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C. ARLEN BEAM, U.S. Court of Appeals, 435 Federal Building, Lincoln, NE 68508, Chair

ROBERT H. ARONSON, University of Washington, School of Law, 110 NE Campus Parkway, Seattle,

WA 98105-6617

RHODA B. BILLINGS, Wake Forest University, School of Law, P.O. Box 7206, Winston-Salem,

NC 27109

W. GRANT CALLOW, Suite 610, 425 G. Street, Anchorage, AK 99501

MICHAEL B. GETTY, Room 2510, Richard J. Daley Center, 50 W. Washington Street, Chicago,

IL 60602

SHAUN P. HAAS, Legislative Council, Suite 401, 1 E. Main Street, Madison, WI 53701-2536

DAVID PEEPLES, 224th District Court, Bexar County Courthouse, 100 Dolorosa, San Antonio,

TX 78205

RUSSELL G. WALKER, JR., Superior Court, 19-B Judicial District, 145 Worth Street, Asheboro,

NC 27203

LEO H. WHINERY, University of Oklahoma, College of Law, 300 Timberdell Road, Norman,

OK 73019, National Conference Reporter

D. JOE WILLIS, Suites 1600-1950, Pacwest Center, 1211 S.W. 5th Avenue, Portland, OR 97204

GENE N. LEBRUN, P.O. Box 8250, 9th Floor, 909 St. Joseph Street, Rapid City, SD 57709, President

BARRY H. EVENCHICK, 8th Floor, One Gateway Center, Newark, NJ 07102, Division Chair

MYRNA S. RAEDER, Southwestern University, School of Law, 675 S. Westmoreland Avenue,

Los Angeles, CA 90005, Co-Advisor

HENRY dePONT RIDGELY, Superior Court of Delaware, Courthouse, Dover, DE 19901, Judicial

Administration Division - National Conference of Administrative Law Judges Section Advisor

REAGAN W. SIMPSON, Suite 5100, 1301 McKinney, Houston, TX 77010, Co-Advisor

FRED H. MILLER, University of Oklahoma, College of Law, 300 Timberdell Road, Norman,

OK 73019, Executive Director

WILLIAM J. PIERCE, 1505 Roxbury Road, Ann Arbor, MI 48104, Executive Director Emeritus

RULE 101. SCOPE DEFINITIONS 6

RULE 102. SCOPE, PURPOSE, AND CONSTRUCTION 7

RULE 103. RULINGS ON EVIDENCE 12

RULE 104. PRELIMINARY QUESTIONS 19

RULE 105. LIMITED ADMISSIBILITY 24

RULE 106. REMAINDER OF, OR RELATED, WRITINGS OR RECORDED STATEMENTS

RECORD 24

RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS 26

RULE 301. PRESUMPTIONS IN GENERAL; IN CIVIL ACTIONS AND PROCEEDINGS

DEFINITIONS 31

RULE 302. APPLICABILITY OF FEDERAL LAW IN CIVIL ACTIONS AND PROCEEDINGS

EFFECT OF PRESUMPTIONS IN CIVIL CASES 34

RULE 303. SCOPE AND EFFECT OF PRESUMPTIONS IN CRIMINAL CASES 37

RULE 401. DEFINITION OF RELEVANT EVIDENCE 40

RULE 402. RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT

EVIDENCE 40

RULE 403. EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE,

CONFUSION, OR WASTE OF TIME 40

RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT,

EXCEPTIONS: OTHER CRIMES 41

RULE 405. METHODS OF PROVING CHARACTER 54

RULE 406. HABIT: ROUTINE PRACTICE 55

RULE 407. SUBSEQUENT REMEDIAL MEASURES 55

RULE 408. COMPROMISE AND OFFERS TO COMPROMISE [Alternative 1] 61

RULE 408. VOLUNTARY DISPUTE RESOLUTION [Alternative 2] 62

RULE 409. PAYMENT OF MEDICAL AND SIMILAR EXPENSES 64

RULE 410. WITHDRAWN PLEAS AND OFFERS INADMISSIBILITY OF PLEAS, PLEA

DISCUSSIONS, AND RELATED STATEMENTS 64

RULE 411. LIABILITY INSURANCE 69

RULE 412. SEXUAL BEHAVIOR 69

RULE 501. PRIVILEGES RECOGNIZED ONLY AS PROVIDED 84

RULE 502. LAWYER-CLIENT PRIVILEGE 87

RULE 503. PHYSICIAN AND PSYCHOTHERAPIST - PATIENT PRIVILEGE

[PSYCHOTHERAPIST] [PHYSICIAN AND PSYCHOTHERAPIST]

[PHYSICIAN AND MENTAL-HEALTH PROVIDER] [MENTAL-HEALTH

PROVIDER] - PATIENT PRIVILEGE 92

RULE 504. HUSBAND-WIFE PRIVILEGE SPOUSAL PRIVILEGE 106

RULE 505. RELIGIOUS PRIVILEGE 108

RULE 506. POLITICAL VOTE 111

RULE 507. TRADE SECRETS 111

RULE 508. SECRETS OF STATE AND OTHER OFFICIAL INFORMATION;

GOVERNMENTAL PRIVILEGES 112

RULE 509. IDENTITY OF INFORMER 113

RULE 510. WAIVER OF PRIVILEGE BY VOLUNTARY DISCLOSURE 115

RULE 511. PRIVILEGED MATTER DISCLOSED UNDER COMPULSION OR WITHOUT

OPPORTUNITY TO CLAIM PRIVILEGE. 120

RULE 512 511. COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE;

INSTRUCTION 121

RULE 601. GENERAL RULE OF COMPETENCY 122

RULE 602. LACK OF PERSONAL KNOWLEDGE 122

RULE 603. OATH OR AFFIRMATION 122

RULE 604. INTERPRETERS 123

RULE 605. COMPETENCY OF JUDGE AS WITNESS 125

RULE 606. COMPETENCY OF JUROR AS WITNESS 125

RULE 607. WHO MAY IMPEACH 126

RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS 126

RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME 127

RULE 610. RELIGIOUS BELIEFS AND OPINIONS 137

RULE 611. MODE AND ORDER OF INTERROGATION AND PRESENTATION 138

RULE 612. WRITING RECORD OR OBJECT USED TO REFRESH MEMORY 139

RULE 613. PRIOR STATEMENTS STATEMENT OF WITNESS 140

RULE 614. CALLING AND INTERROGATION OF WITNESSES BY COURT 141

RULE 615. EXCLUSION OF WITNESSES 142

RULE 616. BIAS OF WITNESS 142

RULE 701. OPINION TESTIMONY BY LAY WITNESS 144

RULE 702. TESTIMONY BY EXPERTS 145

RULE 703. BASIS OF OPINION TESTIMONY BY EXPERTS EXPERT 170

RULE 704. OPINION ON ULTIMATE ISSUE 177

RULE 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION 177

RULE 706. COURT APPOINTED EXPERTS EXPERT WITNESS 178

RULE 801. DEFINITIONS; EXCLUSIONS 180

RULE 802. HEARSAY RULE 188

RULE 803. HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL 188

RULE 804. HEARSAY EXCEPTIONS: DECLARANT UNAVAILABLE 207

RULE 805. HEARSAY WITHIN HEARSAY 216

RULE 806. ATTACKING AND SUPPORTING CREDIBILITY OF DECLARANT 216

RULE 807. CHILD VICTIMS OR WITNESSES 217

RULE 807. STATEMENT OF CHILD VICTIM 219

RULE 808. RESIDUAL EXCEPTION 228

RULE 901. REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION 236

RULE 902. SELF-AUTHENTICATION 241

RULE 903. SUBSCRIBING WITNESS' TESTIMONY UNNECESSARY 250

RULE 1001. DEFINITIONS 252

RULE 1002. REQUIREMENT OF ORIGINAL 254

RULE 1003. ADMISSIBILITY OF DUPLICATES 254

RULE 1004. ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS 255

RULE 1005. PUBLIC RECORDS 255

RULE 1006. SUMMARIES 256

RULE 1007. TESTIMONY, OR WRITTEN ADMISSION IN RECORD OF PARTY 256

RULE 1008. FUNCTIONS OF COURT AND JURY 257

RULE 1101. RULES APPLICABLE. 258

* A similar substantive change has been made in all Uniform Rules where the language "writing or record statement" appears.

Codification of the Rules of Evidence has proven to be more of a "work in progress" enterprise than was originally anticipated by the various drafting bodies at work in the 1970's. Societal changes, advances in both the hard and soft science and improvements in information technology have exposed many problematic evidentiary situations routinely faced by lawyers and judges. With increasing frequency, the rules fail to fit into a new environment, or alternatively, if they fit, they produce measurable inequity. It is within this context that the Drafting Committee to revise the Uniform Rules of Evidence of 1974, As Amended, presents its final work product to the 1999 Conference.

The assignment from Scope and Program and the Executive Committee authorized a comprehensive analysis of significant problems, with directions to keep in mind that the law of evidence, being applicable to an almost unlimited range of subject matter, does not reasonably respond to micro-management by the rule maker.

It may be prudent to anticipate one area of inquiry arising from an earlier mandate directed to the Drafting Committee that concluded its work with the 1986 amendments adopted at the Boston Conference. Responding to the expanding interstate and intercourt nature of the practice of law, the Drafting Committee was charged with bringing the language of the Uniform Rules into line with comparable provisions in the Federal Rules of Evidence, where reasonably possible. The underlying theory was, apparently, that a trial practitioner need master only one set of rules to comfortably practice in both federal and state forums located in various States, districts, and circuits. However, in practice, this theory does not seem to work as well as expected. In operation, the same words are often construed differently by different courts, even by sister federal and state circuits. Thus, the careful lawyer must research certain rules of evidence on a case-by-case basis.

As a result, the current Drafting Committee has endeavored to draft the amended rules in clear and reasonably understandable terms without precise regard to other existing work product. In this regard, you will note that, for the first time, we have created a definitions rule, as amended Rule 101, containing terms that are used in several different Uniform Rules. The Drafting Committee is also proposing an approach which is unique to accommodate the admissibility of electronic evidence through the use of the term "record" throughout the rules in lieu of the terminology "writings," "recodings," and "photographs" and appropriately defining "record" in Rule 101(3). The innovations also include numerous stylistic changes made throughout the Rules which have been recommended by the Committee on Style.

The Drafting Committee also met on October 30-November 1, 1998 and February 26-28, 1999 to consider the comments, criticisms and suggestions of the Committee of the Whole at the First Reading of proposed amendments to the Uniform Rules in 1998. Hopefully, the Committee has given due consideration to all of the views expressed by Commissioners of the First Reading even though for various reasons all of them have not been acted upon. Among the Rules in which revisions have been made are Rule 404(c) narrowing the scope of the procedural rules to apply only in criminal cases when evidence of other crimes, wrongs or acts is offered against an accused; Rule 407 clarifying the meaning of an event in determining the applicability of the rule excluding evidence of subsequent remedial measures; Rules 803(6) and 803(8) to provide that public records inadmissible under Rule 803(8) are inadmissible as business records under Rule 803(6); and Rule 807 to tighten up the criteria for determining the admissibility of statements of children relating to neglect, or physical or sexual abuse.

It should also again be noted that Congress added Rules 413 through 415 of the Federal Rules of Evidence on September 13, 1994, Pub. L. 103-222, § 320935(a), 108 Stat. 2135, effective July 9, 1995. Rules 413 through 415 permit respectively, (1) the admissibility of evidence of prior offenses of sexual assault when, in a criminal proceeding, a person is accused of an offense of sexual assault; (2) the admissibility of prior offenses of child molestation when, in a criminal proceeding, a person is accused of an offense of child molestation, and (3) the admissibility of evidence of prior offenses of sexual assault, or of child molestation when, in a civil proceeding, a claim for damages or other relief is sought against a party who is alleged to have committed an act of sexual assault or child molestation.

The overwhelming majority of judges, lawyers, law professors and legal organizations who responded to the Advisory Committee's call for public response opposed the enactment of Rules 413 through 415 without equivocation. The principal objections expressed were two fold. First, the rules would permit the admission of unfairly prejudicial evidence by focusing on convicting a criminal defendant for what the defendant is rather than what the defendant has done.

Second, the rules contained numerous drafting problems apparently not intended by their authors. For example, mandating the admissibility of the evidence without regard to the other rules of evidence such as the Rule 403 balancing test and the hearsay rule. In turn, serious constitutional questions would arise in criminal proceedings where the rules were invoked. For these and related reasons, the Advisory Committee on the Federal Rules of Evidence, the Standing Committee on Rules of Practice and Procedure and the Judicial Conference of the United States opposed the enactment of Rules 413 through 415.

Alternatively, the Standing Committee and the Judicial Conference recommended the adoption of an amendment to Rules 404 and 405 of the Federal Rules of Evidence proposed by the Advisory Committee which would provide for the admission of such evidence under limited conditions. However, Congress elected not to accept the recommendation.

In spite of the expressed concerns as to the constitutionality of Rules 413 through 415, they are being given surprising vitality among the Federal Circuit Courts that have considered the issue. These courts have held that the rules do not violate the Due Process Clause subject to the balancing of relevancy against unfair prejudice within Rule 403 of the Federal Rules of Evidence. See United States v. Mound, 149 F.3d 799 (8th Cir. 1998); United States v. Summer, 119 F.3d 658 (8th Cir. 1997); United States v. Castillo, 140 F.3d 874 (10th Cir. 1998); United States v. Guardia, 135 F.3d 1326 (10th Cir. 1998); United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998); and United States v. Larson, 112 F.3d 600 (2d Cir. 1997).

However, there is still some judicial concern as to the constitutionality of these rules. See the dissenting opinion from an order denying a petition for rehearing en banc in United States v. Mound, 157 F.3d 1153 (8th Cir. 1998), in which it is argued that an en banc court ought to consider the constitutionality of Rule 413 because the rule "presents [so] great a risk that the jury will convict a defendant for his past conduct or unsavory character" that it violates due process. Id. at 157 F.3d 1153. See further, M.A. Sheft, Federal Rules of Evidence, 413: A Dangerous New Frontier, 33 Am. Crim. L. Rev. 57, 73 (1995).

In any event, the propriety of including Rules 413 through 415 in the Uniform Rules of Evidence is questionable at best. There is no State which has adopted these rules to date. In Arizona, their adoption was considered by the Supreme Court of Arizona, but rejected largely for the same reasons they were rejected by the Judicial Conference of the United States. See Robert L. Gottsfield, We Just Don't Get It: Improper Admission of Other Acts Under Evidence Rule 404(B) as Needless Cause of Reversal in Civil and Criminal Cases, Ariz. Att'y, Apr. 1997 at 24. Connecticut has reprinted Federal Rules 413 through 415 in its Trial Lawyers Guide to Evidence, but they are inapplicable in state court proceedings. Indiana has a rule similar to Federal Rule 414, but it is more carefully drawn with procedural safeguards. See Ind. Code Ann. § 35-37-4-15 (West 1997). California also has statutes authorizing the introduction of prior sexual offenses or acts of domestic violence subject to balancing relevancy against unfair prejudice. See Cal. Evid. Code §§ 1108, 1009 (West 1997). Missouri also had a blanket rule admitting evidence of prior acts of child molestation similar to Federal Rule 414. See Mo. Ann. Stat. § 566.025 (West 1978).

For the foregoing reasons and apparent lack of support to date among the several States for the enactment of rules similar to Rules 413 through 415, the Drafting Committee, at its meeting in Cleveland, Ohio, on October 4-6, 1996, voted unanimously not to include or recommend the adoption of Rules 413 through 415 by the Conference.

Similarly, the Drafting Committee does not recommend the adoption of the Advisory Committee's earlier proposed amendment to Rule 404 of the Federal Rules of Evidence.

These decisions of the Drafting Committee have now been reinforced by the decision of the Supreme Court of Missouri in State v. Burns, 978 S.W.2d 759 (Mo. 1998), holding that Section 566.025, supra, contravened the Missouri Constitution. In this case, a prosecution for statutory sodomy, the trial court admitted the testimony of two witnesses relating to prior uncharged acts of sexual abuse committed by the defendant pursuant to Section 566.025, RSMo 1994, providing that evidence of other charged and uncharged crimes "shall be admissible for the purpose of showing the propensity of the defendant to commit the crime or crimes with which he is charged."

The Supreme Court reasoned that Section 566.025 violated Article I, Section 17 providing "[t]hat no person shall be prosecuted criminally for felony or misdemeanor otherwise than by indictment or information" and Article I, Section 18(a) providing "[t]hat in criminal prosecutions that accused shall have the right . . . to demand the nature and cause of the accusation; . . .  ." In doing so it rejected the State's argument that Section 566.062 did not violate Sections 17 and 18(a) of Article I since the defendant was not "on trial" for the uncharged conduct because he could be convicted only for the formally charged crime. This interpretation, the Court reasoned, would enable the jury to "improperly convict the defendant because of his propensity to commit such crimes with regard to whether he is actually guilty of the charged crime. * * * As a result, the defendant is forced to defend against the uncharged conduct in addition to the charged crime."

The Supreme Court also rejected the State's argument that in determining the admissibility of propensity evidence under Section 566.025 the trial court can balance the value and effect of evidence of other crimes. This interpretation, the Court also reasoned, would require ignoring the Legislature's use of the mandatory term "shall," an approach which has largely been ignored by the Federal Circuit Court in dealing with that issue. Finally, the defendant also contended that Section 566.025 violated the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. However, the Court did not reach these issues by concluding that the challenge under the Missouri Constitution was dispositive.

Within the foregoing approach these amendments of the Uniform Rules of Evidence of 1974, As Amended, are respectfully submitted for Conference consideration and final approval. The Drafting Committee proposes to read line-by-line only those rules in which substantive amendments have been finalized, referring, as directed by the Executive Committee, to the balance on a rule heading by rule heading basis. The Reporter has prepared a chart appended at the end of this Prefatory Note to assist you in following the reading of the Rules. At the same time, Rules identified for rule heading reading may be discussed as well as those programmed for line-by-line consideration.

RULE 101. SCOPE DEFINITIONS. In these Rules:

(1) "Person" means an individual, public or private corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(2) "Public record" means a record of a public office or agency in which the record is prepared, filed, or recorded pursuant to law.

(3) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

(4) "State" means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

Rules 101 and 102 have been reorganized to include a definitions rule as Rule 101. The definitions in Rule 101 are of terms that are used throughout the Uniform Rules and have a generic application. In contrast, terms that have application only in specific Articles or Rules are separately defined in those Articles or Rules. With the exception of the definition of "record" in Rule 101(3), the definitions in proposed Rule 101 are self-evident and do not need further comment.

"Record" is separately defined to support the use of the term in Rules 106, 612, 801(a), 803(5) through 803(17), 901 through 903 and 1001 through 1007 to conform the rules to the recommendations of the Task Force on Electronic Evidence, Subcommittee on Electronic Commerce, Committee on Law of Commerce in Cyberspace, Section on Business Law of the American Bar Association. Although both the Federal Rules of Evidence and the Uniform Rules of Evidence presently include specific reference, when appropriate, to "data compilations" to accommodate the admissibility of records stored electronically, many business and governmental records do not now consist solely of data compilations. Rather, in today's technological environment, records are kept in a variety of mediums other than in just data compilations. "Records" may include items created, or originated, on a computer, such as through word processing or spreadsheet programs; records sent and received through electronic communications, such as electronic mail; data stored through scanning or image processing of paper originals; and information compiled into data bases. One, or all, of these processes may be involved in ordinary and customary business and governmental record-keeping. Modern technology thus dictates that any of the foregoing records should be admissible when they are relevant if reasonable thresholds of evidentiary reliability are satisfied. The Rule 101(3) definition of "record" and the proposed amendments to the Uniform Rules utilizing the term "record" are intended to accommodate these innovations in record keeping, as well as to continue to accommodate more traditional forms of record keeping, such as writings, recordings and photographs. See, in this connection, Fry, Patricia Brumfield, X Marks the Spot: New Technologies Compel New Concepts for Commercial Law¸ 26 Loyola of Los Angeles L. Rev. 607 (1993).

The definition of "record" in Rule 101(3) is derived from § 5-102(a)(14) of the Uniform Commercial Code and would carry forward consistently the established policy of the Conference to accommodate the use of electronic evidence in business and governmental transactions. It should be made clear that the term includes all writings, recordings, photographs and images for the purpose of interpreting the proposed amendments to the Uniform Rules where the term "record" is used. "Writings," "recordings," "photographs" and "images" are separately defined in Rule 1001 of Article X as these terms are used in interpreting the original writing ("best evidence") rule.

See further, the Reporter's Notes to Uniform Rule 1001, infra.

RULE 102. SCOPE, PURPOSE, AND CONSTRUCTION.

(a) Rules applicable. Except as otherwise provided in subdivision (b), these Rules apply to all actions and proceedings in the courts of this State.

(b) Rules inapplicable. These Rules, other than those applicable with respect to privileges, do not apply in:

(1) the determination of questions of fact preliminary to admissibility of evidence if the issue is to be determined by the court under Rule 104(a);

(2) proceedings before grand juries;

(3) proceedings for contempt in which the court may act summarily; and

(4) miscellaneous proceedings, such as proceedings involving extradition or rendition; [preliminary] [probable cause] hearings in criminal cases; [sentencing]; granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and release on bail or otherwise.

(c) Purpose and construction. These rules shall must be construed to secure fairness, in administration, elimination of eliminate unjustifiable expense and delay, and promotion of promote the growth and development of the law of evidence, to the end that truth may be ascertained and proceedings issues justly determined.

This renamed Rule 102 combines in three subdivisions the black letter of the earlier revised Rule 101 dealing with the scope of the Rules with the black letter of the earlier revised Rule 102 dealing with the purpose and construction of the Rules to facilitate the drafting of a definitions rule now numbered Rule 101.

Subdivisions (a) and (b) incorporate the black letter of Uniform Rule 1101 into Rule 102 with one technical change in subdivisions (a) and (b), changes based on stylistic recommendations and one substantive change. In subdivision (b)(4), the black letter "probable cause hearing" placed in brackets is substituted for "detention hearing."

The Comment to existing Rule 1101 states as follows:

The Uniform Rules of Criminal Procedure change the preliminary examination to a detention hearing. This terminology is used in Subdivision (b)(3).

Neither the existing black letter of subdivision (b)(3), now numbered subdivision (b)(4), nor the Comment are now applicable due to amendments made to the Uniform Rules of Criminal Procedure. The Comment to Rule 345 of the Uniform Rules of Criminal Procedure providing for a probable cause hearing states that "these Rules include no provision for preventative detention. The only issue in the Rule 345 hearing is that specified in subdivision (d) below, 'whether there is probable cause to believe that a crime has been committed and that the defendant committed it.' This is quite different from the issues regarding the defendant's dangerousness and likelihood of nonappearance.  . . ."

The proposed amendment of Uniform Rule 102 departs from the existing structure of Uniform Rules 101 and 1101 and from the uniformity which currently exists between the structure of the Uniform Rules of Evidence and Rules 101 and 1101 of the Federal Rules of Evidence. The Advisory Committee on the Federal Rules has not recommended any amendments to Federal Rule 101 However, the departure from Federal Rule 101 is structural only except for the substantive changes in revised Uniform Rule 102(b)(4).

Proposed Uniform Rule 102(b) retains in part the introductory clause in the black letter of the current Uniform Rule 1101(b) by providing that the rules "other than those applicable with respect to privileges do not apply" in the enumerated situations. This general language concerning the inapplicability of the rules of evidence in the proceedings enumerated in renumbered subdivisions (1) through (4) is not intended to eliminate the requirement that the evidence offered in these proceedings be relevant and not substantially outweighed by the danger of unfair prejudice as provided in Uniform Rules 401 through 403. See, for example, People v. Turner, 128 Ill.2d 540, 539 N.E.2d 1196, 132 Ill. Dec. 390 (Ill. 1989), that the test governing admissibility at the sentencing hearing "is whether the evidence is relevant and reliable" and State v. Williams, 73 Ohio St.3d 153, 652 N.E.2d 721 (Ohio 1995), holding that in sentencing proceedings the rules of evidence "impose upon the trial court the duty to weigh the probative value of the evidence against the potential for unfair prejudice, confusion of the issues, and misleading of the jury."

In contrast to current Uniform Rule 1101, for structural reasons, the Drafting Committee has also renumbered subdivision (4) exempting contempt proceedings from the application of the rules of evidence and subdivision (3) exempting certain miscellaneous proceedings to subdivisions (3) and (4) respectively. It has also included the words "miscellaneous proceedings, such as" in the introduction to renumbered Rule 101(b)(4) to accommodate the expansion of the types of proceedings in which the rules of evidence should not apply, such as juvenile disposition hearings, to avoid attempting to catalogue the myriad of types of proceedings in which the rules of evidence may not apply in the several state jurisdictions.

Unlike existing Uniform Rule 1101(b)(3), it is recommended that the word "sentencing" be bracketed in proposed Uniform Rule 102(b)(4) to give the States flexibility in determining the extent to which the rules of evidence are to apply in sentencing proceedings. It is true that a majority of the States in their black letter law provide that the rules of evidence do not apply in sentencing proceedings. These are: Alabama, Ala. R. Evid. 1101(b)(3); Alaska, Alaska R. Evid. 101(c)(2); Arkansas, Ark. R. Evid. 1101(b)(3); California, Pretrial and Trial Rules, Div. 3, c. IV, Rule 420(b) and c. V, Rule 433(c)(1); Colorado, Colo. R. Evid. 1101(d)(3); Connecticut, Conn. R. Evid. 1101(d)(3); Delaware, Del. R. Evid. 1101(b)(3); Hawaii, Haw. R. Evid. § 626-1, R.1101(d)(3); Idaho, Idaho R. Evid. 101(e)(3); Indiana, Ind. R. Evid. 101(c)(2); Iowa, Iowa R. Evid. 1101(c)(4); Kentucky, Ky. R. Evid. 1101(d)(5); Louisiana, La. Code Evid. Ann. art. 1101(c)(4) (West 1997); Maine, Me. R. Evid. 1101(b)(4); Maryland, Md. R. Evid. 5-101(b)(9); Michigan, Mich. R. Evid. 1101(b)(3); Minnesota, Minn. R. Evid. 1101(b)(3); Montana, Mont. R. Evid. 101(c)(3); Nebraska, Neb. Rev. Stat. § 27-1101(d)(3) (Supp. 1996); Nevada, Nev. Rev. Stat. § 47.020(2)(C) (1995); New Hampshire, N.H. R. Evid. 1101(d)(3); New Jersey, N.J. R. Evid. 101(a)(2)(c); New Mexico, N.M. R. Evid. 11-1101(d)(2); North Carolina, N.C. R. Evid. 1101(b)(3); North Dakota, N.D. R. Evid. 1101(d)(3); Ohio, Ohio R. Evid. 101(c)(3); Oklahoma, Okla. Stat. Ann. tit. 12, § 2103(b)(3) (West 1997); Oregon, Or. Rev. Stat. § 40.015(4)(d) (1989), Or. Rev. Stat. § 137.090(1) (1989); Pennsylvania, 42 Pa. C. S. A. §  9711(a)(2); Rhode Island, R.I. R. Evid. 101(b)(3); South Carolina, S.C. R. Evid. 1101(d)(3); Utah, Utah R. Evid. 1101(b)(3); Vermont, Vt. R. Evid. 1101(b)(3); Washington, Wash. R. Evid. 1101(c)(3); West Virginia, W.Va. R. Evid. 1101(b)(3); Wisconsin, Wis. Stat. Ann. § 911.01(4)(c) (West 1997); and Wyoming, Wyo. R. Evid. 1101(b)(3).

In the following seven States it has been held that a strict application of the rules of evidence is not required in the sentencing phase of the trial: Illinois, People v. Turner, 128 Ill. 2d 540, 539 N.E.2d 1196, 132 Ill. Dec. 390 (Ill. 1989); Kansas, State v. Torrence, 22 Kan. App. 2d 721, 922 P.2d 1109 (Kan. Ct. App. 1996); Massachusetts, Commonwealth v. Goodwin, 414 Mass. 88, 605 N.E.2d 827 (Mass. 1993); Mississippi, Williams v. State, 684 So. 2d 1179 (Miss. 1996); New York, People v. Wright, 104 Misc. 2d 911, 429 N.Y.S.2d 993 (N.Y. Sup. Ct. 1980); South Dakota, State v. Habbena, 372 N.W.2d 450 (S.D. 1985); and Virginia, Alger v. Commonwealth, 19 Va. App. 252, 450 S.E.2d 765 (Va. Ct. App. 1994).

In contrast, there are three jurisdictions which require that the rules of evidence apply, in whole, or in part, to sentencing proceedings. These are: Arizona, Ariz. R. Evid. 1101(d) and Ariz. Rev. Stat. § 13-703; Tennessee, Tenn. R. Evid. 101 and Tenn. Code Ann. § 40-35-209(b) (1995); and Texas, Tex. R. Evid. 101(d)(1).

Some jurisdictions adhere to the rule that the rules of evidence are inapplicable except in capital cases. These are: Louisiana, La. Code Evid. Ann. art. 1101(C)(4) and La. Code Crim. Proc. Ann. art. 905.2 (West 1998); Maryland, Md. R. Evid. 5-101(b)(9); and South Carolina, S.C. R. Evid. 1101(d)(3).

There are also five States which have specific provisions governing the applicability of the rules of evidence in capital cases. These are: Florida, Fla. Stat. Ann. § 921.141(1) (West 1997); Maryland, Md. Ann. Code of 1957, art. 27, § 413(c); Ohio, Ohio Rev. Code Ann. § 2929.04(c); Oregon, Or. Rev. Stat. § 163.150(1) (amended 1997); and Tennessee, Tenn. Code Ann. § 39-13-204(c) (amended 1997).

Finally, in a few jurisdictions, limitations on the inapplicability of the rules of evidence in sentencing proceedings have been imposed by judicial decision even where the black letter law provides otherwise. See, for example, Hawaii, where it has been held in State v. Villeza, 942 P.2d 522 (Haw. 1997) that the rules of evidence do apply in a hearing to determine whether an extended term of sentence should be imposed under Haw. Rev. Stat. § 706-622; Indiana, where it has been held in Poore v. State, 685 N.E.2d 36 (Ind. 1997), that evidentiary restrictions apply to the extent that they are implicated in a habitual offender proceeding; and Oklahoma, where it has been held, as a general rule, that even though the rules of evidence do not apply to sentencing proceedings under Okla. Stat. Ann. tit. 12, § 2103(B)(2) (West 1997) [Hunter v. State, 825 P.2d 1353 (Okla. Crim. App. 1992)], the Court of Criminal Appeals has nevertheless held that the rules of evidence are applicable to sentencing proceedings under recidivist statutes [Wade v. State, 624 P.2d 86 (Okla. Crim. App. 1981)] and to second-stage jury sentencing proceedings [Castro v. State, 745 P.2d 394 (Okla. Crim. App. 1987)].

Accordingly, the Drafting Committee has concluded that the States should be afforded an option in the Uniform Rules to exercise their own discretion in fashioning rules governing the applicability of the rules of evidence in sentencing or other similar proceedings, including dispositions in juvenile cases. Following the discussion of the First Reading Draft by the Committee of the Whole, it is still the view of the Drafting Committee that the bracketed word "sentencing" should be retained in the rule since inclusion of the word "sentencing" comports with the black letter law in a majority of the States that the rules of evidence do not apply in sentencing proceedings. At the same time, the Committee believes that bracketing the word has three advantages in promulgating a revised body of evidentiary rules. It recognizes the diversity which currently exists among the several States with respect to the types of sentencing proceedings in which the rules of evidence either do, or do not, apply. It encourages the several States to examine seriously the types of sentencing proceedings in which the rules of evidence should or should not apply. Finally, it affords individual States an opportunity to make reasoned decisions with respect to the types of sentencing proceedings in which the rules of evidence should apply.

The proposed amendment of Uniform Rule 102, now incorporated in subdivision (c), is clarifying only and no change in substance is intended. The word "shall" has been changed to "must" based on a stylistic recommendation.

RULE 103. RULINGS ON EVIDENCE.

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which that admits or excludes evidence unless a substantial right of the party is affected, and:

(1) Objection. In case if the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. In case if the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

(b) Record of offer and ruling. The court may add any other or further statement which that shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

(c) Effect of pretrial ruling. If the court makes a definitive pretrial ruling on the record admitting or excluding evidence, a party need not renew an objection or offer of proof at trial to preserve a claim of error for appeal.

(c) (d) Hearing of jury. In jury cases, proceedings shall must be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in within the hearing of the jury.

(d) (e) Errors affecting substantial rights. Nothing in this This rule precludes does not preclude a court from taking notice of errors an error affecting a substantial rights although they were rights even if it was not brought to the attention of the trial court.

Non-substantive changes have been made in Uniform Rules 103(a)(1) and (2) and renumbered subdivision (d) and (e) based on stylistic recommendations.

The earlier recommendation to add a subdivision (e) to Uniform Rule 103 was a revised version of the now withdrawn Proposed Rule 103(e) of the Federal Rules of Evidence. This proposed rule was withdrawn by the Advisory Committee due to the controversy surrounding the finality which should be accorded pretrial rulings on objections to, or proffers of, evidence. The withdrawn Proposed Federal Rule 103(e) provided as follows:

(e) Effect of pre-trial ruling. A pretrial objection to or proffer of evidence must be timely renewed at trial unless the court states on the record, or the context clearly demonstrates, that a ruling on the objection or proffer is final.

As originally enacted, Federal Rule 103 did not deal with whether a losing party on a pretrial motion concerning the admissibility of evidence was required to renew its objection or offer of proof at trial to preserve the question for consideration on appeal. Differing approaches evolved in the several circuits with corresponding uncertainty among the litigants as to the manner in which the issue should be handled. This proposed Federal Rule 103(e) was intended to clarify the different practices among the several circuits regarding the finality of rulings on pretrial motions concerning the admissibility of evidence. See, for a survey of the cases, United States v. Mejia-Alarcon, 995 F.2d 982 (10th Cir. 1993), cert. denied, 510 U.S. 927, 114 S.Ct. 334, 126 L.Ed.2d 279 (1993).

The Advisory Committee Note to the withdrawn proposed Federal Rule 103(e) stated that the Rule "does not excuse a litigant from having to satisfy the requirements of Luce v. United States, 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984) to the extent applicable. In Luce, the Supreme Court held that an accused must testify at trial in order to preserve for appeal any Rule 609 objection to a trial court's ruling on the admissibility of the accused's prior convictions for impeachment." In public comment, the Committee has been urged to abandon this approach because "it creates a tactical dilemma for defendants who believe that they have a better chance of obtaining an acquittal if they are silent, because the jury is likely to misuse their criminal history as propensity evidence rather than as impeachment." (See Letter of Professor Myrna S. Raeder, Southwestern University School of Law, to Peter G. McCabe, dated March 1, 1996). The effect of Luce on the necessity for renewing objections at trial impacts upon the impeachment of witnesses with prior convictions under Rule 609 of the Federal Rules of Evidence.

Public reaction to the withdrawn proposed Federal Rule 103(e) was mixed. Some favored the rule as proposed. Others agreed that Federal Rule 103 should be clarified to deal with the uncertainty among litigants as to claiming error on a pretrial ruling admitting or excluding evidence, but have argued that the default solution should be the reverse of the rule as proposed and provide as follows:

A pretrial objection to or proffer of evidence does not have to be renewed at trial, unless the court states on the record, or the context clearly demonstrates, that a ruling on the objection or proffer is not final.

Others voiced no opposition to the withdrawn Federal Rule 103. Still others took no position.

Finally, Professor Richard Friedman of the University of Michigan School of Law, testifying at the Public Hearing on Proposed Amendments to the Federal Rules of Evidence, and without questioning the need for a default rule, also argued that the default rule should be the opposite, namely, that the in limine objection or proffer should preserve the issue for consideration on appeal. (See Public Hearing on Proposed Amendments to the Federal Rules of Evidence, January 18, 1996).

The Advisory Committee on the Federal Rules of Evidence revisited the issue at its meeting on April 14-15, 1997 and approved the following amendment to Rule 103 to deal with rulings on motions in limine:

(e) Motions in limine. If a party moves for an advance ruling to admit or exclude evidence, the court may rule before the evidence is offered at trial or may defer a decision until the evidence is offered. A motion for an advance ruling, when definitively resolved on the record, is sufficient to preserve error for appellate review. But in a criminal case, if the court's ruling is conditioned on the testimony of a witness or the pursuit of a defense, error is not preserved unless that testimony is given or that defense is pursued. Nothing in this subdivision precludes the court from reconsidering an advance ruling.

This proposed Federal Rule 103(e) retained in substance the default rule as earlier proposed in the withdrawn rule. At the same time, it also addressed the requirements of the Luce case, but in a broader context by requiring that "if the court's ruling is conditioned on the testimony of a witness or the pursuit of a defense, error is not preserved unless that testimony is given or that defense is pursued." The Luce principle has also been extended in the rule to include comparable situations to the issue addressed in Luce by some lower federal courts. See, for example, United States v. Weichert, 783 F.2d 23 (2d Cir. 1986) (applying Luce where defendant may be impeached with evidence offered under Rule 608); United States v. DiPaolo, 804 F.2d 225 (2d Cir. 1986) (impeachment of defendant's witness); United States v. Ortiz, 857 F.2d 900 (2d Cir.), cert. denied, 489 U.S. 1070 (1989) (where uncharged misconduct is ruled admissible if the defendant pursues a certain defense).

However, the Standing Committee of the Judicial Conference of the United States rejected the proposed Federal Rule 103(e) on technical grounds. The Advisory Committee then revisited the issue at its meeting on October 20-21, 1997, considered alternatives to the proposed rule and approved sending to the Standing Committee a revised amendment dealing with the effect of pretrial rulings on the admissibility of evidence by adding the following paragraph at the end of Rule 103(a):

Once the court, at or before trial, makes a definitive ruling on the record admitting or excluding evidence, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. But if under the court's ruling there is a condition precedent to admission or exclusion, such as the introduction of certain testimony or the pursuit of a certain claim or defense, no claim of error may be predicated upon the ruling unless the condition precedent is satisfied.

The newly proposed amendment to Rule 103(a) met the technical objections of the Standing Committee, broadened the rule to apply to all motions, in limine and otherwise, broadened the holding in the Luce case, supra, to require the fulfillment of any condition precedent for claiming error on the admission or exclusion of evidence and includes the rule in subdivision (a) where the Advisory Committee believes the issue should more logically be addressed than in a separate subdivision of Rule 103. The Standing Committee of the Judicial Conference of the United States approved this proposed amendment of Rule 103(a) and it was issued for public comment on August 15, 1998.

Following public comment, Federal Rule 103(a) has now been further revised for submission to the Standing Committee of the Judicial Conference of the United States as follows:

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

This newly proposed Rule eliminates the second sentence from the black letter of the earlier proposed rule requiring any condition precedent to admission or exclusion of the evidence to be satisfied before a claim of error could be predicated on the court's ruling. However, nothing in the newly proposed amendment is intended to affect the rule set forth in Luce v. United States, supra, and its progeny .

In contrast to the now proposed amendment of Federal Rule 103(a), Rule 103(e) of the Uniform Rules of Evidence originally proposed by the Drafting Committee stated as a default rule that counsel for the losing party must renew at trial any pretrial objection or offer of proof. It also differed from the proposed amendment of Rule 103(a) of the Federal Rules of Evidence in that a renewal of the objection or offer of proof was not required if the court, either on the request of counsel, or the court on its own motion, stated that "the objection or proffer is final." Counsel would bear the risk of waiving an appealable issue if the requisite pretrial ruling of finality was not obtained or the objection, or offer of, proof was not renewed at trial.

As originally proposed, the requirement in Uniform Rule 103(e) for the renewal of a pretrial objection or offer of proof at trial was in accord with the rule generally followed among the several States where the issue has been raised on appeal. See, in this connection, State v. Barnett, 67 Ohio App. 3d 760, 588 N.E.2d 887 (Ohio Ct. App.1990) as follows:

An order granting or denying a motion in limine is a tentative, preliminary or presumptive ruling about an evidentiary issue that is anticipated, and an appellate court need not review the propriety of such an order unless the claimed error is preserved by a timely objection when the issue is actually reached during trial.

See also, State v. Maurer, 15 Ohio St. 3d 239, 15 O.B.R. 379, 473 N.E.2d 768 (Ohio 1984) and Deagan v. Dietz, No. 91-OV-2867, 1996 WL 148612 (Ohio Ct. App. Mar. 29, 1996).

Other jurisdictions adhering to the general rule requiring the renewal of an objection at trial are: Alabama, Evans v. Fruehauf Corp., 647 So. 2d 718 (Ala. 1994) and Grimsley v. State, 678 So. 2d 1197 (Ala. Crim. App. 1996); Florida, Rindfleisch v. Carnival Cruise Lines, 489 So. 2d 488 (Fla. Dist. Ct. App. 1986) and Lindsey v. State, 636 So. 2d 1327 (Fla. 1994); Illinois, Lundquist v. Nickels, 605 N.E.2d 1373 (Ill. App. Ct. 1992) and People v. Rodriguez, 655 N.E.2d 1022 (Ill. App. Ct. 1995); Indiana, Paullus v. Yarnelle, 633 N.E.2d 304 (Ind. Ct. App. 1994) and Carter v. State, 634 N.E.2d 830 (Ind. Ct. App. 1994); Kansas, Brunett v. Albrecht, 810 P.2d 276 (Kan. 1991) and State v. Goseland, 887 P.2d 1109 (Kan. 1994); Maine, State v. Naoum, 548 A.2d 120 (Me. 1988); Maryland, United States Gypsum Co. v. Mayor of Baltimore, 336 Md. 145, 647 A.2d 405 (Md. Ct. App. 1994); Massachusetts, Adoption of Carla, 416 Mass. 510, 623 N.E.2d 1118 (1993) and Sandler v. Commonwealth, 419 Mass. 334, 644 N.E.2d 641 (1995); Missouri, Vermillion v. Pioneer Gun Club, 918 S.W.2d 827 (Mo. Ct. App. 1996) and State v. McNeal, 699 S.W.2d 457 (Mo. Ct. App. 1985); Nebraska, Molt v. Lindsay Mfg. Co., 248 Neb. 81, 532 N.W.2d 11 (1995) and State v. Coleman, 239 Neb. 800, 478 N.W.2d 349 (1991); New York, People v. Alleyne, 154 A. 2d 473, (N.Y. App. Div. 1989); North Carolina, State v. Bonnett, 502 S.E.2d 563 (N.C. 1998) and State v. Conaway, 339 N.C. 487, 453 S.E.2d 824 (1995); Oklahoma, Braden v. Hendricks, 695 P.2d 1343 (Okla. 1985) and Fields v. State, 666 P.2d 1301 (Okla. Crim. App. 1983); Oregon, State v. Lockner, 663 P.2d 792 (Or. Ct. App. 1983); South Carolina, State v. Mueller, 460 S.E.2d 409 (S.C. Ct. App. 1995); Texas, Keene Corp. v. Kirk, 870 S.W.2d 573 (Tex. App. 1993) and State v. Chapman, 859 S.W.2d 509 (Tex. Ct. App. 1993); and Vermont, State v. Hooper, 151 Vt. 42, 557 A.2d 880 (1988).

The following jurisdictions do not require the renewal of an objection at trial. See Arizona, State v. Burton, 144 Ariz. 248, 697 P.2d 331 (1985); Arkansas, Massengale v. State, 319 Ark. 743, 894 S.W.2d 594 (1995); Idaho, State v. Higgins, 122 Idaho 590, 836 P.2d 536 (1992) and Davidson v. Beco Corp., 112 Idaho 560, 733 P.2d 781 (Idaho Ct. App. 1986); Louisiana, State v. Harvey, 649 So. 2d 783 (La. Ct. App. 1995) (renewal of objection not required on any written motion); New Hampshire, State v. Eldredge, 135 N.H. 562, 607 A.2d 617 (1992); New Mexico, Buffett v. Jaramillo, 914 P.2d 1011 (N.M. Ct. App. 1993) and State v. Corneau, 109 N .M. 81, 781 P.2d 1159 (N.M. Ct. App. 1989); North Dakota, Fischer v. Knapp, 332 N.W. 2d 76 (N.D. 1983); Pennsylvania, Miller v. Schmitt, 405 Pa. Super. 502, 592 A.2d 1324 (Pa. Super. Ct. 1991); Wisconsin, Schultz v. Am. Family Mut. Ins. Co., 178 Wis.2d 877, 506 N.W.2d 427 (Wis. Ct. App. 1993) and State v. Bustamante, 549 N.W.2d 746 (Wis. Ct. App. 1996); and Wyoming, Sims v. Gen. Motors Corp., 751 P.2d 357 (Wyo. 1988).

There are at least six jurisdictions which apply an exception and excuse a renewal of the objection where "the court states on the record, or the context clearly demonstrates, that a ruling on the objection or proffer is final." These are: California, People v. Morris, 53 Cal. 3d 152, 807 P.2d 949 (1991); Hawaii, Lussier v. Mau-Van Dev., Inc., 4 Haw. App. 359, 667 P.2d 804 (Haw. Ct. App. 1983); Maryland, Simmons v. State, 542 A.2d 1258 (Md. Ct. App. 1988); Tennessee, Willis v. Grimsley, No. 01-A-01-9409-CV-00445, 1995 W7 89774 (Tenn. Ct. App. Mar. 3, 1995) and State v. Brobeck, 751 S.W.2d 828 (Tenn. 1988); Utah, State v. Dibello, 780 P.2d 1221 (Utah 1989) and Salt Lake City v. Holtman, 806 P.2d 235 (Utah Ct. App. 1991); and Washington, Sturgeon v. Celotex Corp., 52 Wash. App. 609, 762 P.2d 1156 (Wash. Ct. App. 1988) and State v. Ramirez, 46 Wash. App. 223, 730 P.2d 98 (Wash. Ct. App. 1986).

Also, in contrast to the earlier proposed Federal Rule 103(a) submitted for public comment, the proposed Uniform Rule 103(e) did not deal with the Luce problem or its progeny. Similarly, the Drafting Committee elected not to deal with the Luce requirement in the narrower context of Uniform Rule 609 mandating that an accused testify at trial in order to preserve for appeal any objection to a court's pretrial ruling on the admissibility of the accused's prior conviction for impeachment purposes.

The Drafting Committee now recommends in proposed subdivision 103(c) the adoption of the first sentence of the proposed amendment of Rule 103(a) of the Federal Rules of Evidence, with only minor stylistic changes. This is based on the Sense of the House Motion of the Conference at its Annual Meeting in Cleveland, Ohio favoring the proposed federal rule approach as to the effect of pretrial rulings on the admissibility of evidence.

