ruptcy Act in turn creates bankruptcy courts of "the United States district courts and the district courts of the Territories and possessions to which this title is or may hereafter be applicable." 11 U.S.C. §§ 1(10), 11(a). The provision as to criminal rules up to and including verdicts applies to "criminal cases and proceedings to punish for criminal contempt of court in the United States district courts, in the district courts for the districts of the Canal Zone and Virgin Islands, in the Supreme Court of Puerto Rico, and in proceedings before United States magistrates." 18 U.S.C. § 3771. These various provisions do not in terms describe the same courts. In congressional usage the phrase "district courts of the United States," without further qualification, traditionally has included the district courts established by Congress in the states under Article III of the Constitution, which are "constitutional" courts, and has not included the territorial courts created under Article IV, Section 3, Clause 2, which are "legislative" courts. Hornbuckle v. Toombs, 85 U.S. 648, 21 L.Ed. 966 (1873). However, any doubt as to the inclusion of the District Court for the District of Columbia in the phrase is laid at rest by the provisions of the Judicial Code constituting the judicial districts, 28 U.S.C. 81 et seq. creating district courts therein, Id. § 132, and specifically providing that the term "district court of the United States" means the courts so constituted. Id. § 451. The District of Columbia is included. Id. § 88. Moreover, when these provisions were enacted, reference to the District of Columbia was deleted from the original civil rules enabling act. 28 U.S.C. § 2072. Likewise Puerto Rico is made a district, with a district court, and included in the term. Id. § 119. The question is simply one of the extent of the authority conferred by Congress. With respect to civil rules it seems clearly to include the district courts in the states, the District Court for the District of Columbia, and the District Court for the District of Puerto Rico. The bankruptcy coverage is broader. The bankruptcy courts include "the United States district courts," which includes those enumerated above. Bankruptcy courts also include "the district courts of the Territories and possessions to which this title is or may here. after be applicable." 11 U.S.C. §§ 1(10), 11(a). These courts include the district courts of Guam and the Virgin Islands. 48 U.S.C. §§ 1424(b), 1615. Professor Moore points out that whether the District Court for the District of the Canal Zone is a court of bankruptcy "is not free from doubt in view of the fact that no other statute expressly or inferentially provides for the applicability of the Bankruptcy Act in the Zone." He further observes that while there seems to be little doubt that the Zone is a territory or possession within the meaning of the Bankruptcy Act, 11 U.S.C. § 1(10), it must be noted that the appendix to the Canal Zone Code of 1934 did not list the Act among the laws of the United States applicable to the Zone. 1 Moore's Collier on Bankruptcy ¶1.10, pp. 67, 72, n. 25 (14th ed. 1967). The Code of 1962 confers on the district court jurisdiction of: "(4) actions and proceedings involving laws of the United States applicable to the Canal Zone; and “(5) other matters and proceedings wherein jurisdiction is conferred by this Code or any other law." Canal Zone Code, 1962, Title 3, § 141. Admiralty jurisdiction is expressly conferred. Id. § 142. General powers are conferred on the district court, "if the course of proceeding is not specifically prescribed by this Code, by the statute, or by applicable rule of the Supreme Court of the United States *" Id. § 279. Neither these provisions nor § 1(10) of the Bankruptcy Act ("district courts of the Territories and possessions to which this title is or may hereafter be applicable") furnishes a satisfactory answer as to the status of the District Court for the District of the Canal Zone as a court of bankruptcy. However, the fact is that this court exercises no bankruptcy jurisdiction in practice. The criminal rules enabling act specifies United States district courts, district courts for the districts of the Canal Zone and the Virgin Islands, the Supreme Court of the Commonwealth of Puerto Rico, and proceedings before United States commissioners. Aside from the addition of commissioners, now magistrates, this scheme differs from the bankruptcy pattern in that it makes no mention of the District Court of Guam but by specific mention removes the Canal Zone from the doubtful list. The further difference in including the Supreme Court of the Commonwealth of Puerto Rico seems not to be significant for present purposes, since the Supreme Court of the Commonwealth of Puerto Rico is an appellate court. The Rules of Criminal Procedure have not been made applicable to it, as being unneeded and inappropriate, Rule 54(a) of the Federal Rules of Criminal Procedure, and the same approach