NOTES TO RULE 43
HISTORY: (Amended July 1, 1966; July 1, 1975; Aug. 1, 1987; Dec. 1, 1996)
Notes of Advisory Committee on Rules.
Note to Subdivision (a).
The first sentence is a restatement of the substance of USC, Title 28, former § 635 (Proof in common-law actions), formerly § 637 (now §§ 2072, 2073) (Proof in equity and admiralty), and former Equity Rule 46 (Trial--Testimony Usually Taken in Open Court--Rulings on Objections to Evidence). This rule abolishes in patent and trademark actions, the practice under former Equity Rule 48 of setting forth in affidavits the testimony in chief of expert witnesses whose testimony is directed to matters of opinion. The second and third sentences on admissibility of evidence and Subdivision (b) on contradiction and cross-examination modify USC, Title 28, formerly § 725 (now § 1652) (Laws of states as rules of decision) insofar as that statute has been construed to prescribe conformity to state rules of evidence. Compare Callahan and Ferguson, Evidence and the New Federal Rules of Civil Procedure, 45 Yale LJ 622 (1936), and Same; 2, 47 Yale LJ 195 (1937). The last sentence modifies to the extent indicated USC, Title 28, § 631 (Competency of witnesses governed by State laws).
Note to Subdivision (b).
See 4 Wigmore on Evidence (2d ed, 1923) §§ 1885 et seq.
Note to Subdivision (c).
See former Equity Rule 46 (Trial--Testimony Usually Taken in Open Court--Rulings on Objections to Evidence). With the last sentence compare Dowagiac v Lochren, 143 Fed 211 (CCA8th, 1906). See also Blease v Garlington, 92 US 1, 23 L Ed 521 (1876); Nelson v United States, 201 US 92, 114, 26 S Ct 358, 50 L Ed 673 (1906); Unkle v Wills, 281 Fed 29 (CCA8th, 1922).
See Rule 61 for harmless error in either the admission or exclusion of evidence.
Note to Subdivision (d).
See former Equity Rule 78 (Affirmation in Lieu of Oath) and USC, Title 1, § 1 (Words importing singular number, masculine gender, etc.; extended application), providing for affirmation in lieu of oath.
Supplementary Note of Advisory Committee Regarding Rules 43 and 44. Note. These rules have been criticized and suggested improvements offered by commentators. 1 Wigmore on Evidence, 3d ed 1940, 200--204; Green, the Admissibility of Evidence Under the Federal Rules, 1941, 55 Harv L Rev 197. Cases indicate, however, that the rule is working better than these commentators had expected. Boerner v United States, CCA2d, 1941, 117 F2d 387, cert den 1941, 313 US 587, 85 L Ed 1542, 61 S Ct 1120; Mosson v Liberty Fast Freight Co. CCA2d, 1942, 124 F2d 448; Hartford Accident & Indemnity Co. v Olivier, CCA5th, 1941, 123 F2d 709; Anzano v Metropolitan Life Ins. Co. of New York, CCA3d, 1941, 118 F2d 430; Franzen v E. I. DuPont De Nemours & Co. CCA3d, 1944, 146 F2d 837; Fakouri v Cadais, CCA5th, 1945, 147 F2d 667; In re C. & P. Co. SD Cal 1945, 63 F Supp 400, 408. But cf. United States v Aluminum Co. of America, SD NY 1938, 1 Fed Rules Serv 43a.3, Case 1; Note, 1946, 46 Col L Rev 267. While consideration of a comprehensive and detailed set of rules of evidence seems very desirable, it has not been feasible for the Committee so far to undertake this important task. Such consideration should include the adaptability to federal practice of all or parts of the proposed Code of Evidence of the American Law Institute. See Armstrong, Proposed Amendments to Federal Rules of Civil Procedure, 4 FRD 124, 137--138.
Notes of Advisory Committee on 1966 Amendments to Rules.
This new subdivision authorizes the court to appoint interpreters (including interpreters for the deaf), to provide for their compensation, and to tax the compensation as costs. Compare proposed subdivision (b) of Rule 28 of the Federal Rules of Criminal Procedure.
Notes of Advisory Committee on 1975 Amendments to Rules.
Rule 43, entitled Evidence, has heretofore served as the basic rule of evidence for civil cases in federal courts. Its very general provisions are superseded by the detailed provisions of the new Rules of Evidence. The original title and many of the provisions of the rule are, therefore, no longer appropriate.
Subdivision (a).