However, the Committee has elected not to recommend adopting the second sentence of the earlier proposed amendment of Federal Rule 103(a) incorporating the holding of Luce v. United States and its progeny due to the diversity which exists in the several state jurisdictions requiring a defendant to testify at trial to preserve for appeal a ruling on the admissibility of prior conviction evidence. The States are divided on the requirement that a defendant testify in order to preserve for appeal a ruling on the admissibility of prior conviction impeachment evidence under Uniform Rule 609 or similar provisions. Those States requiring that the accused testify are: Arizona, State v. Gonzales, 181 Ariz. 502, 892 P.2d 838 (1995); Arkansas, Smith v. State, 300 Ark. 330, 778 S.W.2d 947 (1989); California, 4 Cal.4th 238, 14 Cal.Rptr.2d 377, 841 P.2d 898 (1992); Colorado, People v. Brewer, 720 P.2d 596 (Colo.App. 1985); District of Columbia, Ross v. United States, 520 A.2d 1064 (Dist.Col.App. 1987); Idaho, State v. Garza, 109 Idaho 40, 704 P.2d 944 (1985); Illinois, People v. Whitehead, 116 Ill.2d 425, 508 N.E.2d 687 (1987); Michigan, People v. Finley, 431 Mich. 506, 431 N.W.2d 19 (1988); Ohio, State v. Utley, No. L-84-434, LEXIS® (OhioApp. 6th Dist. 1985); Tennessee, State v. Moffett, 729 S.W.2d 679 (Tenn.Crim. 1986); Texas, Morgan v. State, 891 S.W.2d 733 (Tex.App.1st Dist. 1994); Utah, State v. Gentry, 71 Utah Adv.Rep. 20, 747 P.2d 1032 (1987); Virginia, Reed v. Commonwealth, 6 Va.App. 65, 366 S.E.2d 274 (1988); Washington, State v. Brown, 113 Wash.2d 520, 782 P.2d 1013, clarified, on reconsideration, 787 P.2d 906 (1989); and Wyoming, Tennant v. State, 786 P.2d 339 (Wyo. 1990).

It either has been held or assumed in the following States that the defendant is not required to testify: Massachusetts, Commonwealth v. Cordeiro, 401 Mass. 843, 519 N.E.2d 1328 (1988); Minnesota, State v. Ford, 381 N.W.2d 30 (Minn.App. 1986), following State v. Jones, 271 N.W.2d 534 (Minn. 1978); North Carolina, State v. Lamb, 353 S.E.2d 857 (1987); New Jersey, State v. Whitehead, 104 N.J. 353, 517 A.2d 373 (1986); New York, People v. Moore, 156 App.Div.2d 394, 548 N.Y.S.2d 344 (1988); and Pennsylvania, Commonwealth v. Richardson, 347 Pa. Super 564, 500 A.2d 1200 (1985).

It has also be held in the following States that, while a defendant need not testify, the defendant must create an adequate record to permit appellate review: Alaska, Wickham v. State, 770 P.2d 757 (Alaska App. 1989); Massachusetts, 22 Mass.App. 274, 493 N.E.2d 516 (1986), review denied, 398 Mass. 1102, 497 N.E.2d 1096; Mississippi, 592 So.2d 114 (Miss. 1991); and Oregon, State v. McClure, 298 Or. 336, 692 P.2d 579 (1984).

Revised Uniform Rule 103, as now proposed, has also been restructured for a more logical arrangement of the subdivisions of Uniform Rule 103 by including the rule on the effect of a pretrial ruling as Rule 103(c), renumbering Rule 103(c) as Rule 103(d) and by making stylistic changes in the renumbered Rule 103(e).

RULE 104. PRELIMINARY QUESTIONS.

(a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person an individual to be a witness, the existence of a privilege, or the admissibility of evidence shall must be determined by the court, subject to the provisions of subdivision (b). In making its determination, it the court is not bound by the rules of evidence except those the rules with respect to privileges.

(b) Determination of privilege. A person claiming a privilege must prove that the conditions prerequisite to the existence of the privilege are more probably true than not. A person claiming an exception to a privilege must prove that the conditions prerequisite to the applicability of the exception are more probably true than not. In making its determination, the court may review the alleged privileged matter outside the presence of any other person.

(b) (c) Relevancy conditioned on fact. Whenever If the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or, in the court's discretion, subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

(c) (d) Hearing of jury. Hearings A hearing on the admissibility of a confessions confession in a criminal cases shall case must be conducted out of the hearing of the jury. Hearings A hearing on any other preliminary matters in all cases, shall matter must be so conducted whenever if the interests of justice require or, in a criminal cases, whenever case, an accused is a witness, if he and so requests.

The existing Comment to Rule 104 states:

The phrase, 'or in the court's discretion subject to' [in subdivision (b)] [now subdivision (c)] preserves the court's control of the order of proof as provided in Rule 611(a).

Renumbered subdivision (d) differs from its federal rule counterpart by substituting the phrase "in a criminal case" for the phrase "in all cases" in the first sentence, inserting in the second sentence the phrase "in all cases" after the word "matters" and the phrase "in a criminal case" between the words "or" and "an" and by deleting the word "whenever."

The proposed Uniform Rule 104 substitutes the word "individual" for "person" in subdivision (a), eliminates the gender-specific language in subdivisions (d) and (e), and makes certain other non-substantive changes based on stylistic recommendations. These changes are technical and no change in substance is intended.

The proposed amendment of Uniform Rule 104 to include a subdivision (b) is a condensed version of procedural rules originally proposed by the ABA Criminal Justice Section's Committee on Rules of Criminal Procedure and Evidence. Initially, the Drafting Committee considered incorporating these rules in a proposal to amend Uniform Rule 512, but later decided to recommend amending Uniform Rule 104 to incorporate procedure governing the determination of the existence of a privilege. Rule 104(b), as now proposed, is believed to be a far more logical place to provide for a procedure to determine the existence of a privilege by the court.

Rule 104(b) is intended to accomplish two purposes. First, it carries forward the ABA proposal by codifying the evidentiary burden of persuasion "more probably true than not" to focus upon the proponent, or contestant, of a privilege by requiring a greater burden than simply the production of evidence to prove the existence of the privilege because of the importance which the existence of a privilege has in the trial of an issue of fact. It is true, at the federal level at least, that codification of an evidentiary burden is an issue which is open to dispute with one commentator taking the position that "[t]he absence of any test . . . has the advantage of leaving the question to the good sense of the trial judge." See 2 Weinstein's Evidence 503-121 (1992). See further, the opinion of the Supreme Court in United States v. Zolin, 491 U.S. 563, 109 S.Ct. 2619, n. 7 (1989), in which the court deferred a decision on the issue. At the same time, if determining the existence of a privilege is a critical decision in the trial of an issue of fact, requiring the minimal degree of persuasion to make such a finding provides both guidance to the court and emphasizes the importance of the admissibility issue when the existence of a privilege is involved.

The following States have applied the preponderance of evidence [more probably true than not] standard of persuasion in determining the existence of a privilege: Alabama, Mead Corp. v. Hicks, 448 So.2d 308 (Ala. 1983); Florida, Am. Tobacco Co. v. State, 697 So.2d 1249 (Fla. Dist. Ct. App. 1997); Indiana, Mayberry v. State, 670 N.E.2d 1262 (Ind. 1996); Louisiana, State v. Bright, 676 So.2d 189 (La. Ct. App. 1996); Maryland, Whittington v. State, 262 A.2d 75 (Md. Ct. Spec. App. 1970); Massachusetts, Purcell v. District Attorney for Suffolk District, 676 N.E.2d 436 (Mass. 1997); New Jersey, State v. Santiago, 593 A.2d 357 (N.J. Super. Ct. App. Div. 1991) and United Jersey Bank v. Wolosoff, 483 A.2d 821 (N.J. Super. Ct. App. Div. 1984); Oregon, State v. Hass, 942 P.2d 261 (Or. 1997); and Wisconsin, Kurzynski v. Spaeth, 538 N.W.2d 554 (Wis. Ct. App. 1995).

The following States have applied the more rigorous clear and convincing [highly probably true] standard of persuasion, to rebut the qualified privileged as to defamation of a public official: Alabama, Mead Corp. v. Hicks, 448 So.2d 308 (Ala. 1983); California, Fletcher v. San Jose Mercury News, 216 Cal. App. 3d 172 (Cal. Ct. App. 1989); Colorado, Kuhn v. Tribune-Republican Publishing, 637 P.2d 315 (Colo. 1981); Indiana, Moore v. Univ. of Notre Dame, 968 F.Supp. 1330 (N.D. Ind. 1997); Kentucky, Ball v. E.W. Scripps Co., 801 S.W.2d 684 (Ky. 1990); Louisiana, Neuberger, Cocrver & Goins v. Times Picayune Publishing Co., 597 So.2d 1179 (La. Ct. App. 1992); Minnesota, Rose v. Koch, 154 N.W.2d 409 (Minn. 1967); and Pennsylvania, Sprague v. Walter, 516 A.2d 706 (Pa. Super. Ct. 1986).

Other jurisdictions in which this more rigorous standard of persuasion has been applied are: New Jersey, Abella v. Barringer Resources, Inc., 615 A.2d 288 (N.J. Super. Ct. Ch. Div. 1992) (rebuttal of an accountant's qualified privilege as to defamation); Ohio, Doyle v. Fairfield Machine Co., No. 96-T-5488, 1997, WL 269329 (Ohio Ct. App. 1997) (rebuttal of qualified privilege of governmental official for a report which may result in interference with an employment relationship); Tennessee, State v. Curriden, 738 S.W.2d 192 (Tenn. 1987) (divestiture of newscaster's qualified privilege against disclosure of information relating to the commission of a crime); and Virginia, Southeastern Tidewater Opportunity Project, Inc. v. Bade, 435 S.E.2d 131 (Va. 1993) (rebuttal of qualified privilege of executive of head start agency).

Second, the proposed amendment also deals with the anomaly in the current Uniform Rule 104(a) which arguably forecloses disclosure of privilege matter in determining the existence of a privilege by providing that "[i]n making its determination . . . [the court] is not bound by the rules of evidence except those with respect to privileges." The proposed amendment addresses this problem by providing for disclosure of the privileged matter outside the presence of any other person. The language "outside the presence of any other person" in the black letter of Rule 104(b) is recommended in lieu of the sometimes employed language "in camera" to describe a judge's private review of evidentiary material. It is true that the terminology "in camera" is sometimes used to describe a court's private review of files without the presence of parties, their attorneys, or spectators. See State v. Warren, 304 Or. 428, 746 P.2d 711 (1987). However, this is not invariably the case with the terminology sometimes being used to describe only a hearing outside the presence of the jury or unnecessary spectators. See Wofford v. State, 903 S.W.2d 797 (Tex. App. 1995). Accordingly, the Drafting Committee is recommending the more specific language to describe the type of review authorized under Rule 104(b).

However, the discretion accorded the court in Rule 104(b) to review the alleged privileged matter is not unfettered. See, in this connection, United States v. Zolin, 491 U.S. 563, 109 S.Ct. 2619 (1989), that Rule 104(a) of the Federal Rules of Evidence does not prohibit the use of in camera review procedure when a District Court rules on a claim of privilege. In this case the Court first observed that "[t]here is no reason to permit opponents of the privilege to engage in groundless fishing expenditions, with the district courts as their unwitting (and perhaps unwilling) agents." Beginning with the observation that in camera inspection is a lesser intrusion upon the confidentiality of a privilege than is public disclosure, the Court established the following required threshold:

We think that the following standard strikes the correct balance. Before engaging in in camera review . . ., "the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person," . . . that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies. Id. at 491 U.S. 573.

If this threshold requirement is met, the decision "to engage in in camera review rests in the sound discretion of the district court." The Court then concluded that the discretionary decision to grant in camera review depends on the following factors:

The court should make that decision in light of the facts and circumstances of the particular case, including, among other things, the volume of materials the district court has been asked to review, the relative importance to the case of the alleged privileged information, and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish that the crime-fraud exception does apply. The district court is also free to defer its in camera review if it concludes that additional evidence in support of the crime-fraud exception may be available that is not allegedly privileged, and that production of the additional evidence will not unduly disrupt or delay the proceedings. Id. at 491 U.S. 573.

The Drafting Committee believes that the foregoing approach to granting review outside the presence of any other person is equally applicable in determining the existence of a privilege under state law and would promote uniformity among the several States and the federal courts in deciding whether to grant this type of review.

In camera hearings to determine the existence of a privilege are also widely sanctioned throughout the several States as follows: Alabama, Assured Investors Life, Inc. v. Nat'l. Union Assoc., Inc., 362 So.2d 228 (Ala. 1978); Alaska, Cent. Constr. Co. v. Home Indemnity Co., 794 P.2d 595 (Alaska 1990) (factual basis to support good-faith belief that in camera review of materials is necessary); California, People v. Sup. Ct., 44 Cal. Rptr.2d 734 (Cal. Ct. App. 1995); Colorado, People v. Salazar, 835 P.2d 592 (Colo. Ct. App. 1992); Connecticut, State v. Storlazzi, 464 A.2d 829 (Conn. 1983); Delaware, Guy v. Judicial Nominating Comm'n, 659 A.2d 777 (Del. Super. Ct. 1995) (factual basis of need for disclosure prior to holding in camera hearing); Illinois, In re Decker, 606 N.E.2d 1094 (Ill. 1992) (factual basis to support good-faith belief by a reasonable person that in camera review of materials is necessary to establish that crime-fraud exception applies), Uhr v. Lutheran Gen. Hsop., 589 N.E.2d 723 (Ill. App. Ct. 1992) (absolute right to in camera inspection of materials to determine existence of a privileged communication); Louisiana, Campo v. Supre, 470 So.2d 234 (La. Ct. App. 1985) (requiring in camera hearing to determine whether communication is privileged); Massachusetts, Purcell v. District Attorney, 676 N.E.2d 436 (1997) (in camera review of communication within discretion of court); Michigan, People v. Stanaway, 521 N.W.2d 557 (Mich. 1994) (requiring in camera disclosure of alleged privileged communication); New Jersey, Kinsella v. Kinsella, 696 A.2d 556 (N.J. 1997) (in camera review permissible in determining whether exception to attorney-client privilege is applicable); New York, Levien v. LaCorte, 640 N.Y.S.2d 728 (N.Y. Sup. Ct. 1996) (in camera review permissible); North Carolina, Myers v. Liberty Lincoln-Mercury, Inc., 365 S.E.2d 663 (N.C. Ct. App. 1988) (requiring court to hold in camera review of privileged matter); Ohio, Gates v. Brewer, 442 N.E.2d 72 (Ohio Ct. App. 1981) (requiring court to hold in camera review of privileged matter); Pennsylvania, Commonwealth v. Stewart, 690 A.2d 195 (Pa. 1997) (requiring court to hold in camera review of privileged matter); South Dakota, Maynard v. Heeren, 563 N.W.2d 830 (S.D. 1997) (party opposing discovery of privileged communication has a right to an in camera hearing); Texas, R.K. v. Ramirez, 887 S.W.2d 836 (Tex. 1994) (in camera review permissible); Virginia, Hopelins v. Commonwealth, 450 S.E.2d 397 (Va. Ct. app. 1994) (in camera review permissible); Washington, Seattle Northwest Securities Corp. v. SDG Holding Company, Inc., 812 P.2d 488 (Wash. Ct. App. 1991) (in camera review permissible); and Wisconsin, State v. Circuit Court, 335 N.W.2d 367 (Wis. 1983) (requiring in camera review of privileged matter).

RULE 105. LIMITED ADMISSIBILITY. Whenever If evidence which that is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

The existing Comment to Rule 105 states:

"[t]his rule is not intended to affect the power of a court to order a severance or a separate trial of issues in a multi-party case."

Recommended stylistic changes have been made in revising Rule 105 by substituting the word "if" for "whenever" and the word "that" for "which."

RULE 106. REMAINDER OF, OR RELATED, WRITINGS OR RECORDED STATEMENTS RECORD. Whenever If a writing or recorded statement record or part thereof is introduced by a party, an adverse party may require him the introduction at that time to introduce of any other part or any other writing or recorded statement which record that in fairness ought to be considered contemporaneously with it.

The existing Comment to Rule 106 states:

"[a] determination of what constitutes 'fairness' includes consideration of completeness and relevancy as well as possible prejudice."

Uniform Rule 106 also differs from its federal rule counterpart by substituting the phrase "in fairness ought" for the phrase "ought in fairness." In this revision recommended stylistic changes have been made by substituting the word "if" for "whenever" and the word "that" for the word "which."

Two amendments to Rule 106 are proposed. First, the revised Rule 106 eliminates the gender-specific language in the rule. This is technical and no change in substance is intended.

Second, the Drafting Committee proposes amending Uniform Rule 106 to substitute the word "record" for the language "writing or recorded statement" to conform the rule to the recommendation of the Task Force on Electronic Evidence, Subcommittee on Electronic Commerce, Committee on Law of Commerce in Cyberspace, Section on Business Law of the American Bar Association.

See further, the Reporter's Notes to Uniform Rule 101, supra.

The Advisory Committee on the Federal Rules of Evidence has not recommended any amendments to Federal Rule 106.

RULE 201. JUDICIAL NOTICE OF ADJUDICATIVE FACTS.

(a) Scope of rule Rule. This rule Rule governs only judicial notice of adjudicative facts.

(b) Kinds of facts. A judicially noticed fact must be one that is not subject to reasonable dispute in that because it is: either (1)

(i) generally known within the territorial jurisdiction of the trial court; or

(ii) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(c) When discretionary. A court may take judicial notice, whether requested or not.

(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.

(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior earlier notification, the request may be made after judicial notice has been taken.

(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.

(g) Instructing jury. The court shall instruct the jury to accept as conclusive any a fact judicially noticed.

Recommended non-substantive stylistic changes have been made in the revision of Rule 201(b), (e), and (g).

Uniform Rule 201(g) differs from Rule 201(g) of the Federal Rules of Evidence. Federal Rule 201(g) provides as follows:

In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

In contrast, Uniform Rule 201(g) does not distinguish between civil and criminal cases in instructing the jury to accept as conclusive a fact judicially noticed.

The Advisory Committee on the Federal Rules of Evidence has not recommended any amendments to Article II dealing with the judicial notice of adjudicative facts.

The Drafting Committee does not recommend any changes in Uniform Rule 201 including Rule 201(g), to make the Uniform rule consistent with the Federal rule.

It may be of interest to note that the black letter of the existing Uniform Rule 201(g) that "[t]he court shall instruct the jury to accept as conclusive any fact judicially noticed" is a reflection of Rule 201(g) of the 1971 Revised Draft of the Proposed Rules of Evidence for the U.S. District Courts and Magistrates. The Advisory Committee's Note to Rule 201(g) in the 1971 Revised Draft explained the rule as follows:

Much of the controversy about judicial notice has centered upon the question whether evidence should be admitted in disproof of facts of which judicial notice is taken.

* * *

Within its relatively narrow area of adjudicative facts, the rule contemplates there is to be no evidence before the jury in disproof. The judge instructs the jury to take judicially noticed facts as established.

* * *

Authority upon the propriety of taking judicial notice against an accused in a criminal case with respect to matters other than venue is relatively meager. Proceeding upon the theory that the right of jury trial does not extend to matters which are beyond reasonable dispute, the rule does not distinguish between criminal and civil cases.

* * *

Rule 201(g) in the 1971 Revised Draft is to be sharply distinguished from Rule 201(g) of the earlier 1969 Preliminary Draft which provided as follows:

Instructing Jury. In civil jury cases, the judge shall instruct the jury to accept as conclusive any facts judicially noticed. In criminal jury cases, the judge shall instruct the jury that it may but is not required to accept as conclusive any fact that is judicially noticed.

The Advisory Committee's Note to this earlier draft explained the distinction between treating civil and criminal cases differently as follows:

Within its relatively narrow area of adjudicative facts, the rule contemplates there is to be no evidence before the jury in disproof in civil cases.

* * *

Criminal cases are treated somewhat differently in the rule. While matters falling within the common fund of information supposed to be possessed by jurors need not be proved . . . , these are not, properly speaking, adjudicative facts but an aspect of legal reasoning. The considerations which underlie the general rule that a verdict cannot be directed against the accused in a criminal case seems to foreclose the judge's directing the jury on the basis of judicial notice to accept as conclusive any adjudicative facts in the case. * * * However, this presents no obstacle to the judge's advising the jury as to a matter judicially noticed, if he instructs them that it need not be taken as conclusive.

It is noteworthy that it is this earlier 1969 version of Rule 201(g) which was adopted by Congress contrary to the recommendation of the Supreme Court which embodied the 1971 Revised Draft of Rule 201(g). The Report of the House explained the Congressional change as follows:

Rule 201(g) as received from the Supreme Court provided that when judicial notice of a fact is taken, the court shall instruct the jury to accept that fact as established. Being of the view that mandatory instruction to a jury in a criminal case to accept as conclusive any fact judicially noticed is inappropriate because contrary to the spirit of the Sixth Amendment right to a jury trial, the Committee adopted the 1969 Advisory Committee draft of this subsection, allowing a mandatory instruction in civil actions and proceedings and a discretionary instruction in criminal cases.

See H.R. Rep. No. 93-650, 93rd Cong., 2d Sess. At 6-7 (1973).

The following state jurisdictions have rejected Uniform Rule 201(g) based upon the 1971 Revised Draft by adopting a rule comparable to Rule 201(g) of the Federal Rules of Evidence as finally enacted by Congress: Alaska, Alaska R. Evid. 203(c); Colorado, Colo. R. Evid. 201(g); Hawaii, Haw. R. Evid. 201(g); Indiana, Ind. R. Evid. 201(g); Iowa, Iowa R. Evid. 201(g); Louisiana, La. Code Evid. Ann. art. 201(G) (West 1997); Maryland, Md. R. Evid. 5-201; Michigan, Mich. R. Evid. 201(f); Mississippi, Miss. R. Evid. 201(g); Montana, Mont. R. Evid. 201(g); Nebraska, Neb. R. Evid. 201(7); New Hampshire, N.H. R. Evid. 201(g); New Jersey, N.J. R. Evid. 201(g); New Mexico, N.M. R. Evid. 11-201; North Carolina, N.C. R. Evid. 201(g); Ohio, Ohio R. Evid. 201(G); Oklahoma, Okla. Stat. Ann. tit. 12, § 2202(E) (West 1997); Oregon, Or. Rev. Stat. § 40.085 (1989); Rhode Island, R.I. R. Evid. 201(g); Tennessee, Tenn. R. Evid. 201(g); Texas, Tex. R. Evid. 201(g); Utah, Utah R. Evid. 201(g); Vermont, Vt. R. Evid. 201(g); West Virginia, W. Va. R. Evid. 201(g); and Wyoming, Wyo. R. Evid. 201(g).

The following state jurisdictions follow Uniform Rule 201(g): Arizona, Ariz. R. Evid. 201(g); Arkansas, Ark. R. Evid. 201(g); Delaware, Del. R. Evid. 201(g) (inserts the words "Upon request" at beginning of Rule); Maine, Me. R. Evid. 201(g); Minnesota, Minn. R. Evid. 201(g); North Dakota, N.D. R. Evid. 201(g); South Carolina, S.C. R. Evid. 201(g); and Wisconsin, Wis. Stat Ann. § 902.01(7) (West 1997).

Washington omits Uniform Rule 201(g) altogether. See Wash. R. Evid. 201 and the accompanying Comment.

Florida has a discretionary rule authorizing the court to instruct the jury during trial to accept as a fact a matter judicially noticed. See Fla. Stat. Ann. § 90.206 (West 1997).

Judicial authority with respect to instructing on the effect of judicial notice in criminal cases is sparse. See, however, United States v. Mentz, 840 F.2d 315 (6th Cir. 1988), in which the Court reversed the defendant's conviction for bank robbery, finding that the trial judge invaded the province of the jury and violated the Sixth Amendment by instructing the jury that banks were insured by the Federal Deposit Insurance Corporation. See further, State v. Vejvoda, 231 Neb. 668, 438 N.W.2d 461 (Neb. 1989), State v. Pierson, 368 N.W.2d 427 (Minn. Ct. App. 1985) and State v. Willard, 96 Or. App. 219, 772 P.2d 948 (Or. Ct. App. 1989), generally differentiating between the conclusive and permissive effect to be accorded matters judicially noticed in civil and criminal cases.

As indicated above, there is respectable authority that it is a violation of the Sixth Amendment right to jury trial by failing to instruct the jury pursuant to Federal Rule 201(g) that "it may, but is not required to, accept as conclusive any fact judicially noticed," in particular, where a fact is judicially noticed which constitutes an essential element of the crime charged. See United States v. Mentz, supra.

However, following discussion by the members of the Drafting Committee, it is recommended that Uniform Rule 201(g) as originally adopted by the Conference be retained.

RULE 301. PRESUMPTIONS IN GENERAL; IN CIVIL ACTIONS AND PROCEEDINGS DEFINITIONS. In this article:

(a) Effect. In all actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

(b) Inconsistent Presumptions. If presumptions are inconsistent, the presumption applies that is founded upon weightier considerations of policy. If considerations of policy are of equal weight neither presumption applies.

(1) "Basic fact" means a fact or group of facts that give rise to a presumption.

(2) "Inconsistent presumption" means that the presumed fact of one presumption is inconsistent with the presumed fact of another presumption.

(3) "Presumed fact" means a fact that is assumed upon the finding of a basic fact.

(4) "Presumption" means that when a basic fact is found to exist the presumed fact is assumed to exist until the non-existence of the presumed fact is determined as provided in Rules 302 and 303.

As described by one authority, a "'presumption' is the slipperiest member of the family of legal terms, except its first cousin, 'burden of proof.'" McCormick on Evidence, v. 2, § 342 (4th ed. 1992). The definitional provisions of Proposed Rule 301 are intended to have a clarifying effect and avoid the confusion that currently exists in the loose use and corresponding ambiguous meanings employed by the courts and textwriters in the use of the word "presumption."

There are at least seven senses in which the term has been used by legislatures and the courts. First, the word "presumption" has been used to describe what is more particularly known as the "presumption of innocence." In truth, the "presumption of innocence" is merely another form of expression to describe the accepted rule in a criminal case that the accused may remain inactive and secure until the prosecution adduces evidence and produces persuasion beyond a reasonable doubt that the accused is guilty as charged.

Second, the term "presumption" has also been used to create and define the elements of an affirmative defense. In this sense the term describes nothing more than a rule of law established by either statute or judicial decision which allocates the burden of producing evidence, or of persuasion, to one or the other of the parties to the litigation. In criminal cases, an excellent example of the use of the so-called "presumption" to allocate the burden of producing evidence, or of persuasion, is the "presumption of sanity." In such a case, the accused who seeks to rely upon the defense of insanity must, depending upon the rules in force in the particular jurisdiction, either produce evidence, or persuade the trier of fact, of the accused's insanity at the time of the commission of the offense. In either case, the effect of a "presumption" as used in this sense is to create only an affirmative defense.

Third, the terms "prima facie," or "prima facie evidence" are often used interchangeably, or in conjunction with, the term "presumption." For example, the term "prima facie evidence" has been employed in discriminatory practice acts to create a "presumption of authority" or, in other situations, to describe a "presumption of agency." Presumptions have also been statutorily described as "prima facie presumptions" or, in the case of the presumption of delivery, by judicial decision, as a "prima facie presumption" of the delivery of a letter upon the introduction of sufficient evidence that the letter has been properly addressed, stamped and deposited in the mail. This imprecision in the use of terminology has produced confusion in interpretation, particularly with respect to the effect of rebuttable presumptions. "Prima facie evidence," properly used to avoid confusion, should be confined to those situations in which the party having the burden of first producing evidence has, in fact, introduced sufficient evidence from which the trier of fact can conclude that the fact exists.

Fourth, the courts, on occasion, have also used the terms "inference" and "presumption" synonymously. However, strictly speaking, an "inference" is simply a permissible deduction from evidence, while a "presumption" arises from a rule of law rather than from the logical force of evidence to prove the existence of a fact. It is quite true that the basic facts of a presumption created by a rule of law will also often have probative value of the existence of the presumed fact, such as with the presumption that a child born during wedlock is legitimate, the presumption of the delivery of a letter to the addressee which is properly addressed, stamped and deposited in the mail, or the presumption that a vehicle driven by a regular employee of the owner of a vehicle is driven in the course of the owner's business. However, the significance of the distinction between an "inference" and a "presumption" is that the "inference" arises only from the probative force of the evidence, while the "presumption" arises from a rule of law.

Fifth, an "inference" may also become standardized in the sense that a rule of law will establish that a fact, or facts, are sufficient to permit, though not require in the absence of rebuttal evidence, a finding of the desired inference. Most frequently the inference called for by the rule of law is one which a court would properly have construed to be a permissible deduction from the evidence even in the absence of a rule of law. In this sense, such a rule of law need be viewed no differently from an inference which arises as a matter of logic. Res ipsa loquitur illustrates rules of law of this sort. The negligence of the defendant may be inferred from evidence that the plaintiff was injured by an instrumentality in the control of the defendant under circumstances that would not ordinarily occur in the absence of the defendant's negligence.

Sixth, on occasion the terminology "conclusive presumption" has been used by legislatures and courts to describe a basic fact-presumed fact relationship in which the presumption may not be rebutted. In actuality, the terminology is a contradiction in terms and, in Wigmore's view, there can be no such conceptual principle in the law known as a "conclusive presumption." Rather, the law simply formulates a rule of law prohibiting the introduction of contradictory evidence of a particular fact. An example is the statutory presumption that "[e]vidence of statistical probability of paternity established at ninety-eight percent (98%) or more creates a conclusive presumption of paternity." See, for example, Okla. Stat. Ann. tit. 10 § 504(D) (West 1997).

Finally, in civil cases the term "presumption" has been used to describe what has been more specifically denominated as a "rebuttable presumption" which arises from a rule of law creating a basic fact B presumed fact relationship in which a finding of the basic fact requires a finding of the existence of the presumed fact unless it has been rebutted as may be required by law. Most scholars, led by Thayer and Wigmore, as well as many judges, believe that the term "presumption" should be employed only in this sense.

In criminal cases the term may have the lesser effect of being permissive only as provided in Proposed Rule 303 to accommodate the accused's constitutional right to a jury trial.

Consistent with this "rebuttable effect" approach to the meaning of a "presumption," Proposed Rule 301 defines the terminology employed in the use of the word "presumption." Subdivision (1) defines "basic fact" as a fact or group of facts that give rise to a presumption. The basic fact of a presumption may be established in an action just as any other fact, either by the pleadings, by stipulation of the parties, by judicial notice, or by a finding of the basic fact from evidence.

Subdivision (3) defines "presumed fact" as a fact that is assumed upon a finding of the "basic fact."

Subdivision (4) defines a "presumption" in terms of a "basic fact," "presumed fact" relationship in which the presumed fact is assumed to exist until the non-existence of the presumed fact is determined as provided in Proposed Rule 302 dealing with the effect of presumptions in civil cases or Proposed Rule 303 governing the effect of presumptions in criminal cases.

Subdivision (2) defining an "inconsistent presumption" is drawn from and defined as in existing Uniform Rule 303(a).

RULE 302. APPLICABILITY OF FEDERAL LAW IN CIVIL ACTIONS AND PROCEEDINGS EFFECT OF PRESUMPTIONS IN CIVIL CASES.

In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which federal law supplies the rule of decision is determined in accordance with federal law.

(a) General rule. In a civil action or proceeding, unless otherwise provided by statute, judicial decision, or these Rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence.

(b) Inconsistent presumptions. If presumptions are inconsistent, the presumption applies that is founded upon weightier considerations of policy. If considerations of policy are of equal weight, neither presumption applies.

(c) Effect if federal law provides the rule of decision. The effect of a presumption respecting a fact that is an element of a claim or defense as to which federal law provides the rule of decision is determined in accordance with federal law.

As to the effect to be accorded presumptions in civil cases, the existing Comment to Uniform Rule 301(a) states:

[t]he reasons for giving this effect to presumptions are well stated in the United States Supreme Court Advisory Committee's Note, 56 F.R.D. 183 (1972).

Unlike Rule 301 of the Federal Rules of Evidence which follows the Thayer-Wigmore theory of shifting only the burden of producing evidence to the party against whom the presumption operates, the current Uniform Rule 301 adopts the Morgan-McCormick theory of shifting the ultimate burden of persuasion to the opponent on the issue of the presumed fact by providing that "a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence." This effect was proposed in Rule 301 of the Proposed Rules of Evidence for U.S. District Courts and Magistrates (1971 Revised Draft) on the ground that the underlying reasons for creating presumptions did not justify giving a lesser effect to presumptions. See the Advisory Committee's Note, 56 F.R.D. 183, 208 (1972). However, Congress rejected the Morgan-McCormick theory embraced within Uniform Rule 302 in favor of the Thayer-Wigmore theory of shifting only the burden of producing evidence. See H.R. Conf. Rep. No. 1597, 93rd Cong., 2d Sess. At 5 (1974); 1974 U.S. C. C. A. N. 7098, 7099.

The Advisory Committee on the Federal Rules of Evidence has not recommended any amendments to Rule 301.

However, the Drafting Committee recommends retaining in Proposed Rule 302(a) the effects rule adopted by the Conference when the Uniform Rules of Evidence were adopted in 1974. This favors shifting the burden of persuasion, but does not preempt giving the lesser effect of shifting, for example, only the burden of producing evidence, when otherwise provided for "by statute, judicial decision, or these rules."

Proposed Rules 301(2) and 302(b) are new and deal exclusively with the definition and effect to be given to inconsistent presumptions.

No change is recommended in Proposed Rule 302(b) which is identical to the existing Uniform Rule 301(b). Rule 301(b) was drawn from, and is consistent with, Rule 15 of the Uniform Rules of Evidence of 1953 which were superseded by the Uniform Rules of Evidence of 1974, As Amended.

"Inconsistent presumptions," as defined in Proposed Rule 301(2) can be illustrated as follows:

W, asserting that she is the widow of H, claims her share of his property, and proves that on a certain day she and H were married. The adversary then proves that three or four years before W's marriage to H, W married another man. W's proof gives her the benefit of the presumption of the validity of a marriage. The adversary's proof gives rise to the general presumption of the continuance of a status or condition once proved to exist, and a specific presumption of the continuance of a marriage relationship. See, in this connection, McCormick on Evidence, § 344, p. 465 (4th ed. 1992).

In this situation, as defined in Proposed Rule 301(2), the presumed fact of the validity of W's marriage to H is inconsistent with the presumed fact of the continuance of the marriage relationship with another man. How is this inconsistency in the presumed facts of the two presumptions to be resolved? Proposed Rule 302(b) provides that "the presumption applies that is founded upon weightier considerations of policy." The presumption of the validity of a marriage is founded on the strongest social policy favoring legitimacy and the stability of family inheritances and expectations. In contrast, the presumption of the continuance of a marriage relationship is founded principally on probability and trial convenience. The conflict should be resolved under Rule 303(b) in favor of the presumption of the validity of the marriage since it "is founded upon weightier considerations of policy." See Mollie D. Parker, Annotation, Presumption as to Validity of Second Marriage, 14 A.L.R. 2d 7, 37-44 (1950).

In contrast, where the presumption of control of a student driver by the person in the right front seat is inconsistent with the presumption of control by the owner of the vehicle, the considerations of policy are of equal weight and, under Uniform Rule 303(b), the issue of control would be determined without regard to the presumptions. See, in this connection, McFetters v. McFetters, 98 N.C.App. 187, 390 S.E.2d 348 (N.C. Ct. App. 1990), review denied 327 N.C. 140, 394 S.E.2d 177 (N.C. 1990).

The Comment to existing Uniform Rule 302, dealing with the effect of a presumption if federal law supplies the rule of decision, now contained in Proposed Rule 302(c), states:

[p]arallel jurisdiction in state and federal courts exists in many instances. The modification of Rule 302 [Proposed Rule 302(c)] is made in recognition of this situation. The rule prescribes that when a federally created right is litigated in a state court, any prescribed federal presumption shall be applied.

The Drafting Committee does not recommend any amendments to Rule 302, now contained in Proposed Rule 302(c).

RULE 303. SCOPE AND EFFECT OF PRESUMPTIONS IN CRIMINAL CASES.

(a) Scope. Except as otherwise provided by statute, in criminal cases, or judicial decision, this Rule governs presumptions against an accused in criminal cases, recognized at common law or created by statute, including statutory provisions that certain facts are prima facie evidence of other facts or of guilt, are governed by this rule.

(b) Submission to jury. The court is not authorized to may not direct the jury to find a presumed fact against the an accused. If a presumed fact establishes guilt, or is an element of the offense, or negatives negates a defense, the court may submit the question of guilt or of the existence of the presumed fact to the jury, but only if a reasonable juror on the evidence as a whole, including the evidence of the basic facts fact, could find guilt or the presumed fact beyond a reasonable doubt. If the presumed fact has a lesser effect, the question of its existence may be submitted to the jury provided if the basic facts are fact is supported by substantial evidence or are is otherwise established, unless the court determines that a reasonable juror could not find on the evidence as a whole could not find the existence of the presumed fact.

(c) Instructing the jury. Whenever When the existence of a presumed fact against the accused is submitted to the jury, the court shall instruct the jury that it may regard the basic facts fact as sufficient evidence of the presumed fact but is not required to do so. In addition, if the a presumed fact establishes guilt, or is an element of the offense, or negatives negates a defense, the court shall instruct the jury that its existence, on all the evidence, must be proved beyond a reasonable doubt.

Uniform Rule 303 is the same in substance as Proposed Rule 303, Presumptions in Criminal Cases, of the Federal Rules of Evidence. Congress did not adopt the Proposed Federal Rule 303 at the time it was promulgated because the subject of presumptions in criminal cases was addressed in detail in bills pending before the Committee on the Judiciary to revise the federal criminal code. In contrast, the Conference elected to incorporate the substance of the proposed Federal Rule in the Uniform Rules of Evidence.

Recommended non-substantive stylistic changes have been made in the revision of Uniform Rule 303.

In the interim between the adoption of Uniform Rule 303 and the current study and drafting of revisions to the Uniform Rules, the Supreme Court of the United States has decided a number of cases impacting upon the constitutionality of presumptions in criminal cases. The issue turns on the existence of a rational connection between the basic fact and presumed fact of the presumption. The rational connection test was largely developed in determining the validity of presumptions under the 5th Amendment. See 2 Whinery, Oklahoma Evidence §§ 9.16-9.17 (1994). However, it later became clear with the decision in County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), that the rational connection test applies in interpreting the constitutionality of state statutory presumptions under the 14th Amendment. This decision, together with the Court's later decisions in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), on remand State v. Sandstrom, 184 Mont. 391, 603 P.2d 244 (Mont. 1979) and Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985), introduced further complexities by distinguishing "permissive" and "mandatory" presumptions, distinguishing those presumptions which allocate to the defendant only the burden of producing evidence as distinguished from those which allocate to the defendant the ultimate burden of persuasion and the degree of persuasion which must be met to rebut the presumption. The permissive effect given to presumptions in Uniform Rule 303 is constitutionally in accord with this lesser effect to be given presumptions in criminal cases. The rule does not incorporate the complexities associated with the allocation of the burden of producing evidence or of persuasion to the defendant where the presumption is found to be mandatory. See further, 2 Whinery, Oklahoma Evidence §§ 9.16-9.17 (1994), for a more detailed analysis of these issues.

The question then arises whether the constitutional complexities and evolving doctrine associated with the use of mandatory presumptions warrants any revisions in Uniform Rule 303. The Drafting Committee considered these issues, concluded that Rule 303 is at least consistent with evolving constitutional doctrine governing the permissive effect of presumptions in criminal cases and decided not to recommend any amendments to the rule at this time.

RULE 401. DEFINITION OF RELEVANT EVIDENCE. In this article "Relevant relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Other than for a minor stylistic change, there are no proposals for amending Rule 401.

RULE 402. RELEVANT EVIDENCE GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE. All relevant evidence is admissible, except as otherwise provided by statute, or by these rules Rules, or by other rules applicable in the courts of this State. Evidence which that is not relevant is not admissible.

Recommended non-substantive stylistic changes have been made in Rule 402.

There are no other proposals for amending Rule 402.

RULE 403. EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION, OR WASTE OF TIME. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

There are no proposals for amending Rule 403.

RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT, EXCEPTIONS: OTHER CRIMES.

(a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted the person acted in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence evidence of a pertinent trait of his the accused's character offered by an accused, or by the prosecution to rebut the same that evidence;

(2) Character of victim. Evidence evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same that evidence, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; and

(3) Character of witness. Evidence evidence of the character of a witness, as provided in Rules 607, 608, and 609.

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted the person acted in conformity therewith. It may, however, be admissible for other purposes another purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(c) Determination of admissibility. Evidence is not admissible under subdivision (b) unless:

(1) the proponent gives to all adverse parties reasonable notice in advance of trial, or during trial if the court excuses pretrial notice for good cause shown, of the nature of the evidence the proponent intends to introduce at trial;

(2) if offered against an accused in a criminal case, the court conducts a hearing to determine the admissibility of the evidence and finds:

(A) by clear and convincing evidence, that the other crime, wrong, or act was committed;

(B) the evidence is relevant to a purpose for which the evidence is admissible under Rule 404(b); and

(C) the probative value of the evidence outweighs the danger of unfair prejudice; and

(3) upon the request of a party, the court gives an instruction on the limited admissibility of the evidence pursuant to Rule 105.

The proposal for amending Rules 404(a) and 404(b) eliminates the gender-specific language in the existing rules. For purposes of clarity, the phraseology in the proposed Uniform Rule 404 differs from the gender-neutral language employed in Federal Rules 404(a) and (b), but the proposal is similarly technical and no change in substance is intended. The term "alleged" has also been inserted before each reference to "victim" to make the rule consistent with Uniform Rule 412, infra.

The Advisory Committee on the Federal Rules of Evidence has proposed an amendment to Federal Rule 404(a)(1) as follows:

(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under subdivision (a)(2), evidence of the same trait of character of the accused offered by the prosecution;

The Advisory Committee Note to the proposed amendment of Rule 404(a)(1) reads as follows:

Rule 404(a)(1) has been amended to provide that when the accused attacks the character of an alleged victim under subdivision (a)(2) of this Rule, the door is opened to an attack on the same character trait of the accused. Current law does not allow the government to introduce negative character evidence as to the accused unless the accused introduces evidence of good character. See, e.g., United States v. Fountain, 768 F.2d 790 (7th Cir. 1985) (when the accused offers proof of self-defense, this permits proof of the alleged victim's character trait for peacefulness, but it does not permit proof of the accused's character trait for violence).

The amendment makes clear that an accused cannot attack an alleged victim's character and yet remain shielded from the disclosure of equally relevant evidence concerning the same character trait of the accused. For example, in a murder case with a claim of self-defense, the accused, to bolster this defense, might offer evidence of the alleged victim's allegedly violent disposition. If the government has evidence that the accused has a violent character, but is not allowed to offer this evidence as part of its rebuttal, then the jury has only part of the information it needs for an informed assessment of the probabilities as to who was the initial aggressor. This may be the case even if evidence of the accused's prior violent acts is admitted under Rule 404(b), because such evidence can be admitted only for limited purposes and not to show action in conformity with the accused's character on a specific occasion. Thus, the amendment is designed to permit a more balanced presentation of character evidence when the accused chooses to attack the character of the alleged victim.

The amendment does not affect the admissibility of specific acts of uncharged misconduct offered for a purpose other than proving character under Rule 404(b). Nor does it affect the standards for proof of character by evidence of other sexual behavior or sexual offenses under Rules 412-415. By its placement in Rule 404(a)(1), the amendment covers only proof of character by way of reputation or opinion.

The amendment does not permit proof of the accused's character if the accused merely uses character evidence for a purpose other than to prove the alleged victim's propensity to act in a certain way. See United States v. Burks, 470 F.2d 432, 434-5 (D.C.Cir. 1972) (evidence of the alleged victim's violent character, where known by the accused, was admissible "on the issue of whether or not the defendant reasonably feared he was in danger of imminent great bodily harm").

Finally, the amendment does not permit proof of the defendant's character when the defendant attacks the victim's character as a witness under Rules 608 or 609.

The term "alleged" has also been inserted before each reference to "victim" in Proposed Rule 404(a) of the Federal Rules of Evidence to provide consistency with Rule 412.

The Drafting Committee considered a similar amendment to Uniform Rule 404(a)(1) at its meeting on October 17-19, 1997. However, after extended discussion, the Committee has decided not to recommend amending Rule 404(a)(1) to permit the prosecution to rebut evidence of a trait of character of the victim of a crime if it is put in issue by the accused.

There are no proposals for making any other substantive changes in Uniform Rule 404(a).

The proposal for amending Uniform Rule 404(b) in its substance reflects the action of the Drafting Committee at its meetings in Cleveland, Ohio, on October 4-6, 1996 and in Dallas, Texas, on January 24-26, 1997.

First, the Drafting Committee considered at length the amendment of Rule 404(b) to add either a lustful disposition, or modus operandi, exception recognized in some jurisdictions as one of the permissible purposes for which other crimes, wrongs, or acts evidence may be admitted. A number of state jurisdictions do recognize a so-called "lustful disposition" exception to the general rule barring evidence of other crimes, wrongs, or acts to show action in conformity therewith on a particular occasion. These are: Georgia, Gable v. State, 222 Ga. App. 768, 476 S.E.2d 66 (Ga. Ct. App. 1996), Johnson v. State, 222 Ga. App. 722, 475 S.E.2d 918 (Ga. Ct. App. 1996) and Loyd v. State, 222 Ga. App. 193, 474 S.E.2d 96 (Ga. Ct. App. 1996); Idaho, State v. Moore, 120 Idaho 743, 819 P.2d 1143 (1991) and State v. Maylett, 108 Idaho 671, 701 P.2d 291 (Idaho Ct. App. 1985); Indiana, if it relates to the sexual abuse of a child. See Ind. Code Ann. § 35-37-4-15 (West 1997); Iowa, State v. Maestas, 224 N.W.2d 248 (Iowa 1974); Kentucky, McDonald v. Commonwealth, 569 S.W.2d 134 (Ky. 1978); Louisiana, State v. Coleman, 673 So.2d 1283 (La. Ct. App. 1996) and State v. Crawford, 672 So.2d 197 (La. Ct. App. 1996); Mississippi, Lovejoy v. State, 555 So.2d 57 (Miss. 1989), Mitchell v. State, 539 So.2d 1366 (Miss. 1989) and Hicks v. State, 441 So.2d 1359 (Miss. 1983); Missouri, if it constitutes "propensity of the defendant to commit the crime or crimes with which he is charged" when it relates to a sex crime against a victim under fourteen years of age. State v. Barnard, 820 S.W.2d 674 (Mo. Ct. App. 1991) and Mo. Ann. Stat. § 566.025(Veron 199); New Mexico, State v. Gray, 79 N.M. 424, 444 P.2d 609 (N.M. Ct. App. 1968); Oklahoma, Landon v. State, 77 Okl. Cr. 190, 140 P.2d 242 (Okla. Crim. App. 1943), a pre-Code case cited in dictum in Hawkins v. State, 782 P.2d 139 (Okla. Crim. App. 1989); Rhode Island, State v. Jalette, 382 A.2d 526 (R.I. 1978), State v. Pignolet, 465 A.2d 176 (R.I. 1983), State v. Tobin, 602 A.2d 528 (R.I. 1992) and State v. Quattrocchi, 681 A.2d 879 (R.I. 1996); Washington, State v. Ray, 116 Wash.2d 531, 806 P.2d 1220 (1991), State v. Pingitore, Nos. 35027-1-I, 37246-7-I, 1996 WL 456020 (Wash. Ct. App. Aug. 12, 1996) and State v. Dawkins, 71 Wash. App. 902, 863 P.2d 124 (Wash. Ct. App. 1993); and West Virginia, State v. Edward Charles L., Sr., 183 W.Va. 641, 398 S.E.2d 123 (1990); overruling State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986).