is indicated with respect to rules of evidence. If one were to stop at this point and frame a rule governing the applicability of the proposed rules of evidence in terms of the authority conferred by the three enabling acts, an irregular pattern would emerge as follows: Civil actions, including admiralty and maritime cases-district courts in the states, District of Columbia, and Puerto Rico. Bankruptcy-same as civil actions, plus Guam and Virgin Islands. Criminal cases-same as civil actions, plus Canal Zone and Virgin Islands (but not Guam). This irregular pattern need not, however, be accepted. Originally the Advisory Committee on the Rules of Civil Procedure took the position that, although the phrase "district courts of the United States" did not include territorial courts, provisions in the organic laws of Puerto Rico and Hawaii would make the rules applicable to the district courts thereof, though this would not be so as to Alaska, the Virgin Islands, or the Canal Zone, whose organic acts contained no corresponding provisions. At the suggestion of the Court, however, the Advisory Committee struck from its notes a statement to the above effect. 2 Moore's Federal Practice $1.07 (2nd ed. 1967); 1 Barron and Holtzoff, Federal Practice and Procedure § 121 (Wright ed. 1960). Congress thereafter by various enactments provided that the rules and future amendments thereto should apply to the district courts of Hawaii, 53 Stat. 841 (1939), Puerto Rico, 54 Stat. 22 (1940), Alaska, 63 Stat. 445 (1949), Guam, 64 Stat. 384-390 (1950), and the Virgin Islands, 68 Stat. 497, 507 (1954). The original enabling act for rules of criminal procedure specifically mentioned the district courts of the Canal Zone and the Virgin Islands. The Commonwealth of Puerto Rico was blanketed in by creating its court a "district court of the United States" as previously described. Although Guam is not mentioned in either the enabling act or in the expanded definition of “district court of the United States," the Supreme Court in 1956 amended Rule 54(a) to state that the Rules of Criminal Procedure are applicable in Guam. The Court took this step following the enactment of legislation by Congress in 1950 that rules theretofore or thereafter promulgated by the Court in civil cases, admiralty, criminal cases and bankruptcy should apply to the District Court of Guam, 48 U.S.C. § 1424(b), and two Ninth Circuit decisions upholding the applicability of the Rules of Criminal Procedure to Guam. Pugh v. United States, 212 F.2d 761 (9th Cir. 1954); Hatchett v. Guam, 212 F.2d 767 (9th Cir. 1954); Orfield, The Scope of the Federal Rules of Criminal Procedure, 38 U. of Det.L.J. 173, 187 (1960). From this history, the reasonable conclusion is that Congressional enactment of a provision that rules and future amendments shall apply in the courts of a territory or possession is the equivalent of mention in an enabling act and that a rule on scope and applicability may properly be drafted accordingly. Therefore the pattern set by Rule 54 of the Federal Rules of Criminal Procedure is here followed. The substitution of magistrates in lieu of commissioners is made in pursuance of the Federal Magistrates Act, P.L. 90-578, approved October 17, 1968, 82 Stat. 1107. Subdivision (b) is a combination of the language of the enabling acts, supra, with respect to the kinds of proceedings in which the making of rules is authorized. It is subject to the qualifications expressed in the subdivisions which follow. Subdivision (c), singling out the rules of privilege for special treatment, is made necessary by the limited applicability of the remaining rules. Subdivision (d). The rule is not intended as an expression as to when due process or other constitutional provisions may require an evidentiary hearing. Paragraph (1) restates, for convenience, the provisions of the second sentence of Rule 104(a), supra. See Advisory Committee's Note to that rule. (2) While some states have statutory requirements that indictments be based on "legal evidence," and there is some case law to the effect that the rules of evidence apply to grand jury proceedings, 1 Wigmore § 4(5), the Supreme Court has not accepted this view. In Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1965), the Court refused to allow an indictment to be attacked, for either constitutional or policy reasons, on the ground that only hearsay evidence was presented. "It would run counter to the whole history of the grand jury institution, in which laymen conduct their inquiries unfettered by technical rules. Neither justice nor the concept of a fair trial requires such a change." Id. at 364. The rule as drafted does not deal with the evidence required to support an indictment. (3) The rule exempts preliminary examinations in criminal cases. Authority as to the applicability of the rules of evidence to preliminary examinations has been meagre and conflicting. Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1168, n. 53 (1960); Comment, Preliminary Hearings on Indictable Offenses in Philadelphia, 106 U. of Pa.L.Rev. 589, 592-593 (1958). Hearsay testimony is, however, customarily received in such examinations. Thus in a Dyer Act case, for example, an affidavit may properly be used in a preliminary examination to prove ownership of the stolen vehicle, thus saving the victim of the crime the hardship of having to travel twice to a distant district for the sole purpose of testifying as to ownership. It is believed that the extent of the applicability of the Rules of Evidence to preliminary examinations should be appropriately dealt with by the Federal Rules of Criminal Procedure which regulate those proceedings. Extradition and rendition proceedings are governed in detail by statute. 18 U.S.C. §§ 3181-3195. They are essentially administrative in character. Traditionally the rules of evidence have not applied. 1 Wigmore § 4(6). Extradition proceedings are accepted from the operation of the Rules of Criminal Procedure. Rule 54(b)(5) of Federal Rules of Criminal Procedure. The rules of evidence have not been regarded as applicable to sentencing or probation proceedings, where great reliance is placed upon the presentence investigation and report. Rule 32(c) of the Federal Rules of Criminal Procedure requires a presentence investigation and report in every case unless the court otherwise directs. In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), in which the judge overruled a jury recommendation of life imprisonment and imposed a death sentence, the Court said that due process does not require confrontation or cross-examination in sentencing or passing on probation, and that the judge has broad discretion as to the sources and types of information relied upon. Compare the recommendation that the substance of all derogatory information be disclosed to the defendant, in A.B.A. Project on Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures § 4.4, Tentative Draft (1967, Sobeloff, Chm.). Williams was adhered to in Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), but not extended to a proceeding under the Colorado Sex Offenders Act, which was said to be a new charge leading in effect to punishment, more like the recidivist statutes where opportunity must be given to be heard on the habitual criminal issue. Warrants for arrest, criminal summonses, and search warrants are issued upon complaint or affidavit showing probable cause. Rules 4(a) and 41(c) of the Federal Rules of Criminal Procedure. The nature of the proceedings makes application of the formal rules of evidence inappropriate and impracticable. Criminal contempts are punishable summarily if the judge certifies that he saw or heard the contempt and that it was committed in the presence of the court. Rule 42(a) of the Federal Rules of Criminal Procedure. The circumstances which preclude application of the rules of evidence in this situation are not present, however, in other cases of criminal contempt. Proceedings with respect to release on bail or otherwise do not call for application of the rules of evidence. The governing statute specifically provides: "Information stated in, or offered in connection with, any order entered pursuant to this section need not conform to the rules pertaining to the admissibility of evidence in a court of law." 18 U.S.C.A. § 3146(f). This provision is consistent with the type of inquiry contemplated in A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to Pretrial Release, § 4.5(b), (c), p. 16 (1968). The references to the weight of the evidence against the accused, in Rule 46(a)(1), (c) of the Federal Rules of Criminal Procedure and in 18 U.S.C.A. § 3146(b), as a factor to be considered, clearly do not have in view evidence introduced at a hearing The rule does not exempt habeas corpus proceedings. The Supreme Court held in Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941), that the practice of disposing of matters of fact on affidavit, which prevailed in some circuits, did not "satisfy the command of the statute that the judge shall proceed 'to determine the facts of the case, by hearing the testimony and arguments.'" This view accords with the emphasis in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), upon trial-type proceedings, Id. 311, 83 S.Ct. 745, with demeanor evidence as a significant factor, Id. 322, 83 S.Ct. 745, in applications by state prisoners aggrieved by unconstitutional detentions. Hence subdivision (e) applies the rules to habeas corpus proceedings to the extent not inconsistent with the statute. Subdivision (e). In a substantial number of special proceedings, ad hoc evaluation has resulted in the promulgation of particularized evidentiary provisions, by Act of Congress or by rule adopted by the Supreme Court. Well adapted to the particular proceedings, though not apt candidates for inclusion in a set of general rules, they are left undisturbed. Otherwise, however, the rules of evidence are applicable to the proceedings enumerated