate the “goad” of impeachment. See, for example, United States v. Bad Cob, 560 F.2d 877 (8th Cir. 1977). The amendment does not provide that a court necessarily allows evidence of previous convictions through testimony, which could take more time and harm than evidence through a written record. Rules 403 and 611(a) provide the court with sufficient powers to protect itself against unfair or disruptive methods of evidence. Given that exceptional cases such as the Dallas County case could occur in the future, the Committee decided to reinstate a residual exemption for Rules 803 and 804(b). The adversary is not necessarily required to provide positive evidence of unreliability in the execution of its burden. For example, the opponent could argue that a registration was made in anticipation of litigation and that he is in favour of the preparatory part without the need to provide evidence on this point. The determination of unreliability necessarily depends on the circumstances.
Accordingly, the Committee adopted a residual exception for sections 803 and 804(b), which is much narrower and more enforceable than the Supreme Court`s version. To be admitted, hearsay testimony that does not fall within one of the recognized exceptions would have to meet at least four conditions. First, it must have “equivalent circumstantial guarantees of reliability”. Second, it must be presented as evidence of an essential fact. Third, the court must conclude that the testimony “is more conclusive on the point on which it is offered than any other evidence that the proponent may obtain by reasonable effort.” The purpose of this requirement is to ensure that only statements that have high probative value and necessity can be admitted under the remaining exceptions.