Other state jurisdictions recognize an exception similar to the lustful disposition, but describe it differently. One State describes it as "depraved sexual instinct:" Arkansas, Mosley v. State, 325 Ark. 469, 929 S.W.2d 693 (1996) and Clark v. State, 323 Ark. 211, 913 S.W.2d 297 (1996). Two others label the exception "lewd disposition": Alaska, Pletnikoff v. State, 719 P.2d 1039 (Alaska Ct. App. 1986); and South Carolina, State v. Blanton, 316 S.C. 31, 446 S.E.2d 438 (S.C. Ct. App. 1994). One State employs the label "unnatural sexual passion": Alabama, Ex parte Register, 680 So.2d 225 (Ala. 1994) and Corbitt v. State, 596 So.2d 426 (Ala. Crim. App. 1991). The terminology "emotional propensity" and "emotional propensity for sexual aberration" has been employed in another State: Arizona, State v. Treadaway, 116 Ariz. 163, 167, 568 P.2d 1061, 1065 (1977) and State v. McFarlin, 110 Ariz. 225, 227, 517 P.2d 87, 89 (1973). Massachusetts admits prior acts of sexual activity "to prove an inclination to commit the facts charged in the indictment." Commonwealth v. King, 387 Mass. 464, 441 N.E.2d 248 (Mass. 1982).

Other States characterize the exception as "modus operandi." See, for example, State v. Craig, 219 Neb. 70, 361 N.W.2d 206 (1985), as follows:

"Modus operandi" is "a characteristic method employed by a defendant in the performance of repeated criminal acts." "Modus operandi" means, literally, "method of working," and refers to a pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer.

In contrast, there are also several States which do not recognize a "lustful disposition" exception. These are: California, People v. Balcolm, 7 Cal. 4th 414, 422, 867 P.2d 777, 782, 27 Cal. Rptr. 2d 666, 670 (1994), with one dissenting judge arguing for recognition of a lewd disposition exception. But see, People v. Stewart, 181 Cal. App.3d 300, 226 Cal. Rptr. 252 (Cal. Dist. Ct. App. 198) (applying the "plan" exception to establish lewd disposition toward victim) and People v. Barney, 192 Cal. Rptr. 172, 143 Cal. App.3d 490 (Cal. Dist. Ct. App. 1983) (applying "modus operandi" to establish lewd disposition toward victim); Delaware, Getz v. State, 538 A.2d 726 (Del. 1988); Florida, Hodges v. State, 403 So.2d 1375 (Fla. Dist. Ct. App. 1981); Indiana, Pirnat v. State, 612 N.E.2d 153 (Ind. Ct. App. 1993) and Lannan v. State, 600 N.E.2d 1334 (Ind. 1992); Kansas, State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987), State v. Dotson, 256 Kan. 406, 886 P.2d 356 (1994); Oregon, State v. Davis, 54 Or. App. 133, 634 P.2d 279 (Or. Ct. App. 1981); Oregon v. Zybach, 93 Or. App. 218, 761 P.2d 1334 (Or. Ct. App. 1988), but see, the dissenting opinion criticizing the majority of the court for refusing to recognize the lustful disposition exception to the admission of other crimes, wrongs or acts evidence; Tennessee, State v. Rickman, 876 S.W.2d 824 (Tenn. 1994); Vermont, State v. Winter, 162 Vt. 388, 648 A.2d 624 (1994).

Arguments have been advanced for both the retention and rejection of the exception. Recently, in abandoning the "lustful disposition" or "depraved sexual instinct" rule, the Supreme Court of Indiana focused upon the following competing rationales for recognition of the rule:

First, the exception has been based on a recidivist rationale: "Acts showing a perverted sexual instinct are circumstances which with other circumstances may have a tendency to connect an accused with a crime of that character." * * * Second, the exception has been based on the need to bolster the testimony of victims: to lend credence to a victim's accusations or testimony which describe acts which would otherwise "seem improbable standing alone."

In responding to these arguments for the retention of the rule, the court observed:

[w]e do not allow the State to introduce previous drug convictions in its case-in-chief in a prosecution for selling drugs, however, even though it can hardly be disputed that such evidence would be highly probative. * * * If a high rate of recidivism cannot justify a departure from the propensity rule for drug defendants, logic dictates it does not provide justification for departure in sex offense cases.

* * *

. . . there remains what might be labeled the "rationale behind the rationale," the desire to make easier the prosecution of child molesters, who prey on tragically vulnerable victims in secluded settings, leaving behind little, if any, evidence of their crimes. * * * The emotional appeal of such an argument is powerful, given the special empathy that child victims of sexual abuse evoke. But even this cannot support continued application of an exception which allows the prosecution to accomplish what the general propensity rule is intended to prevent.

See Lannan v. State, 600 N.E.2d 1334, 1335-38 (Ind. 1992).

Initially, at least some members of the Drafting Committee believed that such an exception in Uniform Rule 404(b) would not only be useful intrinsically in physical and sexual abuse cases, but would also be a rational alternative to Rules 413-415 of the Federal Rules of Evidence. See the Introduction discussing Federal Rules 413-415 which have not been adopted in any State to date. However, after further consideration, the Committee decided not to recommend amending Uniform Rule 404(b) in this respect for at least three reasons. First, a "lustful disposition" exception is closely related to propensity evidence which is inadmissible under the general rule of Uniform Rule 404(b) barring specific instances of physical and sexual conduct to prove the character of a person to show action in conformity therewith on a particular occasion.

Second, it was reasoned by some members of the Committee that it would rarely be necessary to invoke a special exception, such as "lustful disposition" or "modus operandi," because it would be admissible under one of the normal noncharacter permissible purposes for which prior acts of physical or sexual abuse could be admitted, for example, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. It would only be necessary to invoke such a special exception where the evidence is irrelevant to the proof of one of the commonly recognized exceptions to the general rule barring evidence of other crimes, wrongs, or acts evidence. See, in this connection, Edward J. Imwinkelreid, Uncharged Misconduct Evidence, && 4:12, 4:13 (1990).

Third, some members of the Committee also find the reasoning of the Indiana Supreme Court in Lannan v. State, supra, persuasive. If a high rate of recidivism among drug offenders does not justify a departure from the propensity rule for these offenders, then there is no justification for departure from the propensity rule in sex offense cases. Some members of the Committee also believe that while the emotional appeal of relaxing the propensity rule in the case of child victims of sexual abuse is powerful, it does not support the creation of an exception allowing the prosecution to accomplish indirectly what the general propensity rule is intended to prevent directly.

The Drafting Committee is recommending that Uniform Rule 404(b) be amended to add a subdivision (c) to incorporate procedural guidelines to govern the admissibility of other crimes, wrongs, or acts evidence when it is offered for one of the permissible purposes authorized by Rule 404(b). The earlier proposed amendments to Uniform Rule 404(b) incorporated a provision for notice and contained five other conditions which the Drafting Committee adopted at its meeting in Cleveland, Ohio on October 4-6, 1996 and in Dallas, Texas on January 24-26, 1997.

The notice provision now incorporated in proposed Uniform Rule 404(c)(1) would apply to any party seeking to offer evidence under the Rule, apply in any case, civil or criminal, and eliminate the necessity of a request by the accused, or any other party, for information regarding the general nature of the evidence a party intends to offer at trial. This provision is also consistent with the concern and objections raised by members of the Drafting Committee at its meeting in Dallas, Texas, on January 26-28, 1997 as to the notice provision of Rule 404(b) of the Federal Rules of Evidence and, at least indirectly, to comparable state statutory provisions.

Accordingly, the notice requirement of Uniform Rule 404(c)(1) recommended by the Drafting Committee differs from that contained in Rule 404(b) of the Federal Rules of Evidence which provides as follows:

provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

The notice requirement in Federal Rule 404(b) applies in criminal cases only and, in this respect, is in accord with eleven state jurisdictions and the Virgin Islands requiring statutory notice of the intent to introduce evidence of other crimes, wrongs, or acts in criminal cases. Notice is required by statute in Alabama, Ala. R. Evid. 404(b) (upon request by accused, prosecution shall give reasonable notice in advance of trial or during trial if trial court excuses pretrial notice on good cause shown); Florida, Fla. Stat. Ann. § 90.404(2)(b) (West 1997) (State shall give to accused a minimum of 10 days notice prior to trial except when used for impeachment or on rebuttal); Hawaii, Haw. R. Evid. 404 (proponent of evidence shall give reasonable notice in advance of trial, or during trial if trial court excuses pretrial notice on good cause shown); Indiana, Ind. R. Evid. 404(b) (upon request by accused, prosecution shall give reasonable notice in advance of trial or during trial if the trial court excuses pretrial notice on good cause shown); Kentucky, Ky. R. Evid. 404(c) (prosecution shall give reasonable pretrial notice to defendant and if it fails to do so the proffered evidence may be excluded unless notice is excused by trial court which may then grant a continuance or such other remedy as necessary to prevent unfair prejudice to accused); Louisiana, La. Code Evid. Ann. art. 404(B) (West 1997) (upon request by accused, prosecution shall provide reasonable notice in advance of trial); Michigan, Mich. R. Evid. 404(b)(2) (prosecution shall provide reasonable notice in advance of trial, or during trial if trial court excuses notice on good cause shown); North Dakota, N.D. R. Evid. 404(b) (prosecution shall provide reasonable notice in advance of trial, or during trial if trial court excuses notice on good cause shown); Texas, Tex. R. Evid. 404(b) (upon timely request by accused, State shall give reasonable notice in advance of trial); Vermont, Vt. R. Evid. 404(b) and Vt. R. Crim. P. 26(c) (State shall furnish notice to defendant at least seven days before trial except court may allow notice to be given at later date, including during trial, if evidence is newly discovered or issue to which evidence relates has newly arisen in case, but no notice is required for evidence used for impeachment or in rebuttal); West Virginia, W.Va. R. Evid. 404(b) (upon request by accused, prosecution shall give reasonable notice in advance of trial, or during trial if trial court excuses notice on good cause shown); and Virgin Islands, V.I. Fed. R. Evid. 404(b) (upon request by accused, prosecution shall give reasonable notice in advance of trial, or during trial if trial court excuses pretrial notice on good cause shown).

The notice requirement of Federal Rule 404(b) also conditions the giving of notice upon the request of the accused. The statutory giving of notice is also conditioned upon a request by the accused in Indiana, Louisiana, Texas, West Virginia and the Virgin Islands. Florida, Hawaii, Kentucky, Michigan, and North Dakota require the prosecution, or the proponent, to give notice without a request.

Reasonable notice in advance of trial, or during trial if pretrial notice is excused for good cause shown is also required under Federal Rule 404(b). All of the foregoing jurisdictions with the exception of Florida, Louisiana and Texas have similar requirements. Florida requires at least ten days notice in advance of trial, while Louisiana and Texas require only reasonable notice in advance of trial.

Finally, Federal Rule 404(b) also requires that the general nature of the evidence which the proponent intends to offer be disclosed. All of the foregoing jurisdictions have comparable statutory requirements.

Decisional law in a number of state jurisdictions also requires notice of the intent to offer other crimes, wrongs, or acts evidence. These are Alaska, Moor v. State, 709 P.2d 498 (Alaska Ct. App. 1985) ("prosecution should be required to give advance notice to the defendant and the court"); Minnesota, State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167 (1965), State v. Slowinski, 450 N.W.2d 107 (Minn. 1990) ("[e]vidence of other crimes may not be received unless there has been [advance] notice as required by State v. Spreigl"); Montana, State v. Just, 184 Mont. 262, 602 P.2d 957 (1979), State v. Croteau, 248 Mont. 403, 812 P.2d 1251 (1991) ("notice requirement must be given sufficiently in advance of trial to afford a defendant a reasonable opportunity to prepare to meet the evidence against him"); Ohio, State v. Jurek, 52 Ohio App. 3d 30, 556 N.E.2d 1191 (Ohio Ct. App.1989) ("in light of potential for unfair prejudice, such [notice] procedure should, upon timely request, be followed prior to the admission of evidence of other crimes"), but see, No. 467, 1993 WL 63443 (Ohio Ct. App. Ar. 2, 1993), intimating that absent an amendment of Rule 404(b) of the Ohio Rules of Evidence requiring notice, that notice of the intent to introduce "other acts" evidence will not be required; and Oklahoma, Burks v. State, 594 P.2d 771 (Okla. Crim. App. 1979) ("[T]he State shall, within ten days before trial, or at a pretrial hearing, whichever occurs first, furnish the defendant with a written statement of the other offenses it intends to show, described with the same particularity of an indictment or information . . . [but] no such notice is required if the other offenses are prior convictions, or are actually a part of the res gestae of the crime charged and thus are not chargeable as separate offenses").

The requirement of notice is also qualified in some state jurisdictions. See, for example, Oklahoma where the requirement of notice under Burks v. State, supra, is unnecessary where the other crime evidence is a part of the res gestae of the crime charged [Brogie v. State, 695 P.2d 538 (Okla. Crim. App. 1985)], where the other crime evidence is offered during the presentation of rebuttal evidence [Freeman v. State, 681 P.2d 84 (Okla. Crim. App. 1984)], where the State introduces the other crime evidence during cross or re-cross examination [Smith v. State, 695 P.2d 864 (Okla. Crim. App. 1985)], or, perhaps, even where "the State was unaware of the [other crime] evidence in time to have afforded pre-trial notice" [Brogie v. State, supra].

There are also a number of jurisdictions that do not appear to require any notice at all. These are: Arizona; Arkansas; California; Colorado; Connecticut; Delaware; Georgia; Idaho; Illinois; Iowa; Kansas; Maine; Maryland; Massachusetts; Mississippi; Missouri; Nebraska; Nevada; New Hampshire; New Jersey; New Mexico; New York; North Carolina; Oregon; Pennsylvania; Rhode Island; South Carolina; South Dakota; Tennessee; Utah; Virginia; Washington; Wisconsin; and Wyoming; and the District of Columbia. In Delaware, the Delaware Study Committee, citing the Florida rules of evidence, has recommended that the Superior Court Criminal Rules be amended to provide for the giving of notice under Rule 404(b) of Delaware's Rules of Evidence. The rules have not been so amended to date.

Following the Committee of the Whole consideration of the Draft at the 1998 Annual Meeting, the proposed amendments to Uniform Rule 404(b) now embrace four other conditions in subdivision (c)(2) which are applicable in criminal cases only when offered against an accused and which would have to be satisfied before evidence could be admitted for one of the exceptional purposes authorized in Rule 404(b). The intent is to propose a uniform rule which will restrict and eliminate the abuses believed to currently exist in the admissibility of other crimes, wrongs or acts evidence when offered against an accused throughout the several jurisdictions of the United States. The conditions specified in subdivision (2) would not apply when offered by an accused for defensive purposes.

Subdivision (c)(2) of Uniform Rule 404(b) requires the trial court to conduct a hearing to determine the admissibility of the evidence. A few States currently require that the hearing be conducted in camera. It is required by statute in Tennessee. See Tenn. R. Evid. 404(b)(1). It is required by judicial decision in West Virginia. See State v. McGhee, 193 W.Va. 164, 455 S.E.2d 533 (1995) and State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994). In Oklahoma, an in camera hearing is also required in the event the prosecution attempts to use other crimes, wrongs, or acts evidence in rebuttal. See Burks, supra at 44. The amendment as proposed by the Drafting Committee would leave within the discretion of the trial court the type of hearing to conduct in determining the admissibility of other crimes, wrongs, or acts under one or the other of the permissible purposes for which the evidence is admissible.

Subdivision (c)(2)(A) of Uniform Rule 404(b) proposed by the Drafting Committee provides that the commission of the other crime, wrong or act by the accused be determined by clear and convincing evidence. This procedural rule is supported by decisional law in Delaware, Getz v. State, 538 A.2d 726 (Del. 1988) ("plain, clear and conclusive evidence"); Maryland, Harris v. State, 324 Md. 490, 597 A.2d 956 (Md. Ct. App. 1991) ("clear, convincing and uncomplicated proof"); Minnesota, State v. Slowinski, 450 N.W.2d 107 (Minn. 1990) ("clear and convincing evidence"); Nevada, Cipriano v. State, 111 Nev. 534, 894 P.2d 347 (1995) ("clear and convincing evidence"); New Hampshire, State v. Dushame, 136 N.H. 309, 616 A.2d 469 (1992) ("clear proof"); Oklahoma, Burks v. State ("clear and convincing proof"); South Carolina, State v. Raffaldt, 456 S.E.2d 390 (S.C. 1995) ("clear and convincing proof"); and South Dakota, State v. Sieler, 397 N.W.2d 89 (S.D. 1986) ("clear and convincing evidence").

Subdivision (c)(2) also provides that the "court finds . . . that the other crime, wrong or act was committed" to make clear that this is a preliminary question of fact for the court. This departs from the holding in Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), that the admissibility of other crimes, wrongs, or acts evidence is a question of conditional relevancy under Rule 104(b) of the Federal Rules of Evidence. The Drafting Committee believes that the preferable view is to insulate the jury from hearing this evidence until there has been a final decision by the trial court under the clear and convincing evidence standard that the other crime, wrong, or act has, in fact been committed.

Subdivision (c)(2)(B) proposed by the Drafting Committee also provides that the trial court find that the evidence is relevant to a purpose for which the evidence is admissible under 404(b) other than conduct conforming with a character trait. The substance of this subparagraph is followed in a number of States. These are: Arkansas, Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992); California, People v. Balcom, 7 Cal. 4th 414, 867 P.2d 777 (Cal. 1994); Colorado, State v. McKibben, 862 P.2d 991 (Colo. Ct. App. 1993); Connecticut, State v. Santiago, 224 Conn. 325, 618 A.2d 32 (1992); District of Columbia, Campbell v. United States, 450 A.2d 428 (D.C. 1982); Illinois, People v. Davis, 248 Ill. App. 3d 886, 617 N.E.2d 1381 (Ill. App. Ct. 1993); Kansas, State v. Searles, 246 Kan. 567, 793 P.2d 724 (Kan. 1990); Maryland, Harris v. State, 324 Md. 490, 597 A.2d 956 (Md. 1991); Nebraska, State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (Neb. 1994); Nevada, Cipriano v. State, 111 Nev. 534, 894 P.2d 347 (Nev. 1995); New Jersey, State v. Stevens, 115 N.J. 289, 558 A.2d 833 (N.J. 1989); New Mexico, State v. Aguayo, 114 N.M. 124, 835 P.2d 840 (N.M. Ct. App. 1992); New York, People v. Alvino, 71 N.Y.2d 233, 519 N.E.2d 808 (N.Y. 1987); Pennsylvania, Commonwealth v. Seiders, 531 Pa. 592, 614 A.2d 689 (Pa. 1992); Rhode Island, State v. Brown, 626 A.2d 228 (R.I. 1993); West Virginia, State v. McGhee, 193 W. Va. 164, 455 S.E.2d 533 (W.Va. 1995); and Washington, State v. Peerson, 62 Wash. App. 755, 816 P.2d 43 (Wash. Ct. App. 1991).

Subdivision (c)(2)(C), as submitted to the Committee of the Whole at the Annual Meeting in Cleveland, Ohio, July 24-31, 1998 would have required as a condition to admissibility that "[t]he probative value of admitting the evidence is not substantially outweighed by the danger of unfair prejudice." Questions were raised on the floor concerning the meaning of the quantum of prejudice required by the word "substantially." A Sense of the House motion to delete the word "substantially" passed. However, the mover of the motion looked favorably at an alternative approach which would reverse the balancing test by making the evidence presumptively inadmissible. The Drafting Committee acted accordingly and recommends the balancing test now proposed which favors exclusion and believes is superior to a balancing test favoring admission even with the word "substantially" omitted.

The balancing test now proposed is recognized in a number of jurisdictions in which the evidence is presumptively inadmissible by requiring that the court find that the probative value of admitting the evidence outweighs the danger of unfair prejudice. The States adhering to this balancing test are: California, People v. Balcom, 7 Cal. 4th 414, 867 P.2d 777 (Cal. 1994); Colorado, People v. McKibben, 862 P.2d 991 (Colo. Ct. App. 1993); Connecticut, State v. Santiago, 224 Conn. 325, 618 A.2d 32 (1992); Kansas, State v. Searles, 246 Kan. 567, 793 P.2d 724 (1995); Maryland, Harris v. State, 324 Md. 490, 597 A.2d 956 (1991); Nebraska, State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994); Nevada, Cipriano v. State, 111 Nev. 534, 894 P.2d 347 (1995); New Mexico, State v. Aguayo, 114 N.M. 124, 835 P.2d 840 (N.M. Ct. App. 1992); New York, People v. Alvino, 71 N.Y.2d 233, 519 N.E.2d 808 (1987); Pennsylvania, Commonwealth v. Seiders, 531 Pa. 592, 614 A.2d 689 (1992); Rhode Island, State v. Brown, 626 A.2d 228 (R.I. 1993); South Carolina, State v. Raffaldt, 456 S.E.2d 390 (S.C. 1995); and Washington, State v. Peerson, 62 Wash. App. 755, 816 P.2d 43 (Wash. Ct. App. 1991).

Other jurisdictions make the evidence presumptively admissible by requiring that the probative value of the evidence be substantially outweighed by the danger of unfair prejudice. The States adhering to this balancing test are: Arizona, State v. Barr, 904 P.2d 1258 (Ariz. Ct. App. 1995); Arkansas, Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992) and Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980); Delaware, Getz v. State, 538 A.2d 726 (Del. 1988) and Trowbridge v. State, 647 A.2d 1076 (Del. 1994); Idaho, State v. Moore, 120 Idaho 743, 819 P.2d 1143 (1991) and State v. Medina, 909 P.2d 637 (Idaho Ct. App. 1996); Illinois, State v. Davis, 248 Ill. App. 3d 886, 617 N.E.2d 1381 (Ill. App. Ct. 1993); Maine, State v. Webber, 613 A.2d 375 (Me. 1992); Massachusetts, Commonwealth v. Brousseau, 659 N.E.2d 724 (Mass. 1996); Missouri, State v. Kitson, 817 S.W.2d 594 (Mo. Ct. App. 1991); Montana, State v. Paulson, 250 Mont. 32, 817 P.2d 1137 (1991); New Hampshire, State v. Dushame, 136 N.H. 309, 616 A.2d 469 (1992); New Jersey, State v. Stevens, 115 N.J. 289, 558 A.2d 833 (N.J. 1989); Ohio, State v. Jurek, 556 N.E.2d 1191 (Ohio Ct. App. 1989); South Dakota, State v. Floody, 481 N.W.2d 242 (S.D. 1992); Tennessee, Tenn. R. Evid. 404(b)(3) and State v. Nichols, 877 S.W.2d 722 (Tenn. 1994); West Virginia, State v. McGhee, 193 W. Va. 164, 455 S.E.2d 533 (1995); Wisconsin, State v. Landrum, 191 Wis.2d 107, 528 N.W.2d 36 (Wis. Ct. App. 1995); and Wyoming, Mitchell v. State, 865 P.2d 591 (Wyo. 1993) and Gezzi v. State, 780 P.2d 972 (Wyo. 1989). See also, District of Columbia, Campbell v. United States, 450 A.2d 428 (D.C. 1982).

The state jurisdictions are almost evenly divided on the balancing test to apply in determining the admissibility of other crimes, wrongs or acts evidence, although a slight majority favor the less stringent standard by requiring only that the probative value of the evidence be not substantially outweighed by the danger of unfair prejudice. The Drafting Committee recommends the more stringent standard as embodied in subdivision (c)(2)(C) since it is deemed a more desirable alternative to simply eliminating the word "substantially" from the less stringent standard embodied in Uniform Rule 403 because of the risks involved in the admission of other crimes, wrongs, or acts evidence.

Subdivision (c)(3) proposed by the Drafting Committee provides that upon the request of a party, the court shall give an instruction on the limited admissibility of the evidence, as provided in Rule 105. The requirement for giving a limiting instruction, either with or without the request of a party, is followed in the following jurisdictions as indicated: Arizona, State v. Barr, 904 P.2d 1258 (Ariz. Ct. App. 1995) (if requested); Delaware, Getz v. State, 538 A.2d 726 (Del. 1988) (if requested); Minnesota, State v. Fallin, 540 N.W.2d 518 (Minn. 1995) (required); Nebraska, State v. Carter, 246 Neb. 953, 524 N.W.2d 763 (1994) (if requested); New Jersey, State v. Loftin, 670 A.2d 557 (N.J. 1996) (if not requested, must demonstrate failure to give instruction was capable of producing unjust result); Ohio, State v. Jurek, 52 Ohio App.3d 30, 556 N.E.2d 1191 (Ohio Ct. App. 1989) (if requested); Oklahoma, Burks v. State, 594 P.2d 771 (Okla. Crim. App. 1979); Pennsylvania, Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989) (required); Rhode Island, State v. Brown, 626 A.2d 228 (R.I. 1993) (required); Utah, State v. Smith, 700 P.2d 1106 (Utah 1985) (if requested); West Virginia, State v. McGhee, 193 W.Va. 164, 455 S.E.2d 533 (1995) (required); and Wyoming, Goodman v. State, 601 P.2d 178 (Wyo. 1979) (if requested).

The Drafting Committee believes that the giving of a limiting instruction on the request of a party as provided in subdivision (c)(3) is preferable for three reasons. First, the party against whom the evidence is being admitted ought to have the discretion of whether a limiting instruction ought to be given as against the risk of unnecessarily emphasizing the limited purpose for which the evidence is admitted. Second, at the same time, the trial court is required to give the instruction under Uniform Rule 105 when requested by a party. Finally, to include this provision in Rule 404(c)(3) emphasizes the importance of a party considering and the court giving a limiting instruction because of the risks associated with the admission of other crimes, wrongs, or acts evidence. As in the case of the giving of notice required by Rule 404(c)(1), the giving of a limiting instruction under Rule 105 is also applicable in civil cases.

The Advisory Committee on the Federal Rules of Evidence has not recommended any procedural amendments to Federal Rule 404(b).

RULE 405. METHODS OF PROVING CHARACTER.

(a) Reputation or opinion. In all cases in which If evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which If character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his the person's conduct.

This proposal for amending Rule 405 eliminates the gender-specific language in subdivision (b). The change is technical and no change in substance is intended.

Recommended non-substantive stylistic changes have also been made in Rule 405.

There are no other recommendations for amending Rule 405.

RULE 406. HABIT: ROUTINE PRACTICE.

(a) Admissibility. Evidence of the habit of a person an individual or of the routine practice of an organization a person other than an individual, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person individual or organization other person on a particular occasion was in conformity with the habit or routine practice.

(b) Method of proof. Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine.

The word "individual" is substituted for the word "person" in Rule 406 to differentiate between an "individual" and an "entity" as a person.

RULE 407. SUBSEQUENT REMEDIAL MEASURES. Whenever If, after an event, measures are taken which that, if taken previously, would have made the event injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, or culpable conduct in connection with the event. This rule does not require the exclusion of evidence, a defect in a product, a defect in a product's design, or a need for a warning or instruction. Evidence of subsequent measures may be admissible if offered for another purpose, such as proving impeachment or, if controverted, proof of ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. An event includes the sale of a product to a user or consumer.

The amendments to Rule 407 recommended by the Drafting Committee reflect the action of the Committee at its meeting in Cleveland, Ohio on October 4-6, 1996. First, the Rule retains the existing language of Uniform Rule 407 as set forth in Lines 3, 4, 5 and 6 to reflect the judgment of the Drafting Committee that the Rule ought to apply to pre-accident, post-manufacturing measures as well as post-accident measures to provide an incentive to take remedial measures before the injury giving rise to the action has occurred. Second, the rule as now drafted, retains in Lines 5-7, with two minor punctuation changes, the language of amended Rule 407 of the Federal Rules of Evidence which took effect December 1, 1997. It is consistent with the general feeling of the members of the Drafting Committee that the general rule of exclusion ought to apply to products liability cases as well as to negligence actions.

In contrast to the black letter of Uniform Rule 407 as now recommended, Federal Rule 407 provides:

When, after an injury or harm allegedly caused by an event measures are taken which that, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct defect in a product, a defect in a product's design, or a need for a warning or instruction in connection with the event. This rule does not require the exclusion of. Evidence of subsequent measures may be when offered for another purpose, such as impeachment or B if controverted B proving proof of ownership, control, or feasibility of precautionary measures controverted, or impeachment.

The rationale for the amendment of Federal Rule 407 is explained in the Advisory Committee Note as follows:

The amendment to Rule 407 makes two changes in the rule. First, the words "an injury or harm allegedly caused by" were added to clarify that the rule applies only to changes made after the occurrence that produced the damages giving rise to the action. Evidence of measures taken by the defendant prior to the "event" do not fall within the exclusionary scope of Rule 407 even if they occurred after the manufacture or design of the product. See Chase v. General Motors Corp., 856 F.2d 17, 21-22 (4th Cir. 1988).

Second, Rule 407 has been amended to provide that evidence of subsequent remedial measures may not be used to prove "a defect in a product, a defect in a product's design, or a need for a warning or instruction." This amendment adopts the view of a majority of the circuits that have interpreted Rule 407 to apply to products liability actions. See Raymond v. Raymond Corp., 938 F.2d 1518, 1522 (1st Cir. 1991); In re Joint Eastern District and Southern District Asbestos Litigation v. Armstrong World Industries, Inc., 995 F.2d 343, 345 (2d Cir. 1993); Cann v. Ford Motor Co., 658 F.2d 54, 60 (2d Cir. 1981), cert. denied, 456 U.S. 960 (1982); Kelley v. Crown Equipment Co., 970 F.2d 1273, 1275 (3d Cir. 1972); Werner v. Upjohn Co., Inc., 628 F.2d 848, 856 ( 4th Cir, 1980), cert. denied, 449 U.S. 1080 (1981); Grenada Steel Industries, Inc. v. Alabama Oxygen Co., Inc., 695 F.2d 883, 887 (5th Cir. 1983); Bauman v. Volkswagenwerk Aktiengesellschaft, 621 F.2d 230, 232 (6th Cir. 1980); Flaminio v. Honda Motor Company, Ltd., 733 F.2d 463, 469 (7th Cir. 1984); Gauthier v. AMF, Inc., 788 F.2d 634, 636-37 (9th Cir. 1986).

Although this amendment adopts a uniform federal rule, it should be noted that evidence of subsequent remedial measures may be admissible pursuant to the second sentence of Rule 407. Evidence of subsequent remedial measures that is not barred by Rule 407 may still be subject to exclusion on Rule 403 grounds when the dangers of prejudice or confusion substantially outweigh the probative value of the evidence.

Public reaction to Federal Rule 407 was mixed. Some favored the Rule as proposed. (See Letter of William B. Poff, Chair of Ad Hoc Committee, National Association of Railroad Trial Counsel, to Study Proposed Changes to the Federal Rules, to Peter G. McCabe, dated March 1, 1996; Comment of Mark Laponsky from Kent S. Hofmeister, Section Coordinator, Federal Bar Association, to Peter G. McCabe, dated February 29, 1996; Letter of Virginia M. Morgan, President, Federal Magistrate Judges Association, to Peter G. McCabe, dated January 23, 1996; Letter of James A. Strain, President, The Seventh Circuit Bar Association, to Peter G. McCabe, dated February 29, 1996; and Letter of Virginia M. Morgan, President, Federal Magistrate Judges Association, to Peter G. McCabe, dated January 23, 1996).

Others qualified their support of the Rule. (See Letter of David P. Leonard, Professor of Law, Loyola Law School, to Peter G. McCabe, dated March 1, 1996, arguing that the meaning of "after an event" be clarified "to apply the exclusionary principle to all cases in which admission might materially affect the decision whether to repair, regardless of whether the measure was taken before or after the accident in question");

(See Comments, Gerald G. Paul, Chair, Commercial and Federal Litigation Section from Robert F. Wise, Jr., Chair, Federal Procedure Committee, New York State Bar Association, dated February 28, 1996, recommending that the words "an injury or harm allegedly caused by" following the words "after an" be added "at the beginning of the rule to make it clear that subsequent remedial measures are inadmissible only when taken after the event that caused the damage");

(See Letter of Hugh F. Young, Jr., Executive Director, Product Liability Advisory Council, to Peter G. McCabe, dated February 29, 1996, recommending that the Committee "revise the Rule to make clear that, in product liability cases, it applies not only to changes made in a product line after an accident occurs but also to any product line changes made after the sale of the product involved in the case"); and

(See Comment of Thais L. Richardson, The Proposed Amendment to Federal Rule of Evidence 407: A Subsequent Remedial Measure That Does Not Fix the Problem, 45 Am. U. L. Rev. 1453 (1996), arguing "that while the rule's expansion to cover products liability actions is appropriate, limiting the scope of the exclusionary rule to measures taken after personal injury or property damage in products liability actions is inconsistent with both the public policy behind the rule and substantive products liability law").

Others oppose the Rule. (See Letter of Pamela Anagnos Liapakis, President, Association of Trial Lawyers of America, to Peter G. McCabe, dated March 1, 1996).

Still others took no position with regard to the amendment of Rule 407. (See Letter of Nanci L. Clarence, Chair, Federal Practice Subcommittee, Litigation Section of the State Bar of California, to Peter G. McCabe, dated February 28, 1996; Letter of Harriet L. Turney, General Counsel, State Bar of Arizona, to Peter G. McCabe, dated February 27, 1996; Memorandum of Paul Berghoff, Subcommittee Chairman, from Donald R. Dunner, Chair, Section of Intellectual Property Law, American Bar Association, to Peter G. McCabe, dated March 1, 1996; Letter of Carolyn B. Witherspoon, President, Arkansas Bar Association, to Peter G. McCabe, dated January 31, 1996; and Letter of Don W. Martens, President, American Intellectual Property Law Association, to Peter G. McCabe, dated February 29, 1996).

Finally, Ms. Thais L. Richardson, Law Student, American University School of Law, testifying at the Public Hearing on Proposed Amendments to the Federal Rules of Evidence, and while concurring that the expansion of Rule 407 to cover products liability actions is appropriate, the limiting of the scope of the exclusionary rule to measures taken after personal injury or property damage in products liability actions is inconsistent with both the public policy behind the rule and substantive products liability law. (See Public Hearing on Proposed Amendments to the Federal Rules of Evidence, January 18, 1996).

Uniform Rule 407 as now proposed does differ in one significant respect from Federal Rule 407. Unlike the federal rule which confines the word "event" to mean the accident or occurrence giving rise to the injury or harm, the uniform rule defines an event to include "the sale of a product to a user or consumer." The Drafting Committee believes that if the word "event" is limited to mean only an accident, this would appear to discourage product-wide modification and undermine the policy reason underlying the rule, namely, to encourage the taking of safety measures for the benefit of the consumers.

Uniform Rule 407 does depart in two respects from the rule now applicable in a number of state jurisdictions. First, as to the meaning of "event" as that term is now used in Uniform Rule 407 in contrast to Federal Rule 407, the state courts have taken varying approaches. Some have held that the word "event" refers to the time of the injury rather than to the date of manufacturer or distribution of the product. In such a case the exclusionary rule would not be a bar to the admissibility of remedial measures, such as warning labels issued after the date of manufacture, but prior to the date of injury. See, for example, Florida, Keller Indust. v. Volk, 657 So.2d 1200 (Fla. Dist. Ct. App. 1995); and New Jersey, Dixon v. Jacobsen Mfg. Co., 270 N.J. Super. 569, 637 A.2d 915 (N.J. Super. Ct. App. Div. 1994). However, other state jurisdictions have construed the word "event" as the date of manufacture. See, for example, Kansas, Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 861 P.2d 1299 (1993); and Montana, Mont. R. Evid. 407, Rix v. Gen. Motors Corp., 222 Mont. 318, 723 P.2d 195 (1986), followed in, Krueger v. Gen. Motors Corp. 240 Mont. 266, 783 P.2d 1340 (1989). The Drafting Committee believes, for the reasons stated above, that this general approach of the state courts is to be preferred.

Second, the most significant revision in proposed Uniform Rule 407 is in making the exclusion of remedial measures expressly applicable to products liability actions and thereby conform the Uniform Rule to the Federal Rule and the majority rule among the federal circuits of the United States prior to the amendment of Federal Rule 407. Only the Eighth and Tenth Circuits formerly admitted evidence of subsequent remedial measures in strict liability cases. See Burke v. Deere & Co., 6 F.3d 497 (8th Cir. 1993) and Herndon v. Seven Bar Flying Serv., Inc., 716 F.2d 1322 (10th Cir. 1983).

In contrast, the States are almost evenly divided on the issue of admitting remedial measures in product liability actions. Subsequent remedial measures have been held to be inadmissible in strict liability cases in the following state jurisdictions: Arizona, Hallmark v. Allied Prod. Co., 132 Ariz. 434, 646 P.2d 319 (Ariz. Ct. App. 1982) and Hohlenkamp v. Rheem Mfg. Co., 134 Ariz. 208, 655 P.2d 32 (Ariz. Ct. App. 1982), discussed in Readnor v. Marion Power Shovel, 149 Ariz. 442, 719 P.2d 1058 (1986); Florida, Fla. Stat. Ann. § 90.407(West 1997), Voynar v. Butler Mfg. Co., 463 So.2d 409 (Fla. Dist. Ct. App. 1985); Idaho, Idaho R. Evid. 407, Idaho Code § 6-1406 (1994); Watson v. Navistar Int'l. Transp. Corp., 121 Idaho 643, 827 P.2d 656 (1992); Kansas, Kan. Stat. Ann. § 60-3307 (1992 Supp.) and Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 861 P.2d 1299 (1993); Maryland, Troja v. Black & Decker Mfg. Co., 62 Md. App. 101, 488 A.2d 516, cert. denied, 303 Md. 471, 494 A.2d 939 (Md. Ct. Spec. App. 1985); Minnesota, Minn. R. Evid. 407, Kallio v. Ford Motor Co., 407 N.W.2d 92 (Minn. 1987); Montana, Mont. R. Evid. 407, Rix v. Gen. Motors Corp., 222 Mont. 318, 723 P.2d 195 (1986), followed in, Krueger v. Gen. Motors Corp. 240 Mont. 266, 783 P.2d 1340 (1989); Nebraska, Neb. Rev. Stat. § 27-407 (1995), Rahmig v. Mosley Mach. Co., 226 Neb. 423, 412 N.W.2d 56 (1987); New Hampshire, N.H. R. Evid. 407, Cyr v. J.I. Case Co., 139 N.H. 193, 652 A.2d 685 (1994); New Jersey, Dixon v. Jacobsen Mfg. Co., 270 N.J. Super. 569, 637 A.2d 915 (N.J. Super. Ct. App. Div. 1994), Price v. Buckingham Mfg. Co., 110 N.J. Super. 462, 266 A.2d 140 (N.J. Super. Ct. App. Div. 1970); North Carolina, N.C. R. Evid. 407, and see, Commentary to Rule 407, stating that "It is the intent of the Committee that the rule should apply to all types of actions." See further, Jenkins v. Helgren, 26 N.C. App. 653 (N.C. Ct. App. 1975); Oregon, Or. R. Evid. 407, Krause v. Am. Aerolights, 307 Or. 52, 762 P.2d 1011 (1988); and Tennessee, Tenn. R. Evid. 407, expressly providing that the exclusionary rule is applicable to strict liability actions.

See further, Colorado, Colo. R. Evid. 407, Uptain v. Huntington Lab, Inc., 723 P.2d 1322 (Colo. 1986), Indiana, Ind.R. Evid. 407, Ortho Pharmaceutical Corp. v. Chapman, 180 Ind. App. 33, 388 N.E.2d 541 (Ind. Ct. App. 1979); Michigan, Mich.R. Evid. 407, Smith v. E.R. Squibb & Sons, Inc., 405 Mich. 79, 273 N.W.2d 476 (1979), applying the exclusionary rule in "failure to warn" cases.

Subsequent remedial measures have been held to be admissible in strict liability cases in the following state jurisdictions: Alaska, Alaska R. Evid., 407, Commentary to Rule 407, Agostino v. Fairbanks Clinic Partnership, 821 P.2d 714 (Alaska 1991); California, Cal. Evid. Code § 1151, Ault v. Int'l. Harvester Co., 13 Cal.3d 113, 528 P.2d 1148, 117 Cal. Rptr. 812 (Cal. 1974); Connecticut, Hall v. Burns, 213 Conn. 446, 569 A.2d 10 (Conn. 1990); Delaware, Del. R. Evid. 407, Wilson v. Teagle, 1987 WL 6458 (Del. Super. Ct. Jan. 9, 1987), following Ault v. Int'l. Harvester Co., supra; Georgia, General Motors Corp. v. Moseley, 213 Ga. App. 875, 447 S.E.2d 302 (Ga. Ct. App. 1994); Hawaii, Haw. R. Evid. 407, expressly providing that the exclusionary rule does not apply when offered for a purpose other than to prove negligence or culpable conduct, "such as proving dangerous defect in products liability cases. . ."; Iowa, Iowa R. Evid. 407, expressly providing that the exclusionary rule does not apply "when offered in connection with a claim based on strict liability in tort or breach of warranty. . .", McIntosh v. Best W. Steeplegate Inn, 546 N.W.2d 595 (Iowa 1996); Kentucky, Ky. R. Evid. 407, expressly providing that "[t]his rule does not require the exclusion of evidence of subsequent measures in products liability cases . . .", Ford Motor Co. v. Fulkerson, 812 S.W.2d 119 (Ky. 1991); Louisiana, La. Code Evid. Ann. art. 407 (West 1997), Toups v. Sears, Roebuck & Co., 507 So.2d 809 (La. 1987); Missouri, Pollard v. Ashby, 793 S.W.2d 394 (Mo. Ct. App. 1990), Tune v. Synergy Gas Corp., No. 18273, 1993 WL 309055 (Mo. Ct. App. Aug. 17, 1993); Nevada, Nev. Rev. Stat. § 48.095, Jeep Corp. v. Murray, 101 Nev. 640, 708 P.2d 297 (1985), Robinson v. G.G.C., Inc., 107 Nev. 135, 808 P.2d 522 (1991); New York, Caprara v. Chrysler Corp., 52 N.Y.2d 114, 417 N.E.2d 545, 436 N.Y.S.2d 251 (1981); Ohio, Ohio. R. Evid. 407, McFarland v. Bruno Mach. Corp., 68 Ohio St. 3d 305, 626 N.E.2d 659 (1994); Pennsylvania, Matsko v. Harley Davidson Motor Co., 325 Pa. Super. 452, 473 A.2d 155 (Pa. Super. Ct. 1984); Rhode Island, R.I R. Evid. 407, expressly providing "[w]hen, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is admissible"; South Dakota, Klug v. Keller Indust., Inc., 328 N.W.2d 847 (S.D. 1982), Shaffer v. Honeywell, 249 N.W.2d 251 (S.D. 1976); Texas, Tex. R. Evid. 407, expressly providing "[n]othing in this rule shall preclude admissibility in products liability cases based on strict liability"; Wisconsin, Wis. Stat. Ann. § 904.07(West 1997), D.L. v. Huebner, 110 Wis. 2d 581, 329 N.W.2d 890 (1983), Chart v. Gen. Motors Corp., 80 Wis. 2d 91, 258 N.W.2d 680 (1977); and Wyoming, Wyo. R. Evid. 407, Caldwell v. Yamaha Motor Co., 648 P.2d 519 (Wyo. 1982).

The applicability of the exclusionary rule in strict liability cases appears to be unresolved in the following state jurisdictions: Alabama; Arkansas; Illinois; Maine, where the rule permitting the admissibility of subsequent remedial measures of subsequent remedial measures was repealed by legislative enactment in 1996 by 1996 Me. Laws Ch. 576; Massachusetts; Mississippi; New Mexico; North Dakota; Oklahoma; South Carolina; Utah; Vermont; Virginia; Washington; West Virginia; District of Columbia; Puerto Rico; and Virgin Islands.

RULE 408. COMPROMISE AND OFFERS TO COMPROMISE. Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which that was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim, or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Compromise negotiations encompass mediation.

RULE 408. VOLUNTARY DISPUTE RESOLUTION.

(a) Evidence of (i) furnishing, offering, or promising to furnish, or (ii) accepting, offering, or promising to accept, a valuable consideration in the course of negotiations for the voluntary resolution of a dispute, by compromise or mediation, as to the validity or amount of a claim, is not admissible to prove liability for, invalidity of, or amount of the claim or of any other claim. Likewise, evidence of conduct or statements made in the course of those negotiations is not admissible.

(b) This rule does not require the exclusion of any evidence otherwise discoverable, merely because it is presented in the course of negotiations under subsection (a), or of any evidence offered for another purpose, such as to prove bias or prejudice of a witness or an effort to obstruct a criminal investigation or prosecution, or to negate a contention of undue delay.

Uniform Rule 408 as adopted by the Conference in 1974 provided as follows:

Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

As amended in 1988, Rule 408 provided as follows:

Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Compromise negotiations encompass mediation.

The 1988 amendments to the text of Uniform Rule 408 are shown by underlines. They were approved by the Executive Committee at its Mid-Year Meeting on February 6, 1988 as technical amendments to Rule 408. See the Minutes of the Scope and Program Committee dated August 4, 1987 and the Minutes of the Executive Committee dated August 4-5, 1987 and February 6, 1988. The Comment to Rule 408 states that "[t]he amendment is intended to make it clear that the rule as originally adopted already extends to all forms of voluntary dispute resolution. Thus, no substantive change to the rule is intended."

Alternative 1 to Rule 408 initially recommended by the Drafting Committee incorporates the 1988 amendments to the text of the rule as originally adopted with the exception of the last sentence "Compromise negotiations encompass mediation." As submitted, the rule is silent with respect to the forms of voluntary dispute resolution in which compromise negotiations falling within the rule can be conducted. The rule thus avoids any attempt at uniformity with respect to what constitutes inadmissible compromise negotiations in voluntary dispute resolution mechanisms, an area with respect to which there is undoubtedly considerable disagreement from State to State. This is left to state law determination on a case-by-case basis.