in the subdivision. NOTES OF COMMITTEE ON THE JUDICIARY, HOUSE Subdivision (a) as submitted to the Congress, in stating the courts and judges to which the Rules of Evidence apply, omitted the Court of Claims and commissioners of that Court. At the request of the Court of Claims, the Committee amended the Rule to include the Court and its commissioners within the purview of the Rules. Subdivision (b) was amended merely to substitute positive law citations for those which were not. REFERENCES IN TEXT The Tariff Act of 1930, referred to in subsec. (e), is act June 17, 1930, ch. 497, 46 Stat. 590, as amended, which is classified principally to chapter 4 (§ 1202 et seq.) of Title 19, Customs Duties. Part V of title IV of the Tariff Act of 1930 enacted part V (§ 1581 et seq.) of subtitle III of chapter 4 of Title 19. For complete classification of this Act to the Code, see section 1654 of Title 19 and Tables. The Anti-Smuggling Act (19 U.S.C. 1701-1711), referred to in subsec. (e), is act Aug. 5, 1935, ch. 438, 49 Stat. 517, as amended, which is classified principally to chapter 5 (§ 1701 et seq.) of Title 19. For complete classification of this Act to the Code, see section 1711 of Title 19 and Tables. The Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301-392), referred to in subsec. (e), is act June 25, 1938, ch. 675, 52 Stat. 1040, as amended, which is classified generally to chapter 9 (§ 301 et seq.) of Title 21, Food and Drugs. For complete classification of this Act to the Code, see section 301 of Title 21 and Tables. "An Act authorizing suits against the United States in admirality [sic] for damage caused by and salvage service rendered to public vessels belonging to the United States, and for other purposes," approved Mar. 3, 1925 (46 U.S.C. 781-790), referred to in subsec. (e), is act Mar. 3, 1925, ch. 428, 43 Stat. 1112, as amended, known as the "Public Vessels Act", which is classified generally to chapter 22 (§ 781 et seq.) of Title 46, Shipping. For complete classification of this Act to the Code, see Short Title note set out under section 781 of Title 46 and Tables. 1975 AMENDMENT Subd. (e). Pub. L. 94-149 substituted "admiralty" for "admirality". 1978 AMENDMENT Subd. (a). Pub. L. 95-598, § 251(a), struck out “, referees in bankruptcy," following "United States magistrates". Subd. (b). Pub. L. 95-598, § 251(b), substituted "title 11, United States Code" for "the Bankruptcy Act". 1982 AMENDMENT Subd. (a). Pub. L. 97-164 substituted "United States Claims Court" for "Court of Claims" and struck out "and commissioners of the Court of Claims" following "these rules include United States magistrates". EFFECTIVE DATE OF 1978 AMENDMENT Amendment of subds. (a) and (b) of this rule by section 251 of Pub. L. 95-598 effective Oct. 1, 1979, see section 402(c) of Pub. L. 95-598, set out as an Effective Dates note preceding section 101 of the Appendix to Title 11, Bankruptcy. For Bankruptcy Jurisdiction and procedure during transition period, see note preceding section 1471 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97-164 effective Oct. 1, 1982, see section 402 of Pub. L. 97-164, set out as a note under section 171 of this title. Rule 1102. Amendments Amendments to the Federal Rules of Evidence may be made as provided in section 2076 of title 28 of the United States Code. (Pub. L. 93-595, § 1, Jan. 2, 1975, 88 Stat. 1948.) Rule 1103. Title These rules may be known and cited as the Federal Rules of Evidence. (Pub. L. 93-595, § 1, Jan. 2, 1975, 88 Stat. 1948.) SHORT TITLE OF 1978 AMENDMENT Pub. L. 95-540, § 1, Oct. 28, 1978, 92 Stat. 2046, provided: "That this Act [enacting rule 412 of these rules and a provision set out as a note under rule 412 of these rules] may be cited as the 'Privacy Protection for Rape Victims Act of 1978'." RULES OF THE UNITED STATES CLAIMS COURT Effective October 1, 1982 General Order No. 1 General Order No. 1 of the United States Claims Court, October 7, 1982, provided that: "The United States Claims Court inherits substantially all of the jurisdiction, caseload and grand tradition of the United States Court of Claims. To assure continuity in carrying out the business of the court, and to promote the interests of justice and service to the public, it is ordered as follows: "(1) All published decisions of the United States Court of Claims are accepted as binding precedent for the United States Claims Court, unless and until modified by decisions of the United States Court of Appeals for the Federal Circuit or the United States Supreme Court. "(2) Every order, decision and ruling entered by the trial or appellate divisions of the United States Court of Claims in cases now pending before the United States Claims Court is adopted in its entirety and will be given full force and effect, unless and until a judge of the United States Claims Court determines such order should be modified, amended or rescinded. "(3) The United States Claims Court will be the custodian of all records of the United States Court of Claims. "(4) The United States Claims Court will provide for the publication of all United States Court of Claims decisions which have been certified for publication in the United States Court of Claims Reporter." General Order No. 3 It is ordered that the attached rules [set out below] are adopted as the Rules of the United States Claims Court effective October 1, 1982. October 7, 1982 By the Court Rule 1. 