The provision for taking testimony in open court is not duplicated in the Rules of Evidence and is retained. Those dealing with admissibility of evidence and competency of witnesses, however, are no longer needed or appropriate since those topics are covered at large in the Rules of Evidence. They are accordingly deleted. The language is broadened, however, to take account of acts of Congress dealing with the taking of testimony, as well as of the Rules of Evidence and any other rules adopted by the Supreme Court.
Subdivision (b).
The subdivision is no longer needed or appropriate since the matters with which it deals are treated in the Rules of Evidence. The use of leading questions, both generally and in the interrogation of an adverse party or witness identified with him, is the subject of Evidence Rule611(c). Who may impeach is treated in Evidence Rule607, and scope of cross-examination is covered in Evidence Rule611(b). The subdivision is accordingly deleted.
Subdivision (c).
Offers of proof and making a record of excluded evidence are treated in Evidence Rule 103. The subdivision is no longer needed or appropriate and is deleted.
Effective date of notes of Advisory Committee on 1975 Amendments to Rules. Act Jan. 2, 1975, P.L. 93-595, 88 Stat. 1926, provided in § 3 that the amendment of Rule 43 "shall take effect on the one hundred and eightieth day beginning after the date of enactment of this Act [Jan. 2, 1975].".
Notes of Advisory Committee on 1987 Amendments to Rules.
The amendment is technical. No substantive change is intended.
Preliminary draft of proposed amendments. The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States proposed the following amendment of Rule 43, dated August 15, 1991.
"(a) Form. In all trials the testimony of witnesses shall be taken in open court, unless otherwise provided by an Act of Congress or by these rules, the Federal Rules of Evidence, or other rules adopted by the Supreme Court. Subject to the right of cross-examination, the court, in a nonjury trial, may permit or require that the direct examination of a witness, or a portion thereof, be presented through adoption by the witness of an affidavit signed by the witness, a written statement or report prepared by the witness, or a deposition of the witness. The contents thereof are admissible to the same extent as if the witness testified orally with respect thereto.".
"(b)-(f) [Unchanged]
Committee notes. Rule 43 is revised to dispel any doubts as to the power of the court under Rule 611(a) of the Federal Rules of Evidence to permit or require in appropriate circumstances that the direct examination of a witness, or a portion thereof, be presented in the form of an affidavit signed by the witness, a written statement or report prepared by the witness, or a deposition of the witness.
Presentation of direct testimony in this manner can greatly expedite trial and may make the testimony more understandable without sacrifice to the benefits of the adversarial system, since the witness will be subject to cross-examination in the traditional manner with respect to the written statement.
This procedure is not appropriate for all cases or for all witnesses. The amendment applies only in nonjury cases, and even in such cases the primary usage will be with expert testimony or with "background" testimony from lay witnesses concerning matters not in substantial dispute.
The revision of Rule 43 is not intended to limit by implication the powers of the court under Rule 611(a) of the Federal Rules of Evidence, such as having a witness testify in a narrative fashion rather then in question-and-answer form.
Notes of Advisory Committee on 1996 Amendments to Rules.
Rule 43(a) is revised to conform to the style conventions adopted for simplifying the present Civil Rules. The only intended changes of meaning are described below.
The requirement that testimony be taken "orally" is deleted. The deletion makes it clear that testimony of a witness may be given in open court by other means if the witness is not able to communicate orally. Writing or sign language are common examples. The development of advanced technology may enable testimony to be given by other means. A witness unable to sign or write by hand may be able to communicate through a computer or similar device.
Contemporaneous transmission of testimony from a different location is permitted only on showing good cause in compelling circumstances. The importance of presenting live testimony in court cannot be forgotten. The very ceremony of trial and the presence of the factfinder may exert a powerful force for truth telling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition. Transmission cannot be justified merely by showing that it is inconvenient for the witness to attend the trial.
The most persuasive showings of good cause and compelling circumstances are likely to arise when a witness is unable to attend trial for unexpected reasons, such as accident or illness, but remains able to testify from a different place. Contemporaneous transmission may be better than an attempt to reschedule the trial, particularly if there is a risk that other--and perhaps more important--witnesses might not be available at a later time.
Other possible justifications for remote transmission must be approached cautiously. Ordinarily depositions, including video depositions, provide a superior means of securing the testimony of a witness who is beyond the reach of a trial subpoena, or of resolving difficulties in scheduling a trial that can be attended by all witnesses. Deposition procedures ensure the opportunity of all parties to be represented while the witness is testifying. An unforeseen need for the testimony of a remote witness that arises during trial, however, may establish good cause and compelling circumstances. Justification is particularly likely if the need arises from the interjection of new issues during trial or from the unexpected inability to present testimony as planned from a different witness.