Recommended non-substantive stylistic changes have been made in the revision of Alternative 1 to Rule 408.

Alternative 2 to Rule 408 has been suggested by Commissioner Eugene A. Burdick. The rationale for subdivision (a) is that it emcompasses everything as set forth in Alternative 1, but places "compromise or mediation" as a subset of the "voluntary resolution of a dispute." The last sentence of subdivision (a), for stylistic reasons should begin with the word "Likewise." It is also suggested that "in the course of negotiations" embraces both "compromise or attempting to compromise" so that the party objecting to admissibility does not have to prove either the attempt to compromise or that a compromise was reached. It is believed that the objection should be upheld, in the case of mediation, for a party who does not wish to attempt to compromise, or compromise, which Alternative 1 does not do. Finally, since the last two sentences of Alternative 1 are negative, it is believed they should be in a separate subdivision (b) and reordered since negating undue delay does not fit the words "to prove."

RULE 409. PAYMENT OF MEDICAL AND SIMILAR EXPENSES. Evidence of furnishing, offering, or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

There are no recommendations for amending Rule 409.

RULE 410. WITHDRAWN PLEAS AND OFFERS INADMISSIBILITY OF PLEAS, PLEA DISCUSSIONS, AND RELATED STATEMENTS.

Evidence of a plea later withdrawn, of guilty, or admission of the charge, or nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case, or proceeding against the person who made the plea or offer.

(a) General. Except as otherwise provided in subdivision (b), evidence of the following is not admissible in a civil or criminal proceeding against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty that was later withdrawn;

(2) a plea of nolo contendere;

(3) a statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure, [Rules 443 and 444 of the Uniform Rules of Criminal Procedure, or comparable state procedure of this or any other State] regarding either of the foregoing pleas; and

(4) a statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

(b) Exceptions. A statement described in subdivision (a) is admissible:

(1) in a proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and, in fairness, the statement should be considered contemporaneously with the other statement; and

(2) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

The Drafting Committee recommends, with changes in format, substituting the substance of revised Rule 410 of the Federal Rules of Evidence which became effective on December 1, 1980 for the existing Uniform Rule 410 excluding evidence of withdrawn pleas, offers to plead and statements made in connection with any such pleas or offers to plead.

The existing Uniform Rule 410, with insubstantial modifications, was drawn from the rule originally promulgated by the Supreme Court when the Uniform Rules were adopted in 1974. Rule 410 of the Federal Rules, as originally proposed by the Supreme Court, when first enacted by Congress, included the provision that "[t]his rule shall not apply to the introduction of voluntary and reliable statements made in court on the record in connection with any of the foregoing pleas or offers where offered for impeachment purposes or in a subsequent prosecution of the declarant for perjury or false statement." This amendment was made to reduce the scope of Federal Rule 410 in order to prevent "injustice", particularly in cases where "a defendant would be able to contradict his previous statement and thereby lie with impunity." Report of the Senate Committee on the Judiciary, 93rd Cong., 2d Sess., Oct. 18, 1974, p. 11.

In 1975 Congress amended Rule 11(e)(6) of the Federal Rules of Criminal Procedure. See Federal Rules of Criminal Procedure of 1975, Pub. L. 94-64, 89 Stat. 371. It then amended Rule 410 of the Federal Rules of Evidence to conform to Rule 11(e) (6) as follows:

Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel. Federal Rules of Evidence of 1975, Pub. L. 94-149, 89 Stat. 805.

Subsequently, the Supreme Court promulgated an amendment to Rule 410, which became effective on December 1, 1980 due to the failure of Congress to take any action on the amendment as proposed by the Supreme Court. Federal Rules of Evidence of 1979, Pub. L. 96-42, 93 Stat. 326. Aside from clarifying language, the principle thrust of the amendments was to assure that the rule did not cover discussions between suspects and law enforcement agents.

It is this version of the rule which the Drafting Committee is recommending for adoption by the Conference. Most of the litigation throughout the several States has centered on what constitutes a plea negotiation [People v. Oliver, 111 Mich. App. 734, 314. N.W.2d 740 (Mich. Ct. App. 1981)] and what statements made during the plea negotiation process [State v. Lewis, 539 So.2d 1199 (La. 1989)] and the persons to whom the statements must be made [Fritz v. State, 811 P.2d 1353 (Okla. Crim. App. 1991)] are such as to fall within the statutory ban on the admission of evidence of such negotiations. In the latter case, comparable state law rules to Uniform Rule 410 have created interpretive difficulties for the courts insofar as statements made to persons other than attorneys for the prosecuting authorities. See, for example, People v. Rollins, 759 P.2d 816 (Colo. Ct. App. 1988) and Fritz v. State, supra. This problem is avoided in Rule 410(3) of the Federal Rules of Evidence, and would be avoided in proposed Uniform Rule 410(a)(4) by providing for the exclusion of "any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn."

Rule 410 of the Federal Rules of Evidence is also virtually identical to Rule 11(e)(6) of the Federal Rules of Criminal Procedure, both of which generally prohibit the admission of plea negotiated statements. Both Rules, as is the proposed Uniform Rule 410, are designed to promote plea agreements by encouraging unrestrained candor in the plea bargaining process. This duality in purpose and similarity in language of Rules 410 and 11(e)(6) led the Advisory Committee currently considering amendments to the Federal Rules of Evidence to defer to the Advisory Committee on the Criminal Rules for its views on whether any amendments to Rule 410 or 11(e)(6) would be appropriate.

The Advisory Committee on the Criminal Rules discussed the subject of amending Rule 410 at its meeting in October, 1993, but, noting that the 9th Circuit decision in United States v. Mezzanatto, 998 F.2d 1452 (9th Cir. 1993) had triggered debate concerning the waiver of the rule excluding pleas and plea statements under Rule 410 for impeachment purposes, tabled the matter pending further development of the caselaw. The issue was finally resolved in United States v. Mezzanatto, 513 U.S. 196, 115 S.Ct. 797, 130 L.Ed.2d 697 (1995), with the Supreme Court broadly holding that an agreement to waive the plea-statement exclusionary provisions is valid and enforceable in the absence of some affirmative indication that the defendant entered into the agreement unknowingly or involuntarily. The issue raised and decided in Mezzanatto presents a fundamental question. Would the waiver of the protections of Rules 410 and 11(e)(6) "have a chilling effect on the entire plea bargaining process" and undercut the policy implicit in the rules to promote effective plea bargaining through frank discussion in negotiations? A resolution of the issue through amendments to Rules 410 and 11(e)(6) has not yet been reached by either the Advisory Committee on the Federal Rules of Evidence or the Advisory Committee on the Criminal Rules.

The substantive change in Uniform Rule 410 originally proposed for adoption was in the addition of an exception in subdivision (b)(3) admitting a plea or statement "in any proceeding wherein the defendant has knowingly and voluntarily entered into an agreement to permit the use of such pleas or statements for impeachment purposes." The addition of this exception would have been narrower than the holding of the Supreme Court in the Mezzanatto case by applying a waiver rule to the admission of such pleas or statements only for impeachment purposes to reflect the opinion of the Concurring Justices Ginsberg, O'Connor and Breyer as follows:

The Court holds that a waiver allowing the Government to impeach with statements made during plea negotiations is compatible with Congress's intent to promote plea bargaining. It may be, however, that a waiver to use such statements in the case-in-chief would more severely undermine a defendant's incentive to negotiate, and thereby inhibit plea bargaining. As the Government has not sought such a waiver, we do not here explore this question.

While the Drafting Committee initially recommended adding an additional subdivision (b)(3) to create an exception to permit the use of a plea or statement for impeachment purposes if based on a knowing and voluntary waiver of the defendant, it now believes that this issue should be dealt with through decisional law rather than a uniform rule.

Uniform Rule 410 as now proposed would also be consistent with Rule 410 of the Federal Rules of Evidence which has been widely adopted in state jurisdictions. These are: Delaware, Del. Court of Common Pleas R. Crim. Proc. 11(e)(4) and Del. Super. Ct. R. Crim. Proc. 11(e)(6); Hawaii, Haw. R. Evid. Rule 410 and Haw. R. Penal Proc. 11(e)(4); Indiana, Ind. R. Evid. 410; Iowa, Iowa R. Evid. 410; Louisiana, La. Code of Evid. Ann. art. 410(West 1997); Maryland, Md. R. Evid. 5-410; Michigan, Mich. R. Evid. 410; Mississippi, Miss. R. Evid. 410; North Carolina, N.C. R. Evid. 410; North Dakota, N.D. R. Evid. 410, but compare, N.D. R. Crim. Proc. 11(d)(6); New Hampshire, N.H. R. Evid. 410; Ohio, Ohio R. Evid. 410; Oklahoma, Okla. Stat. Tit. 12, § 2410 (1981); Rhode Island, R.I. R. Evid. 410; South Carolina, S.C. R. Evid. 410; Tennessee, Tenn. R. Evid. 410; Texas, Tex. R. Evid. 410 and Tex. R. Crim. Evid. 410; Utah, Utah R. Evid. 410; Virginia, Va. R. Crim. Proc. & Prac. 3A:8(c)(5); Vermont, Vt. R. Evid. 410 and Vt. R. Crim. Proc. 11(e)(5); West Virginia, W. Va. R. Evid. 410 and W. Va. R. Crim. Proc. 11(e)(6); and Wyoming, Wyo. R. Crim. Proc. 11(e)(6).

New Jersey, N.J. R. Evid. 410 and Washington, Wash. R. Evid. 410 have rules which are similar, though they differ in some respects, from Rule 410 of the Federal Rules.

Florida, Fla. R. Crim. Proc. 3.172(h); has a rule quite similar to Uniform Rule 410.

There are three States which provide for the exclusion of plea bargains, but they are quite different in their approach. These are: Arizona, Ariz. R. Evid. 410; New Mexico, District Ct. R. Crim. Proc. 5-304(F); and Oregon, Or. Evid. Code 410.

RULE 411. LIABILITY INSURANCE. Evidence that a person was or was not insured against liability is not admissible upon the issue as to whether he the person acted negligently or otherwise wrongfully. This rule Rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

This proposal for amending Rule 411 makes one stylistic change and eliminates the gender-specific language in the rule. These are technical and no change in substance is intended.

There are no other proposals for amending Rule 411.

RULE 412. SEXUAL BEHAVIOR.

(a) When inadmissible. In a criminal case in which a person is accused of a sexual offense against another person, the following is not admissible:

(1) Reputation or opinion. Evidence of reputation or opinion regarding other sexual behavior of a victim of the sexual offense alleged.

(2) Specific instances. Evidence of specific instances of sexual behavior of an alleged victim with persons other than the accused offered on the issue of whether the alleged victim consented to the sexual behavior with respect to the sexual offense alleged.

(b) Exceptions. This rule does not require the exclusion of evidence of (i) specific instances of sexual behavior if offered for a purpose other than the issue of consent, including proof of the source of semen, pregnancy, disease, injury, mistake, or the intent of the accused; (ii) false allegations of sexual offenses; or (iii) sexual behavior with persons other than the accused which occurs at the time of the event giving rise to the sexual offense alleged.

(a) Definition. In this Rule, "sexual behavior" means behavior relating to the sexual activities of an individual, including the individual's experience or observation of sexual intercourse or sexual contact, use of contraceptives, history of marriage or divorce, sexual predisposition, expressions of sexual ideas or emotions, and activities of the mind such as fantasies or dreams.

(b) Evidence of sexual behavior generally inadmissible. Except as otherwise provided in subdivisions (c) and (d), in a criminal proceeding involving the alleged sexual misconduct of an accused, evidence may not be admitted to prove that the alleged victim engaged in other sexual behavior.

(c) Exceptions. Evidence of specific instances of an alleged victim's sexual behavior, if otherwise admissible under these rules, is admissible to prove:

(1) that a person other than the accused was the source of the semen, injury, disease, other physical evidence, or pregnancy;

(2) that a person other than the accused was the source of the alleged victim's knowledge of sexual behavior;

(3) consent, if the alleged victim's sexual behavior involved the accused or constituted conduct so distinctive and which so closely resembles the accused's version of the sexual behavior of the alleged victim at the time of the alleged sexual misconduct that it corroborates the accused's reasonable belief that the alleged victim had consented to the act or acts of alleged misconduct; or

(4) a fact of consequence whose exclusion would violate the constitutional rights of the accused.

(d) Procedure to determine admissibility. Evidence is not admissible under subdivision (c) unless:

(1) the proponent gives to all parties and to the alleged victim, or the alleged victim's guardian or representative, reasonable notice in advance of trial, or during trial if the court excuses pretrial notice for good cause shown, of the nature of such evidence the proponent intends to introduce at trial;

(2) the court conducts a hearing in chambers, affords the alleged victim and the parties a right to attend the hearing and be heard, and finds:

(A) that the evidence is relevant to a fact of consequence for which the evidence is admissible under subdivision (c); and

(B) that the probative value of the evidence is not substantially outweighed by the danger of harm to the alleged victim or of unfair prejudice to any party; and

(3) upon request, the court gives an instruction on the limited admissibility of the evidence, pursuant to Rule 105.

Rule 412, subdivisions (a) and (b) dealing with the admissibility of a rape victim's sexual behavior were added to the Uniform Rules of Evidence in 1986. The Comment to 1986 Amendment reads as follows:

Congress added a "rape-shield" provision to the Federal Rules of Evidence when it adopted Rule 412 in 1978. A great majority of states have also added similar provisions to their rules of evidence or criminal codes. Unfortunately, the rules and statutes vary greatly in detail and in basic structure. The committee reviewed a number of the state provisions as well as the federal version and opted for a concise rule of evidence rather than a rule of criminal procedure. No provision is made for notice or in camera hearings as do many of the state, as well as the federal, versions. This omission is not intended to preclude such procedures. It was felt that existing rules of criminal procedure and the inherent power of the court to conduct criminal proceedings in an orderly and fair manner already provide adequate protection to the parties. The prosecutor may move for an in camera proceeding to determine the admissibility under Rule 403 of highly prejudicial evidence concerning the sexual behavior of a prosecuting witness. The court should seriously consider granting any such motion.

The rule applies only to criminal cases and then only to cases where a person is accused of a sexual offense against another person. Evidence of reputation or opinion concerning sexual behavior of an alleged victim of the sexual offense is not admissible under any circumstances. The low probative value when weighed against the risk of great prejudice is thought to justify a per se rule. The rule does not preclude the introduction of expert testimony regarding, for example, mental or emotional illness of the victim, subject to the provisions of Rule 403 and Article VII.

With regard to the issue of consent to the sexual offense alleged, evidence of specific instances of sexual behavior of the alleged victim with persons other than the accused is not admissible. This obviously raises serious constitutional questions with regard to a defendant's right to adduce evidence and to cross-examine witnesses. Although certainly not free from doubt, it would seem that notice and/or an in camera hearing would not cure any constitutional defect in this regard. The U.S. Supreme Court has yet to rule on the matter.

It matters not that the sexual behavior took place after the alleged offense but before trial rather than before the alleged offense.

The rule provides that the evidence is admissible on other issues and details those situations in subdivision (b).

Earlier law left the subject of this rule to other more general rules such as those relating to the credibility and character of victims generally. Thus, some clarification is in order concerning the relationship between Rule 412 and other rules which may also seem to cover the evidence. Examples of these other rules might be Rules 403, 404-406, 608-609, and Article VII. Such other rules may on occasion be either more restrictive or less restrictive than Rule 412. It is intended that the restrictions in Rule 412 apply notwithstanding more permissive provisions of other rules. However, provisions of Rule 412 which appear to permit evidence are meant to be read as exceptions only to Rule 412's ban. They are therefore subject to any more restrictive provisions in other rules that may apply. This is consistent with the scheme of most of the Uniform Rules of Evidence and the relationship among them.

In the administration of Rule 412, the court should have due regard for the mandate of Rule 611(a)(3), which applies to evidence sought to be admitted pursuant to a provision of Rule 412.

This proposal of the Drafting Committee for amending Uniform Rule 412 combines, with some substantive modifications, the substance of Federal Rule 412 and a proposed, though not enacted, Wisconsin rape shield law. See Proposed Revision, Wis. St. § 972.11(2)(a), (b) and (c). There are at least six features of the recommended Rule which deserve comment.

First, the applicability of the rule is limited to criminal cases and is consistent in this respect with the overwhelming majority rule among the several States. All of the States exclude in criminal cases evidence relating to the past sexual behavior of complaining witnesses in sexual assault cases. These are: Alabama, Ala. Code § 12-21-203 (1975); Alaska, Alaska Stat. § 12.45.045 (1985); Arkansas, Ark. Code Ann. § 16-42-101 (Michie 1993); California, Cal. Evid. Code § 782 (Deering 1989) and Cal. Evid. Code § 1103(c)(1) (West 1991); Colorado, Colo. Rev. Stat. Ann. § 18-3-407 (West 1997); Connecticut, Conn. Gen. Stat. Ann. § 54-86f (West 1997); Delaware, Del. Code Ann. tit. 11, § 3508 (1995); (Del. R. Evid. 412 omitted because adequately covered by this section); Florida, Fla. Stat. Ann. § 794.022 (West 1997); Georgia, Ga. Code Ann. § 24-2-3 (1989); Hawaii, Haw. Rev. Stat. Ann.§ 626-1, R. 412 (1992); Idaho, Idaho R. Evid. 412; Illinois, Ill. Ann. Stat. ch. 72, para. 5/115-7 (Smith-Hurd 1994); Indiana, Ind. R. Evid. 412; Iowa, Iowa R. Evid. 412; Kansas, Kan. Stat. Ann. § 21-3525 (1993); Kentucky, Ky. R. Evid. 412; Louisiana, La. Code Evid. Ann. art. 412 (West 1997); Maine, Me. R. Evid. 412; Maryland, Md. Code Ann., Crim. Law § 461A (1977); Massachusetts, Mass. Gen. Laws Ann. ch. 233, § 21B (West 1997); Michigan, Mich. Comp. Laws Ann. § 750.520j (West 1997); Minnesota, Minn. R. Evid. 412; Mississippi, Miss. Code Ann. § 97-3-68 (1993) and Miss. R. Evid. 412; Missouri, Mo. Rev. Stat. § 491.015 (1986); Montana, Mt.Code.Ann. §§ 45-5-511(2) and (3) (1997); Nebraska, Neb. Rev. Stat. § 27-404(1)(b) (1993); (Neb. R. Evid. 404); Nevada, Nev. Rev. Stat. § 48.069 (1991); New Hampshire, N.H. R. Evid. 412 and N.H. Rev. Stat. Ann. § 632-A:6I (1993); New Jersey, N.J. Stat. Ann. § 2C:14-7 (West 1997); New Mexico, N.M. R. Evid. 11-413; New York, N.Y. Crim. Proc. Law § 60.42 (McKinney 1975) and N.Y. Crim. Proc. Law § 60.43 (McKinney 1990); North Carolina, N.C. R. Evid. 412; North Dakota, N.D. Cent. Code § 12.1-20-14 (1975); Ohio, Ohio. Rev. Code Ann. § 2907.02(D) (Baldwin 1995); Oklahoma, Okla. Stat. Ann. tit. 12, § 2412 (West 1997); Oregon, Or. Rev. Stat. § 40.210 (1993); Pennsylvania, 18 Pa. Cons. Stat. Ann. § 3104 (1976); Rhode Island, R.I. R. Evid. 412; South Carolina, S.C. R. Evid. 412 and S.C. Code Ann. § 16-3-659.1 (Law. Co-op. 1977); South Dakota, S.D. Codified Laws Ann. § 23A-22-15 (1995); Tennessee, Tenn. R. Evid. 412; Texas, Texas R. Evid. 412; Utah, Utah R. Evid. 412); Vermont, Vt. Stat. Ann. tit. 13, § 3255 (1993); Virginia, Va. Code Ann. § 18.2-67.7 (Michie 1981); Washington, Wash. Rev. Code Ann. § 9A.44.020 (West 1997); West Virginia, W. Va. R. Evid. 404(3) and W. Va. Code § 61-8B-11 (1986); Wisconsin, Wis. Stat. Ann. § 972.11 (West 1997); and Wyoming, Wyo. Stat. § 6-2-312 (1982).

In Arizona, the exclusionary rule has been established by judicial decision. See State ex rel. Pope v. Superior Court, 113 Ariz. 22, 545 P.2d 946 (1976) and State v. Castro, 163 Ariz. 465, 788 P.2d 1216 (Ariz. Ct. App. 1989).

Applying Rule 412 in all criminal cases seems obvious in view of the strong social policy of protecting the privacy of victims of sexual misconduct, as well as encouraging victims to come forward and report criminal acts.

In contrast, Rule 412 of the Federal Rules of Evidence extends the exclusion of a victim's prior sexual behavior to civil cases "to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusing of sexual innuendo into the factfinding process." See Notes of Advisory Committee to 1994 Amendment.

However, unlike criminal cases, the exclusion of such evidence in civil cases varies greatly in the state jurisdictions depending upon the nature of the action, the black letter of the applicable rule, the interpretive scope given to the rule and the individual whose past sexual behavior is in issue. California statutorily excludes such evidence in civil cases. The Cal. Evid. Code § 1106 (West 1997), with exceptions, provides that "[i]n any civil action alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery . . . evidence . . . of plaintiff's sexual conduct . . . is not admissible by the defendant in order to prove consent by the plaintiff or absence of injury to the plaintiff, unless the injury alleged by the plaintiff is in the nature of loss of consortium." At the same time, it has been held that the rule has no application in an action brought against a psychologist to recover damages for medical malpractice and infliction of emotional distress through sexual contact with the defendant where the proximate cause of the plaintiff's injuries were alleged to be due to her pre-treatment psycho-sexual history through parental sexual abuse, prostitution and topless dancing. See Patricia C. v. Mark D., 12 Cal. App. 4th 1211, 16 Cal.Rptr.2d 71 (Cal. Dist. Ct. App. 1993). At the same time, and without reference to Section 1106, in Kelly-Zurian v. Wohl Shoe Co., 22 Cal. App. 4th 397, 27 Cal. Reptr.2d 457 (Cal. Dist. Ct. App. 1994), an action by the plaintiff for sexual harassment by a supervisory employee, the court sustained under Cal. Evid. Code § 352 (West 1997) the exclusion of plaintiff's viewing of x-rated video tapes, her abortions and her prior sexual conduct on the ground that "even assuming the evidence was marginally relevant, given the divisiveness of the issue and extreme potential for prejudice, exclusion of the evidence was proper."

In Massachusetts, in a proceeding to revoke a psychiatrist's license to practice medicine, the Supreme Judicial Court interpreted the public policy expressed in both the State's rape shield statute [Mass. Gen. L. ch. 233, § 21B (1986))] and prior decisional law [Commonwealth v. Joyce, 382 Mass. 222, 415 N.E.2d 181 (1981)], both applicable in criminal cases, to hold that evidence of the patient-victim's sexual history in a civil proceeding should be rejected "unless the proponent of the evidence demonstrates that evidence of a patient's prior sexual conduct is more than marginally relevant to an important issue of fact." See Morris v. Bd. of Registration in Medicine, 405 Mass. 103, 539 N.E.2d 50 (1989). The same reasoning has been applied in North Carolina in excluding evidence of the prior sexual conduct of a college student in an action brought against a fraternity and fraternity members to recover damages for sexual assault and battery and intentional infliction of emotional distress. The Court of Appeals observed that N.C. R. Evid. 412 to date had only been applied in criminal cases, but that the reasoning applied in the prior criminal case of State v. Younger, 306 N.C. 692, 295 S.E.2d 453 (N.C. 1982) was equally applicable in civil cases, namely, that "[t]oday, 'common sense and sociological surveys make clear that prior sexual experiences by a woman with one man does not render her more likely to consent to intercourse with an often armed and frequently strange attacker.'" See Wilson v. Bellamy, 105 N.C. App. 446, 414 S.E.2d 347 (N. C. Ct. App. 1992).

In contrast, in Indiana, the Supreme Court has held that the Indiana Rape Shield Statute was not enacted to apply in civil cases. In an action for compensatory and punitive damages brought by a daughter against her father, the Court held that the trial court erred in excluding evidence of the daughter's prior sexual experiences which could have caused or contributed to her injury. It reasoned that "[u]nlike the victim in a criminal case, the plaintiff in a civil damage action is 'on trial' in the sense that he or she is an actual party seeking affirmative relief from another party. Such plaintiff is a voluntary participant, with strong financial incentive to shape the evidence that determines the outcome. It is antithetical to principles of fair trial that one party may seek recovery from another based on evidence it selects while precluding opposing relevant evidence on grounds of prejudice." See Barnes v. Barnes, 603 N.E.2d 1337 (Ind. 1992).

It has also been held in some jurisdictions that the admissibility of evidence of a victim's prior sexual behavior is a matter of relevancy versus unfair prejudice. As earlier observed, in California, even though evidence of past sexual conduct is statutorily excluded in civil cases, it has been held that the rule has no application in an action brought against a psychologist to recover damages for medical malpractice and infliction of emotional distress through sexual contact with the defendant where the proximate cause of the plaintiff's injuries were alleged to be due to her pre-treatment psycho-sexual history through parental sexual abuse, prostitution and topless dancing. See Cal. Evid. Code § 1106 (West 1997) and Patricia C. v. Mark D., 12 Cal. App.4th 1211, 16 Cal. Rptr.2d 71 (Cal. Dist. Ct. App. 1994), supra, at 73. Similarly, in Tennessee, in an action for assault, malicious harassment and civil conspiracy, evidence of plaintiff's failed relationships, prior sexual encounters and elective abortions was held to be relevant under Tennessee's Rule 401 as to the issue of causation of plaintiff's psychological and emotional damage in that the evidence provided the jury with other plausible explanations for plaintiff's condition. See Vafaie v. Owens, No. 92C-1642, 1996 WL 502133 (Tenn. Ct. App. Sept. 6, 1996). In Utah, in a patient's action against her therapist to recover damages for sexual misconduct, it has been held that it is permissible to cross-examine the patient relating to prior sexual behavior to demonstrate that the patient's condition was not worsened by the sexual misconduct of the therapist. See Birkner v. Salt Lake County, 771 P.2d 1053 (Utah 1989).

However, in some jurisdictions the evidence is excluded on either grounds of relevancy or unfair prejudice. In Louisiana, depositional evidence of previous sexual experiences of a plaintiff in an action for damages for rape has been excluded on the ground that the evidence "as offered, is inaccurately and poorly phrased, incomplete and vague and would tend to mislead and confuse the jury . . . . [which] outweigh its probative value." See Morris v. Yogi Bear's Jellystone Park Camp Resort, 539 So.2d 70 (La. Ct. App. 1989). Similarly, in Missouri, in an action to dismiss a highway patrolman for, among other grounds, engaging in immoral conduct, the Supreme Court held that the trial court did not err in excluding evidence of the complainant's prior sexual victimization on the ground that it related only collaterally to the competency of the complainant and not on a probative issue in the case, as well as carrying the danger of unfair prejudice and surprise. See Gamble v. Hoffman, 732 S.W.2d 890 (Mo. 1987).

It is also of interest to note that Utah patterned its Rule 412 on Federal Rule 412, as amended in 1994, when it was in draft form issued by the Committee on Rules and Practice and Procedure of the Judicial Conference of the United States in July of 1993. However, as explained in the Advisory Committee Note, unlike the draft of the federal rule, the Committee elected at that time to limit Rule 412's application to criminal cases because of the "lack of judicial experience or precedent imposing these evidentiary restrictions in a civil context." See Advisory Committee's Note, Utah R. Evid. 412).

It is also the position of the Drafting Committee that the proposed Uniform Rule 412 not be broadened to apply in civil cases at the present time. The relatively few jurisdictions and types of actions in which the issue has arisen, the varying approaches utilized in determining the admission or exclusion of evidence of victims' past sexual behavior and the need for further precedential support all suggest that it would be premature to extend the proposed Uniform Rule 412 to civil cases. Uniform Rules 401, 402 and 403 admitting relevant evidence and excluding evidence that is unfairly prejudicial provide adequate safeguards to the admission of a victim's past sexual behavior in the civil context pending further judicial experience with the issue.

In this respect, mention should also be made of cases that have arisen in several jurisdictions involving the admissibility in civil actions of alleged sexual conduct of persons other than the victims. These have all been resolved either on grounds of relevancy versus unfair prejudice, the exclusion or admission of prior bad acts testimony, or under special statutory rules. These include: California, Bihum v. AT & T Info. Sys., Inc., 13 Cal. App. 4th 976, 16 Cal. Rptr.2d 787 (Cal. Dist. Ct. App. 1993) (evidence of supervisor's sexual conduct toward other female employees admissible in plaintiff's action for sexual harassment); Colorado, Connes v. Molalla Transp. Sys., Inc., 831 P.2d 1316 (Colo. 1992) (evidence of truck driver's past lewd conduct admissible as evidence of negligence in plaintiff's action against employer for damages for sexual assault), Q & T Food Stores, Inc. v. Zamarripa, 910 P.2d 44 (Colo. Ct. App. 1995) (evidence principal officer of convenience store was not person of good character admissible in action to revoke convenience store's license as lottery sales agent) and JRM, Inc. v. Bd. of County Comm. of Adams County, 200 Colo. 384, 615 P.2d 31 (1980) (evidence of sex acts and nudity in operation of massage parlors admissible in licensing massage parlor under statutory licensing procedures); Illinois, Doe v. Lutz, 281 Ill. App.3d 630, 668 N.E.2d 564, 218 Ill. Dec. 80 (Ill. App. Ct. 1996) (evidence of prior acts of sexual harassment by defendants inadmissible in action for damages for sexual harassment of plaintiff's child); Iowa, Lynch v. Des Moines, 454 N.W.2d 827 (Iowa 1990) (evidence of sexual harassment admissible to prove hostile work environment in plaintiff's action against city for sexual discrimination); Minnesota, M. L. V. Magnuson, 531 N.W.2d 849 (Minn. Ct. App. 1995) (evidence of other acts of sexual abuse by defendant was inadmissible to prove intent, absence of mistake or accident since these matters were not in dispute, while in related case evidence of other incidents of sexual abuse was admissible to prove modus operandi under Minn. R. Evid. 404(b)); New York, Salerno v. N.Y. State Bd. for Professional Medical Conduct, 210 A.D.2d 599, 619 N.Y.S.2d 869 (N.Y. App. Div. 1994) (evidence of doctor's acknowledgment of improper sexual contact with patients admissible in proceeding to revoke license to practice medicine); South Dakota, Strain v. Rapid City Sch. Bd. for Rapid City Area Sch. Dist., 447 N.W.2d 332 (S.D. 1989) (evidence of teacher's prior acts of sexual contact with students admissible to prove intent, motive, plan and lack of mistake under S.D. Codified Laws Ann. § 19-12-5); Texas, McLellan v. Benson, 877 S.W.2d 454 (Tex. Ct. App. 1994) (by analogy to Tex. R. Civ. Evid. 404(b) (evidence of an assault by defendant on another woman under similar circumstances 26 months earlier is relevant to intent on issue of consent and not subject to exclusion on grounds of unfair prejudice under then Tex. R. Civ. Evid. 403) and Porter v. Nemir, 900 S.W.2d 376 (Tex. Ct. App. 1995) (by analogy to then Tex. R. Civ. Evid. 404(b) (evidence of defendant's assault of another woman is relevant to intent on issue of consent, but excluded on grounds of unfair prejudice under then Tex. R. Civ. Evid. 403); and Washington, Himango v. Prime Time Broadcasting, Inc., 37 Wash. App. 259, 680 P.2d 432 (Wash. Ct. App. 1984) (probative value of evidence of plaintiff's extramarital sexual activity substantially outweighed by danger of unfair prejudice in action for defamation growing out of report that plaintiff was seen in compromising position with married woman).

Finally, it is of interest to note that in New Hampshire, the state Senate recently requested an opinion of the Justices of the Supreme Court concerning the constitutionality of a pending act to admit evidence of prior acts of sexual assault in civil and criminal cases. The Court concluded that the separation of powers doctrine would be violated because the pending bill directly conflicted with Rule 404(b) which was a rule concerning a uniquely judicial function. See Opinion of Justices, 688 A.2d 1006 (N.H. 1997).

Second, proposed Uniform Rule 412 adopts the term "sexual behavior" in lieu of "sexual conduct." With only five exceptions the States limit the inadmissible evidence to evidence of sexual conduct or sexual behavior connoting all activities involving actual physical conduct. The Drafting Committee recommends a broad definition of "sexual behavior." In subdivision (a), unlike Federal Rule 412 adopting the term "sexual behavior" without definition, the term is defined broadly which is consistent with a broader definition of the term to be found in five state jurisdictions. In Alabama, Georgia, Utah, Washington and Wisconsin the excluded evidence extends to both evidence of sexual conduct and sexual behavior other than physical conduct. In Alabama "sexual behavior" is defined as behavior which "includes, but is not limited to, evidence of the complaining witness's marital history, mode of dress and general reputation for promiscuity, nonchastity or sexual mores contrary to community standards." See Ala. Code § 12-21-203(a)(3) (1975). Georgia's definition of "sexual behavior" is the same. See Ga. Code Ann. § 24-2-3(a) (1989). Utah excludes "evidence offered to prove any alleged victim's sexual predisposition." See Utah R. Evid. 412(a)(2). Washington excludes "[e]vidence of the victim's past sexual behavior including but not limited to the victim's marital history, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards. . . ." See Wash. Rev. Code Ann. § 9A.44.020(2) and (3) (West 1997). Wisconsin defines "sexual conduct" as "any conduct or behavior relating to sexual activities of the complaining witness, including but not limited to prior sexual intercourse or sexual contact, use of contraceptives, living arrangement and life style." Wis. Stat. Ann. § 972.11 (West 1994).

However, the broad definition of "sexual behavior" in Uniform Rule 412(a) does not include false claims of sexual behavior and would not be inadmissible under Rules 412.

Third, as in the case of Rule 412 of the Federal Rules of Evidence, the proposed Uniform Rule 412 applies only to the "alleged victims" of sexual misconduct. The terminology "alleged victim" is used in the rule because there will frequently be a dispute as to whether the alleged sexual misconduct occurred. However, the rule does not apply unless the person against whom the evidence is offered can reasonably be characterized as the victim of "the alleged sexual misconduct of an accused." However, unlike Federal Rule 412 the proposed Uniform Rule 412 applies only where the accused is a party to the proceeding on the complaint of the victim of the alleged crime. This comports with the statutory rules currently in force in most of the States. See, in this connection, the enumeration of the statutory rules in the several States, supra.

Fourth, the proposed Uniform Rule 412 seeks to achieve its objectives by affording the broadest possible protection to victims of sexual misconduct, whether offered as substantive evidence or for impeachment, unless permitted under one of the designated exceptions set forth in subdivision (c). However, unlike Uniform Rule 412, as well as Federal Rule 412, a few States, in addition to other enumerated exceptions, permit the admission of such evidence to impeach the credibility of the complaining witness within varying limitations. These include: California, Cal. Evid. Code § 1103(c)(1) and Cal. Evid. Code § 782 (Deering 1989); Connecticut, Conn. Gen. Stat. Ann. § 54-86f (West 1997); Indiana, Ind. R. Evid. 412; Kansas, Kan. Stat. Ann. § 21-3525(c) (1993); Maryland, Md. Code Ann., Crim. Law § 461A(a)(4) (1977); Oregon, Or. Rev. Stat. § 40.210 (1993); South Carolina, S.C. Code Ann. § 16-3-659.1(1) (Law. Co-op. 1977); Tennessee, Tenn. R. Evid. 412(c)(2); Texas, Texas R. Evid. 412(b)(2)(C); Vermont, Vt. Stat. Ann. tit. 13, § 3255(a)(3) (1993); Virginia, Va. Code Ann. § 18.2-67.7 (Michie 1981); and West Virginia, W. Va. R. Evid. 404(3) and W. Va. Code § 61-8B-11 (1986).

Fifth, generally speaking the exceptions to the general rule excluding evidence of the sexual behavior of an alleged victim are narrower than in the existing Uniform Rule 412, but generally comport with both the Federal Rule 412 and those recommended in the proposed Wisconsin statute which has also been used as a model in the drafting of the proposed Uniform Rule 412.

The exception in subdivision (c)(1), except for proving mistake or the intent of the accused, comports with existing Uniform Rule 412 and is commonly recognized throughout the several States.

The exception in subdivision (c)(2) is drawn from the proposed Wisconsin rule, but is broader by applying to victims generally as opposed only to child victims. The exception thereby applies where any victim's knowledge of sexual behavior is unusual, given the age, intelligence, or level of ordinary experience of the victim. At the same time, this exception should not be read so broadly to permit the introduction of evidence of other sexual behavior which has not been raised as an issue in the case. As set forth in the introductory language of subdivision (c) the evidence must be "otherwise admissible under these rules" and hence, the source of the victim's relevant knowledge of sexual behavior.

The exception in subdivision (c)(3) is intended to facilitate the proof of consent to the sexual behavior where it is made an issue in the case. See Model Penal Code § 2.11(1), providing that consent is a defense to a crime "if such consent negatives an element of the offense" or if it "precludes the infliction of the harm or evil sought to be prevented by the law defining the offense." The defense is based upon the general rule that a mistake of fact will disprove a crime if the mistaken belief is honestly entertained, based upon reasonable grounds and of such a nature that the conduct would have been lawful and proper if the facts had been as they were reasonably assumed to be. See Perkins and Boyce, Criminal Law 1045 (3rd ed. 1982).

The exception has two aspects to facilitate the proof of consent. First, subdivision (c)(3) permits evidence to prove "consent if the alleged victim's sexual behavior . . . involved the accused." However, this evidence of prior sexual behavior is not automatically admissible. The remoteness and similarity of the victim's prior sexual behavior with the accused to that of the alleged sexual misconduct of the accused are certainly factors to be taken into consideration in determining the admissibility of evidence under this exception. However, in determining the admissibility of evidence under subdivision (c)(3)(i), the Drafting Committee is of the view that the factors of remoteness and similarity should be considered in determining whether the relevancy of the victim's prior sexual behavior with the accused is substantially outweighed by the danger of unfair prejudice within the context of Uniform Rules 401 and 403 as expressly provided in the procedural rules of subdivisions (d)(2)(A) and (B).

Second, subdivision (c)(3) authorizes the admission of specific instances of the alleged victim's sexual behavior where it is so distinctive as to corroborate the accused's reasonable belief that the victim had consented to the acts of alleged sexual misconduct. The black letter of this exception is to be strictly construed by requiring a finding that each of the three components of the exception have been met. There must be (1) "a pattern" of sexual behavior, (2) sexual behavior which is "distinctive" and (3) sexual behavior which "so closely resembled the accused's version of the sexual behavior of the alleged victim" that it tends to prove that the victim consented to the alleged acts of sexual misconduct. See State v. Sheline, 955 S.W.2d 42 (Tenn. 1997).

The practice of wearing "a suggestive costume," even if constituting a "pattern" of behavior, is not so distinctive as to fall within the exception, even though it may closely resemble the costume worn by the alleged victim at the time of the commission of the alleged sexual misconduct. See People v. Leonhardt, 527 N.E.2d 562 (Ill App. 1 Dist. 1988). Previous sexual encounters of the alleged victim with a boyfriend over an extended period of time, while perhaps satisfying the requirement of a pattern of distinctive sexual behavior, is not admissible under the exception if it does not closely resemble the accused's version of the sexual behavior of the victim at the time of the alleged sexual misconduct. See State v. Mustafa, 113 N.C. App. 240, 437 S.E.2d 906 (1994). Similarly, previous sexual encounters of the alleged victim with third parties in "dating-type circumstances" that does not occur in the alleged victim's home where the alleged sexual misconduct occurred would not be admissible under the exception. See State v. Smith, 45 N.C. App. 501, 263 S.E.2d 371 (1980). Leaving a bar "with perfect strangers" in the past does not closely resemble the accused's story that the alleged victim left the bar with the accused in light of the uncontroverted evidence that the alleged victim had been threatened with a gun. See State v. Wilhite, 58 N.C. App. 654, 294 S.E.2d 396 (1982). Even though evidence of the alleged victim having exchanged sex for crack cocaine on an occasion prior to the time of exchanging sex for cocaine with the accused may constitute distinctive sexual behavior closely resembling the accused's version of the encounter, it has been held that this does not constitute the requisite pattern of exchanging sex for cocaine. See State v. Ginyard, 122 N.C. App. 25, 468 S.E.2d 525 (1996).

In contrast, evidence that the alleged victim commonly accosted strangers in parking lots looking for sexual partners, or met men in apartment parking lots looking for sexual partners, or met men in apartment parking lots and took them to her car to engage in sexual relations which resembles the accused's version of the sexual encounter with the accused, would be admissible under Uniform Rule 412(c)(3). Unlike the previous illustrations, these would constitute patterns which are "so distinctive and so closely resembled the accused's version of the sexual behavior of the alleged victim at the time of the alleged sexual misconduct that it corroborates the accused's reasonable belief that the alleged victim had consented to the act of alleged misconduct." See State v. Fortney, 301 N.C. 31, 269 S.E.2d 110 (1980). In summary, the behavior must be so distinctive and so repetitive that it constitutes a plan or common scheme such as would be admissible under Rule 404(b) of the Uniform Rules of Evidence.

Subdivision (c)(3), as in the case of subdivision (c)(3), also requires a Uniform Rule 401 and 403 balancing process as expressly provided in the procedural rules of subdivision (d)(2)(A) and (B).

In contrast to the exceptions proposed in subdivision (c), the exceptions recognized in the several state jurisdictions vary greatly. They range from the relatively specific exceptions as set forth in the existing Uniform Rule 412(b), as in the case of Idaho [Idaho R. Evid. 412(b)(2)], to the exceptions as set forth in Federal Rule 412, As Amended in 1994, as in the case of Utah [Utah R. Evid. 412(b)], to a discretionary approach, as in the case of Alaska [Alaska Stat. § 12.45(a) (1985)], which permits the introduction of evidence of sexual conduct "[i]f the court finds that the evidence offered by the defendant regarding the sexual conduct of the complaining witness is relevant, and that the probative value of the evidence offered is not outweighed by the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the complaining witness . . . ." The Drafting Committee prefers the narrower, more specific, approach to the permissible exceptions as recommended in the proposed Uniform Rule 412.

The exception in subdivision (c)(4) provides that specific instances of the victim's sexual behavior is admissible to prove "a fact of consequence the exclusion of which would violate the constitutional rights of the accused." This exception is similar to Rule 412(b)(1)(C) of the Federal Rules of Evidence. The existing Uniform Rule 412 does not contain a similar black letter rule. However, the Comment to 1986 Amendment alludes to the "serious constitutional questions with regard to the defendant's right to adduce evidence and to cross-examine witnesses" by excluding evidence of "specific instances of sexual behavior of the alleged victim with persons other than the accused" to prove consent. As observed in the Notes of the Advisory Committee on the 1994 Amendment of Rule 412 of the Federal Rules of Evidence, "statements in which the victim has expressed an intent to have sex with the first person encountered on a particular occasion might not be excluded without violating the due process right of a rape defendant seeking to prove consent." The United States Supreme Court has recognized that a defendant may have a right to introduce evidence pursuant to the Confrontation Clause which would otherwise be precluded by an evidence rule. See, in this connection, Olden v. Kentucky, 488 U.S. 227 (1988), in which the Court held that a defendant in a rape case had a right to inquire into the alleged victim's cohabitation with another man to prove bias. If the evidence is constitutionally required it is admissible without regard to the balancing process provided for in the procedural rules set forth in subdivision (d). See, in this connection, Olden v. Kentucky, supra.

Sixth, in those cases where evidence of the prior sexual behavior of the alleged victim is admissible under one of the exceptions set forth in subdivisions (c)(1) through (4) of the proposed Uniform Rule 412, the procedures set forth in subdivision (d) must be followed to protect the sensibilities of the parties involved in the disclosure of the evidence to determine its admissibility. The procedural rules require the giving of notice to all concerned persons, holding an in camera hearing to determine the admissibility of the evidence, a finding that the evidence is relevant to a fact of consequence for which such evidence is admissible, a finding that the evidence is not substantially outweighed by the danger of unfair prejudice and the giving of an instruction on the limited admissibility of the evidence as provided in Uniform Rule 105. All of the States except Arizona, Maine, Montana, Nebraska, North Dakota, South Carolina and West Virginia have varying provisions governing the procedure to be followed in determining the admissibility of sexual conduct or behavior under the recognized exceptions to the rule. The procedural rules recommended by the Drafting Committee in proposed Uniform Rule 412(d) are also in accord with the procedural rules recommended by the Drafting Committee to govern the admissibility of sensitive other crimes, wrongs, or acts evidence under proposed Uniform Rule 404(b).

RULE 501. PRIVILEGES RECOGNIZED ONLY AS PROVIDED. Except as otherwise provided by constitution or statute or by these or other rules promulgated by [the Supreme Court of this State], no person has a privilege to:

(1) refuse to be a witness;

(2) refuse to disclose any matter;

(3) refuse to produce any object or writing record; or

(4) prevent another from being a witness or disclosing any matter or producing any object or writing record.

Recommended non-substantive stylistic changes have been made in Uniform Rule 501.

The Drafting Committee is not recommending the incorporation of any new privileges in Article V with the exception of proposing an amendment to Rule 503 to broaden the physician and psychotherapist privilege to include a mental health provider privilege.

The Drafting Committee is aware of movements at both the federal Congressional and state levels to establish a parent-child privilege. Senator Leahy has sponsored S.1721, introduced in the Senate on March 6, 1998, requiring, inter alia, the Judicial Conference of the United States to review, report and propose amendments to Congress regarding the amendment of the Federal Rules of Evidence to guarantee the confidentiality of communications by a child to the child's parent in proceedings that do not involve allegations of violent, or drug trafficking, conduct. H.R. 3577 was also introduced in the House of Representatives on March 27, 1998 to enact legislation to provide for a parent-child testimonial privilege in federal civil and criminal proceedings. At both the federal and state level, the following eight Courts of Appeals addressing the issue have declined to recognize a parent-child privilege: 2d Circuit, In re Erato, 2 F.3d 11 (2d Cir. 1993); 4th Circuit, United States v. Jones, 683 F.2d 817 (4th Cir. 1982); 5th Circuit, In re Grand Jury Proceedings (Starr), 647 F.2d 511 (5th Cir. Unit A May 1981) (per curiam); Port v. Heard, 764 F.2d 423 (5th Cir. 1985); 6th Circuit, United States v. Ismail, 756 F.2d 1253 (6th Cir. 1985); 7th Circuit, United States v. Davies, 768 F.2d 893 (7th Cir.), cert. denied sub nom. Kaprelian v. United States, 474 U.S. 1008, 106 S.Ct. 533, 88 L.Ed.2d 464 (1985); 9th Circuit, United States v. Penn, 647 F.2d 876 (9th Cir.) (en banc), cert. denied, 449 U.S. 903, 101 S.Ct. 276, 66 L.Ed.2d 134 (1980); 10th Circuit, In re Grand Jury Proceedings (John Doe), 842 F.2d 244 (10th Cir.), cert. denied, 488 U.S. 894, 109 S.Ct. 233, 102 L.Ed.2d 223 (1988); and 11th Circuit, In re Grand Jury Subpoena (Santarelli), 740 F.2d 816 (11th Cir.) (per curiam), reh'g denied, 749 F.2d 722 (11th Cir. 1984). Moreover, the remaining federal Courts of Appeals that have not explicitly rejected the privilege have not chosen to recognize the privilege either.