2. TITLE II. COMMENCEMENT OF ACTION; SERV- 3. 4. 5. 6. 7. 8. 9. ALEX KOZINSKI FOREWORD RULES ACTION TITLE I. SCOPE OF RULES-ONE FORM OF Scope of Rules. (a) Scope. (b) Federal Rules of Civil Procedure. One Form of Action. Commencement of Action. (a) Complaint; filing. (b) Date of filing. (c) Copies. Process. (a) Service upon the United States. (b) Copies. (c) Proof and date of service. Service and Filing of Other Papers. (a) Service; when required. (b) Same; how made. (c) Filing. (d) Filing with the court defined. (e) Proof of service. Time. (a) Computation. 10. The United States Claims Court was created by the Federal Courts Improvement Act of 1982 (Pub. L. No. 97-164, 96 Stat. 25 (Apr. 2, 1982)). It inherited substantially all of the jurisdiction formerly exercised by the United States Court of Claims. Section 139(b)(1) of the Act (28 U.S.C. § 2503(b) (Supp. V, 1976)) authorizes the 11. United States Claims Court to prescribe rules of practice and procedure for its proceedings. Page 748 (b) Enlargement. (c) Additional time after service by mail. (d) When time begins to run. TITLE III. PLEADINGS AND MOTIONS Pleadings Allowed; Form of Motions. (a) Pleadings. (b) Motions and other papers. (c) Demurrers, pleas, etc., abolished. General Rules of Pleading. (a) Claims for relief. (b) Defenses; form of denials. (c) Affirmative defenses. (d) Effect of failure to deny. (e) Pleading to be concise and direct; consistency. (f) Construction of pleadings. Pleading Special Matters. (a) Capacity. (b) Fraud, mistake, condition of 'mind. (c) Conditions precedent. (d) Official document or act. (e) Judgment. (f) Time and place. (g) Special damage. (h) Special matters required in com plaint. Form of Pleadings. (a) Caption; names of parties. (b) Paragraphs; separate statements. (c) Adoption by reference; exhibits. Signing of Pleadings and Other Papers. 'So in original. Does not conform to rule catchline. Rule 12. 13. Defenses and Objections-When and How Presented-By Pleading or MotionMotion for Judgment on Pleadings. (a) When presented. (b) How presented. (c) Motion for judgment on the pleadings. (d) Preliminary hearings. (e) Motion for more definite statement. (f) Motion to strike. (g) Consolidation of defenses in motion. (h) Waiver or preservation of certain de fenses. Counterclaim. (a) Compulsory counterclaims. (b) Permissive counterclaims. (c) Counterclaim exceeding claim. opposing (d) Counterclaim against the United States [not used]. (e) Counterclaim maturing or acquired after pleading. (f) Omitted counterclaim. (g) Cross-claim against co-party [not used]. Rule 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 20. ៨ន Permissive Joinder of Parties. (a) Permissive joinder. (b) Separate trials. 34. 21. 23. Misjoinder and Non-Joinder of Parties. (a) Prerequisites to a class action. whether class action to be maintained; (d) Orders in conduct of actions. Intervention. (a) Intervention of right. (b) Permissive intervention. Substitution of Parties. (a) Death. (b) Incompetency. (c) Transfer of interest. (d) Public officers; death or separation from office [not used]. TITLE V. DEPOSITIONS AND DISCOVERY General Provisions Governing Discovery. (a) Discovery methods. (b) Scope of discovery. (c) Protective orders. (d) Sequence and timing of discovery. (e) Supplementation of responses. (f) Discovery conference. (g) Other controls by court. Discovery to Perfect Complaint or Pending (a) Preliminary complaint. (b) Pending appeal. (c) Perpetuation by action [not used]. Persons Before Whom Depositions May Be Taken. (a) Within the United States. (b) In foreign countries. (c) Disqualification for interest. Stipulations Regarding Discovery Procedure. (a) When depositions may be taken. (c) Examination and cross-examination. 2 nation. (e) Submission to witness; changes; sign ing. (f) Certification and filing by officer; exhibits; copies; notice of completion. (g) Failure to attend or to serve subpoena; expenses. Depositions Upon Written Questions. (a) Serving questions; notice. (b) Officer to take responses and prepare record. (c) Notice of receipt. Use of Depositions in Court Proceedings. (a) Use of depositions. (b) Objections to admissibility. (c) Effect of taking or using depositions [not used]. (d) Effect of errors and irregularities in depositions. Interrogatories to Parties. (a) Availability; procedures for use. (b) Scope; use at trial. (c) Option to produce business records. Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes. (a) Scope. (b) Procedure. (c) Persons not parties [not used]. 'So in original. Does not conform to rule catchline. |