At the state level the following state courts have refused to recognize a parent-child privilege: Arizona, Cf. Stewart v. Superior Court, 163 Ariz. 227, 787 P.2d 126 (App. 1989); California, In re Terry W., 59 Cal.App.3d 745, 130 Cal. Rptr. 913 (1976); Florida, Marshall v. Anderson, 459 So.2d 384 (Fla.Dist.Ct.App. 1984); Illinois, People v. Sanders, 99 Ill.2d 262, 75 Ill.Dec. 682, 457 N.E.2d 1241 (1983); Indiana, Gibbs v. State, 426 N.E.2d 1150 (Ind.Ct.App. 1981) and Cissna v. State, 170 Ind.App. 437, 352 N.E.2d 793 (1976); Iowa, State v. Gilroy, 313 N.W.2d 513 (Iowa 1981); Maine, State v. Willoughby, 532 A.2d 1020, 1022 (Me. 1987) and State v. Delong, 456 A.2d 877 (Me. 1983); Massachusetts, Three Juveniles v. Commonwealth, 390 Mass. 357, 455 N.E.2d 1203 (1983), cert. denied sub nom. Keefe v. Massachusetts, 465 U.S. 1068, 104 S.Ct. 1421, 79 L.Ed.2d 746 (1984); Michigan, State v. Amos, 163 Mich.App. 50, 414 N.W.2d 147 (1987) (per curiam); Mississippi, Cabello v. State, 471 So.2d 332 (Miss. 1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2291, 90 L.Ed.2d 732 (1986); Missouri, State v. Bruce, 655 S.W.2d 66, 68 (Mo.Ct.App. 1983); New Jersey, In re Gail D., 217 N.J.Super. 226, 525 A.2d 337 (App.Div. 1987); Oregon, State ex rel. Juvenile Dept. of Lane County v. Gibson, 79 Or.App. 154, 718 P.2d 759 (1986); Rhode Island, In re Frances J., 456 A.2d 1174 (R.I. 1983); Texas, De Leon v. State, 684 S.W.2d 778 (Tex.Ct.App. 1984); Vermont, In re Inquest Proceedings, 676 A.2d 790 (Vt. 1996); and Washington, State v. Maxon, 110 Wash.2d 564, 756 P.2d 1297 (1988).

New York is the only State which has judicially-recognized a parent-child privilege. See In re Mark G., 65 A.D.2d 917, 410 N.Y.S.2d 464 (1978); In re A & M, 61 A.D.2d 426, 403 N.Y.S.2d 375 (1978); In re Ryan, 123 Misc.2d 854, 474 N.Y.S.2d 931 (N.Y.Fam.Ct. 1984); People v. Fitzgerald, 101 Misc.2d 712, 422 N.Y.S.2d 309 (Westchester County Ct. 1979). The privilege so-recognized is essentially derived from New York's constitution. The New York Appellate Division explained that the privilege it recognized was rooted in the constitutional right to privacy:

Notwithstanding the absence of a statutory privilege, we may, nevertheless, draw from the principles of privileged communications in determining in what manner the protection of the Constitution should be extended to the child-parent communication . . . . We conclude . . . . that communications made by a minor child to his parents within the context of the family relationship may, under some circumstances, lie within the 'private realm of family life which the state cannot enter.'

In re A & M, 403 N.Y.S.2d at 381 (quoting Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944)) (emphasis added); see also People v. Harrell, 87 A.D.2d 21, 450 N.Y.S.2d 501, 504 (1982) (privilege is not rooted in common law, statute, or the 6th amendment).

New York courts apply the parent-child privilege sparingly. For example, New York's Court of Appeals declined to apply the parent-child privilege to a murder confession made by a 28 year old defendant to his mother, due to the defendant's age; lack of confidentiality; subject of the conversation; and the fact that the mother had already testified in front of grand jury proceeding. See People v. Johnson, 84 N.Y.2d 956, 620 N.Y.S.2d 822, 822, 644 N.E.2d 1378, 1378 (1994). However, the privilege has only been recognized by inferior New York courts.

Idaho and Minnesota are the only States which have recognized a variant of the parent-child privilege through statute. See Idaho Code § 9-203(7) (1990 and Supp. 1995); Minn.Stat. § 595.02(1)(j) (1988 and Supp. 1996).

Massachusetts law prevents a minor child from testifying against a parent in a criminal proceeding. However, the statute does not go so far as to recognize a parent-child testimonial privilege. First, the Massachusetts statute does not create a testimonial privilege. Rather, it is in the nature of a witness-disqualification rule. Second, the testimonial bar is not of common-law origin but is statutory. Finally, the statute only bars a minor child, under certain circumstances, from testifying against a parent, and does not extend to children of all ages in all circumstances. See Mass. Gen. L. ch. 233, § 20 (1986 and Supp. 1996).

Accordingly, the Drafting Committee is not recommending adoption of a parent-child privilege in light of the almost uniform rejection of the privilege at both the federal and state levels.

There has also been some discussion at the federal level to amend the Federal Rules of Evidence to include a privilege for confidential communications from sexual assault victims to their therapists or counselors. This follows the recent decision of the Supreme Court of the United States recognizing a privilege for confidential statements made to a licensed clinical social worker in a therapy session. See Jaffee v. Redmond, ___ U.S. ___, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), discussed in the Reporter's Notes to Uniform Rule 503, infra. However, the exact parameters of the privilege established in the Jaffee case are yet to be developed. Nevertheless, the Drafting Committee is recommending a narrowly drawn "mental health provider" privilege in its proposal to amend Uniform Rule 503. It is the belief of the Drafting Committee that confidential communications from sexual assault victims to their therapists or counselors would fall within this privilege. See the black letter and Reporter's Notes to Uniform Rule 503, infra.

The Drafting Committee is also aware of numerous other privileges which are either not well-recognized or seldom of consequence in discovery practice. These may include law enforcement investigative files, grand jury privileges, privileges for accountants, bankers, brokers, stenographers, or telegraphers, employer records, blood donor records and criminal incident reports. However, with the exception of broadening the physician-patient privilege to include "mental health providers" no further revisions in the Uniform Rules of Evidence are recommended. The Drafting Committee recommends only retaining the privileges traditionally recognized by statute or judicial decision that are embraced in Article V. As observed by one commentator,

Privileges always stand in the way of relevant information. If the information were not relevant, the issue of privilege need never be reached, for one cannot discover totally irrelevant information. Because privilege cases obstruct truth seeking, courts do not always view them as absolutes but use certain standards in applying them. See Simpson, Reagan Wm., Civil Discovery and Depositions §§ 3.18-3.39 (2d ed. 1994).

Accordingly, the myriad of miscellaneous privileges not addressed in Article V, are more rationally respected in the discovery process and handled by protective orders rather than by evidentiary rules.

RULE 502. LAWYER-CLIENT PRIVILEGE.

(a) Definitions. As used in In this rule:

(1) "Client" means a person, including a public officer, corporation, association, or other organization or entity, either public or private, who is rendered for whom a lawyer renders professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from the lawyer.

(5) (2) A communication is "confidential" if it is not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of the rendition of professional legal services to the client or those reasonably necessary for the transmission of the communication.

(3) "Lawyer" means a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state State or nation country.

(4) "Representative of the client" means (i) a person having authority to obtain professional legal services, or to act on legal advice thereby rendered, on behalf of the client or (ii) any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.

(4) (5) "Representative of the lawyer" means a person employed, or reasonably believed by the client to be employed, by the lawyer to assist the lawyer in rendering professional legal services.

(b) General rule of privilege. A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made for the purpose of facilitating the rendition of professional legal services to the client:

(i) between the client or a representative of the client and the client's lawyer or a representative of the lawyer,

(ii) between the lawyer and a representative of the lawyer,

(iii) by the client or a representative of the client or the client's lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein,

(iv) between representatives of the client or between the client and a representative of the client, or

(v) among lawyers and their representatives representing the same client.

(c) Who may claim the privilege. The privilege under this Rule may be claimed by the client, the client's guardian or conservator, the personal representative of a deceased client, or the successor, trustee, or similar representative of a corporation, association, or other organization, whether or not in existence. The A person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege, but only on behalf of the client.

(d) Exceptions. There is no privilege under this rule Rule:

(1) Furtherance of crime or fraud. If if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be was a crime or fraud.;

(2) Claimants through same deceased client. As as to a communication relevant to an issue between parties who claim through the same deceased client, regardless of whether the claims are by testate or intestate succession or by transaction inter vivos.;

(3) Breach of duty by a lawyer or client. As as to a communication relevant to an issue of breach of duty by a lawyer to the client or by a client to the lawyer.;

(4) as to a communication necessary for a lawyer to defend in a legal proceeding a charge that the lawyer assisted the client in criminal or fraudulent conduct;

(4) (5) Documents attested by a lawyer. As as to a communication relevant to an issue concerning an attested document to which the lawyer is an attesting witness.;

(5) (6) Joint Clients. As as to a communication relevant to a matter of common interest between or among 2 two or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients.; or

(6) (7) Public Officer or Agency. As as to a communication between a public officer or agency and its lawyers unless the communication concerns a pending investigation, claim, or action and the court determines that disclosure will seriously impair the ability of the public officer or agency to process act upon the claim or conduct a pending investigation, litigation, or proceeding in the public interest.

The Comment to Rule 502 reads as follows:

[Subdivision (c)]. Canon 4 of the Code of Professional Responsibility requires the lawyer to claim the privilege and not disclose confidential communications.

The previous rule adopted the so-called "control group" test with regard to the scope of the attorney client privilege among corporate officers and employees. The U.S. Supreme Court rejected this rule in Upjohn Co. v. United States, 449 U.S. 383 (1981). There have not been any cases subsequent to Upjohn that have attempted to formulate a new rule. Upjohn itself is most notable for not giving much guidance. However, it would appear from the basic rationale of the case - that of furthering the efficacious rendition of legal services - that it probably should be read very broadly. The proposed rule does just that.

Recommended non-substantive stylistic changes have been made in the revision of Uniform Rule 502.

The language ", or reasonably believed by the client to be employed," is added in subparagraph (a)(5) to assure that the client does not lose the benefit of the privilege in situations where a representative of a lawyer is not in the employment of the lawyer, but is nevertheless reasonably believed by the client to be employed by the lawyer at the time of the communication intended by the client to be confidential. While the test in this subdivision and in subdivision (a)(3) is partially subjective, it is not totally subjective since there must be some reasonable basis for the belief. The Drafting Committee believes this is a correct standard and clarification that the test is subjective and would be inappropriate.

The Drafting Committee has added an exception to the privilege in subdivision (d)(4) that there is no privilege under Uniform Rule 502 "as to a communication necessary for a lawyer to defend in a legal proceeding a charge that the lawyer assisted the client in criminal or fraudulent conduct." Access to otherwise privileged communications seems essential if the lawyer is defending a charge of assisting a client in criminal or fraudulent conduct.

There are no other proposals for amending Uniform Rule 502.

RULE 503. PHYSICIAN AND PSYCHOTHERAPIST - PATIENT PRIVILEGE [PSYCHOTHERAPIST] [PHYSICIAN AND PSYCHOTHERAPIST] [PHYSICIAN AND MENTAL-HEALTH PROVIDER] [MENTAL-HEALTH PROVIDER] - PATIENT PRIVILEGE.

(a) Definitions. As used in In this rule:

(4) (1) A communication is "confidential" if it is not intended to be disclosed to third persons, except those persons present to further the interest of the patient in the consultation, examination, or interview, those persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment of the patient under the direction of the [physician or] a [psychotherapist] [physician or psychotherapist] [physician or mental-health provider] [mental-health provider], including members of the patient's family.

[(2) "Mental-health provider" means a person authorized, in any State or country, or reasonably believed by the patient to be authorized, to engage in the diagnosis or treatment of a mental or emotional condition, including addiction to alcohol or drugs.]

(1) [(3) A "patient" is a person "Patient" means an individual who consults or is examined or interviewed by a [physician, or] [psychotherapist] [physician or psychotherapist] [physician or mental-health provider] [mental-health provider]].

[(2) (4) A "physician" is "Physician" means a person authorized to practice medicine in any state State or nation country, or reasonably believed by the patient so to be authorized to practice medicine.]

(3) [(5) A "psychotherapist" is (i) "Psychotherapist" means a person authorized to practice medicine in any state State or nation country, or reasonably believed by the patient so to be authorized to practice medicine, while engaged in the diagnosis or treatment of a mental or emotional condition, including alcohol or drug addiction to alcohol or drugs, or (ii) a person licensed or certified as a psychologist under the laws of any state State or nation country, or reasonably believed by the patient to be licensed or certified as a psychologist, while similarly engaged.]

(b) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his the patient's [physical,] mental[,] or emotional condition, including alcohol or drug addiction addiction to alcohol or drugs, among himself the patient, the patient's [physician or] [psychotherapist] [physician or psychotherapist] [physician or mental-health provider] [mental-health provider] and persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the [physician, or] psychotherapist, including members of the patient's family [psychotherapist] [physician or psychotherapist] [physician or mental-health provider] [mental-health provider].

(c) Who may claim the privilege. The privilege under this Rule may be claimed by the patient, his the patient's guardian or conservator, or the personal representative of a deceased patient. The person who was the [physician, or] [psychotherapist] [physician or psychotherapist] [physician or mental-health provider] [mental-health provider] at the time of the communication is presumed to have authority to claim the privilege, but only on behalf of the patient.

(d) Exceptions. There is no privilege under this Rule for a communication:

(1) Proceedings for hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the [psychotherapist] [physician or psychotherapist] [physician or mental-health provider] [mental-health provider], in the course of diagnosis or treatment, has determined that the patient is in need of hospitalization.;

(2) Examination by order of court. If the court orders an made in the course of a court-ordered investigation or examination of the [physical,] mental[,] or emotional condition of a the patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered, unless the court orders otherwise.;

(3) Condition an element of claim or defense. There is no privilege under this rule as to a communications relevant to an issue of the [physical,] mental[,] or emotional condition of the patient in any proceeding in which he the patient relies upon the condition as an element of his the patient's claim or defense or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his the party's claim or defense.;

(4) if the services of the [psychotherapist] [physician or psychotherapist] [physician or mental-health provider] [mental-health provider] were sought or obtained to enable or aid anyone to commit or plan to commit what the patient knew, or reasonably should have known, was a crime or fraud or mental or physical injury to the patient or another individual;

(5) that the patient intends to kill or seriously injure the patient or another individual;

(6) that the patient was the perpetrator or victim of criminal neglect or abuse of a child, disabled individual, mental patient, or member of a class of individuals protected by [the criminal] law;

(7) relevant to an issue in proceedings challenging the competency of the [psychotherapist] [physician or psychotherapist] [physician or mental-health provider] [mental-health provider]; or

(8) relevant to a breach of duty by the [psychotherapist] [physician or psychotherapist] [physician or mental-health provider] [mental-health provider].

The Comment to existing Rule 503 reads as follows:

Language in brackets should be included if it is desired to provide a Physician-Patient Privilege.

Similarly, the language in brackets relating to the "mental health provider" should be included if it is desired to provide for a "mental health provider" privilege.

This proposal for amending Rule 503 eliminates the gender-specific language in subdivisions (b), (c) and (d) and includes recommended stylistic changes. These are technical and no change in substance is intended.

As to substance, this proposal for amending Rule 503 is the outgrowth of the belief of the Drafting Committee that some form of a "licensed social worker" privilege should be incorporated within the Uniform Rules of Evidence and comport, at least in part, with the recent decision of the Supreme Court of the United States in Jaffee v. Redmond, ___ U.S. ___, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), and with a majority of the jurisdictions in the United States recognizing what may be described generally as a "licensed social worker" privilege.

The following States have separate statutes creating a so-called "licensed social worker" privilege: Arizona, Ariz. Rev. Stat. Ann. § 32-3283 (1996); Arkansas, Ark. Code Ann. § 14-46-107 (1995); California, Cal. Evid. Code §§ 1010, 1012, 1014 (1996); Colorado, Colo.Rev.Stat. § 13-90-107 (1987); Connecticut, Conn. Gen. Stat. § 52-146q (1994); Delaware, 24 Del.Code Ann. Tit. 24, § 3913 (1995); District of Columbia, D.C. Code § 14-307 (1995); Florida, Fla. Stat. § 90,503 (1996); Georgia, Ga. Code Ann. § 24-9-21 (1996); Hawaii, HRS § 505.5 (1996); Idaho, Idaho Code § 54-3213 (1996); Illinois, Ill. Comp. Stat., ch. 225, § 20/16 (1996); Indiana, Burns Ind. Code Ann. § 25-23. 6-6-1 (1996); Iowa, Iowa Code § 622.10 (1996); Kansas, Kan.Stat.Ann. § 65-6315 (1995); Kentucky, Ky. Rule Evid. 507 (1996); Louisiana, La.Code.Evid. Art. 510 (1996); Maine, Me. Rev. Stat. Ann. Tit. 32, § 7005 (1988); Maryland, Md. Cts. & Jud. Proc. Code Ann. § 9-121 (1996); Massachusetts, Mass.Gen.Laws § 112:135A, 135B (1994); Michigan, Mich. Comp. Stat. Ann. § 18,425(1610) (1996); Minnesota, Minn. Stat. § 595.02 (1996); Mississippi, Miss. Code Ann. § 73-53-29 (1996); Missouri, Mo.Ann.Stat. § 337.636 (Supp. 1996); Montana, Mont. Code. Ann. § 37-22-401; Nebraska, Neb. Rev.Stat.Ann. § 71-1,335 (1996); Nevada, Nev.Rev.Stat.Ann. §§ 49.215, 49.252, 49.235, and 49.254 (1995); New Hampshire, N.H.Rev.Stat.Ann. § 330-A:19 (1996); New Jersey, N.J.Stat.Ann. § 45:15BB-13 (1996); New Mexico, N.M.Stat.Ann. § 61-31-24 (1996); New York, N.Y. Civ. Prac. Law § 4508 (1996); North Carolina, N.C. Gen. Stat. § 8-53.7 (1996); Ohio, Ohio Rev. Code Ann. § 2317.02 (1996); Oklahoma, 59 Okla.Stat., Tit. 59, § 1261.6 (1995); Oregon, Ore. Rev. Stat. § 40.250 (1996); OEC § 504-4; Rhode Island, R.I. Gen. Laws §§ 5-37.3-3, 5-37.3-4 (1996); South Carolina, S.C.Code Ann. § 19-11-95 (1995); South Dakota, S.D. Codified Laws § 36-26-30 (1996); Tennessee, Tenn.Code.Ann. § 63-11-213 and § 33-10-(301-304); Texas, Tex. Rule Civ. Evid. 510; Utah, Utah Rule Evid. 506 (1996); Vermont, Vt.Rule.Evid. 503 (1996); Virginia, Va.Code Ann. 8.01-400.2 (1996); Washington, Wash. Rev. Code § 18.19.180 (1996); West Virginia, W.Va.Code § 30-30-12 (1996); Wisconsin, Wis. Stat. § 905.04 (1996); and Wyoming, Wyo. Stat. § 33-38-109 (Supp. 1995).

The following States do not have a statutory licensed social worker privilege: Alabama, although having a statutory psychologist privilege, [Ala. Code § 34-26-2], Phillips v. Alabama Dept. of Pensions, 394 So.2d 51 (Ala. ___) and Parten v. Parten, 351 So.2d 613 (Ala. ___)], has not yet recognized a social worker-client privilege; Alaska, which has a rule recognizing a psychotherapist privilege [Alaska Rule Evid. 504], but the Commentary to which states that a social worker may fall within the meaning of "psychotherapist"; North Dakota, although having a psychotherapist privilege [N.D. Rule Evid. 503], Copeland v. State, 448 N.W.2d 611 (N.D. 1989), has not yet recognized a social worker-client privilege, State v. Red Paint, 311 N.W.2d 182 (N.D. ___ 1981)]; and Pennsylvania, although having a statutory psychologist privilege [42 Pa. Cons. Stat. § 5944 (1996)], In re Pittsburgh Action Against Rape, 428 A.2d 126 (Pa. ___ ), does not recognize a social worker privilege. See, in this connection, the opinion of the dissenting judge in the Pittsburgh case arguing that there should be a social worker-patient privilege.

First, the amendments to Rule 503 respond to the views expressed by the Drafting Committee that a separate rule creating a "licensed social worker" privilege is unnecessary and is more appropriately incorporated within the existing Physician and Psychotherapist-Patient Privilege. At the same time, flexibility is preserved by bracketing the provisions relating to a mental health provider.

Second, as to the scope of the privilege, in a majority of the States the so-called "social worker privilege" is not considered a subpart of a "psychotherapist" privilege, but, with exceptions, broadly applies to prohibiting a social worker from disclosing "any information acquired from persons consulting the licensed social worker in his or her professional capacity." See 59 Okl.St.Ann. § 1261.6. Further, for example, the "practice of social work" in Oklahoma is defined as:

[T]he professional activity of helping individuals, groups, or communities enhance or restore their capacity for physical, social and economic functioning and the professional application of social work values, principles and techniques in areas such as clinical social work, social service administration, social planning, social work consultation and social work research to one or more of the following ends: Helping people obtain tangible services; counseling with individuals, families and groups; helping communities or groups provide or improve social and health services; and participating in relevant social action. The practice of social work requires knowledge of human development and behavior; of social economic and cultural institutions and forces; and of the interaction of all of these factors. Social work practice includes the teaching of relevant subject matter and of conducting research in problems of human behavior and conflict. See 59 Okl.St. Ann. § 1250.1(2).

However, the Drafting Committee believes that a Uniform Rule establishing such a broadly defined social worker privilege would be fraught with interpretive difficulties and unnecessarily interfere with litigation in an evidentiary system based largely upon "the fundamental principle that "the public . . . has a right to every . . . [person's] evidence" and that testimonial privileges "are not lightly created nor expansively construed, for they are in derogation of the search for truth." See Trammel v. United States, 445 U.S. 40, 50, 100 S.Ct. 906, 912, 63 L.Ed.2d 186 (1980), together with United States v. Nixon, 418 U.S. 683, 710, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974). Accordingly, proposed Uniform Rule 503 narrows considerably the scope of many of the so-called "licensed social worker" privileges recognized in the foregoing States by including within the privilege only communications relating to the "treatment of a mental or emotional condition, including alcohol or drug addiction."

The exceptions to the rule set forth in subdivision (d) present the greatest difficulty, at least in terms of how broadly, or narrowly, the privilege ought to be applied when compared to the exceptions recognized in the several States. There are at least twenty-three exceptions which have been recognized in one, or more, of the several States. The exceptions most commonly recognized are where: (1) the patient is planning, or contemplating the commission of a crime, or physical injury to the patient's self, or others; (2) a minor patient is the victim of a crime, or the communication involves child abuse or neglect, elderly abuse, handicapped abuse, or mental patient abuse; (3) the patient brings proceedings challenging the competency of the licensed social worker; (4) the patient, personal representative, guardian, or beneficiary of life insurance consents to disclosure; and (5) the patient's mental condition is an element of a claim or defense.

Other exceptions to the privilege recognized in some States include: (1) proceedings for hospitalization; (2) court-ordered counseling; (3) claims of licensed social workers for fees; (4) court or board-ordered disclosure; (5) custody, divorce and paternity proceedings; (6) breach of duty by the licensed social worker to the patient, or by the patient to the licensed social worker; (7) criminal proceedings against the patient, such as murder, battery, or a violent physical act; (8) criminal proceedings of any type against the patient; (9) testimonial evidence concerning blood alcohol level or intoxication of the patient; (10) consultation with colleagues or supervisors; (11) a decision by a court that the information is not germane to the privilege; and (12) when the interests of justice so require.

The Drafting Committee believes that the exceptions set forth in subdivision (d) are, for the most part, generic in nature and, in most cases, the more specific exceptions to the "social worker privilege" recognized in the several States will be subsumed under one, or the other, of these more general exceptions proposed by the Drafting Committee. For example, evidence concerning the blood alcohol level, or intoxication, of a patient is a recognized exception in some jurisdictions. At the same time, evidence of this type will either be placed in issue, or be relevant to the commission of a crime, and would come within the exception set forth in subdivision (d)(3). Similarly, the exception recognized in some States for disclosure of privileged matter in proceedings for hospitalization would fall within subdivisions (d)(1) and (2) of the proposed exceptions to the privilege. At the same time, the existing exceptions in Uniform Rule 503 have been broadened to include communications that have not historically been recognized as exceptions, such as the competency of health providers or breach of duty, as in the case of subdivisions (d)(7) and (8).

The Drafting Committee is also proposing that communications relating to the competency, or breach of duty, recognized in some States as exceptions to the "social worker privilege" be expanded to include not only mental health providers, but physicians and psychotherapists as well since such exceptions are equally applicable to these health providers. See, in this connection, subdivisions (d)(7) and (8).

As to the exceptions set forth in subdivision (d), subdivisions (d)(1) and (d)(3) remain unchanged since there appears to be general Drafting Committee agreement that these exceptions to the general rule of the privilege are appropriate to a mental health provider privilege, as well as physicians and psychotherapists.

The word "investigation" has been added in subdivision (d)(2) at the suggestion of the Drafting Committee.

At the suggestion of the Drafting Committee, previously numbered subdivision (d)(4) dealing with communications relevant to divorce, custody, or paternity proceedings has now been deleted on the ground that it would be covered by the exception in subdivision (d)(3).

With respect to subdivision (d)(4), the exception is drawn from Uniform Rule 502(d)(1) of the Lawyer-Client Privilege and includes not only "planning to commit," but "committing" a crime, fraud, or physical injury to comport with the recommendation of the Drafting Committee.

The Drafting Committee has added a new exception numbered subdivision (d)(5) to provide that there is no privilege for a communication relating to the intention of the patient to kill or seriously injure either the patient or another individual.

In subdivision (d)(6) the words "a crime" have been deleted from the exception as set forth in Tentative Draft #2 due to expressed Drafting Committee concern that the exception would be overly broad and create interpretive difficulties, for example, permitting the disclosure of communications to a mental health provider relating to the prior sexual behavior of a rape victim. The exception has now been further narrowed to apply only to criminal neglect or abuse.

Subdivisions (d)(7) and (8) create exceptions to the general rule of the privilege where the competency of, or breach of duty by, the physician, psychiatrist, or mental-health provider are placed in issue.

Statutory exceptions to the physician-patient privilege similar either to subdivisions (d)(7) and (8), or both, have been adopted in the following States: Colorado, Colo. Rev. Stat. § 13-90-107(d)(1) provides that the physician-patient privilege does not apply to " . . . any cause of action arising out of or connected with physician's or nurse's care or treatment . . . ."; Kansas, Kan. Stat. Ann. § 60-427, establishing a physician-patient privilege, provides in Subdivision (d) that "[t]here is no privilege under this section in an action in which the condition of the patient is an element or factor of the claim or defense of the patient or of any party claiming through or under the patient or claiming as a beneficiary of the patient through a contract to which the patient is or was a party."; Michigan, Mich. Comp.Laws § 600.2157, Subdivision (5) provides that there is no privilege under the physician-patient privilege when the patient brings a malpractice action against the physician; Pennsylvania, Pa. Cons. Stat. § 5929 provides that there is no physician-patient privilege when the patient brings an action against the physician "for damages on account of personal injuries."; Texas, Tex. R. Evid. 509(e)(1) provides that there is no physician-patient privilege when the proceedings are brought by a patient against the physician, "including, but not limited to malpractice proceedings, and "any license revocation proceeding in which the patient is a complaining witness . . . ."; and Puerto Rico, P.R.R. Evid. 26(c)(7), providing that there is no physician-patient privilege if "[t]he communication is relevant to an issue of breach of duty arising out of the physician-patient relationship."

Statutory exceptions to the psychotherapist-patient privilege similar either to subdivisions (d)(7) and (8), or both, have been adopted in the following States: Alabama, Ala. R. Evid. 503(d)(4) provides that "[t]here is no privilege under this rule as to an issue of breach of duty by the psychotherapist to the patient or by the patient to the psychotherapist."; Maryland, Md. Code Ann., Cts. & Jud. Proc. § 9-109 provides that there is no privilege for communications between a patient and psychiatrist or psychologist if "the patient, an authorized representative of the patient, or the personal representative of the patient makes a claim against the psychiatrist or licensed psychologist for malpractice."; and Massachusetts, Mass. Gen. Laws ch. 233, § 20(B) provides, in the case of the psychotherapist-patient privilege, that there is no privilege "[i]n any proceeding brought by a patient against the psychotherapist, and in any malpractice, criminal or license revocation proceeding, in which disclosure is necessary or relevant to the claim or defense of the psychotherapist."

Similar statutory exceptions to both the physician-patient and psychotherapist-patient privilege have been adopted in the following States: Alaska, Alaska R. Evid. 504(d)(3) provides that "[t]here is no privilege under this rule . . . [a]s to communication relevant to an issue of breach, by the physician, or by the psychotherapist, or by the patient, of a duty arising out of the physician-patient or psychotherapist relationship"; California, Cal. Evid. Code §§ 996, 1016, applying respectively to the physician-patient and psychotherapist-patient privileges, provide that "[t]here is no privilege  . . . as to a communication relevant to an issue concerning the condition of the patient if such issue has been tendered by: (a) [t]he patient; (b) [a]ny party claiming through or under the patient; (c) [a]ny party claiming as a beneficiary of the patient through a contract to which the patient is or was a party; or (d) [t]he plaintiff in an action brought under Section 376 or 377 of the Code of Civil Procedure for damages for the injury of death of the patient"; Hawaii, Haw. R. Evid. 504 and 504.1(d)(4), provide respectively, in the case of both the physician-patient and the psychotherapist-client privilege, that "[t]here is no privilege under this rule in any administrative or judicial proceeding in which the competence, practitioner's license, or practice of the physician [psychotherapist] is at issue, provided that the identifying data of the patients whose records are admitted into evidence shall be kept confidential unless waived by the patient. The administrative agency, board or commission may close the proceeding to the public to protect the confidentiality of the patient"; Mississippi, Miss. R. Evid. 503 provides that there is no privilege under the physician and psychotherapist-patient privilege "as to an issue of breach of duty by the physician or psychotherapist to his patient or by the patient to his physician or psychotherapist"; and Texas, Tex. R. Evid. 509(e)(1) and 510(d)(1) provides that in civil actions there is no physician-patient or mental health professional-patent privilege when the proceedings are brought by the patient against the physician or mental health professional "including but not limited to malpractice proceedings, and in any license revocation proceeding in which the patient is a complaining witness and in which disclosure is relevant to the claims or defense of the physician."

Similar statutory exceptions to a health care practitioner or provider have been adopted in the following States: Connecticut, Conn. Stat. Ann. § 52-1460(b) provides that the "[c]onsent of the patient or his authorized representative shall not be required for the disclosure of such [privileged] communication or information . . . (2) by a physician, surgeon or other licensed health care provider against whom a claim has been made, or there is a reasonable belief will be made, in such action or proceeding, to his attorney or professional liability insurer or such insurer's agent for use in the defense of such action or proceeding"; Florida, Fla. Stat. Ann. C. 455, § 455.667(6) provides that "[e]xcept in a medical negligence action or administrative proceeding when a health care practitioner or provider is or reasonably expects to be named as a defendant information disclosed to a health care practitioner by a patient is confidential . . . ."; Illinois, 735 Ill. Comp. Stat § 5/8-802(2), in the case of a healthcare practitioner and patient privilege, that there is no privilege under the rule "in actions, civil or criminal, against the healthcare practitioner for malpractice (in which instance the patient shall be deemed to have waived all privileges relating to physical or mental condition)"; Louisiana, La. Code Evid. art 510(F) and (b)(2)(j) providing that there is no privilege in a medical malpractice action brought by the patient against a health care provider"; Minnesota, Minn. Stat. § 595.02, Subdivision (5) provides that A[a] party who commences an action for malpractice, error, mistake or failure to cure, whether based on contract or tort, against a health care provider on the person's own behalf or in a representative capacity, waives in that action any privilege existing under subdivision 1, paragraphs (d) and (g), as to any information or opinion in the possession of the health care provider who has examined or cared for the party or other person whose health or medical condition has been placed in controversy in the action"; Oklahoma, Okl. Stat. Ann. Tit. 76 § 19(B) provides that "[I]n cases involving a claim for personal injury or death against any practitioner of the healing arts or a licensed hospital, arising g out of patient care, where any person has placed the physical or mental condition of that person in issue by the commencement of any action, proceeding or suit for damages . . . that person shall be deemed to waive any privilege granted by law concerning any communication made to a physician or health care provider . . . or any knowledge obtained by such physician or health care provider by personal examination of any such patient . . . [if] it is material and relevant to an issue therein, according to existing rules of evidence"; and Rhode Island, R.I. Stat. Tit. 5, ch. 37.3 § 5-37.3-49(b) provides that "[n] consent for release or transfer of confidential health care information is required . . . (7) To a malpractice insurance carrier or lawyer if the health care provider has reason to anticipate a medical liability action; or (8) To a court or lawyer or medical liability insurance carrier if a patient brings a medical liability action against a health care provider."

A broadly defined privilege applying to a physicians, dentists, or licensed psychologists-patient privilege has adopted an exception similar to subdivisions (d)(7) and (8) in the following States: Mississippi, Miss. Code § 13-1-21(4) provides: "In any action commenced . . . against a physician, hospital, hospital employee, osteopath, dentist, nurse, pharmacist, podiatrist, optometrist, or chiropractor for professional services rendered or which should have been rendered, the delivery of written notice of such claim or the filing of such an action shall constitute a waiver of the medical privilege and any medical information relevant to the allegation upon which such cause of action or claim is based shall be disclosed upon the request of the defendant, or his or her counsel; and Ohio, Ohio Rev. Code §§ 2317.02 and 2732.19 provides that there is no privilege as to any communication between a physician, dentist, or licensed psychologist and patient as to any civil claim, including malpractice, filed against the health provider."

A statutory exception to the licensed social-worker-patient privilege similar to subdivisions (d)(7) and (8) has been adopted in the following States: Idaho, Idaho R. Evid. 518 provides, in the case of the licensed social-worker-client privilege, that "the client waives the privilege by bringing charges against the licensee"; Kansas, Kan. Stat. Ann. § 65-6315(a) provides that a "person waives the privilege by bringing charges against the licensed social worker, but only to the extent that such information is relevant under the circumstances"; Oklahoma, Okla. Stat. Tit. 59 § 1261.6 provides that the social worker privilege is waived when a person brings charges against the licensed person; and South Carolina, S.C. Code Ann. tit. 40, c. 55 and c. 75 provides that a licensed social worker, or nurse "may reveal . . . confidences reasonably necessary to establish or collect his fee or to defend himself or his employees against an accusation of wrongful conduct."

In Hawaii, a similar exception exists as to a "victim-counselor privilege." Haw. R. Evid. 505.5(d)(3) provides that A[t]here is no privilege under this rule . . . [a]s to a communication relevant to an issue of breach of duty by the victim counselor or victim counseling program to the victim. Haw. R. Evid. 505.5(d)(8) also contains an exception for proceedings against a victim counselor which is virtually identical to the exception in Haw. R. Evid. 504 and 504.1(d)(4) applying to physicians and psychotherapists.

Some States apply an exception comparable to subdivision (d)(3) to waive the physician-patient privilege in medical malpractice actions against physicians. These are: Arkansas, King v. Ahrens, M.D., 798 F.Supp. 1371 (W.C.Ark. 1992) (interpreting Ark. R. Evid. 503(d)(3) providing that there is no privilege under this rule as to medical records or communications relevant to an issue of the physical, mental or emotional condition in which he relies upon the condition as an element of his claim or defense . . . ."); New Jersey, Stigliano v. Connaught Lab., Inc., 140 N.J. 305, 658 A.2d 715 (1995) (broadly interpreting the exception to the physician-patient privilege of N.J. R. Evid. 506 and N.J. Stat. Ann. § 2A:84A-22.4 to apply the waiver not only to the subject of the litigation, but in regard to all of the physician's knowledge concerning the patient's physical condition inquired about. But see, State v. L.J.P., Sr., 270 N.J. Super. 429, 637 A.2d 532 (1994), giving greater scope and protection to the psychologist-patient privilege of N.J. R. Evid. 505 and N.J. Stat. Ann. § 45:14B-28 by requiring a showing of legitimate need for the shielded evidence, its materiality to a trial issue, and its unavailability from less intrusive sources); Virginia, Fairfax Hospital v. Curtis, 492 S.E.2d 642 (Va. 1997) (interpreting Va. Code § 8.01-399 providing for a privilege in a civil action as to information acquired by a "duly licensed practitioner of any branch of the healing arts . . . in attending, examining or treating the patient in a professional capacity . . . [except] when the physical or mental condition of the patient is at issue in such action," but only if the medical condition is "manifestly placed at issue" in the civil proceedings); Texas, Horner v. Rowan Companies, Inc., 153 F.R.D. 597 (S.D. Tex. 1994) and McGowan v. O'Neil, 750 S.W.2d 884 (Tex. 1988) (interpreting the predecessor to Tex. R. Evid. 509(e)(4), providing that in civil proceedings there is no privilege "as to a communication relevant to an issue of the physical, mental or emotional condition of a patient in any proceeding in which any party relies upon the condition as a part of the party's claim or defense"); and Wisconsin, Steinberg v. Jensen, 194 Wis.2d 439, 534 N.W.2d 361 (1995) (interpreting the exception of Wis. St. Ann. § 905.04(4)(c) providing that "[t]here is no privilege . . . as to communications [that are] relevant to or within the scope of discovery . . . of the physical, mental, or emotional condition of a patient" in any proceedings in which the condition is "an element of the patient's claim or defense."

In contrast, other state jurisdictions exempt privileged communications by judicial decision on grounds of waiver. These include: Alabama, Mull v. State, 448 So.2d 952 (Ala. 1984) (waiver of patient's cause of action against a physician for breach of fiduciary duty and breach of an implied contract for physician's unauthorized disclosure to a hospital of information acquired during the physician-patient relationship which formed the basis for the patient's malpractice action against the hospital); Arizona, Bain v. Superior Court, 714 P.2d 824 (Ariz. 1986) (implied waiver of psychologist-patient privilege upon filing a medical malpractice action against a surgeon extends only to privileged communications concerning the particular medical condition placed in issue by the patient) and Duquette v. Superior Court, 778 P.2d 634 (Ariz. 1989) (implied waiver in medical malpractice action only of right to object to discovery of relevant medical information sought through formal methods of discovery); Colorado, Colo. Rev. Stat. § 13-90-107(D)(1), supra, and Samms v. District Court, Fourth Judicial District of Colorado, 908 P.2d 520 (1995) (implied waiver of physician-patient privilege in medical malpractice action as to information obtained by physician in diagnosing and treating patient for myocardial ischemia); Georgia, See Ga. Code Ann. § 38-418 providing that a physician is not required to do so by subpoena, court order, or upon authorization by the patient, interpreted in Orr v. Stewart, 292 S.E.2d 548 (1982) (upon the filing of an action for malpractice against a treating physician the patient waives his qualified right to privacy implicit in the Hippocratic Oath that a physician has a professional and contractual duty to protect the privacy of his patients); Indiana, Becker v. Plemmonsi, 598 N.E.2d 564 (Ind. 1992) (when a patient places a condition in issue in a medical malpractice action the patient waives the physician-patient privilege only as to all matters historically or causally related to that condition); Missouri, State ex rel. Stecher v. Dowd, 912 S.W.2d 462 (Mo. 1995) (the physician-patient privilege codified under Mo. Rev. Stat. § 491.060(5) is waived only as to the physical condition placed in issue by the patient under the pleadings); Montana Callahan v. Burton, 487 P.2d 515, 157 Mont. 513, 487 P.2d 515 (1971) (when a patient places a mental or physical condition in issue in a medical malpractice action the patient waives the physician-patient privilege as to the entire transaction, including interviews by counsel for the defendant of other treating physicians without the presence of counsel for the plaintiff. But see, Japp v. District Court, 191 Mont. 319, 623 P.2d 1389 (1981), overruling the Callahan case by holding that the District Court does not have the power under the rules of discovery to order private interviews between counsel for one party and possible adversary witnesses, including experts, for the other party); New Hampshire Nelson v. Lewis, 130 N.H. 106, 534 A.2d 720 (987) (a patient waives the right to confidentiality by placing the patient's medical condition in issue, but only as to that information given in the course of treatment which is relevant to the plaintiff's claim); New York, Spratt v. Rochelson, M.D., 164 Misc.2d 535, 625 N.Y.S.2d 827 (1994) and Tiborsky v. Martorella, 188 A.D.2d 795, 591 N.Y.S.2d 547 (1992) (waiver of infant's physician-patient privilege by placing infant's physical condition in issue in a medical malpractice action); North Carolina, Crist v. Moffatt, M.D., 326 N.C. 326, 389 S.E.2d 41 (1990) (a patient may impliedly waive the physician-patient privilege in a medical malpractice action by the conduct of the patient as determined by the facts and circumstances of the particular case such as calling the physician to testify concerning the patient's physical condition, failing to object when the opposing party calls the physician to testify, or testifying concerning a communication between the patient and the physician); North Dakota, Sagmiller v. Carlsen, M.D., 219 N.W.2d 885 (N.D. 1974) (waiver of physician-patient privilege when patient puts physical condition in issue by bringing a medical malpractice action); Ohio, Humble v. Dobson, 1996 WL 629535 (Ohio App. 2 Dist.) (patient waives physician-patient privilege under statutory medical malpractice exception as to communications related causally to physical or mental injuries that are relevant to issues in the medical claim, action for wrongful death, civil action, or other authorized claim); Pennsylvania, Moses v. McWilliams, 379 Pa. Super. 150, 549 A.2d 950 (1988) (waiver of physician-patient privilege when patient puts physical condition in issue by voluntarily instituting a medical malpractice action); Rhode Island, Lewis v. Roderick, 617 A.2d 119 (R.I. 1992) (patient waives privilege where patient brings a medical liability action against a health care provider under statutory exception); Washington, Christensen v. Munsen, 123 Wash.2d 234, 867 P.2d 726 (1994) and Carson v. Fine, 123 Wash.2d 206, 867 P.2d 610 (1994) (pursuant to the Rev. Code Wash. § 5.60.060(4)(b) the physician-patient privilege is deemed waived ninety days after the filing of a medical malpractice action); and District of Columbia, Richbow v. District of Columbia, 600 A.2d 1063 (D.C. Ct. App. 1991) (there is an implied waiver in a medical malpractice action of the physician-patient privilege of D.C. Code 1981, § 14-307(a) when the patient discloses, or permits disclosure of, information gained by the physician during the physician-patient relationship).

The following States provide for waiver of the physician-patient or psychotherapist-patient privilege through voluntary disclosure of the communication upon the holder of the privilege offering any person as a witness who testifies as to the medical or emotional condition: Oregon, State ex rel. Grimm v. Ashmanskas, 298 Or. 206, 690 P.2d 1063 (1984) (interpreting Or. Evid. Code § 511). See also, Florida, H.J.M. v. B.R.C., 603 So.2d 1331 (Fla. 1st DCA 1992) (the psychotherapist-patient privilege is waived by the voluntary disclosure by the patient of a communication which is privileged).

In those States where the physician-patient privilege is not recognized disclosure of information relevant to the health and medical history of a patient in a malpractice action is not barred. See, for example, Florida, Coralluzzo By and Through Coralluzzo v. Foss, 450 So.2d 858 (Fla. 1984); New Mexico, Trujillo v. Puro, M.D., 101 N.M. 408, 683 P.2d 963 (1984); South Carolina, Felder v. Wyman, M.D., 139 F.R.D. 85 (D.C. S.C. 1991); and Texas, Tex. R. Evid. 509(b) (there is no physician-patient privilege in criminal proceedings except as to communications to facilitate treatment for alcohol or drug abuse).

RULE 504. HUSBAND-WIFE PRIVILEGE SPOUSAL PRIVILEGE.

(a) Definition. A communication is confidential if it is made privately by an individual to the individual's spouse and is not intended for disclosure to any other person.

(a) (b) Marital communications. An individual has a privilege to refuse to testify or to and to prevent his or her the individual's spouse or former spouse from testifying as to any confidential communication made by the individual to the spouse during their marriage. The privilege may be waived only by the individual holding the privilege or by the holder's guardian, or conservator, or the individual's personal representative if the individual is deceased.

(b) (c) Spousal testimony in criminal proceedings. The spouse of an accused in a criminal proceeding has a privilege to refuse to testify against the accused spouse.

(c) (d) Exceptions. There is no privilege under this rule Rule:

(1) in any civil proceeding in which the spouses are adverse parties,;

(2) in any criminal proceeding in which a prima facie an unrefuted showing is made that the spouses acted jointly in the commission of the crime charged, or;

(3) in any proceeding in which one spouse is charged with a crime or tort against the person or property of (i) the other, (ii) a minor child of either, (iii) an individual residing in the household of either, or (iv) a third person if the crime or tort is committed in the course of committing a crime or tort against any of the individuals previously named in this sentence. the other spouse, a minor child of either spouse, or an individual residing in the household of either spouse; or

(4) The court may refuse to allow invocation of the privilege in any other proceeding, in the discretion of the court, if the interests of a minor child of either spouse may be adversely affected by invocation of the privilege.

The Comment to Rule 504 reads as follows:

The previous rule provided for a "marital communication" privilege, as does the new rule. However, it is sometimes difficult to determine the boundaries of what constitutes a communication (e.g., the spouse who merely is present and sees a crime being committed by the other spouse). Thus, there are times when a privilege against testifying ought to obtain with or without the existence of a marital communication. The new rule reiterates the provision with regard to marital communications. However, a new privilege dealing with spousal testimony in a criminal proceeding has been added. This new rule also works to permit the testifying spouse to assert the marital communication privilege on behalf of an accused spouse, when appropriate, as could be done under the old rule.

Under the marital communication privilege, the communicating spouse holds the privilege. And, the rule is applicable whether or not the communicating spouse is a party to the proceeding. However, this privilege is not limited to criminal cases as under the previous rule. It would also apply in civil cases. The underlying rationale - that of encouraging or at least not discouraging communications between spouses - applies in both types of cases.

Under the spousal testimony privilege, only the spouse of the accused in a criminal case has a privilege to refuse to testify. The rationale - that of not disrupting the marriage - can only be justified in criminal proceedings and then there is no basis for giving the privilege to the accused. This provision codifies the holding of the United States Supreme Court in Trammel v. United States, 445 U.S. 40 (1980).

The provision in the previous rule regarding exceptions is also modified. Those exceptions dealt with the situation where a spouse is charged with a crime. The new rule extends the exceptions to include proceedings where a spouse is accused of a tort. It also creates exceptions where the spouses acted jointly in committing a crime, where the spouses are adverse parties, and where the court feels that the interests of a child of either should be given preference. There is no privilege in such situations under Rule 504.

This proposal for amending Rule 504 eliminates the gender-specific language in subdivision (a) and makes recommended stylistic changes. These are technical and no change in substance is intended.

There are no other proposals for amending Uniform Rule 504.

RULE 505. RELIGIOUS PRIVILEGE.

(a) Definitions. As used in In this rule:

(1) A "clergyman" is "Cleric" means a minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person individual consulting him the cleric.

(2) A communication is "confidential" if it is made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.

(b) General rule of privilege. A person An individual has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person individual to a "clergyman" cleric in his the cleric's professional character capacity as spiritual adviser.

(c) Who may claim the privilege. The privilege under this Rule may be claimed by the person, by his individual or the individual's guardian or conservator, or by his the individual's personal representative if he the individual is deceased. The person individual who was the "clergyman" cleric at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the communicant.

This proposal for amending renumbered Rule 506 eliminates the gender-specific language in subdivisions (b) and (c), substitutes the word "capacity" for "character" and includes recommended stylistic changes. These are technical and no change in substance is intended.

Uniform Rule 505, as did Rule 29 of the Uniform Rules of Evidence of 1953, provides that the communicant is the holder of the privilege, and that the cleric can claim the privilege only on behalf of the communicant. The question was raised at the Drafting Committee meeting on October 17-19, 1997 as to whether Uniform Rule 505 should be amended to provide that both the communicant and the cleric should be a holder of the privilege.

A survey of the state law discloses that almost every State recognizes the religious privilege, usually by statute, but the forms of the privilege do differ from State to State . A number of States, as in the case of Uniform Rule 505, confer the privilege on the communicant, but permit the cleric to claim the privilege on behalf of the communicant. These are: Alaska, Alaska R. Evid. 506; Arkansas, Ark. R. Evid. 505; Delaware, Del. R. Evid. 505; Florida, Fla. Stat. Ann. § 90.505 (West 1979); Hawaii, Haw. R. Evid. 506; Kansas, Kan. Stat. Ann. § 60-429 (1983); Maine, Me. R. Evid. 505; Mississippi, Miss. Code Ann. § 13-1-22 (Supp. 1992); Nebraska, Neb. R. Stat. § 27-506 (1989) and Neb. R. Evid. 506; New Mexico, N.M.R. Evid. § 11-506 (Michie 1986); North Dakota, N.D.R. Evid. 505; Oklahoma, Okla. Stat. Ann. Tit. 12, § 2505 (West 1980); South Dakota, S.D. Codified Laws Ann. §§ 19-13-16 to -18 (1987); Texas, Tex. R. Evid. 505; Wisconsin, Wis. Stat. Ann. § 905.06 (West Supp. 1992); Utah, Utah R. Evid. 503; and Virgin Islands, V.I.Code Ann. Tit. 5, § 857 (1967).

The following States prohibit disclosure by the cleric "without the consent" of the communicant: Arizona, Ariz. Rev. Stat. Ann. § 12-2233 (1982); Colorado, Colo. Rev. Stat. § 13-90-107 (Supp. 1992); Idaho, Idaho Code § 9-203 (1990); Louisiana, La. Rev. Stat. Ann. § 15:477 (West 1992); Massachusetts, Mass. Gen. Laws Ann. Ch. 233, § 20A (West 1986); Minnesota, Minn. Stat. Ann. § 595.02 (West 1988); Montana, Mont. Code Ann. § 26-1-804 (1991); Nevada, Nev. Rev. Stat. Ann. § 49.255 (Michie 1986); Oregon, Or. Rev. Stat. § 40.260 (1988); Pennsylvania, 42 Pa. Cons. Stat. Ann. § 5943 (1982); Rhode Island, R.I. Gen. Laws § 9-17-23 (1985); Washington, Wash. Rev. Code Ann. § 5.60.060 (West Supp. 1992); West Virginia, W.Va. Code § 57-3-9 (Supp. 1992); and District of Columbia, D.C. Code Ann. § 14-309 (1989).

Similarly, the following States prohibit disclosure by the cleric unless the communicant "waives" the privilege: Connecticut, Conn. Gen. Stat. Ann. § 52-146b (West 1991); Iowa, Iowa Code Ann. § 622.10 (West Supp. 1992); Kentucky, Ky. Rev. Stat. Ann. § 421.210 (Michie 1992); New Hampshire, N.H. Rev. Stat. Ann. § 516:35 (Supp. 1991); New York, N.Y. Civ. Prac. L. & R. 4505 (McKinney 1992); North Carolina, N.C. Gen. Stat. § 8-53.2 (1991); South Carolina, S.Car. Code Ann. § 19-11-90 (Law. Co-op. 1985); and Tennessee, Tenn. Code Ann. § 24-1-206 (Supp. 1992).

In contrast, in the following States the statutes confer the privilege solely upon the cleric: Georgia, Ga. Code Ann. § 24-9-22 (Michie Supp. 1992); Illinois, Ill. Ann. Stat. Ch. 110, § 8-803 (Smith-Hurd 1984); Indiana, Ind. Code Ann. § 34-1-14-5 (Burns Supp. 1992); Maryland, Md. Cts. & Jud. Proc. Code Ann. § 9-111 (1984), interpreted in McLain, 5 Maryland Practice, Maryland Evidence State and Federal 506.1 (1984), to the effect that the language in the statute, "A minister . . . may not be compelled . . . .," vests the privilege in the cleric, rather than the communicant, by relying on the Illinois decision in People v. Pecora, 107 Ill. App.2d 286, 246 N.E.2d 865, 873 (1969) and the Fourth Circuit decision in Seidman v. Fishburn-Hudgins Educ. Found., Inc., 724 F.2d 413, 415-416 (4th Cir. 1984); Michigan, Mich. Stat. Ann. § 28.945(2) [M.C.L.A. § 767.5a(2)] (Law. Co-op Supp. 1992); New Jersey, N.J. R. Evid. 37, N.J. Stat. Ann. 2A:84A-29, construed in State v. Szemple, 263 N.J. Super. 98, 622 A.2d 248 (1993) to confer the privilege solely upon the cleric; Vermont, Vt. Stat. Ann. Tit. 12, § 1607 (1973); and Wyoming, Wyo. Stat. § 1-12-101 (1991). On the other hand, in the following two States, in which the statutes do not expressly refer to the communicant, they have been construed to confer the privilege solely upon the cleric: Missouri, Mo. Ann. Stat. § 491.060 (Vernon Supp. 1992), construed in Eckmann v. Board of Educ. Of Hawthorne School District No. 17, 106 F.R.D. 70, 72-73 (E.D. Mo. 1985) to confer the privilege solely upon the cleric; and Virginia, Va. Code Ann. § 8.01-400 (Michie 1992) and Va. Code Ann. § 19.271.3 (Michie 1992), construed in Seidman v. Fishburn-Hudgins Educ. Found., Inc., 724 F.2d 413, 415-416 (4th Cir. 1984), to confer the privilege solely upon the cleric.

Finally, in the following States, the privilege is conferred on both the cleric and the communicant: Alabama, Ala. Code § 12-21-166 (1986); California, Cal. Evid. Code, §§ 1030-34 (West 1966); and Puerto Rico, P.R. R. Evid. 28.

See further, State v. Szemple, 263 N.J. Super. 98, 622 A.2d 248 (1993), containing an excellent summary of the status of the law concerning the holder of the religious privilege in the several States. All fifty States recognize the religious privilege, but only a small minority make the cleric a holder of the privilege.

As a result of the foregoing survey of state law, the Drafting Committee does not recommend a revision of Rule 505 to include the cleric as the holder of the religious privilege.

RULE 506. POLITICAL VOTE.

(a) General rule of privilege. Every person An individual has a privilege to refuse to disclose the tenor of his the individual's vote at a political election conducted by secret ballot.

(b) Exceptions. This The privilege provided in subdivision (a) does not apply if the court finds that the vote was cast illegally or determines that the disclosure should be compelled pursuant to [the election laws of the State].

This proposal for amending renumbered Rule 506 eliminates the gender-specific language in subdivision (a) and incorporates recommended stylistic changes. These are technical and no change in substance is intended.

There are no other proposals for amending Uniform Rule 506.

RULE 507. TRADE SECRETS. A person has a privilege, which may be claimed by him the person, or his the person's agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret owned by him the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. If disclosure is directed, the court shall take such protective measures as the interest of the holder of the privilege and of the parties and the interests of justice require.

This proposal for amending Uniform Rule 507 eliminates the gender-specific language in the rule. It is technical and no change in substance is intended.

RULE 508. SECRETS OF STATE AND OTHER OFFICIAL INFORMATION; GOVERNMENTAL PRIVILEGES.

(a) Claim of privilege under law of United States. If the law of the United States creates a governmental privilege that the courts of this State must recognize under the Constitution of the United States, the privilege may be claimed as provided by the law of the United States.

(b) Privileges created by laws of State. No other governmental privilege is recognized except as provided in subdivision (a) or created by the Constitution or constitution, statutes, or rules of this State.

(c) Effect of sustaining claim. If a claim of governmental privilege is sustained and it appears that a party is thereby deprived of material evidence, the court shall make any further orders the interests of justice require, including striking the testimony of a witness, declaring a mistrial, finding upon an issue as to which the evidence is relevant, or dismissing the action.

Headings for subdivisions (a) and (b) of Uniform Rule 508 have been added for consistency with subdivision (c) and a recommended stylistic change has been made.

There are no other proposals for amending Uniform Rule 508.

RULE 509. IDENTITY OF INFORMER.

(a) Rule of privilege. The United States or a state or subdivision thereof State has a privilege to refuse to disclose the identity of a person an individual who has furnished information relating to or assisting assisted in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

(b) Who may claim. The privilege under this Rule may be claimed by an appropriate representative of the public entity government to which the information was furnished.

(c) Exceptions:. (1) Voluntary disclosure; informer a witness. No privilege exists under this rule There is no privilege under this rule if the identity of the informer or his the informer's interest in the subject matter of his the informer's communication has been disclosed by a holder of the privilege or by the informer's own action to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the government.

(d) Procedures. (2) Testimony on relevant issue. If it appears in the case that an informer may be able to give testimony relevant to any an issue in a criminal case, or to a fair determination of a material issue on the merits in a civil case to which a public entity is a party, and the informed public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera in chambers with all of the parties present facts relevant to determining whether the informer can, in fact, supply that the testimony. The showing will ordinarily will be in the form of affidavits by affidavit, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose his the informer's identity, in criminal cases the court on motion of the defendant or on its own motion shall grant appropriate relief, which may include one or more of the following: requiring the prosecuting attorney to comply, granting the defendant additional time or a continuance, relieving the defendant from making disclosures otherwise required of him the defendant, prohibiting the prosecuting attorney from introducing specified evidence, and dismissing charges. In civil cases, the court may make any order the interests of justice require. Evidence submitted to the court shall must be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall may not otherwise be revealed without consent of the informed public entity. All counsel and parties are permitted to may be present at every stage of the proceedings under this subdivision except a showing in camera, at which no counsel or party shall may be permitted to be present.

This proposal for amending Uniform Rule 509 eliminates the gender-specific language in subdivision (c) of the rule and includes recommended stylistic changes. These are technical and no change in substance is intended.

It is also proposed the subdivision (d) be amended to substitute the words "in chambers with all of the parties present" for the words "in camera."

There are no other proposals for amending Uniform Rule 509.

RULE 510. WAIVER OF PRIVILEGE BY VOLUNTARY DISCLOSURE.

(a) Voluntary disclosure. A person upon whom these rules confer a privilege against disclosure waives the privilege if he the person or his the person's predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged.

(b) Involuntary disclosure. A claim of privilege is not waived by a disclosure that was compelled erroneously or made without an opportunity to claim the privilege.

This proposal for amending renumbered Rule 510(a) with the heading "Voluntary disclosure" eliminates the gender-specific language in the rule. It is technical and no change in substance is intended.

Uniform Rule 510 is also recast to deal with both the voluntary and involuntary waiver of a privilege as a matter of substance in one comprehensive rule by proposing the deletion of existing Uniform Rule 511 as in Tentative Draft #2 and also deleting Rule 512(c) as was also proposed in Tentative Draft #2.

Subdivision (a) deals with waiver by voluntary disclosure and embraces the substance of existing Uniform Rule 510 which it is suggested be amended to eliminate the gender-specific language. Subdivision (b) deals with involuntary waiver and is the same in substance as existing Uniform Rule 511 which it is recommended now be deleted.

Proposed Uniform Rule 510 does not address the subject of inadvertent disclosure as a waiver in the black letter of the rule. In contrast, three general approaches have been employed by the courts to determine whether an inadvertent disclosure constitutes a waiver: an objective analysis; a subjective analysis; and a balancing analysis. Under an objective analysis, an inadvertent waiver will result since the court need only confirm that the document was made available to opposing counsel; "the 'confidentiality' of the document has been breached by the disclosure, thereby destroying the basis for the continued existence of the privilege." See Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., 851 F.R.D. 204 (N.D. Ill. 1990), citing Underwater Storage, Inc. v. United States Rubber Co., 314 F.Supp 546 (D. D.C. 1970). Under a subjective analysis, inadvertent disclosure can never result in a true waiver because "there was no intention to waive the privilege, and one cannot waive the privilege without intending to do so." See Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., supra, citing Connecticut Mutual Life Insurance Co. v. Shields, 18 F.R.D. 448 (S.D. N.Y. 1955). Under a balancing analysis, the court considers five factors to determine if a party has waived the privilege. These are: "(1) the reasonableness of the precautions taken to prevent disclosure; (2) the time taken to rectify the error; (3) the scope of the discovery; (4) the extent of the disclosure; and (5) the overriding issue of fairness." See Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., supra, citing Bud Antle, Inc. v. Grow Tech, Inc., 131 F.R.D. 179 (N.D. Cal. 1990).

First, a majority of the state jurisdictions appear to apply the objective analysis and conclude that an inadvertent disclosure results in a waiver of the privilege. These are: Alabama, Bassett v. Newton, 658 So.2d 398 (Ala. 1995) (waiver of the attorney-client privilege by conduct, such as a partial disclosure, that would make it unfair for the client to claim the privilege thereafter); Alaska, Houston v. State, 602 P.2d 784 (Alaska 1979) (waiver of the attorney-client privilege by examining a defense psychiatrist who relied on the report of a psychiatrist who had conducted a pre-trial psychiatric examination at defense counsel's request) and Lowery v. State, 762 P.2d 457 (Alaska 1988) (waiver of work-product privilege to reports of an investigator used to impeach one witness and refresh the recollection of another witness); Arizona, State v. Cuffle, 171 Ariz. 49, 828 P.2d 773 (1992) (waiver of attorney-client privilege to at least as much of what was previously privileged as necessary to enable an attorney to defend himself to a client's claim of the ineffective assistance of counsel); Arkansas, Firestone Tire & Rubber Company v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982) (waiver of attorney-client privilege through surrender of letter in answer to a discovery motion which defendant inadvertently permitted to fall into the hands of a third party); California, Aerojet-General Corporation v. Transport Indemnity Insurance, 18 Cal.App.4th 996, 22 Cal. Rptr.2d 862 (1993) ("The attorney-client privilege is a shield against deliberate intrusion; it is not an insurer against inadvertent disclosure.") and Kanter v. Superior Court, 253 Cal.Rptr. 810 (1988) ("Even though a communication is made in confidence to an attorney, the privilege may be lost (i.e., impliedly waived) by disclosure of the subject communication or by conduct inconsistent with a claim of privilege."); Colorado, Lanari v. People, 827 P.2d 495 (Colo. 1992) (waiver of attorney-client privilege through endorsement of a psychiatrist as a witness, failure to object to the prosecution's interview of the witness and failure to request the trial court to enter protective orders with respect to any statements of the defendant obtained during the course of the interview); Idaho, Farr v. Mischler, 923 P.2d 446 (Idaho 1996) (waiver of attorney-client privilege by seller of business by leaving a letter in files which were among the assets of the business transferred to the buyers upon the sale of the business); Iowa, State v. Randle, 484 N.W.2d 220 (Iowa 1992) (waiver of physician-patient privilege by sexually abused victim releasing results of MMPI test to Department of Criminal Investigation); Kentucky, Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985) (waiver of attorney-client privilege by client where the competence of the client's attorney is attacked); Maine, Northup v. State, 272 A.2d 747 (Me. 1971) (waiver of attorney-client privilege by client where the competence of the client's attorney is attacked); Minnesota, State v. Schneider, 402 N.W.2d 779 (Minn. 1987) (implied waiver of attorney-client privilege where defendant was required to submit to an examination by a court-appointed psychiatrist to avail himself of the defense of insanity); Mississippi, Alexander v. State, 358 So.2d 379 (Miss. 1979) (waiver of physician-patient privilege where information given to expert witness for the express purpose of preparing to testify and forming a basis for testimony that the defendant was insane); Nevada, Wardleigh v. Second Judicial Dist. Court of State of Nev. in and for County of Washoe, 111 Nev. 345, 891 P.2d 1180 (1995) (waiver of attorney-client privilege as it relates to subject matter of privileged communication partially disclosed); Ohio, State v. McDermott, 79 Ohio App.3d 772, 607 N.E.2d 1164 (1992) (waiver of attorney-client privilege when the client discloses any part of a confidential communication that is inconsistent with the maintenance of the confidential nature of the attorney-client privilege); Oklahoma, Driskell v. State, 659 P.2d 343 (Okl. Cr. 1983) (waiver of physician-patient privilege when permission given by patient for physician to speak to officers investigating a murder) and Herbert v. Chicago, Rock Island and Pacific Railroad Company, 544 P.2d 898 (Okl. 1975) (waiver of physician-patient privilege relating to back injuries where patient testifies at trial concerning nature and treatment of back injuries even though physician not called by the patient as a witness); Rhode Island, State v. von Bulow, 475 A.2d 995 (R.I. 1984) (waiver of attorney-client privilege where there is a selective disclosure of otherwise privileged communications); South Carolina, Marshall v. Marshall, 282 S.C. 534, 320 S.E.2d 44 (1984) (waiver of attorney-client privilege not only as to the specific communication voluntarily disclosed, but as to all other communications relating to the same subject matter); Virginia, Clagett v. Commonwealth, 252 Va. 79, 472 S.E.2d 263 (1996) (attorney-client privilege waived on cross-examination where expert overheard defense counsel's conversation regarding expert's mistake while testifying on direct examination); and West Virginia, State ex rel. McCormick v. Zakaib, 189 W.Va. 258, 430 S.E.2d 316 (1993) and Marano v. Holland, 179 W.Va. 156, 366 S.E.2d 117 (1988) (waiver of attorney-client privilege not only as to the specific communication voluntarily disclosed, but as to all other communications relating to the same subject matter).

There is at least one jurisdiction where the court has refused to decide the question of whether an inadvertent disclosure of privileged information waives the privilege. In Florida, in Kusch v. Ballard, 645 So.2d 1035 (Dist. Ct. App. 1994), the court did suggest a more expansive approach in resolving the issue as follows: ". . . we do not have the kind of fully developed record of facts and law in this common law certiorari case that would allow us to assay whether it is necessary to pronounce a global rule on the subject. It might be enough, if the issue was directly and necessarily presented, to decide that whether the privilege is lost by inadvertent disclosure depends on the totality of the circumstances. If there is no need for a universal rule, then we should not create one."

Second, other jurisdictions apply a subjective test in determining whether there has been a inadvertent waiver of the privilege by requiring an intent to waive the privilege. These are: Delaware, Moyer v. Moyer, 602 A.2d 68 (Del. 1992) (". . . the privilege does not apply to communications between an attorney and his client where the circumstances indicate that the client did not intend the communication to remain confidential, and therefore, the attorney may be examined as to such communications."); and Indiana, Hazlewood v. State, 609 N.E.2d 10 (Ind. 1993) and Kindred v. State, 524 N.E.2d 279 (Ind. 1988) (marital privilege is not waived unless there is an express manifestation of the intent to waive the privilege). In Michigan, "waiver through inadvertent disclosure requires a finding of no intent to maintain confidentiality or circumstances evidencing a lack of such intent." See Sterling v. Keidan, 162 Mich. App. 88, 412 N.W.2d 255 (1987). In New Jersey, "it must be shown the party charged with the waiver knew their legal rights and deliberately intended to relinquish them." See Triology Communications, Inc. v. Excom Realty, Inc., 279 N.J.Super. 442, 652 A.2d 1273 (1994).

In Georgia, the client's intent, together with the circumstances of the disclosure, appear to govern the waiver of a privilege. See, respectively, Revera v. State, 223 Ga. App. 450, 477 S.E.2d 849 (1996) and Marriott Corp. v. American Academy of Psychotherapists, Inc., 157 Ga. App. 497, 277 S.E.2d 785 (1981).

Finally, there appear to be nine jurisdictions which employ a balancing analysis in determining whether there is a waiver of the privilege through an inadvertent disclosure. See Illinois, Dalen v. Ozite Corporation, 230 Ill.App.3rd 18, 594 N.E.2d 1365 (1992) (". . . we adopt the 'balancing test' set forth in Golden Valley [supra]. The two other approaches, the objective and subjective approaches would appear to result in decisions based on mere mechanical application rather than a judicial reason and fairness.") and People v. Knuckles, 165 Ill.2d 125, 650 N.E.2d 974, 209 Ill.Dec. 1 (1995) (the attorney-client privilege is not waived merely by pleading the insanity defense and employing a psychiatrist to assist in the preparation of the defense); Montana, Pacificorp v. Department of Revenue of the State of Montana, 254 Mont. 387, 838 P.2d 914 (1992) (the mere inadvertent production of documents is not in itself sufficient to establish a waiver of the attorney-client privilege, but it requires consideration of the elements of implied intention, and fairness and consistency); Nebraska, League v. Vanice, 221 Neb. 34, 374 N.W.2d 849 (1985) (fairness is an important and fundamental consideration in determining whether the attorney-client privilege has been waived); New Mexico, Hartman v. El Paso Natural Gas Company, 107 N.M. 679, 763 P.2d 1144 (1988) (waiver of the attorney-client privilege and work-product immunity requires an application of the five factors set forth in Golden Valley Microwave Foods, Inc., supra); New York, Manufacturers and Traders Trust Company v. Servotronics, Inc., 132 A.D.2d 392, 522 N.Y.S.2d 999 (Sup.Ct. App.Div. 1987) (waiver of the attorney-client privilege involves the client's intent to retain the confidentiality of the privileged materials and taking reasonable steps to prevent disclosure, together with determining whether the party claiming the waiver will suffer prejudice if a waiver is not granted); North Dakota, Farm Credit Bank of St. Paul v. Heuther, 454 N.W.2d 710 (N.D. 1990) (waiver of the attorney-client privilege requires an application of the five factors set forth in Golden Valley Microwave Foods, Inc., supra); Oregon, Goldsborough v. Eagle Crest Partners, Ltd., 314 O4. 336, 838 P.2d 1069 (1992) (waiver of the attorney-client privilege involves a consideration of whether the disclosure was inadvertent, an attempt was made to remedy the error promptly and the preservation of the privilege will occasion unfairness to the opponent); Utah, Gold Standard, Inc. v. American Barrick Resources Corporation, 805 P.2d 164 (Utah 1991) (waiver of attorney-client privilege, as well as work-product protection, requires an application of the five factors set forth in Golden Valley Microwave Foods, Inc., supra); and Washington, State v. Balkin, 48 Wash. App. 1, 737 P.2d 1035 (Wash. App. 1987) (waiver of privilege involves consideration of elements of implied intention, fairness and consistency).

See also, Kansas, which has applied a "balance of interests" test in determining whether a qualified privilege of so-called "self-critical analysis" has been waived. See Kansas, Gas & Electric v. Eye, 246 Kan. 419, 789 P.2d 1161 (1990). In Maryland, a balancing test is applied in determining a right of access to records of internal police investigations which are confidential. See Blades v. Woods, 107 Md. App. 178, 667 A.2d 917 (1995). In Texas, a balancing test is also applied by weighing the (1) circumstances confirming an involuntary disclosure; (2) precautionary measures taken; (3) delay in rectifying the error; (4) extent of any inadvertent disclosure; and (5) scope of discovery. Inadvertent production is distinguishable from involuntary production and will constitute a waiver. Granada Corp. v. Honorable First Court of Appeals, 844 S.W.2d 223 (Tex. 1992).

No cases specifically dealing with the inadvertent disclosure of privileged information were found for Connecticut, Hawaii, Massachusetts, Missouri, New Hampshire, North Carolina, Pennsylvania, South Dakota, Tennessee, Vermont, Wisconsin and Wyoming.

For an exhaustive analysis of federal authorities on the issue of inadvertent disclosure, see Simpson, Reagan Wm., Civil Discovery and Depositions § 3.41 (2d ed. 1994).

Uniform Rule 612 may also be implicated in the waiver issue, in particular with regard to waiving attorney work-product information that has been supplied to an expert in developing theories of liability or defense. Rule 612 permits an opposing party to examine written materials used to refresh the recollection of a witness. For example, do the written materials furnished to an expert have a sufficient impact on an expert's testimony to implicate an application of Rule 612 and thereby waive the privilege of work-product? Or, in the words of one court analyzing the question under Rule 612 of the Federal Rules of Evidence,

"it is disquieting to posit that a party's lawyer may 'aid' a witness with items of work-product and then prevent totally the access that might reveal and counteract the effects of such assistance. There is much to be said for a view that a party or its lawyer, meaning to invoke the privilege, ought to use other and different materials, available later to a cross-examiner, in the preparation of witnesses. When this simple choice emerges the decision to give the work product to the witness could well be deemed a waiver of the privilege."

See Berkey Photo, Inc. v. Eastman Kodak Company, 74 F.R.D. 613 (S.D.N.Y. 1977).

However, it has been argued that Federal Rule 612:

A does not provide a good means for resolving the issue of waiver when work product is provided to a testifying expert. In most situations, the expert is not really using the documents to refresh his or her memory. A better way to analyze the problem is purely on waiver grounds. Was the work product immunity waived by providing information to a testifying expert, whose opinions are intended to be disclosed to an adversary?

See Simpson, Reagan Wm., et al., Recent Developments in Civil Procedure and Evidence, 32 Tort & Ins. L. J. 231 (1997).

RULE 511. PRIVILEGED MATTER DISCLOSED UNDER COMPULSION OR WITHOUT OPPORTUNITY TO CLAIM PRIVILEGE.

A claim of privilege is not defeated by a disclosure which was (a) compelled erroneously or (b) made without opportunity to claim the privilege.

The Drafting Committee recommends that this rule be deleted since it has been incorporated as subdivision (b) of the amended proposed Rule 510 without substantive change. See Reporter's Notes to Rule 510.

RULE 512 511. COMMENT UPON OR INFERENCE FROM CLAIM OF PRIVILEGE; INSTRUCTION.

(a) Comment or inference not permitted. The A claim of a privilege, whether in the present proceeding or upon a prior previous occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom from the claim.

(b) Claiming privilege without knowledge of jury. In jury cases, proceedings shall must be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.

(c) Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.

There are no substantive proposals for amending Uniform Rule 511. Recommended stylistic changes have been made.

Instructing the jury under subdivision (c) that no adverse inference may be drawn from the claim of a privilege includes an admonition to the jury, as well as a formal instruction.

RULE 601. GENERAL RULE OF COMPETENCY. Every person individual is competent to be a witness except as otherwise provided in these rules.

The Comment to Rule 601 reads as follows:

This repeals the "deadman's statute." We recommend this. If it is desired to retain the deadman's statute a sentence should be added recognizing the exception provided in the local "deadman's statute."

There are no proposals other than the recommended style change for amending Uniform Rule 601.

RULE 602. LACK OF PERSONAL KNOWLEDGE. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness's own testimony of the witness himself. This rule Rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

This proposal for amending Rule 602 eliminates the gender-specific language in the rule. It is technical and no change in substance is intended.

There are no other proposals at the present time for amending Uniform Rule 602.

RULE 603. OATH OR AFFIRMATION. Before testifying, every each witness shall be required to must declare under oath or affirmation that he the witness will testify truthfully, by. The oath or affirmation must be administered in a form calculated to awaken his the witness's conscience and impress his the witness's mind with his the duty to do so testify truthfully.

This proposal for amending Rule 603 eliminates the gender-specific language in the rule and makes recommended stylistic changes. These are technical and no change in substance is intended.

There are no other proposals at the present time for amending Uniform Rule 603.

RULE 604. INTERPRETERS. An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation that he will to make a true translation and complete rendition of all communications made during the interpretive process to the best of the interpreter's knowledge and belief.

This proposal for amending Rule 604 eliminates the gender-specific language in the rule. It is technical and no change in substance is intended.

The use of the word "translation" in Uniform Rule 604 prompted extensive discussion by the Drafting Committee at its meeting in Cleveland, Ohio, October 4-6, 1996. In turn, this discussion prompted further investigation and research to determine whether an amendment of the rule should be recommended which would more nearly reflect the interpretive process and, in particular, the oath or affirmation that should be administered to the interpreter.

In practical terms "the difference between interpreting and translation is only the difference in the medium: the interpreter translates orally, while a translator interprets written text." See What does an interpreter do?, p. 1, Russian Interpreters Co-op, Cambridge, Mass. (1997). See also, Merriam Webster's Collegiate Dictionary, Tenth Edition (1993), defining an 'interpreter' as one who translates orally for parties conversing in different languages." More to the point, the Russian Interpreters Coop describes the process as follows:

Translation [or interpretation] is not a matter of substituting words in one language for words in another. It is a matter of understanding the thought expressed in one language and then explaining it using the resources of another language. In other words, what an interpreter does is change words into meaning, and then change meaning back into words - of a different language. So interpreting is basically paraphrasing.

See also, Rasmussen v. Baker, 50 P. 819, 825, 7 Wyo. 117, 140, 38 L.R.A. 773 (___), in which the court states that A[t]o translate is to give the sense or equivalent of, as a word, expression, or an entire work, in another language or dialect . * * * Generally speaking, a translation need not consist of transferring from one language into another. It may apply to the expression of the same thoughts in other words of the same language. As applied to a state Constitution, a translation into a foreign language is not a copy thereof."

Accordingly, the question arises whether an interpreter ought to be forced to swear or affirm that what the interpreter is about to do is a 100-percent true rendition of the statements in the original language. The proposed amendment of the required oath of an interpreter in Uniform Rule 604 is intended to reflect the interpretive process as explained above and not require an oath to which a conscientious interpreter could not subscribe. The words "all communications during the interpretive process" are employed in the black letter to assure that the interpretive process includes both verbal and nonverbal means of communication, as well as questions, answers, or other statements that may be made during the interpretive process.

Judicial authority with respect to the interpretive process is sparse. Generally speaking, the courts are committed to requiring a "continuous word for word translation of everything relating to the trial. . . ." See United States v. Joshi, 896 F.2d 1303 (11th Cir. 1990). At the same time, it has also been held that A[a]lthough defendants have no constitutional "right" to flawless, word for word translations, . . . interpreters should nevertheless strive to translate exactly what is said; courts should discourage interpreters from "embellishing" or "summarizing" live testimony. See United States v. Gomez, 908 F.2d 809 (11th Cir. 1990). Even then A[t]he legislative history of the Court Interpreters Act contemplates that under certain circumstances even "summary translations" allowing the interpreter to "condense and distill the speech of the speaker" would be permissible. See United States v. Joshi, supra, at p. 1309, n. 6. See also, Court Interpreters Act, 28 U.S.C.A. § 1827. See further, H.R. Rep. No. 1687, 95th Cong., 2d Sess. at 8, reprinted in, 1978 U.S. Code Cong. & Admin. News at 4659.

There are no other proposals for amending Rule 604 in any other respect.

RULE 605. COMPETENCY OF JUDGE AS WITNESS. The judge presiding at the a trial may not testify in that trial as a witness. No An objection need not be made in order to preserve the point.

There are no proposals for amending Uniform Rule 605.

RULE 606. COMPETENCY OF JUROR AS WITNESS.

(a) At the trial. A member of the a jury may not testify as a witness before that the jury in the trial of the case in which he the juror is sitting as a juror. If he the juror is called so to testify, the opposing party shall parties must be afforded an opportunity to object out of the presence of the jury.

(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a:

(1) A juror may not testify as to any to a matter or statement

occurring during the course of the jury's deliberations or to the effect of anything upon his that or any other juror's mind or emotions as influencing him the juror to assent to or dissent from the verdict or indictment or concerning his the juror's mental processes in connection therewith, nor may his.

(2) A juror's affidavit or evidence of any statement by him the juror concerning a matter about which he the juror would be precluded from testifying may not be received, but a.

(3) A juror may testify on the questions as to whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any a juror.

This proposal for amending Rule 606 eliminates the gender-specific language in the rule and makes recommended stylistic changes. These are technical and no change in substance is intended.

There are no other proposals for amending Uniform Rule 606.

RULE 607. WHO MAY IMPEACH. The credibility of a witness may be attacked by any party, including the party calling him the witness.

This proposal for amending Rule 607 eliminates the gender-specific language in the rule. It is technical and no change in substance is intended.

There are no other proposals for amending Uniform Rule 607.

RULE 608. EVIDENCE OF CHARACTER AND CONDUCT OF WITNESS.

(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations the following:

(1) the The evidence may refer only to character for truthfulness or untruthfulness, and

(2) evidence Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his the witness's credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) (i) concerning his the witness's character for truthfulness or untruthfulness, or (2) (ii) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

(c) Privilege against self-incrimination. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his the accused's or the witness's privilege against self-incrimination when examined with respect to matters which that relate only to credibility.

This proposal for amending Rule 608 eliminates the gender-specific language in the rule, inserts the second paragraph of the existing subdivision (b) as a subdivision (c) with a heading and makes recommended stylistic changes. These are technical and no changes in substance are intended.

There are no other proposals for amending Uniform Rule 608.

RULE 609. IMPEACHMENT BY EVIDENCE OF CONVICTION OF CRIME.

(a) General rule. For the purpose of attacking the credibility of a witness, evidence:

(1) Evidence that he a witness other than an accused has been convicted of a crime shall be admitted but only is admissible, subject to Rule 403, if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he the witness was convicted, and evidence that an accused has been convicted of such a crime is admissible if the court determines that the probative value of admitting this the evidence substantially outweighs its prejudicial effect the danger of unfair prejudice to a party or a witness, or (2) involved dishonesty or false statement, the accused.

(2) Evidence that a witness has been convicted of a crime of untruthfulness or falsification is admissible, regardless of punishment, if the statutory elements of the crime necessarily involve untruthfulness or falsification.

(b) Time limit. Evidence of a conviction under this rule is not admissible under this rule if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that the conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of evidence of the conviction supported by specific facts and circumstances substantially outweighs its unfair prejudicial effect.

(c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule Rule if (1) the conviction has been:

(1) the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person individual convicted, and that person individual has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or;

(2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

(d) Juvenile adjudications. Evidence of a juvenile adjudications adjudication is generally not admissible under this rule Rule. Except as otherwise provided by statute, however, in a criminal case the court may allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in of the evidence is necessary for a fair determination of the issue of guilt or innocence.

(e) Pendency of appeal. The pendency of an appeal therefrom from a conviction does not render evidence of a the conviction inadmissible. Evidence of the pendency of an appeal is admissible.

(f) Notice. Evidence is not admissible under this Rule unless the proponent of the evidence gives to all adverse parties reasonable notice in advance of trial, or during trial if the court excuses pretrial notice for good cause shown, of the nature of the conviction.

(g) Record. If objection is made to evidence offered pursuant to subdivision (a)(1) or (2), the court shall state on the record the factors it considered in determining admissibility.

(h) Evidence. If admissible, evidence of a conviction may be by testimony of the witness during direct or cross-examination, by the introduction of a public record, or by other extrinsic evidence if the public record is not available and good cause is shown.

This proposal for amending Uniform Rule 609 eliminates the gender-specific language in subdivision (a) and makes recommended stylistic changes. These changes are technical and no change in substance is intended.

In addition, the proposal conforms Uniform Rule 609(a) to the black letter of Rule 609(a) of the Federal Rules of Evidence as amended March 2, 1987, eff. Oct. 1, 1987 and Jan. 26, 1990, eff. Dec. 1, 1990. Uniform Rule 609(a)(1) currently provides that in determining the admissibility of convictions for crimes punishable by death or imprisonment in excess of one year the court must find "that the probative value of admitting this evidence outweighs its prejudicial effect to a party or the witness." The rule as proposed would change the substance of Uniform Rule 609(a) by providing, in the case of a witness other than the accused, that the conviction is admissible unless, pursuant to Uniform Rule 403, the probative value of the conviction is substantially outweighed by the danger of unfair prejudice. In the case of the accused, the rule would require the court to determine "that the probative value of admitting this evidence substantially outweighs its prejudicial effect to the accused."

The word "substantially" is not contained in the balancing test applicable to the admissibility of an accused's convictions under Federal Rule 609(a)(1). Incorporating the requirement of "substantially" in Uniform Rule 609(a)(1) would conform the balancing test applicable in the case of the accused to the balancing test proposed in subdivision (b) relating to the time limit on the admissibility of convictions for impeachment purposes.

The Drafting Committee also proposes amending Rule 609 by adding for clarification in subdivision (a)(2) the language "evidence that any witness has been convicted of a crime shall be admitted if it," by substituting the words "untruthfulness or falsification" for the words "dishonesty or false statement" and by making subdivision (a)(2) applicable only to those crimes whose statutory elements necessarily involve untruthfulness or falsification. This proposal is derived from the 1987 recommendation of the ABA Criminal Justice Section's Committee on Rules of Criminal Procedure and Evidence to clarify the meaning of the language "dishonesty or false statement" now contained in Rule 609(a)(2) of the Federal Rules of Evidence. The rationale for the proposed amendment of Federal Rule 609(a)(2) has been explained as follows:

Proposed section (a)(2) both clarifies and changes the existing Rule. The current wording of (a)(2) refers to crimes of dishonesty or false statement. Endless dispute has resulted from the inclusion of "dishonesty" in the Rule. Some courts used this provision to include crimes of stealth such as larceny, robbery, burglary or even on occasion narcotics violations. Some have looked at the factual details of the conduct underlying the charge rather [than?] the statutory language of the offense. . . .

Proposed Rule 609(a)(2) applies only to convictions for untruthfulness or falsification. This change more accurately implements the intention of present Rule 609. The proposed Rule intends the focus to be on the statutory elements since a mini-trial is virtually necessary under any other approach. This revision would probably not result in substantial change in practice since most circuits currently view (a)(2) narrowly because of the existing controversy over whether a court has discretion under Rule 403 to exclude such convictions.

See Federal Rules of Evidence: A Fresh Review and Evaluation, 120 F.R.D. 299, 356, 359-360 (1987). The foregoing rationale for amending Federal Rule 609 also supports the recommendation of the Drafting Committee for amending Uniform Rule 609(a)(2).

The current Uniform Rule 609(a)(2) admitting crimes of "dishonesty or false statement, regardless of the punishment" has been widely adopted throughout the United States and is currently recognized in the following thirty-one jurisdictions and the District of Columbia: Alabama, Ala. R. Evid. 609(a)(2); Alaska, Alaska R. Evid. 609(a) (impeachment by conviction of crime limited to crimes of "dishonesty or false statement"; Arizona, Ariz. R. Evid. 609(a)(2); Arkansas, Ark. R. Evid. 609(a)(2); Delaware, Del. R. Evid. 609(a)(2); Florida, Fla. Stat. § 90.610(1) (1996); Hawaii, Haw. R. Evid. 609(a) (impeachment by conviction of crime limited to crimes of "dishonesty," except that in criminal cases the conviction is inadmissible except where the defendant has placed credibility as a witness); Illinois, See People v. Montgomery, 268 N.E.2d 695 (Ill. 1971), approving the application of Fed. R. Evid. 609, providing for impeachment by crimes of "dishonesty and false statement"; Indiana, Ind. R. Evid. 609(a)(2); Iowa, Iowa R. Evid. 609(a)(2); Kansas, Kan. St. Ann. § 60-421 (impeachment by conviction of crime limited to crimes of "dishonesty," except that in criminal cases the conviction is inadmissible unless the accused as a witness has first introduced evidence in support of the accused's credibility as a witness); Louisiana, La. Code Evid. Art. 609, 609.1 (impeachment by conviction of crime in civil cases limited to crimes of "dishonesty or false statement," while in criminal cases offenses for which the witness has been convicted are admissible upon the issue of credibility); Maine, Me. R. Evid. 609(A)(2); Michigan, Mich. R. Evid. 609(a)(1), (2) (impeachment by conviction of crime limited to crimes of "dishonesty or false statement" and to crimes containing "an element of theft" providing the theft crime is punishable by imprisonment in excess of one year or death and the conviction has significant probative value on the issue of credibility); Minnesota, Minn. R. Evid. 609(a)(2); Mississippi, Miss. R. Evid. 609(a)(2); Nebraska, Neb. Rev. Stat. § 27-609(1)(b); New Hampshire, N.H. R. Evid. 609(a)(2); New Mexico, N.M. R. Evid. 11-609(A)(2); North Dakota, N.D. R. Evid. 609(a)(ii); Ohio, Ohio R. Evid. 609(A)(3); Oklahoma, 12 Okla. Stat. Ann. § 2609(A)(2); Oregon, Or. Rev. Stat. § 40.355(1)(b); Pennsylvania, Allen v. Kaplan, D.P.M., 653 A.2d 1249 (Pa. 1995) and Russell v. Hubiez, 624 A.2d 175 (Pa. 1993); Rhode Island, R.I. R. Evid. 609(b) (impeachment by conviction of crime includes crimes of "dishonesty or false statement"); South Carolina, S.C. R. Evid. 609(a)92); South Dakota, S.D. Codified Laws § 19-14-12(a)(2); Tennessee, Tenn. R. Evid. 609(a)92); Utah, Utah R. Evid. 6099a)92); Washington, Wash. R. Evid. 6099(a)(2); West Virginia, W. Va. R. Evid. 609, in the case of witnesses other than a criminal defendant; Wyoming, Wyo. R. Evid. 6099(a)(2); and District of Columbia, D.C. Code § 14-305(b)(2)(B).

At the same time, there is a significant divergence among the several States regarding the inclusion of some crimes as crimes which are embraced within the standard "dishonesty or false statement." For example, the crime of burglary is treated as a crime of dishonesty in the following States: Alaska, Clifton v. State, 751 P.2d 27 (Alaska 1988); Arkansas, Coleman v. State, 869 S.W.2d 713 (Ark. 1994); California, People v. Rodriquez, 222 Cal. Rptr. 809 (Cal. App. 5th 1986); Connecticut, State v. Schroff, 492 A.2d 190 (Conn. App. Ct. 1985); Delaware, Harris v. State, 695 A.2d 34 (Del. 1997); Florida, Hicks v. State, 666 So.2d 1021 (Fla. Dist. Ct. App. 1996); Idaho, State v. Christoferson, 700 P.2d 124 (Idaho Ct. App. 1985); Illinois, People v. Burba, 479 N.E.2d 936 (Ill. App. 1985); Kansas, State v. Thomas, 551 P.2d 873 (Kan. 1976); Maine, State v. Rolls, 599 A.2d 421 (Me. 1991); Massachusetts, Commonwealth v. Walker, 516 N.E.2d 1143 (Mass. 1987); New Hampshire, State v. Hopps, 465 A.2d 1206 (N.H. 1983); New Jersey, State v. Murray, 573 A.2d 488 (N.J. Super Ct. App. 1990); New Mexico, State v. Wyman, 632 P.2d 1196 (N.M. Ct. App. 1981); North Carolina, State v. Collins, 223 S.E.2d 575 (N.C. Ct. App. 1976); Ohio, State v. Goney, 622 N.E.2d 688 (Ohio Ct. App. 1993); Oklahoma, Turner v. State, 803 P.2d 1152 (Okl. Cr. 1991); Oregon, State v. Simmonds, 692 P.2d 577 (Or. 1984); Pennsylvania, Commonwealth v. Gray, 478 A.2d 822 (Pa. Super. Ct. 1984); Rhode Island, State v. Taylor, 581 A.2d 1037 (R.I. 1990); South Carolina, State v. Sarvis, 450 S.E.2d 606 (S.Ct. Ct. App. 1994); South Dakota, State v. Cross, 390 N.W.2d 563 (S.D. 1986); Tennessee, State v. Dishman, 915 S.W.2d 458 (Tenn. Cr. App. 1995); Texas, Simpson v. State, 886 S.W.2d 449 (Tex. Ct. App. 1994); Virginia, Hackney v. Commonwealth, 493 S.E.2d 679 (Va. Ct. App. 1997); Washington, State v. Rivers, 921 P.2d 495 (Wash. 1996); Wyoming, State v. Velsir, 159 P.2d 371 (Wyo. 1995) and District of Columbia, Bates v. United States, 403 A.2d 1159 (D.C. 1979).

Consistently the following States treat the crime of robbery as a crime of dishonesty: Alabama, Huffman v. State, 1997 WL 187109 (Ala. Crim. App. 1997); Alaska, Alexander v. State, 611 P.2d 469 (Alaska 1980); Arkansas, Floyd v. State, 643 S.W.2d 555 (1982); Connecticut, State v. Prutting, 669 A.2d 1228 (Conn. App. Ct. 1996), Delaware, Harris v. State, supra; Florida, State v. Page, 449 So.2d 813 (Fla. 1984); Idaho, State v. Christopherson, supra; Illinois, State v. Burba, supra; Iowa, State v. Thompkins, 318 N.W.2d (Iowa 1982); Kansas, State v. Laughlin, 530 P.2d 1220 (Kan. 1975); Maine, State v. Rolls, supra; Massachusetts, Commonwealth v. Walker, supra; New Hampshire, State v. Hopps, supra; New Jersey, State v. Sands, 386 A.2d 378 (N.J. 1977); New York, People v. Moody, 645 N.Y.S.2d 375 (N.Y. App. Div. 1996); North Carolina, State v. Collins, supra; Ohio, State v. Goney, supra; Oklahoma, Turner v. State, supra; Oregon, State v. Sims, 692 P.2d 577 (Or. 1984); Pennsylvania, Commonwealth v. Kyle, 533 A.2d 120 (Pa. Super. Ct. 1987); Rhode Island, State v. Taylor, supra; South Carolina, State v. Sarvis, supra; South Dakota, State v. Cross, supra; Texas, Simpson v. State, supra; Washington, State v. Rivers, supra; and District of Columbia, Bates v. United States, supra.

Larceny is admitted for impeachment purposes as a crime of dishonesty in the following jurisdictions: Alabama, Huffman v. State, supra; Alaska, Alexander v. State, supra; Connecticut, State v. Dawkins, 681 A.2d 989 (Conn. App. Ct. 1996); Florida, Reichman v. State, 581 So.2d 133 (Fla. 1991); Georgia, Witherspoon v. State, 339 S.E.2d 737 (Ga. Ct. app. 1986), treating larceny as a crimen falsi crime; Illinois, People v. Elliott, 654 N.E.2d 636 (Ill. App. 1995); Indiana, Geisleman v. State, 410 N.E.2d 1293 (Ind. 1980) in which the court treats larceny as a crime of dishonesty or false statement under Ind. R. Evid. 609(a)(2) even though burglary and robbery are enumerated crimes which are admissible for impeachment under Indiana Rule 609(a)(1); Iowa, State v. Thompkins, supra; Kansas, Buck v. Peat Marwick and Main, 799 P.2d 94 (Kan. Ct. App. 1990), admitting conviction for larceny because it "shows a lack of integrity"; Maine, State v. Grover, 518 A.2d 1039 (Me. 1986), admitting prior conviction for theft since it "reflects adversely on honesty and integrity"; Maryland, Jackson v. State, 668 A.2d 8 (Md. 1995), in contrast to earlier Maryland decisions holding burglary and robbery inadmissible for impeachment purposes, admits a larceny conviction for impeachment since it reflects adversely on honesty and integrity; Massachusetts, Commonwealth v. Walker, supra; Nebraska, State v. Williams, 326 N.W.2d 678 (Neb. 1982); New Hampshire, State v. LaRosa, 497 A.2d 1224 (N.H. 1985); Ohio, State v. Tolliver, 514 N.E.2d (Ohio Ct. App. 1986); Oklahoma, Cline v. State, 782 P.2d 399 (Okla. Crim. App. 1989); Pennsylvania, Commonwealth v. Ellis, 549 A.2d 1323 (Pa. Super. Ct. 1988); Rhode Island, State v. Shaw, 492 S.E.2d 402 (S.C. Ct. App. 1997); South Carolina, State v. Shaw, 492 S.E.2d 402 (S.C. Ct. App. 1997); Tennessee, State v. Roberts, 943 S.W.2d 403 (Tenn. Crim. App. 1996); Texas, Edwards v. State, 883 S.W.2d 692 (Tex. Ct. App. 1994) and District of Columbia, Bates v. United States, supra.

In contrast, the crime of burglary is not a crime of dishonesty in the following States: Arizona, State v. Malloy, 632 P.2d 315 (Ariz. 1982); Maryland, Bane v. State, 533 A.2d 309 (Md. Ct. Spec. App. 1987); Minnesota, State v. Hoffman, 549 N.W.2d 372 (Minn. Ct. App. 1996; Mississippi, Townsend v. State, 605 So.2d 767 (Miss. 1992); North Dakota, State v. Bohe, 447 N.W.2d 277 (N.D. 1989); and Utah, State v. Morrell, 803 P.2d 292 (Utah Ct. App. 1990).

Similarly, it has been held that robbery is not a crime of dishonesty in the States of Maryland (Bane v. State, supra), Mississippi (Townsend v. State, supra) and Utah (State v. Morrell, supra).

It has also been held that larceny is not a crime of dishonesty in the States of Hawaii (State v. Pudiquet, 922 P.2d 1032 (Haw. Ct. App. 1996)), Nebraska (State v. Williams, 326 N.W.2d 678 (Nev. 1982)), North Dakota (State v. Bohe, supra), Oregon (State v. Reitz, 705 P.2d 762 (Or. Ct. App. 1985)), Utah (State v. Johnson, 784 P.2d 1135 (Utah 1989)), Washington (State v. Burton, 676 P.2d 975 (Wash. 1984)), and West Virginia (State v. Rahman, 483 S.E.2d 273 (W.Va. 1996)).

There are also some States which do not adhere to the statutory standards of Uniform Rule 609(a). A few States, within limitations, permit the use of felony convictions generally for the impeachment of witnesses. These are: California, Cal. Evid. Code § 788; Colorado, Colo. Rev. Stat. § 13-90-101; Connecticut, See State v. Pinnock, 220 Conn. 765, 601 A.2d 521 (1992); Idaho, Idaho R. Evid. 609(a); Kentucky, Ky. R. Evid. 609(a); and Nevada, Nev. Rev. Stat. § 50.095.

Other States broadly, although within limitations, admit convictions, including misdemeanors, for impeachment purposes: Massachusetts, Mass. Ann. Laws c. 233 § 21; Missouri, Vernon's Ann. Mo. Stat. § 491.050; New Jersey, N.J. R. Evid. 609, subject to the discretion of the judge to exclude for remoteness or other causes; New York, McKinney's CPLR § 4513; North Carolina, N.C. Gen. Stat. § 8C-1, Rule 609, providing the crime is punishable by more than sixty days confinement; and Wisconsin, Wis. Stat. § 906.09, including adjudications for delinquency.

Two States require that the conviction either be a felony or one of moral turpitude. Texas, Tex. R. Evid. 609(a) and Virginia, Va. Code Ann. § 19.2-269 and Lincoln v. Commonwealth, 217 Va. 370, 228 S.E.2d 688 (1976), including character of the witness for veracity.

In Georgia, a witness' credibility can be impeached through evidence of bad character which includes convictions of crimes involving "moral turpitude." (James v. State, 160 Ga. App. 185, 286 S.E.2d 506 (1981) and Ailstock v. State, 159 Ga. App. 482, 283 S.E.2d 698 (1981)). The misdemeanor offense of issuing a bad check has been held to constitute a crime of "moral turpitude" (Paradise v. State, 212 Ga. App. 166, 441 S.E.2d 497 (1994)), while the offense of a simple assault has been held not to constitute a crime of moral turpitude (Polk v. State, 202 Ga. App. 738, 415 S.E.2d 506 (1992)).

In Maryland a witness' credibility can be impeached by "an infamous crime or other crime relevant to the witness' credibility." Md. R. Evid. 5-609. A prior conviction for conspiracy to distribute marijuana is a misdemeanor at common law and is not one of the "infamous crimes" embraced within the rule. Wallach v. Board of Educ., 99 MD. App. 386, 637 A.2d 859 (1994). However, a prior conviction for cocaine distribution is relevant to a witness' credibility and admissible for impeachment purposes. State v. Woodland, 337 Md. 519, 654 A.2d 1314 (1995).

Montana appears to be the only State which does not admit convictions for the purpose of attacking the credibility of a witness. Mont. Code Ann. c. 10, Rule 609. The Federal and Uniform Rules 609 have been rejected, not only because Montana constitutional and statutory provisions would severely limit the usefulness of such a rule, "but also and most importantly because of its low probative value in relation to credibility." As further reasoned by the Montana Supreme Court Commission on Evidence,

The Commission does believe that conviction of certain crimes is probative of credibility; however, it is the specific act of misconduct underlying the conviction which is really relevant, not whether it has led to a conviction. Allowing conviction of crime to be proved for the purpose of impeachment merely because it is a convenient method of proving the act of misconduct . . . is not acceptable to the Commission, particularly in light of Rule 608(b) allowing acts of misconduct to be admissible if they relate to credibility.

The Drafting Committee does not recommend adopting a uniform rule, as in the case of Montana, which would prohibit altogether the use of convictions for impeachment purposes.

The Committee does believe that a rule framed along the lines of the following Vermont rule would facilitate greater uniformity throughout the several States in the types of crimes admissible for impeachment purposes and more nearly focus upon the purpose for which prior convictions are admissible to impeach the testimony of a witness. Accordingly, Vermont, the only state jurisdiction to have adopted the standard of "untruthfulness or falsification," and the ABA Criminal Justice Section's proposal, have been followed in proposing the revision of Uniform Rule 609(2) to admit convictions regardless of punishment to impeach the credibility of a witness. Vermont Rule 609(a)(1) provides:

(1) Involved untruthfulness or falsification regardless of the punishment, unless the court determines that the probative value of admitting this evidence is substantially outweighed by the danger of unfair prejudice. This subsection (1) applies only to those crimes whose statutory elements necessarily involve untruthfulness or falsification;

The rationale for the Vermont rule is explained in the Reporter's Notes as follows:

The present language establishes a two-tier test of admissibility. If the prior conviction necessarily involved untruthfulness or falsification - that is, if untruthfulness or falsification were one of the essential elements chargedBthe conviction falls within the class of convictions for which admissibility is preferred. The rule operates on the assumption that such convictions are of the highest relevance in determining credibility. They are to be admitted unless the court determines that their probative value is not just outweighed but "substantially" outweighed by the danger of unfair prejudice. See V.R.E. 403. For example, in a criminal trial for forgery, admission of a prior conviction of the defendant for the same offense could be highly prejudicial. State v. Jarrett, 143 Vt. 191, 465 A.2d 238 (1983). In effect, once the proponent of admission satisfies the court that the prior conviction involved untruthfulness or falsification, subdivision (a)(1) shifts the burden to the opponent to show substantial possibility of prejudice.

The Reporter's Notes further observe:

The amended wording is drafted to emphasize the preferred status of offenses involving untruthfulness, an approach similar to that found in Federal Rule of Evidence 609. But the federal wording has been deliberately avoided. The federal rule speaks of "dishonesty or false statement," and the former term in particular has been given a broad interpretation. Some courts have held it to encompass burglary, narcotics offenses, larceny and even shoplifting. 3 J. Weinstein and M. Berger, Weinstein's Evidence & 609[04], at 77-85 (1987). None of these offenses would qualify under Vermont Rule of Evidence 609(a)(1). (The falsification of a prescription in order to obtain narcotics would qualify under the Vermont rule, but simple possession of the resulting narcotics would not.) Moreover, the federal rule created substantial uncertainty as to the applicability of the balancing test of Rule 403; some federal courts hold that offenses involving dishonesty are automatically admissible, others hold that such offenses are subject to the test of Rule 403. Weinstein and Berger, supra, at 73-76. The Vermont rule makes explicit the applicability of a balancing test. * * *

As proposed, Uniform Rule 609 would not automatically exclude the crimes of burglary, robbery, or larceny. They would be admissible under subdivision (a)(1) for impeachment purposes if these crimes were punishable by death or imprisonment in excess of one year, but subject to one or the other of the balancing tests set forth in the rule depending upon whether the witness was the accused or a person other than the accused.

The admissibility of convictions under subdivision (a)(2) would be limited to crimes which have historically been described a "crimen falsi" crimes, such as perjury, subornation of perjury, false statement, criminal fraud, embezzlement, false pretense, or any other offense involving an element of deceitfulness, untruthfulness, or falsification. However, unlike the Vermont rule, Uniform Rule 609(a)(2) as presently proposed does not require a balancing of probative value against the danger of unfair prejudice.

The proposal for amending Uniform Rule 609(b) dealing with the admissibility of convictions more than ten years old would bring into the rule the comparable balancing test found in Federal Rule 609(b).

No amendments to subdivisions (c) through (e) are proposed.

Subdivisions (f), (g) and (h) are proposed to provide for procedures to be followed in determining the admissibility of convictions to attack the credibility of a witness. Subdivision (f) sets forth a notice requirement and, as mentioned, adopts the notice provision contained in proposed Uniform Rule 404(b) to provide for consistency in the giving of notice under the Uniform Rules when it is required as a condition to the admissibility of evidence. As presently proposed, the notice provision applies to the entirety of proposed Uniform Rule 609 whenever a proponent seeks the admission of a conviction to attack the credibility of a witness. Subdivision (g) requires the making of a record of the factors considered by the court in ruling upon the admissibility of a conviction and subdivision (h) sets forth the methods of proof of a conviction.

RULE 610. RELIGIOUS BELIEFS AND OPINIONS. Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his the witness's credibility is impaired or enhanced.

This proposal for amending Rule 610 eliminates the gender-specific language in the rule. It is technical and no change in substance is intended.

There are no other proposals for amending Uniform Rule 610.

RULE 611. MODE AND ORDER OF INTERROGATION AND PRESENTATION.

(a) Control by court. The court shall 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.

(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, may permit inquiry into additional matters as if on direct examination.

(c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be is necessary to develop his the witness's testimony. Ordinarily leading questions should be permitted on cross-examination. Whenever a A party calls may interrogate a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

This proposal for amending Rule 611 eliminates the gender-specific language in the rule and contains recommended stylistic changes. These are technical and no change in substance is intended.

The Drafting Committee agreed at its meeting in Cleveland, October 4-6, 1996, that the Comment to the rule should include a statement to the effect that, in applying Uniform Rule 611(a)(3) to protect witnesses from harassment or undue embarrassment, the court should be particularly sensitive to protecting the sensibilities of children when they are giving testimony in court.

There are no other proposals for amending Uniform Rule 611.

RULE 612. WRITING RECORD OR OBJECT USED TO REFRESH MEMORY.

(a) While testifying. If, while testifying, a witness uses a writing record or object to refresh his memory, an adverse party is entitled to have the writing record or object produced at the trial, hearing, or deposition in which the witness is testifying.

(b) Before testifying. If, before testifying, a witness uses a writing record or object to refresh his memory for the purpose of testifying and the court in its discretion determines that the interests of justice so require, an adverse party is entitled to have the writing record or object produced, if practicable, at the trial, hearing, or deposition in which the witness is testifying.

(c) Terms and conditions of production and use. A party entitled to have a writing record or object produced under this rule is entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which that relate to the testimony of the witness. If production of the writing record or object at the trial, hearing, or deposition is impracticable, the court may order it made available for inspection. If it is claimed that the writing record or object contains matters matter not related to the subject matter of the testimony, the court shall examine the writing record or object in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall must be preserved and made available to the appellate court in the event of an appeal. If a writing record or object is not produced, made available for inspection, or delivered pursuant to order under this rule, the court shall make any order justice requires, but in criminal cases if the prosecution elects not to comply, the order shall must be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

First, this proposal for amending Rule 612 eliminates the gender-specific language in the rule and contains recommended stylistic changes. These are technical and no change in substance is intended.

Second, it is proposed that Rule 612 be amended to substitute the word "record" for the language "writing" to conform the rule to the recommendation of the Task Force on Electronic Evidence, Subcommittee on Electronic Commerce, Committee on Law of Commerce in Cyberspace, Section on Business Law of the American Bar Association. See the Reporter's Notes to Uniform Rule 101, supra.

There are no other proposals for amending Uniform Rule 612.

RULE 613. PRIOR STATEMENTS STATEMENT OF WITNESS.

(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by him the witness, whether written in a record or not, the statement need not be shown nor its contents disclosed to him the witness at that time, but on request the same shall it must be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same statement and the opposite opposing party is afforded an opportunity to interrogate him the witness thereon, or the interests of justice otherwise require. This provision subdivision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).

This proposal for amending Rule 613 eliminates the gender-specific language in the rule and incorporates recommended stylistic changes. These are technical and no change in substance is intended.

There are no other proposals for amending Uniform Rule 613.

RULE 614. CALLING AND INTERROGATION OF WITNESSES BY COURT.

(a) Calling by court. The court, at the suggestion of a party or on its own motion, may call witnesses a witness, and all parties are entitled to may cross-examine witnesses the witness thus called.

(b) Interrogation by court. The court may interrogate witnesses a witness, whether called by itself the court or by a party.

(c) Objections Objection. Objections An objection to the calling or interrogation of witnesses a witness by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

There are no proposals for amending Uniform Rule 614.

RULE 615. EXCLUSION OF WITNESSES. At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of on its own motion. This rule Rule does not authorize exclusion of (1) a party who is a natural person an individual, or (2) an officer or employee of a party that is not a natural person an individual designated as its representative by its attorney, or (3) a person an individual whose presence is shown by a party to be essential to the presentation of his the party's cause or is otherwise authorized by statute, judicial decision, or court rule.

This proposal for amending Rule 615 eliminates the gender-specific language in the rule and makes recommended stylistic changes. These are technical and no change in substance is intended.

The phrase "or is otherwise authorized by statute, judicial decision, or court rule" is added at the end of the rule to accommodate state law permitting other individuals, such as victims, to be present in the hearing room.

RULE 616. BIAS OF WITNESS. For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any a party to the case is admissible.

[As added 1986]

The Comment to the 1986 Amendment states as follows:

Neither the Federal nor the Uniform Rules of Evidence contain a provision authorizing the introduction of evidence of bias, prejudice, or interest to attack the credibility of a witness. Some confusion has arisen as to the admissibility of this type of evidence. Thus, the committee recommended that the conference adopt such a rule. The rule codifies the holding in United States v. Abel, 469 U.S. 45 (1984).

As is the usual format of these rules, the evidence described by Rule 616 is not to be automatically admitted, but is subject to other rules such as Rule 403.

There are no proposals for amending Uniform Rule 616.

RULE 701. OPINION TESTIMONY BY LAY WITNESS. If the witness is not testifying as an expert, his a witness's testimony is not based on scientific, technical, or other specialized knowledge within the scope of Rule 702, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which that are (1) rationally based on the perception of the witness, and (2) helpful to a clear understanding of his the witness's testimony or the determination of a fact in issue.

This proposal for amending Rule 701 eliminates the gender-specific language in the Rule and makes recommended stylistic changes. These are technical and no change in substance is intended.

The Drafting Committee also proposes adding a new provision that scientific, technical, or other specialized knowledge may not form the basis for the opinions or inferences of lay witnesses under Uniform Rule 701. The phrase "scientific, technical or other specialized knowledge" is intended to have the same meaning as the identical phrase in Uniform Rule 702. However, the language does not embrace "[t]he prototypical example of the type of evidence contemplated by the adoption of Rule 701 relat[ing] to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences." See Asplundh Mfg. Div. v. Benton Harbor Eng'g., 57 F.3d 1190, 1196 (3rd Cir. 1995). As observed by one state court, the distinction between lay and expert witness testimony is that lay testimony "results from a process of reasoning familiar in everyday life" while expert testimony "results from a process of reasoning which can be mastered only by specialists in the field." See State v. Brown, 836 S.W.2d 530, 549 (1992).

A similar amendment to Rule 701 of the Federal Rules of Evidence has been proposed. It provides:

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.

The proposed amendment of Uniform Rule 701, as with the federal rule, is intended to eliminate the risk that the reliability requirements for the admissibility of scientific, technical, or specialized knowledge under Rule 702 will be evaded through the expedient of proffering an expert as a lay witness under Uniform Rule 701. The proposed amendment distinguishes between expert and lay testimony and not between expert and lay witnesses since it is possible for the same witness to give both lay and expert testimony in the same case. However, the proposed amendment makes clear that any of the testimony of the witness that is based on scientific, technical, or specialized knowledge must be governed by the standards of Uniform Rule 702.

RULE 702. TESTIMONY BY EXPERTS.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

(a) General rule. If a witness's testimony is based on scientific, technical, or other specialized knowledge, the witness may testify in the form of opinion or otherwise if the court determines the following are satisfied:

(1) the testimony will assist the trier of fact to understand evidence or determine a fact in issue;

(2) the witness is qualified by knowledge, skill, experience, training, or education as an expert in the scientific, technical, or other specialized field;

(3) the testimony is based upon principles or methods that are reasonably reliable, as established under subdivision (b), (c), (d) or (e);

(4) the testimony is based upon sufficient and reliable facts or data; and

(5) the witness has applied the principles or methods reliably to the facts of the case.

(b) Reliability deemed to exist. A principle or method is reasonably reliable if its reliability has been established by controlling legislation or judicial decision.

(c) Presumption of reliability. A principle or method is presumed to be reasonably reliable if it has substantial acceptance within the relevant scientific, technical, or specialized community. A party may rebut the presumption by proving that it is more probable than not that the principle or method is not reasonably reliable.

(d) Presumption of unreliability. A principle or method is presumed not to be reasonably reliable if it does not have substantial acceptance within the relevant scientific, technical, or specialized community. A party may rebut the presumption by proving that it is more probable than not that the principle or method is reasonably reliable.

(e) Other reliability factors. When determining the reliability of a principle or method, the court shall consider all relevant additional factors, which may include:

(1) the extent to which the principle or method has been tested;

(2) the adequacy of research methods employed in testing the principle or method;

(3) the extent to which the principle or method has been published and subjected to peer review;

(4) the rate of error in the application of the principle or method;

(5) the experience of the witness in the application of the principle or method;

(6) the extent to which the principle or method has gained acceptance within the relevant scientific, technical, or specialized community; and

(7) the extent to which the witness's specialized field of knowledge has gained acceptance within the general scientific, technical or specialized community.

This proposal of the Drafting Committee for amending Uniform Rule 702 combines the proposals of Alan W. Tamarelli and David L. Faigman, set forth respectively at pages 175 and 169-170, infra, of these Reporter's Notes, with substantive revisions by the Drafting Committee. See also, Tamarelli, Jr., Alan W., Daubert v. Merrell Dow Pharmaceuticals: Pushing the Limits of Scientific Reliability - The Questionable Wisdom of Abandoning the Peer Review Standard for Admitting Expert Testimony, 47 Vand. L. Rev. 1175 (1994), and Faigman, David L., Making the Law Safe for Science: A Proposed Rule for the Admission of Expert Testimony, 35 Washburn L. J. 401 (1996). See further, Gianelli, Paul C., The Admissibility of Novel Scientific Evidence: Frye v. United States, A Half Century Later, 80 Colum. L. Rev. 1197 (1980).

Subdivision (a) retains the substance of the existing Uniform Rule 702 with the important addition in subdivision (a)(4) by requiring that the principle or methodology upon which the testimony is based be established as reasonably reliable under subdivisions (b), (c), or (e) and can be reliably applied to the facts of the case. Subdivision (a)(4) is not intended in any way to undermine Uniform Rule 703 providing that the facts or data upon which an expert bases an opinion need not be admissible in evidence if they are of a type reasonably relied upon by experts in the particular field.

Subdivision (b) provides that "[a] principle or methodology is deemed reasonably reliable if its reliability has been established by controlling legislation or judicial decision." This is intended to foreclose inquiry as to the reliability of a principle or methodology where its reliability has been established by legislation or judicial decision, such as the determination of paternity pursuant to legislation providing for genetic testing to determine paternity (10 Okl. Stat. Ann. §§ 501-506), or the admissibility of DNA profiling evidence pursuant to decisional law. (Taylor v. State, 889 P.2d 319 (Okl.Cr. 1995)). The rule thereby avoids the necessity for relitgating the admissibility of scientific, technical, or specialized knowledge that has been determined to be legislatively or judicially admissible. At the same time, if there are advances in the science, technology or specialty which discredit or modify principles or methods earlier deemed reliable, such as electrophoresis in determining a DNA match, their reliability can be legislatively or judicially revisited. However, absent a due process violation by applying the principle or method, a trial judge would be bound to follow the established rule until it is overturned.

Subdivision (b) would not eliminate the requirement for foundational evidence as a condition to admissibility under Rule 702(a).

Subdivisions (c) and (d) embrace the approach of Tamarelli by raising a presumption of either the reliability or unreliability of the principle or methodology upon which the expert testimony is based, depending upon whether the principle or methodology has substantial acceptance within the relevant scientific, technical, or specialized community. The "preponderance of the evidence", or, more accurately, "more probably true than not" standard is embodied in the rule to rebut the presumption of reliability or unreliability. Tamarelli defends this approach as follows:

Congress should consider an amendment that will produce accurate, consistent results without requiring judges to expend time they do not have playing amateur scientist. To do this while avoiding the pitfalls of Frye, any new version of Rule 702 must allow the more qualified scientific community to determine most questions of reliability without automatically excluding ideas merely because they have not been tested universally. A new Rule 702 would do well to establish explicitly a rebuttable presumption that only testimony (whether scientific, technical, or specialized) derived by using methodology that has gained scientific acceptance in the appropriate field is admissible.

An improved Rule 702 might read as follows: If scientific, technical, or other specialized information will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness may testify thereto in the form of an opinion or otherwise only if (1) the information is reasonably reliable, and (2) the witness is qualified as an expert by knowledge, skill, experience, training, or education to provide that testimony.

Information normally will be considered reasonably reliable if it is based on premises, or derived from techniques, having significant support and acceptance within the relevant specialized community. A party seeking to object to a witness testifying thereto must show by a preponderance of the evidence that the information is not reasonably reliable.

Information based on premises or derived from techniques not having significant support and acceptance within the relevant specialized community normally will not be considered reasonably reliable. A party seeking to have an expert base her testimony on this type of evidence must show by a preponderance of the evidence that this information is reasonably reliable.

This amended Rule would serve a number of purposes. First, it would retain a firm emphasis on relevance by requiring that expert testimony assist the trier of fact. Second, like the Advisory Committee's proposal, it would introduce a requirement that the testimony be reasonably reliable. This proposal, however, would address Daubert directly by establishing in the text of Rule 702 that peer review and acceptance should be the primary indicators of reliable expert testimony. Unlike Frye, though, it would not work as an absolute bar against admitting theories that are not generally accepted. Rather, it merely would establish a presumption that these theories are not reliable enough to be admitted.

By placing the burden on the proponent of testimony that is not generally accepted to show its reliability by a preponderance of the evidence, the enactment of a Rule similar to the one proposed in this Recent Development would discourage junk science by making it difficult, but not impossible, to introduce an expert's novel ideas if his theories have not yet gained significant support among his peers. The proposed Rule also would limit the number of objections to accepted theories by requiring the objecting party to make a showing of unreliability by a preponderance of the evidence. [footnotes omitted] See Tamarelli, Alan W., supra, at pp. 1199-1201.

It is not intended that the modified version in subdivisions (c) and (d) of the historic Frye doctrine constitute a standard of admissibility. Rather, as indicated in the foregoing commentary of Tamarelli, the rule is procedural only by providing presumptively that peer review and acceptance should be the primary indicator of reliability, relieve the trial judge of the initial responsibility of playing "amateur scientist," and impose upon the party who challenges the unreliability or reliability of the principle or methodology, or their application, the burdens of producing evidence and of ultimate persuasion that it is more probable then not that the principle is either unreliable or reliable. Only if the reliability or unreliability of the principle or methodology is challenged, will it be necessary to examine other factors as set forth in subdivision (e) of the proposed rule.

Subdivision (e) incorporates factors, when applicable, which may be considered by the court for purposes of determining the reasonable reliability of the principles or methodology upon which the expert testimony is based. It carries forward the factors laid down by the Supreme Court in the Daubert case, which are also embraced in subdivisions (a)(1) and (2) of the Faigman proposal, but without differentiating between the difficult dichotomy of "scientific" and "non-scientific" expert testimony.

Subdivision (e)(6), as in the Daubert case, provides, as one of the reliability factors that may be considered, the extent to which the principle of method has gained acceptance within the relevant scientific, technical or specialized community. However, in contrast, the proposed Rule also specifies in subdivision (e)(7) as an additional reliability factor that may be considered the extent to which the witness's specialized field of knowledge has gained acceptance in the relevant scientific, specialized, or technical community.

It should also be noted that the reliability factors listed in Subdivision (e) that may be considered are not exclusive. See in this connection, Kumho Tire Company, LTD v. Patrick Carmichael, 67 U.S. L.W. 4179 (March 23, 1999), reasoning that "[o]ur emphasis on the word 'may' thus reflects Daubert's description of the Rule 702 inquiry as 'a flexible one' . . . Daubert makes clear that the factors it mentions do not constitute a 'definitive checklist or test.'"

Factors other than those enumerated in Subdivision (e) may be appropriate for consideration as well. Some that have been identified are: (1) drawing an unfounded conclusion from an accepted premise; (2) forming an opinion only on personal experience or a few case studies; (3) reaching a conclusion on causation based on a short time span between the prodromal event and the injury; (4) failing to connect reliable principles and methods with the facts of the case; (5) failing to eliminate some of the most obvious causes of injury or disease; (6) failing to test hypotheses which form the basis for the expert's opinion; and (7) explaining methodology with reference to objective rather than subjective standards. See Capra, Daniel, J., The Daubert Puzzle, 32 Georgia L. Rev. 699, 714-732 (1998).

The Drafting Committee believes, first, that the proposal meaningfully avoids the use of the terminology "scientific" and "non-scientific" principles or methodology and does not mandate that the Daubert factors necessarily apply in determining the reliability of scientific, technical, or specialized knowledge. This approach is also consistent with the recent decision of the Supreme Court in Kumho Tire Company, LTD v. Patrick Carmichael, 67 U.S. L.W. 4179 (March 23, 1999). Referring to the black letter of Federal Rule 702, the Court reasoned as follows:

This language makes no relevant distinction between "scientific" knowledge and "technical" or "other specialized" knowledge. It makes clear that any such knowledge might become the subject to expert testimony. In Daubert the Court specified that it is the Rule's word "knowledge," not the words (like "scientific") that modify that word, that "establishes a standard of evidentiary reliability." * * * Hence, as a matter of language, the Rule applies its reliability standard to all "scientific," "technical," or "other specialized" matters within its scope. We concede that the Court in Daubert referred only to "scientific" knowledge. But as the Court there said, it referred to "scientific" testimony "because that [wa]s the nature of the expertise" at issue. * * *

Neither is the evidentiary rationale that underlay the Court's basic Daubert "gatekeeping" determination limited to "scientific" knowledge. Daubert pointed out that Federal Rules 702 and 703 grant expert witnesses testimonial latitude unavailable to other witnesses on the "assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline." * * * (pointing out that experts may testify to opinions, including those that are not based on firsthand knowledge or observation). The Rules grant that latitude to all experts, not just to "scientific" ones.

Finally, it would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between "scientific" knowledge and "technical" or "other specialized" knowledge. There is no clear line that divides the one from the others. Disciplines such as engineering rest upon scientific knowledge. Pure scientific theory itself may depend for its development upon observation and properly engineered machinery. And conceptual efforts to distinguish the two are unlikely to produce clear legal lines capable of application in particular cases. * * *

Moreover, the proposed Uniform Rule 702 leaves the door open to the admissibility of evidence in social science areas where the falsifiability and potential rate of error factors required by Daubert could rarely be met.

Second, arguably, by eliminating the focus on "scientific knowledge" from the proposed rule, the factors set forth in subdivision (e) accommodate the admissibility of expert testimony involving only the application of a principle or methodology as opposed to the determination of the reliability of the principle or methodology in the first instance. See, in this connection, subdivision (a)(4)(B).

Third, with the approach taken in subdivision (e) of the proposed amendments, the rule arguably meets the concerns expressed with respect to whether the Daubert criteria apply when the expert is testifying solely on a basis of experience, such as automobile mechanics, or skeletal configurations. See, in this connection, Burgess v. Friedman & Son, Inc., 637 P.2d 908 (Okl.App. 1981) and Commonwealth v. Devlin, 365 Mass. 149, 310 N.E.2d 353 (1974).

Fourth, reinstituting a modified Frye standard as a procedural rule may promote greater reliability in the evidence offered and admitted and avoid the criticism that the Daubert approach to admissibility "will result in a 'free-for-all' in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions." See Daubert v. Merrell Dow Pharmaceuticals, Inc., 113 S.Ct. 2786, at 2798 (1993).

The Drafting Committee's proposal differs significantly from the proposed amendment to Rule 702 of the Federal Rules of Evidence, now approved by the Advisory Committee for submission to the Standing Committee of the Judicial Conference of the United States. It provides as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise., provided that (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The background for the Drafting Committee's proposed amendments to Uniform Rule 702 comes in the wake of Daubert v. Merrell Dow Pharmaceuticals, Inc., ___U.S.___, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), holding that the following four factors are to be employed in determining the admissibility of "novel scientific evidence" under Rule 702 of the Federal Rules of Evidence:

1. Has the theory or technique been tested or is subject to being tested?

2. Has the theory or technique been subjected to peer review and publication?

3. What is the known or potential rate of error in applying the particular scientific theory or technique?

4. To what extent has the theory or technique received general acceptance in the relevant scientific community?

A number of proposals have been proposed for amending Rule 702 of the Federal Rules of Evidence as well as Rule 702 of the Uniform Rules of Evidence. The following was suggested by Judge Michael B. Getty as a starting point for discussion in determining whether amendments should be made to Uniform Rule 702 to reflect the criteria established in the Daubert case for determining the admissibility of "novel scientific evidence":

Rule 702. [Testimony by Experts].

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

(a) Scientific Expert Testimony. If valid scientific knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by scientific training and education may testify thereto in the form of an opinion or otherwise.

For purposes of this Rule, when making preliminary assessments of validity pursuant to Rule 104(a), judges shall determine the adequacy of the scientific foundation for the testimony and, if applicable, the methodology or technique used to apply that knowledge to the specific case.

(1) The Scientific Foundation for the Testimony. In assessing the validity of the scientific foundation for expert testimony, judges must find that the basis for the expert's testimony has been tested. In addition, in order to determine the validity of those scientific tests, judges should consider, among other things,

(A) the adequacy of the research methods used to conduct these tests;

(B) whether the research supporting the expert's testimony was peer reviewed and published; and

(C) the degree of acceptance in the scientific community of the science supporting the expert's opinion.

(2) Expert Testimony Regarding Case Specific Facts. In assessing the validity of expert testimony on facts specific to the case, judges must find that the methodology or technique used to ascertain the pertinent fact or facts has been tested. In addition, judges should consider, among other things,

(A) the adequacy of the research methods used to conduct these tests;

(B) whether the research validating these methods was peer reviewed and published; and

(C) the error rate associated with the methodology used to ascertain the pertinent fact or facts.

(b) Non-Scientific Testimony. If valid technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, where scientific knowledge is unavailable or unnecessary, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Upon review and after consultation with Professor David L. Faigman who filed the Amicus brief in "Daubert" before the United States Supreme Court on behalf of a group of law professors, it is my opinion that the only rule that need be changed is Rule 702. I am attaching hereto those provisions to the rules as drafted by Professor Faigman at my suggestion . . . . [See Faigman, In Making the Law Safe for Science: A Proposed Rule for the Admission of Expert Testimony, 35 Washburn L. J. 401 (1996)]

I would also like to call to the Committee's attention an essay by Professor Faigman which appeared in the Hastings Law Journal, Vol. 46, January 1995 entitled "Mapping the Labyrinth of Scientific Evidence".

There are a number of additional proposals which have been made for amending Rule 702 of the Federal Rules of Evidence which is currently identical to Uniform Rule 702. In the Spring, 1997, S. 79, also known as the Honesty in Evidence Act, was introduced in the United States Senate to amend Federal Rule 702 as follows:

Rule 702. Testimony by Experts

(a) In general. - If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

(b) Adequate Basis for Opinion. -

(1) Testimony in the form of an opinion by a witness that is based on scientific, technical, or medical knowledge shall be inadmissible in evidence unless the court determines that such opinion -

(A) is based on scientifically valid reasoning;

(B) is sufficiently reliable so that the probative value of evidence outweighs the dangers specified in Rule 403; and

(C) the techniques, methods, and theories used to formulate that opinion are generally accepted within the relevant scientific, medical, or technical field.

(2) In determining whether an opinion satisfies conditions in paragraph (1), the court shall consider -

(A) whether the opinion and any theory on which it is based have been experimentally tested;

(B) whether the opinion has been published in peer-review literature; and

(C) whether the theory or techniques supporting the opinion are sufficiently reliable and valid to warrant their use as support for the proffered opinion.

(c) Expertise in the field. - Testimony in the form of an opinion by a witness that is based on scientific, technical, or medical knowledge, skill, experience, training, education, or other expertise shall be inadmissible unless the witness's knowledge, skill, experience, training, education, or other expertise lies in the particular field about which such witness is testifying.

(d) Disqualification. - Testimony by a witness who is qualified as described in subsection (a) is inadmissible in evidence if the witness is entitled to receive any compensation contingent on the legal disposition of any claim with respect to which the testimony is offered.

In March, 1997, the following H.R. 903 was introduced in the United States House of Representatives to amend Federal Rule 702:

Rule 702. Testimony by Experts

(a) In general. - If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

(b) Adequate basis for opinion. - Testimony in the form of an opinion by a witness that is based on scientific knowledge shall be inadmissible in evidence unless the court determines that such opinion -

(1) is scientifically valid and reliable;

(2) has a valid scientific connection to the fact it is offered to prove; and

(3) is sufficiently reliable so that the probative value of such evidence outweighs the dangers specified in rule 403.

(c) Disqualification. - Testimony by a witness who is qualified as described in subdivision (a) is inadmissible in evidence if the witness is entitled to receive any compensation contingent on the legal disposition of any claim with respect to which the testimony is offered.

(d) Scope. - Subdivision (b) does not apply to criminal proceedings.

Earlier, in 1991 the Standing Committee of the Judicial Conference of the United States recommended the following amendment to Federal Rule 702.

Testimony providing scientific, technical, or other specialized information, in the form of an opinion or otherwise, may be permitted only if (1) the information is reasonably reliable and will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, and (2) the witness is qualified as an expert by knowledge, skill, experience, training, or education to provide such testimony. [Ends with a notice requirement invoking the pre-amendment Civil Rule 26]

The Advisory Committee Note to the proposed Rule stated:

Awhile testimony from experts may be desirable if not crucial in many cases, excesses cannot be doubted and should be curtailed . . . . [and the courts should] reject testimony that is based upon premises lacking any significant support and acceptance within the scientific community.

Further, the Note stated:

In deciding whether the opinion evidence is reasonably reliable and will substantially assist the trier of fact, as well as in deciding whether the proposed witness has sufficient expertise to express such opinions, the court, as under present Rule 702, is governed by Rule 104(a).

The American University Law School Evidence Project has proposed the following Revised Rules 702 and 703 by amending Federal Rules 702 and 703 to deal with the Daubert issues as follows:

Revised Rule 702. Testimony by Qualification of Experts Witnesses

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a A witness is qualified as an expert by if the witness has acquired, by any means, substantial knowledge of scientific, technical, or other specialized areas , skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Revised Rule 703. Bases of Opinion Testimony by Experts

(a) General rule. Subject to subsections (b) and (c), if expert testimony will help the trier of fact understand the evidence or determine a fact in issue, a qualified witness may testify to specialized knowledge, as well as opinions and inferences drawn therefrom, without personal knowledge of the underlying data.

(b) Principles, methodologies, and applications employed. A proponent of expert testimony must demonstrate, by a preponderance of the evidence, that the scientific, technical, or other bases of the testimony, including all principles, methodologies, and applications employed by the witness in forming opinions and inferences, produce credible results.

(c) Factual basis of opinion. The facts or case specific data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. A proponent of expert testimony must make a demonstration of reliability, pursuant to Rule 803(5), for all otherwise inadmissible hearsay data relied upon by the expert. An expert may not rely upon data that is inadmissible.

A number of other proposals come from academia. A comment in the Buffalo Law Review, entitled Abandoning New York's "General Acceptance" Requirement: Redesigning Proposed Rule of Evidence 702(b) After Daubert v. Merrell Dow Pharmaceuticals, 43 Buff.L.Rev. 229 (1995), proposes the following codification of Daubert, applicable to scientific testimony only:

Rule 702. Testimony by Experts

(a) In general. - If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

(b) Reliable Scientific Testimony. - Testimony concerning scientific matters, or testimony concerning the result of a scientific procedure, test or experience is admissible provided: (1) the theory or principle underlying the matter, procedure, test or experiment is scientifically valid; (2) the procedure, test, or experiment is reliable and produces accurate results; and (3) the particular test, procedure or experiment was conducted in such a way as to yield an accurate result. Upon request of a party, a determination pursuant to this subdivision shall be made before the commencement of trial.

Professor Michael Graham, in the supplement to his treatise on Evidence, proposes the following amendment to Rule 702 to account for Daubert:

Rule 702. Testimony By Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Testimony providing scientific, technical or other specialized information, in the form of an opinion, or otherwise, may be permitted only if (1) the information is based upon adequate underlying facts, data or opinions, (2) the information is based upon an explanative theory either (a) established to have gained widespread acceptance in the particular field to which the explanative theory belongs, or (b) shown to possess particularized earmarks of trustworthiness, (3) the witness is qualified as an expert by knowledge, skill, experience, training or education to provide such information, and (4) the information will substantially assist the trier of fact to understand the evidence or to determine a fact in issue.

A comment in the Vanderbilt Law Review contains an interesting proposal to amend Rule 702 so as to establish "general acceptance" as a rebuttable presumption of reliability. See Tamarelli, Daubert v. Merrell Dow Pharmaceuticals: Pushing the Limits of Scientific Reliability, 47 Vand. L. Rev. 1175 (1994). The proposal reads as follows:

Rule 702. Testimony By Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

A witness may testify, in the form of an opinion or otherwise, concerning scientific, technical, or other specialized information that will assist the trier of fact to understand the evidence or to determine a fact in issue, but only if (1) the information is reasonably reliable, and (2) the witness is qualified as an expert by knowledge, skill, experience, training, or education to provide that testimony.

Information normally will be considered reasonably reliable if it is based on premises, or derived from techniques, having significant support and acceptance within the relevant specialized community. A party seeking to object to a witness testifying thereto must show by a preponderance of the evidence that the information is not reasonably reliable.

Information based on premises or derived from techniques not having significant support and acceptance within the relevant specialized community normally will not be considered reasonably reliable. A party seeking to have an expert base testimony on this type of information must show by a preponderance of the evidence that this testimony is reasonably reliable.

The Vanderbilt comment states that this proposal has the advantage of addressing Daubert directly "by establishing in the text of Rule 702 that peer review and general acceptance should be the primary indicators of reliable expert testimony." Unlike Frye, however, the proposal "would not work as an absolute bar against admitting theories that are not generally accepted. Rather, it merely would establish a presumption that these theories are not reliable enough to be admitted."

Professor Starrs participated in a project sponsored by the Science and Technology Section of the ABA, the goal of which was to fashion evidentiary rules for scientific evidence. His proposal, which can be found at 115 F.R.D. 79, was published in 1987, six years before Daubert. Nonetheless, it anticipates the decision in that case. Professor Starrs' proposal reads as follows:

Rule 702. Testimony By Experts

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. But expert testimony based upon a scientific theory or technique is not admissible unless the court find that the theory or technique in question is scientifically valid for the purposes for which it is tendered.

Professor Starrs notes that the Rule is designedly general and open-ended: "Just as helpfulness to the jury and the qualifying of an expert are left undefined by the rule, so too is scientific validity. The sound discretion of the trial court, an oft-touted strength, is once again summoned to the task.

A threshold question considered by the Drafting Committee was whether amendments to Uniform Rule 702 ought to embrace completely the Daubert criteria governing the admissibility of "novel scientific evidence" to achieve uniformity among the several States on this issue.

First, there is a significant lack of uniformity among the several States concerning the standard to be applied in determining the admissibility of expert testimony concerning scientific, technical, or specialized knowledge. They appear to fall roughly into five different categories in addressing this issue. These are: (1) States still adhering to the Frye standard; (2) States adhering to a pre-Daubert standard of reliability; (3) States adopting the Daubert standard for admissibility; (4) States adhering to varying standards of admissibility; and (5) States in which the issue appears to be unsettled.

(1) The States still adhering to the Frye standard are: Alaska, Brodine v. State, 936 P.2d 545 (Alaska Ct. App. 1997) (admitting PCR and DNA testing), Clum v. State, No. A-5966, 1996 WL 596945 (Alaska Ct. App. Oct. 9, 1996) (admitting HGN testing), Harmon v. State, 908 P.2d 434 (Alaska Ct. App. 1995) (admitting DNA testing), Mattox v. State, 875 P.2d 763 (Alaska 1994) (excluding testimony of hypnosis) and Contreras v. State, 718 P.2d 129 (Alaska 1986); Arizona, State v. Hummert, 933 P.2d 1187 (Ariz. 1997) (admitting DNA testing), State v. Johnson, 922 P.2d 294 (Ariz. 1996) (admitting DNA testing), States v. Boles, 905 P.2d 572 (Ariz. Ct. App. 1995) (reversing on grounds that DNA testing was inadmissible), State v. Bogan, 905 P.2d 515 (Ariz. Ct. App. 1995) (admitting DNA testing) and State v. Bible, 858 P.2d 1152 (Ariz. 1993) (admitting DNA testing); California, People v. Morganti, 43 Cal. App. 4th 643 (Cal. Ct. App. 1996) (admitting agglutination inhibition testing and DNA testing), Harris Transp. Co. v. Air Resources Bd., 32 Cal. App. 4th 1472 (Cal. Ct. App. 1995) (excluding "snap-idle" testing to measure the opacity of vehicle omissions) and People v. Leahy, 882 P.2d 321 (Cal. 1994) (excluding admission of horizontal gaze nystagmus testing); Colorado, Tran v. Hilburn, No. 95CA1662, 1997 WL 183993 (Colo. Ct. App. April 17, 1997) (admitting VF evidence but excluding QEEG evidence), People v. Fears, No. 93CA0720, 1997 WL 454086 (Colo. Ct. App. Aug. 7, 1997) (admitting testimony of expert witness of shoe print impression), Lindsey v. People, 892 P.2d 281 (Colo. 1995) (admitting DNA testing) and People v. Lyons, 907 P.2d 708 (Colo. Ct. App. 1995) (excluding polygraph test results); Florida, Hadden v. State, 690 So.2d 573 (Fla. 1997) (excluding child sexual abuse accommodation syndrome), Murray v. State, 692 So.2d 157 (Fla. 1997) (excluding DNA testing), J.A.D. v. State, 695 So.2d 445 (Fla. Dist. Ct. App. 1997) (finding error in admitting post traumatic stress disorder), Berry v. CSX Transp., Inc., No. 95-3131, 1997 WL 716425 (Fla. Dist. Ct. App. Nov. 19, 1997) (reversing exclusion of testimony supporting excessive levels of organic solvents caused toxic encephalopathy), Jones v. Butterworth, No. 90,231, 1997 WL 652073 (Fla. Oct. 20, 1997) (admitting testimony that use of electric chair was cruel and unusual punishment), State v. Santiago, 679 So.2d 861 (Fla. Dist. Ct. App. 1996) (admitting polygraph test results), State v. Meador, 674 So.2d 826 (Fla. Dist. Ct. App. 1996) (excluding horizontal gaze nystagmus testing) and Flanagan v. State, 625 So.2d 827 (Fla. 1993) (excluding sex offender profile evidence); Illinois, People v. Miller, 670 N.E.2d 721 (Ill. 1996) (admitting DNA testing), People v. Moore, 662 N.E.2d 1215 (Ill. 1996) (admitting DNA testing), People v. Watson, 629 N.E.2d 634 (Ill. App. Ct. 1994) (admitting DNA testing), People v. Mehlberg, 618 N.E.2d 1168 (Ill. App. Ct. 1993) (admitting DNA testing) and People v. Baynes, 430 N.E.2d 1070 (Ill. 1981) (reversing on grounds that admission of polygraph test results constituted reversible error); Kansas, Armstrong v. City of Wichita, 907 P.2d 923 (Kan. Ct. App. 1995) (admitting multiple chemical sensitivities testing); Maryland, Hutton v. State, 663 A.2d 1289 (Md. 1995) (reversing on grounds that post traumatic stress disorder testimony was inadmissible) and Schultz v. State, 664 A.2d 601 (Md. Ct. Spec. App. 1995) (finding error in admitting horizontal gaze nystagmus testing because no testing of defendant to establish he consumed alcohol); Michigan, State v. Haywood, 530 N.W.2d 497 (Mich. Ct. App. 1995) (declining to review applicability of standard in light of Daubert due to narrow ground upon which bloodstain evidence admitted) and People v. Davis, 72 N.W.2d 269 (Mich. 1955) (admitting testimony in adopting Frye rule in Michigan); Minnesota, State v. Klawitter, 518 N.W.2d 577 (Minn. 1994) (admitting horizontal gaze nystagmus testing), State v. Hodgson, 512 N.W.2d 95 (Minn. 1994) (declining to review applicability of standard in light of Daubert due to ground upon which horizontal gaze nystagmus and bitemark evidence admitted) and State v. Mack, 292 N.W.2d 764 (Minn. 1980) (excluding hypnotic testimony); Missouri, State v. Payne, 943 S.W.2d 338 (Mo. Ct. App. 1997) (admitting DNA testing), Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. 1993) (admitting testimony while declining to review whether 490.065 RSMo. Supp. 1992 supersedes Frye doctrine), State v. Davis, 814 S.W.2d 593 (Mo. 1991) (admitting DNA fingerprinting evidence) and Alsbach v. Bader, 700 S.W.2d 823 (Mo. 1985) (excluding post-hypnotic testimony); Nebraska, Sheridan v. Catering Management, Inc., 556 N.W.2d 110 (Neb. 1997) (admitting physician's testimony that exposure to toxic chemicals caused brain injury), State v. Case, 553 N.W.2d 173 (Neb. Ct. App. 1996) (excluding expert testimony that defendant's statement made during prepolygraph interview were not voluntary), State v. Dean, 523 N.W.2d 681 (Neb. 1994) (admitting laser trajectory testing) and State v. Carter, 524 N.W.2d 763 (Neb. 1994) (finding error in admitting DNA testing); New Hampshire, State v. Cavaliere, 663 A.2d 96 (N.H. 1995) (excluding expert testimony that defendant failed to meet sexual offender profile), State v. Vandebogart, 652 A.2d 671 (N.H. 1994) (admitting DNA testing) and State v. Cressey, 628 A.2d 696 (N.H. 1993) (finding error in admission of expert testimony that children were sexually abused); New Jersey, State v. Marcus, 683 A.2d 221 (N.J. Super. Ct. App. Div. 1996) (admitting DNA testing); New York, People v. Rorack, 622 N.Y.S.2d 327 (N.Y. App. Div. 1997) (finding that admission of FTIR required Frye hearing), People v. Wernick, 651 N.Y.S.2d 392 (N.Y. 1996) (affirming exclusion of expert's reference to neonaticide syndrome), People v. White, 645 N.Y.S.2d 562 (N.Y. App. Div. 1996) (admitting expert testimony on child sexual abuse), People v. Yates, 637 N.Y.S.2d 625 (N.Y. Sup. Ct. 1995) (admitting rape trauma syndrome testimony), People v. Wesley, 633 N.E.2d 451 (N.Y. 1994) (admitting DNA testing) and People v. Swamp, 604 N.Y.S.2d 341 (N.Y. App. Div. 1993) (admitting testimony identifying controlled substances); North Dakota, City of Fargo v. McLaughlin, 512 N.W.2d 700 (N.D. 1994) (admitting testimony upon Frye standard not applicable to determining admissibility of horizontal gaze nystagmus); Pennsylvania, Commonwealth v. Blasioli, 685 A.2d 151 (Pa. Super. Ct. 1996) (admitting DNA testing), Commonwealth v. Crews, 640 A.2d 395 (Pa. 1994) (admitting DNA testing) and Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977) (reversing on grounds of admission of voice print identification); Utah, Dikeou v. Osborn, 881 P.2d 943 (Utah Ct. App. 1994) (finding emergency room physician not qualified to testify as to standard of care applicable to cardiologist); and Washington, State v. Zeiler, No. 330230301, 1997 WL 88960 (Wash. Ct. App. March 3, 1997) (admitting testimony of child abuse), State v. Anderson, No. 15077-1-III, 1997 WL 530705 (Wash. Ct. App. Aug. 26, 1997) (admitting testimony of child abuse), State v. Copeland, 922 P.2d 1304 (Wash. 1996) (admitting RFLP typing), State v. Jones, 922 P.2d 806 (Wash. 1996) (admitting DNA testing), State v. Riker, 869 P.2d 43 (Wash. 1994) (excluding battered woman's syndrome testimony), but see, Reese v. Stroh, 907 P.2d 282 (Wash. 1995) (finding expert opinion as to efficacy of Prolastin therapy admissible).

In New York, there is a proposed New York Rule 702(a) similar to Federal Rule 702. Proposed Rule 702(b) specifically deals with scientific testimony, and reads as follows:

Testimony concerning scientific matters, or testimony concerning the result of a scientific procedure, test or experiment is admissible provided:

1. There is general acceptance within the scientific community of the validity of the theory or principle underlying the matter, procedure, test, or experiment;

2. There is general acceptance within the relevant scientific community that the procedure, test or experiment is reliable and produces accurate results; and

3. The particular test, procedure, or experiment was conducted in such a way as to yield an accurate result.

Upon request of a party, a determination pursuant to this subdivision shall be made before the commencement of trial.

In Hawaii, the Frye standard is combined with a reliability standard introduced in the black letter of Rule 702 in 1992 as follows:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert. See 1992 Haw. Sess. L. Act 191, § 2(7) at 410.

See further, State v. Maelega, 80 Haw. 172, 907 P.2d (1995) ("extreme mental or emotional disturbance manslaughter") and State v. Montalbo, 73 Haw. 130, 828 P.2d 1274 (1992) (DNA evidence).

A modified Frye standard of admissibility has been applied in Alabama in determining the admissibility of DNA test results. See the pre-pronged test of Ex parte Perry, 586 So.2d 242 (Ala. 1991), §§ 36-18-20 through 39, Ala. Code 1975 and Turner v. State, 1996 Ala. Cr. App. LEXIS 118 and Smith v. State, 1995 Ala. Cr. App. LEXIS 413.

(2) The States adhering to a pre-Daubert standard of reliability are: Arkansas, Moore v. State, 915 S.W.2d 284 (Ark. 1996) (admitting DNA testing) and Prater v. State, 820 S.W.2d 429 (Ark. 1991) (admitting DNA testing); Delaware, State v. Sailer, 684 A.2d 1247 (Del. Super. Ct. 1995) (excluding polygraph test results), Nelson v. State, 628 A.2d 69 (Del. 1993) (finding harmless error in admitting DNA testing) and State v. Ruthardt, 680 A.2d 349 (Del. Super. Ct. 1996) (admitting horizontal gaze nystagmus test); Idaho, State v. Parkinson, 909 P.2d 647 (Idaho Ct. App. 1996) (excluding psychological profile of sex offenders) and State v. Faught, 908 P.2d 566 (Idaho 1995) (admitting DNA testing); Iowa, Hutchinson v. Am. Family Ins., 514 N.W.2d 882 (Iowa 1994) (admitting testimony of neuropsychologist on causation); Montana, Barmeyer v. Montana Power Co., 657 P.2d 594 (Mont. 1983) (admitting corrosion analysis); Oregon, State v. Brown, 687 P.2d 751 (Or. 1984) (excluding polygraph testing); Texas, Fowler v. State, No. 10-96-190-CR, 1997 WL 765763 (Tex. Ct. App. Nov. 26, 1997) (finding harmless error in admitting expert testimony of family violence), Forte v. State, 935 S.W.2d 172 (Tex. Ct. App. 1996) (excluding expert testimony), Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) (admitting DNA testing); and Wyoming, Rivera v. State, 840 P.2d 933 (Wyo. 1992) (admitting DNA testing).

In Indiana, see Steward v. State, 652 N.E.2d 490 (Ind. 1995) (excluding child sexual abuse accommodation syndrome), interpreting Indiana's Rule 702(b) requiring that "[e]xpert scientific testimony is admissible only if the court is satisfied that scientific principles upon which the expert testimony rests are reliable" and Hottinger v. Trugreen Corp., 665 N.E.2d 593 (Ind. Ct. App. 1996) (admitting testimony explaining chemical injury caused by exposure to Trimec 2-4-D). See further, the Indiana version of Rule 702 which is somewhat like that of Hawaii, in that it adds a new subdivision to deal with the reliability question. But it is different in several respects as follows:

(a) If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

(b) Expert scientific testimony is admissible only if the court is satisfied that the scientific principles upon which the expert testimony rests are reliable.

(3) The States adopting the Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) standard for admissibility are: Georgia, Winfield v. State, No. A97A2274, 1997 WL 672438 (Ga. Ct. App. Oct. 30, 1997) (admitting DNA testing); Indiana, Weinberg v. Geary, No. 45A03-9612-CV-439, 1997 WL 711104 (Ind. Ct. App. 1997) (excluding expert testimony on physician's standard of care); Iowa, Johnson v. Knoxville Community Sch., No. 95-1686, 1997 WL 732142 (Iowa Nov. 26, 1997) (admitting testimony explaining CD trait), Williams v. Hedican, 561 N.W.2d 817 (Iowa 1997) (admitting expert testimony that administering antibody which destroys chicken pox virus to pregnant woman who has been exposed to the virus can prevent or lessen chicken pox in fetus), Hutchison v. Am. Family Mut. Ins. Co., 514 N.W.2d 882 (Iowa 1994) (admitting testimony of neuropsychologist on causation); Kentucky, Stringer v. Commonwealth, No. 94-SC-818-MR (Ky. Nov. 20, 1997) (admitting expert testimony about child sexual abuse), Collins v. Commonwealth, 951 S.W.2d 569 (Ky. 1997) (admitting doctor's expert testimony), Newkirk v. Commonwealth, 937 S.W.2d 690 (Ky. 1996) (excluding CSAAS testimony), Mitchell v. Commonwealth, 908 S.W.2d 100 (Ky. 1995) (admitting DNA testing) and Rowland v. Commonwealth, 901 S.W.2d 871 (Ky. 1995) (admitting hypnotically enhanced testimony); Louisiana, State v. Schmidt, 699 So.2d 448 (La. Ct. App. 1997) (admitting DNA testing), Williamson v. Haynes Best Western, 688 So.2d 1201 (La. Ct. App. 1997) (admitting expert testimony that prior incidents and expert testimony in support of defense theory that accident was staged), Hickman v. Exide, Inc., 679 So.2d 527 (La. Ct. App. 1996) (admitting evidence), State v. Quatrevingt, 670 So.2d 197 (La. 1996) (finding harmless error to admit DNA testing) and State v. Foret, 628 So.2d 1116 (La. 1993) (excluding child sexual abuse accommodation syndrome testimony); Montana, State v. Cline, 909 P.2d 1171 (Mont. 1996) (admitting expert testimony determining age of fingerprint through use of magnetic powder) and State v. Moore, 885 P.2d 457 (Mont. 1994) (admitting DNA testing); New Mexico, Baerwald v. Flores, 930 P.2d 816 (N.M. Ct. App. 1997) (admitting expert testimony concerning whether accident was capable of producing TMJ injury), State v. Anderson, 881 P.2d 29 (N.M. 1994) (admitting DNA testing) and State v. Alberico, 861 P.2d 192 (N.M. 1993) (admitting post traumatic stress disorder testimony); North Carolina, State v. Goode, 341 N.C. 513, 461 S.E.2d 631 (1995) (bloodstain pattern evidence) and State v. Dennis, 500 S.E.2d 765 (1998) "Phadebas Methodology"); Ohio, State v. Anthony, No. 96APA12-1721, 1997 WL 629983 (Ohio Ct. App. Oct. 9, 1997) (affirming exclusion of polygraph test results); Oklahoma, Taylor v. State, 889 P.2d 319 (Okla. Crim. App. 1995) (admitting DNA testing); Oregon, State v. Lyons, 924 P.2d 802 (Or. 1996) (admitting DNA testing), State v. O'Key, 899 P.2d 663 (Or. 1995) (admitting horizontal gaze nystagmus testing to show defendant was intoxicated not to prove his blood alcohol content); South Dakota, State v. Loftus, No. 19731, 1997 WL 745059 (S.D. Dec. 3, 1997) (admitting DNA testing), State v. Moeller, 548 N.W.2d 465 (S.D. 1996) (admitting DNA testing) and State v. Hofer, 512 N.W.2d 482 (S.D. 1994) (admitting intoxilyzer testing); Tennessee, McDaniel v. CSX Transp., Inc., 1997 WL 594750 (Tenn. Sept. 29, 1997); Texas, E. I .duPont de NeMours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) (affirming exclusion of expert testimony on damage to pecan orchard caused by contaminated Benlate 50 DF); Vermont, State v. Streich, 658 A.2d 38 (Vt. 1995) (admitting DNA testing) and State v. Brooks, 643 A.2d 226 (Vt. 1993) (reversing exclusion of Datamaster infrared testing device for DUI); West Virginia, State v. Wyatt, 482 S.E.2d 147 (W. Va. 1996) (excluding expert testimony concerning BWS), State v. Beard, 461 S.E.2d 486 (W. Va. 1995) (excluding polygraph test results) and Wilt v. Buracker, 443 S.E.2d 196 (W. Va. 1993) (excluding hedonic damages testimony); and Wyoming, Springfield v. State, 860 P.2d 435 (Wyo. 1993) (admitting DNA testing).

(4) The States adhering to varying standards of admissibility are: Georgia, Prickett v. State, 469 S.E.2d 371 (Ga. Ct. App. 1996) (whether the procedure or technique in question has reached a scientific stage of verifiable certainty, or in the words of Professor Irving Younger, whether the procedure rests upon the laws of nature") and Harper v. State, 292 S.E.2d 389 (Ga. 1982) (affirming exclusion of testimony explaining defendant's explanation of incident while under influence of sodium amytal); New Jersey, State v. Noel, 697 A.2d 157 (N.J. Super. Ct. App. Div. 1997) (admitting ICP analysis), State v. Hishon, 687 A.2d 1074 (N.J. Super. Ct. App. Div. 1996) (admitting DNA testing), State v. Fertig, 668 A.2d 1076 (N.J. 1996) (excluding posthypnotic testimony), Landrigan v. Celotex Corp., 605 A.2d 1079 (N.J. 1992) (reversing exclusion of expert's testimony that asbestos caused colon cancer) and Rubanick v. Witco Chem., 593 A.2d 733 (N.J. 1991) (remanding case to determine if scientific theory of causation in toxic tort litigation is admissible); and Wisconsin, State v. Perkins, No. 95-1353-CR, 1997 WL 442085 (Wis. Ct. App. Aug. 7, 1996) (admitting testimony that victim acted consistently with initial reactions of sexual assault victims), State v. Peters, 534 N.W.2d 867 (Wis. Ct. App. 1995) (admitting DNA testing), State v. Walstad, 351 N.W.2d 469 (Wis. 1984) (admitting testimony discussing breathalyzer test ampoule), and Watson v. State, 219 N.W.2d 398 (Wis. 1974) (admitting expert testimony identifying chin hair).

(5) The States in which the issue appears to be unsettled are: Connecticut, State v. Esposito, 670 A.2d 301 (Conn. 1996) (equivocating on applicability of Frye and Daubert affirming exclusion of polygraph test results), State v. Hunter, 670 A.2d 1307 (Conn. 1996) (certification for appeal on issue of whether the Supreme Court should reconsider the applicability of the Frye test after excluding polygraph evidence in light of Daubert), State v. Porter, 670 A.2d 1308 (Conn. 1996) (certification for appeal on issue of whether the Supreme Court should reconsider the applicability of the Frye test after excluding polygraph evidence in light of Daubert) and State v. Tevfik, 646 A.2d 169 (Conn. 1994) (applying Frye test to reverse lower court's decision to admit DNA testing); Massachusetts, Commonwealth v. Rosier, 685 N.E.2d 739 (Mass. 1997) (admitting DNA testing), Commonwealth v. Lanigan, 641 N.E.2d 1342 (Mass. 1994) (applying Daubert test to admit DNA testing), but see Commonwealth v. Smith, 624 N.E.2d 604 (Mass. App. Ct. 1993) (deferring applicability of Daubert test in admitting retrograde extrapolation in determining blood alcohol level); Ohio, State v. Clark, 655 N.E.2d 795 (Ohio Ct. App. 1995) (admitting evidence of accident reconstruction utilizing computer assisted or electronic drafting techniques, although Daubert found inapplicable); and Rhode Island, In re Odell, 672 A.2d 457 (R.I. 1996) (excluding polygraph evidence).

In 1994, Ohio Rule 702 was amended because the previous rule, which was identical to Federal Rule 702, had "proved to be uninformative and, at times, misleading." The amended Ohio Rule 702, insofar as it applies to reliability, reads as follows:

Rule 702. Testimony By Experts

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

A witness may testify as an expert if all of the following apply:

(A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay person or dispels a misconception common among lay persons;

(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;

(C) The witness' testimony is based on reliable scientific, technical, or other specialized information. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:

(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;

(2) The design of the procedure, test, or experiment reliably implements the theory;

(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.

The Rule was intended to codify Ohio law, which had rejected Frye as the exclusive test for determining the admissibility of expert testimony.

Second, as the Reporter has observed elsewhere,

[t]he factors delineated by the Supreme Court in the Daubert case in determining the admissibility of expert testimony under Rule 702 are not free of difficulty. First, as noted by dissenting Chief Justice Rehnquist, the majority of the Court seizes upon the words "scientific knowledge" in Rule 702 as the basis for identifying the four factors relevant to the admissibility of novel scientific evidence. Do these factors also apply to the expert seeking to testify on the basis of "technical, or other specialized knowledge" to which Rule 702 also applies? Expert testimony relating to such areas of expertise as hypnotically refreshed testimony, the battered woman's syndrome, or the child accommodation syndrome, arguably falls within "technical, or other specialized knowledge," even though in such social science areas it would be rare that such evidence could meet the testability or falsifiability and potential rate of error factors required by the Daubert case. At the same time, however, to the extent such gray areas are classified within Rule 702, the holding of the Daubert case would appear to require trial courts to evaluate such evidence for reliability-validity as a condition to admissibility.

Second, suppose the proffered evidence involves only an application of a scientific theory or technique which concededly meets the minimally required four factors of admissibility enunciated in Daubert. Do applications of scientific theory or technique fall within the realm of "technical, or otherwise specialized knowledge?" Are these subject to the reliability-validity factors of Daubert, or of something else?

Third, as discussed in Section 26.08, suppose the expert is testifying on a basis of experience, such as automobile mechanics or skeletal configurations. It is doubtful that such evidence could be classified as "scientific," although it might very well qualify as "technical" or "specialized" knowledge. In such cases it seems that the Daubert factors ought not to govern admissibility, although it is by no means made clear in the decision.

In addition to the interpretive problems created by the Supreme Court's focus in the Daubert case on the language "scientific knowledge," the parties and amici also expressed concern that abandonment of the Frye "general acceptance" standard as the exclusive requirement for admissibility "will result in a 'free-for-all' in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions." In rejecting this concern the majority of the Supreme Court observed that the respondent appeared "overly pessimistic about the capabilities of the jury, and of the adversary system generally." It observed:

Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.

The decision also raises the question of the extent to which trial judges are now required to fulfill the role of "amateur scientists" in ruling on the admissibility of novel scientific evidence. The dissenting Chief Justice, while conceding "that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony," does not believe that "it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role." In contrast, the majority expressed the view that it is "confident that federal judges possess the capacity to undertake this review." This is perhaps problematic and raises the question of whether a majority of the federal judges are either "capable," or "interested," in conducting an inquiry to determine the reliability-validity of novel scientific evidence under the Daubert factors governing admissibility. The result may very well be one of the trial judge erring on the side of admissibility through the application of a "liberal" standard in determining reliability-validity without regard to the balancing process mandated by Rule 403 of the Federal Rules and placing an undue reliance on cross-examination and the presentation of contrary evidence to expose weaknesses in the proponent's expert evidence. It is one thing to conclude, as the dissenting Chief Justice Rehnquist did, "that the Frye rule did not survive the enactment of the Federal Rules of Evidence." It is another thing to devise a set of reliability-validity standards which imposes on trial judges "either the obligation or the authority to become amateur scientists in order to perform that role." It would have perhaps been wiser to remove any doubt as to the survival of the Frye rule in Rule 702 of the Federal Rules, but leave it to the task of the trial judge on a case-by-case basis to determine whether the proffered evidence would "assist the trier of fact to understand the evidence or determine a fact in issue."

A number of state courts have also adopted a reliability approach to admissibility in lieu of the more rigid Frye standard, but with less rigidity than that developed in the Daubert case. Most notably, in interpreting Rules 401, 403 and 702 of the Maine Rules of Evidence based on the Federal Rules, the Supreme Court of Maine has adopted the relevancy-reliability versus unfair prejudice standard. It reasoned, first, the adoption of Frye standard "would be at odds with the fundamental philosophy of our Rules of Evidence, as revealed more particularly in Rules 402 and 702, generally favoring the admissibility of expert testimony whenever it is relevant and can be of assistance to the trier of fact." Second, the Court also reasoned that this more flexible approach would obviate the difficulties courts had experienced in applying the Frye standard of ascertaining the particular scientific community to which the evidence belongs and of determining its general acceptance within the defined scientific community. The Court concluded as follows:

On the approach we adopt the presiding Justice will be allowed a latitude, which the Frye rule denies, to hold admissible in a particular case proffered evidence involving newly ascertained, or applied, scientific principles which have not yet achieved general acceptance in whatever might be thought to be the applicable scientific community, if a showing has been made which satisfies the Justice that the proffered evidence is sufficiently reliable to be held relevant.

See 2 Whinery, Oklahoma Evidence, Commentary on the Law of Evidence § 26.06, pp. 553-555 (1994). [Footnotes Omitted]

The proposal of the Drafting Committee is intended to overcome the foregoing perceived deficiencies in the Daubert case.

RULE 703. BASIS OF OPINION TESTIMONY BY EXPERTS EXPERT. The facts or data in the a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence for the opinion or inference to be admissible.

This proposal for amending Rule 703 eliminates the gender-specific language in the rule. This change is technical and no change in substance is intended.

The language "in order for the opinion or inference to be admissible" drawn from the tentative amendment to Rule 703 of the Federal Rules of Evidence is proposed by the Drafting Committee as helpful clarification to Uniform Rule 703 that the admission of an opinion or inference does not thereby render the underlying facts or data admissible in evidence.

The balance of the tentative draft of Federal Rule 703 was rejected after extensive discussion. The tentative amendment to Rule 703 approved by the Advisory Committee on the Federal Rules of Evidence, at its meeting on April 14-15, 1997, subject to later review depending upon how the Committee might deal with Rule 702, reads as follows:

Rule 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admissible. The court may apply the principles of Rule 403 to exclude, or limit, the presentation of the underlying facts or data if they are otherwise inadmissible. If the facts or data are disclosed solely to explain or support the expert's opinion or inference, the court must, on request, give a limiting instruction. Nothing in this rule restricts the presentation of underlying facts or data when offered by an adverse party.

The Advisory Committee revisited the amendment of Rule 703 at its meeting April 6 and 7, 1998 and approved the following amendment for submission to the Standing Committee of the Judicial Conference of the United States.

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. If the facts or data are otherwise inadmissible, they shall not be disclosed to the jury by the proponent of the opinion or inference unless their probative value substantially outweighs their prejudicial effect.

The Advisory Committee again revisited the amendment of Rule 703 at its meeting April 12-13, 1999 and approved of the following draft of Rule 703 for referral to the Standing Committee.

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are offered solely to assist the jury in evaluating an expert's opinion shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value for that purpose substantially outweighs their prejudicial effect.

The following States have rules identical to, or substantively the same as, existing Uniform Rule 703: Alaska, Alaska R. Evid. 703; Arizona, Ariz. R. Evid. 703; Arkansas, Ark. R. Evid. 703; Colorado, Colo. R. Evid. 703; Delaware, Del. R. Evid. 703; Florida, Fla. Stat. Ann. § 90.704 (West 1997); Idaho, Idaho R. Evid. 703; Indiana, Ind. R. Evid. 703; Iowa, Iowa R. Evid. 703; Louisiana, La. Code Evid. Ann. art. 703 (West 1997); Maine, Me. R. Evid. 703; Maryland, Md. Ann. Code of 1957 5-703; Michigan, Mich. R. Evid. 703; Montana, Mont. R. Evid. 703; Nebraska, Neb. R. Evid. 703; Nevada, Nev. Rev. Stat. § 50.285 (1995); New Jersey, N.J. R. Evid. 703; New Mexico, N.M. R. Evid. 11-703; North Carolina, N.C. R. Evid. 703; North Dakota, N.D. R. Evid. 703; Oklahoma, 12 Okla. St. Ann. § 2703; Oregon, Or. R. Evid. 703; Rhode Island, R.I. R. Evid. 703; South Carolina, S.C. R. Evid. 703; South Dakota, S.D. Codified Laws Ann. § 19-15-3 (1997); Utah, Utah R. Evid. 703; Vermont, Vt. R. Evid. 703; Virginia, Va. Code Ann. § 8.01-401.1 (Michie 1997); Washington, Wash. R. Evid. 703; West Virginia, W. Va. R. Evid. 703; and Wisconsin, Wis. Stat. Ann. §  907.03 (West 1997).

A few States have promulgated rules to deal with the issues relating to experts relying on otherwise inadmissible evidence under their parallel rules to Federal Rule 703 or 705. In California, Cal. R. Evid. 801 provides as follows:

If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

(a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and

(b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.

In Hawaii, Haw. R. Evid. 703 provides as follows:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. The court may, however, disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.

In Kansas, Kan R. Evid. 60-457 provides as follows:

The judge may require that a witness before testifying in terms of opinion or inference be first examined concerning the data upon which the opinion or inference is founded.

In Kentucky, Ky. R. Evid. 703 provides as follows:

(a) The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

(b) If determined to be trustworthy, necessary to illuminate testimony, and unprivileged, facts or data relied upon by an expert pursuant to subdivision (a) may at the discretion of the court be disclosed to the jury even though such facts or data are not admissible in evidence. Upon request the court shall admonish the jury to use such facts or data only for the purpose of evaluating the validity and probative value of the expert's opinion or inference.

(c) Nothing in this rule is intended to limit the right of an opposing party to cross-examine an expert witness or to test the basis of an expert's opinion or inference.

In Minnesota, Minn. R. Evid. 703 provides as follows:

(a) The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

(b) Underlying expert data must be independently admissible in order to be received upon direct examination; provided that when good cause is shown in civil cases and the underlying data is particularly trustworthy, the court may admit the data under this rule for the limited purpose of showing the basis for the expert's opinion. Nothing in this rule restricts admissibility of underlying expert data when inquired into on cross-examination.

In Ohio, Ohio R. Evid. 703 provides as follows:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or admitted in evidence at the hearing.

In Tennessee, Tenn. R. Evid. 703 provides as follows:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.

In Texas, Tex. R. Evid. Rule 703 provides as follows:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Tex. R. Evid. 705 deals further with the issue in subdivision (d) as follows:

(a) Disclosure of Facts or Data. The expert may testify in terms of opinion or inference and give the expert's reasons therefore without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data, subject to subparagraphs (b) through (d).

(b) Voir Dire. Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case or in a civil case may be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.

(c) Admissibility of Opinion. If the court determines that the underlying facts or data do not provide a sufficient basis for the expert's opinion under Rule 702 or 703, the opinion is inadmissible.

(d) Balancing Test; Limiting Instructions. When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request.

The following state jurisdictions do not deal with the issue statutorily: Alabama, Connecticut, Georgia, Illinois, Massachusetts, Mississippi, Missouri, New Hampshire, New York, and Pennsylvania.

The state jurisdictions which have counterparts to Uniform Rule 703 uniformly apply the "reasonable reliance" standard in determining whether data not otherwise admissible in evidence may be relied upon by the expert in forming an opinion or inference on the subject. See, for example, State v. Fierro, 603 P.2d 74 (Ariz. 1979), in which the court sustained the admission of expert testimony on the subject of the Mexican Mafia, although much of the information received by the expert was hearsay, since the information relied upon was of a type reasonably relied upon by experts in formulating opinions or inferences on the subject. See further, State v. Henze, 356 N.W.2d 538 (Iowa 1984), sustaining the admissibility of an expert's opinion based upon hearsay data within medical records because the data was of a type reasonably relied upon by doctors in forming opinions. In contrast, see State v. Ballard, 855 S.W.2d 557 (Tenn. 1993), in which the court held that the trial court erred in admitting expert testimony on post-traumatic stress syndrome exhibited by victims of sexual abuse because there was no evidence that the facts underlying testimony were of the type reasonably relied upon by experts in the field. See further in this connection, Smith v. Sturm, Ruger & Co., 695 P.2d 600 (Wash. Ct. App. 1985), holding that expert testimony based upon a survey of revolver owners was not data of a type reasonably relied upon by experts in the field.

The ABA Committee on Rules of Criminal Procedure and Evidence proposed in 1987 that Federal Rule 703 be amended as follows:

(a) Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence, in order for the opinion or inference to be admissible.

(b) Admissibility of underlying facts or data.

Except as provided hereinafter in this Rule, the facts and data underlying an expert's opinion or inference must be independently admissible in order to be received in evidence on behalf of the party offering the expert, and the expert's reliance on facts or data that are not independently admissible does not render those facts or data admissible in that party's behalf.

(1) Exception. Facts or data underlying an expert's opinion or inference that are not independently admissible may be admitted in the discretion of the court on behalf of the party offering the expert, if they are trustworthy, necessary to illuminate the testimony, and not privileged. In such instances, upon request, their use ordinarily shall be confined to showing the expert's basis.

(2) Discretion whether or not independently admissible. Whether underlying facts and data are independently admissible or not, the mere fact that the expert witness has relied upon them does not alone require the court to receive them in evidence on request of the party offering the expert.

(3) Opposing party unrestricted. Nothing in this Rule restricts admissibility of an expert's basis when offered by a party opposing the expert.

Finally, Professor Carlson has recommended that Federal Rule 703 be amended as follows:

(a) The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

(b) Nothing in this rule shall require the court to permit the introduction of facts or data into evidence on grounds that the expert relied on them. However, they may be received into evidence when they meet the requirements necessary for admissibility prescribed in other parts of these rules.

See Carlson, Experts as Hearsay Conduits: Confrontation Abuses in Opinion Testimony, 76 Minn.L.Rev. 859 (1992).

RULE 704. OPINION ON ULTIMATE ISSUE. Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

There are no proposals for amending Rule 704.

Rule 704 of the Federal Rules of Evidence was amended in 1984 to include a subdivision (b) as follows:

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

(As amended Pub.L. 998-473, Title II, § 406, Oct. 12, 1984, 98 Stat. 2067).

RULE 705. DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION. The An expert may testify in terms of opinion or inference and give his reasons therefor without prior previous disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

This proposal for amending Rule 705 eliminates the gender-specific language in Rule 705 and makes stylistic changes. These are technical and no change in substance is intended.

RULE 706. COURT APPOINTED EXPERTS EXPERT WITNESS.

(a) Appointment. The court, on motion of any party or its own motion, may enter issue an order to show cause why an expert witnesses witness should not be appointed, and may request the parties to submit nominations. The court may appoint any an expert witnesses witness agreed upon by the parties, and may appoint an expert witnesses witness of its own selection. An expert witness shall may not be appointed by the court unless he the witness consents to act. A witness so appointed shall must be informed of his the witness's duties by the court in writing, a copy of which shall must be filed with the clerk, or at a conference in which the parties shall have an opportunity to participate. A witness so appointed shall advise the parties of his the witness's findings, if any; his. The witness's deposition may be taken by any party; and he. The witness may be called to testify by the court or any party. He shall be The witness is subject to cross-examination by each party, including a party calling him as a the witness.

(b) Compensation. Expert witnesses so An expert witness appointed are by the court is entitled to reasonable compensation in whatever sum as determined by the court may allow. The compensation thus fixed is payable from funds which may be that are provided by law in criminal cases and in civil actions and proceedings involving just compensation for the taking of property. In other civil actions and proceedings the parties shall pay the compensation shall be paid by the parties in such proportion and at such time as the court directs, and thereafter the compensation is to be charged in like manner as other costs.

(c) Disclosure of appointment. In the exercise of its discretion, the The court may authorize disclosure to the jury of the fact that the court appointed the expert witness.

(d) Parties' experts of own selection. Nothing in this rule limits This Rule does not limit the parties in calling expert witnesses of their own selection.

This proposal for amending Rule 706 eliminates the gender-specific language in Rule 706 and makes recommended stylistic changes. These are technical and no change in substance is intended.

The Drafting Committee recommends that the caption to Rule 706 be changed to "Court Appointed Expert Witness" which more nearly reflects the testimonial functions performed by the expert pursuant to Rule 706. Rule 706 thus applies only to expert witnesses and not to expert consultants appointed by the trial judge in performing the gatekeeping function in admitting scientific, technical or specialized knowledge under Uniform Rule 702.

RULE 801. DEFINITIONS; EXCLUSIONS.

(a) General. As used in In this Article article:

(b) (1) "Declarant" means an individual a person who makes a statement.

(c) (2) "Hearsay" means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

(a) (3) "Statement" means (i) an oral or written assertion, an assertion in a record, or (ii) nonverbal conduct of an individual a person who intends it as an assertion.

(d) (b) Statements that are not hearsay. A statement is not hearsay if:

(1) The the declarant testifies at the trial or hearing, and is subject to cross-examination concerning the statement, and the statement is:

(i) (A) inconsistent with the declarant's testimony and, if offered in a criminal proceeding, was given under oath and subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition,;

(ii) (B) consistent with the declarant's testimony, and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, and was made before the supposed fabrication, influence, or motive arose; or

(iii) (C) one of identification made shortly after perceiving the individual identified.

(2) The the statement is offered against a party and is:

(i) (A) the party's own statement, in either an individual or a representative capacity,;

(ii) (B) a statement of which the party has manifested adoption or belief in its truth,;

(iii) (C) a statement by an individual authorized by the party to make a statement concerning the subject,;

(iv) (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship,; or

(v) (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

The Comment to 1986 Amendment reads:

The change conforms Uniform Rule 801(d)(1)(iii) to that found in Federal Rule 801(d)(c), with the addition of the modifier "shortly."

1986 amendments to text are shown by underlines [added material] and strikeouts [deleted material].

Stylistic changes have been made in Rule 801 upon the recommendation of the Committee on Style.

The first substantive change proposed by the Drafting Committee is to amend Rule 801(a)(1) to delete the words "or written" and insert the words "(ii) an assertion in a record" to conform the rule to the recommendation of the Task Force on Electronic Evidence, Subcommittee on Electronic Commerce, Committee on Law of Commerce in Cyberspace, Section on Business Law of the American Bar Association. See, in this connection, the Reporter's Notes to Uniform Rule 101.

The second substantive change is to strike the phrase ", if offered in a criminal proceeding," in renumbered subdivision (b)(1)(A) to require the oath as a foundational requirement in both civil and criminal proceedings for admitting a prior inconsistent statement of a witness. This would bring the Uniform Rule into conformity with the parallel Federal Rule 801(d)(1)(A) and the rule adopted in a majority of the States adopting the Federal Rule. The Drafting Committee believes that there is no significant difference between civil and criminal cases in requiring an oath as a condition to admissibility when a prior inconsistent statement is offered for its substance under renumbered Uniform Rule 801(b)(1)(A).

The third substantive change proposed is to amend renumbered Uniform Rule 801(b)(1)(B) to codify the holding of the Supreme Court in Tome v. United States, 513 U.S. 150, 115 S.Ct. 696 (1995), that "[t]he Rule permits the introduction of a declarant's consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive." The majority reasoned that the language as well as the use of wording in Federal Rule 801(d)(1)(B) following the language of common-law cases "suggests that it was intended to carry over the common-law pre-motive rule," that there was A[n]othing in the Advisory Committee's Notes . . . [suggesting] that it intended to alter the common-law premotive requirement and that relevancy alone was "not the sole criterion" in determining the admissibility of hearsay evidence.

In contrast, the four dissenting justices rejected the premotive requirement of the majority and reasoned as follows:

Accordingly, I would hold that the Federal Rules authorize a district court to allow (where probative in respect to rehabilitation) the use of postmotive prior consistent statements to rebut a charge of recent fabrication, improper influence or motive (subject of course to, for example, Rule 403). Where such statements are admissible for this rehabilitative purpose, Rule 801(d)(1)(B), as stated above, makes them admissible as substantive evidence as well (provided, of course, that the Rule's other requirements, such as the witness' availability for cross-examination, are satisfied). In most cases, this approach will not yield a different result from a strict adherence to the premotive rule for, in most cases, postmotive statements will not be significantly probative. And, even in cases where the statement is admitted as significantly probative (in respect to rehabilitation), the effect of admission on the trial will be minimal because the prior consistent statements will (by their nature) do no more than repeat in-court testimony.

An examination of state law has disclosed that only two States have enacted statutes that embody the premotive requirement of Tome v. United States, supra. These are: Indiana, Ind. R. Evid. 801(d)(1)(B) and South Carolina, S.C. R. Evid. 801(d)(1)(B). Indiana's rule provides that the statement must be:

(B) consistent with the declarant's testimony, offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, and made before the motive to fabricate arose. . . .

South Carolina's rule provides:

the statement is . . . consistent with the declarant's testimony and is with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; provided, however, the statement must have been made before the alleged fabrication, or before the alleged improper influence or motive arose . . . .

However, a substantial number of States have adopted the Tome pre-motive requirement by judicial decision. These are: Arizona, State v. Jones, 188 Ariz. 534, 937 P.2d 1182 (1996), interpreting Ariz. R. Evid. 801(d)(1)(B); Arkansas, Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993), interpreting Ark. R. Evid. 801(d)(1)(ii); Colorado, People v. Salazar, 920 P.2d 893 (Colo. 1996), interpreting Colo. R. Evid. 801(d)(1)(B); Florida, Rodriquez v. State, 609 So.2d 493 (Fla. 1992), interpreting Fla. Stat. Ann. § 90.801(2)(b); Iowa, State v. Johnson, 539 N.W.2d 160 (Iowa 1995), relying on the Tome case, supra, and overruling State v. Gardner, 490 N.W.2d 838 (Iowa 1992) to adopt a pre-motive requirement in interpreting Iowa R. Evid. 801(d)(1)(B); Kentucky, Fields v. Commonwealth, 905 S.W.2d 510 (Kyn. 1995), appearing to adhere to the pre-motive requirement of the Tome case, supra, in interpreting Kyn. R. Evid. 801A(a)(2); Maine, State v. Phillipo, 623 A.2d 1265 (Me. 1993), interpreting Me. R. Evid. 801(d)(1); Michigan, People v. Rodriquez, 216 Mich. App. 329, 549 N.W.2d 359 (1995), relying on the Tome case, supra, in interpreting Mich. R. Evid. 801(d)(1)(B), Mississippi, Owens v. State, 666 So.2d 814 (Miss. 1995), relying on the Tome case in interpreting Miss. R. Evid. 801(d)(1)(B); Montana, State v. Lunotad, 259 Mont. 512, 857 P.2d 723 (1993), interpreting Mont. R. Evid. 801(d)(1)(B); Nebraska, State v. Buechler, 253 Neb. 727, 572 N.W.2d 65 (1998), interpreting Neb. R. Evid. 801(4)(a), Neb. Rev. Stat. § 27-801(4)(a); Nevada, Patterson v. State, 111 Nev. 1525, 907 P.2d 984 (1995), interpreting Nev. Rev. Stat. § 51.035(2)(b); New Hampshire, State v. McSheehan, 137 N.H. 180, 624 A.2d 560 (1993); interpreting N.H. R. Evid. 801(d)(1)(B); New Mexico, State v. Casaus, 121 N.M. 481, 913 P.2d 669 (1996) and State v. Salazar, 123 N.M. 778, 945 P.2d 996 (1997), relying on the Tome case, supra, in interpreting N.M.R.A. R. Evid. 11-801(D)(1)(b); Ohio, State v. Smith, 34 Ohio App.3d 180, 517 N.E.2d 933 (1986), interpreting Ohio R. Evid. 801(D)(1)(b); Oklahoma, Plotner v. State, 762 P.,2d 936 (Okl.Cr. 1988), interpreting 12 Okl. St. § 2801(4)(a)(2); Rhode Island, State v. Haslam, 663 A.2d 902 (R.I. 1995) and State v. Kholi, 672 A.2d 429 (R.I. 1996), relying on the Tome case, supra, in interpreting R.I. R. Evid. 801(d)(1)(B); South Dakota, State v. Moriarty, 501 N.W.2d 352 (S.D. 1993), interpreting S.D.C.L. § 19-16-2(2); Texas, Dowthitt v. State, 931 S.W.2d 244 (Tex. 1991), interpreting Tex. R. Crim. Evid. 801(e)(1)(B); Vermont, State v. Carter, 164 Vt. 545, 674 A.2d 1258 (1996), interpreting V.R. Evid. 801(d)(1)(B); Washington, State v. Osborn, 59 Wash. App. 1, 795 P.2d 1174 (1990), interpreting Wash. R. Evid. 801(d)(1); West Virginia, 200 W.Va. 432, 490 S.E.2d 34 (1997), relying on the Tome case, supra, in interpreting W.V. R. Evid. 801(d)(1)(B); Wyoming, Makinen v. State, 737 P.2d 345 (Wyo. 1987), holding that in the absence of an express pre-motive requirement in Wyo. R. Evid. 801(d)(1)(B) the trial court has discretion to determine the admissibility of a prior consistent statement without regard to whether the statement was made before or after the improper motive to fabricate arose.

A fourth substantive change considered, but rejected by the Drafting Committee, was to amend renumbered Uniform Rule 801(b)(2)(E) to conform the rule to amended Federal Rule 801(d)(2)(E) which took effect on December 1, 1997 and responded to the three issues raised by Bourjaily v. United States, 483 U.S. 171 (1987). The amended Federal Rule 801(d)(2)(E) provides as follows:

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

The rationale for the amendment is set forth in the Advisory Committee's Note to Rule 801(2)(d) as follows:

First, the amendment codifies the holding in Bourjaily by stating expressly that a court may consider the contents of a coconspirator's statement in determining "the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered." According to Bourjaily, Rule 104 requires these preliminary questions to be established by a preponderance of the evidence.

Second, the amendment resolves an issue on which the Court had reserved decision. It provides that the contents of the declarant's statement do not alone suffice to establish a conspiracy in which the declarant and the defendant participated. The court must consider in addition the circumstances surrounding the statement, such as the identity of the speaker, the context in which the statement was made, or evidence corroborating the contents of the statement in making its determination as to each preliminary question. This amendment is in accordance with existing practice. Every court of appeals that has resolved this issue requires some evidence in addition to the contents of the statement. See, e g. United States v. Beckham, 968 F.2d 47 51 D.C.Cir. 1992); United States v. Sepulveda, 15 F.3d 1161, 1181-82 (lst Cir. 1993), cert. denied, 114 S.Ct. 2714 1994); United States v. Daly, 842 F.2d 1380, 1386 (2d Cir., cert. denied, 448 U.S. 821 (1988); United States v. Clark, 18 F.3d 1337, 1341-42 (6th Cir.), cert. denied, 115 S.Ct. 152 (1994); United States v. Zambrana, 841 F.2d 1320, 1344-45 (7th Cir. 1988); United States v. Silverman, 861 F.2d 571, 577 (9th Cir. 1988); United States v. Gordon, 844 F.2d 1397, 1402 (9th Cir. 1988); United States v. Hernandez, 829 F.2d 988, 933 (10th Cir. 1987), cert. denied, 485 U.S. 1013 (1988); United States v. Byrom, 910 F.2d 725, 736 (11th Cir. 1990).

Third, the amendment extends the reasoning of Bourjaily to statements offered under subdivisions (C) and (D) of Rule 801(d)(2). In Bourjaily, the Court rejected treating foundation facts pursuant to the law of agency in favor of an evidentiary approach governed by Rule 104(a). The Advisory Committee believes it appropriate to treat analogously preliminary questions relating to the declarant's authority under subparagraph (C), and the agency or employment relationship and scope thereof under subparagraph (D).

There are fourteen States that adhere to that part of the amendment permitting the court to consider the contents of a coconspirator's statement in determining "the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered." These are: Arkansas, Lopez v. State, 29 Ark. App. 145, 778 S.W.2d 641 (Ct. App. 1989); Colorado, People v. Mayfield-Ulloa, 817 P.2d 603 (Colo. App. 1991); Delaware, Lloyd v. State, 534 A.2d 1262 (Del. 1987); Hawaii, State v. McGriff, 76 Hawaii 148, 871 P.2d 782 (1994); Idaho, State v. Jones, 125 Idaho 477, 873 P.2d 122 (1994); Iowa, State v. Florie, 411 N.W.2d 689 (Iowa 1987); Louisiana, State v. Matthews, 26,550 (La. App. 2 Cir. 1/19/95, 649 So.2d 1022 (La. App. 2 Cir., 1994); State v. Lobato, 603 So.2d 739 (La. 1992); Michigan, People v. Slattery, 448 Mich. 935, 531 N.W.2d 713 (1995); Minnesota, State v. Hines, 458 N.W.2d 721 (Minn. 1990) and State v. Brown, 455 N.W.2d 65 (Minn. 1990); Nevada, McDowell v. State, 103 Nev. 527, 746 P.2d 149 (1987); New Mexico, State v. Zim, 106 N.M. 544, 746 P.2d 650 (1987); Oklahoma, Harjo v. State, 797 P.2d 338 (Okl. Cr. 1990); Oregon, State v. Cornell, 109 Or. App. 396, 820 P.2d 11 (1992); Tennessee, State v. Mitchell, 1989 WL 111210 (Tenn.Cr. App. 1989) and State v. Gaylor, 862 S.W.2d 546 (Tenn. Cr. App. 1992); Texas, Howard v. State, 1997 WL 751410 (Tex. App. 1997); West Virginia; State v. Miller, 195 W.Va. 656, 466 S.E.2d 507 (1995); and Wisconsin, State v. Whitaker, 167 Wis.2d 247, 481 N.W.2d 649 (Wis. App. 1992). The issue has been raised but left undecided in one State. This is: Kentucky, Commonwealth v. King, 950 S.W.2d 807 (Kyn. 1997) (Dissenting Opinion).