INSTRUCTIONS TO JURIES IN FEDERAL COURTS

JUNE 15, 1937.-Committed to the Committee of the Whole House on the state of the Union and ordered to be printed

Mr. RAMSAY, from the Committee on the Judiciary, submitted the following

REPORT

[To accompany H. R. 4721]

The Committee on the Judiciary, to whom was referred the bill (H. R. 4721) relative to pleading and practice in civil and criminal causes in the district courts of continental United States, after consideration, report the same favorably to the House with amendments with the recommendation that as so amended the bill do pass. The committee amendments are as follows:

1. Strike out all after the enacting clause and insert in lieu thereof the following:

That upon the trial of any case, civil or criminal, before a jury, in any district court of continental United States, or in any other Federal court of the continental United States, authorized to try cases with the aid of a jury, the form, manner and time of giving and granting instructions to the jury shall be governed by the law and practice in the State courts of the State in which such trial may be had, and the judge shall make no comment upon the weight, sufficiency or credibility of the evidence or any part thereof, or upon the character, appearance, demeanor or credibility of any witness or party, unless such comment is authorized in trials of such cases by the law and practice in the State courts of the State where such trial is had.

Amend the title so as to read:

A bill relative to granting and giving instructions in civil and criminal cases in the district courts of continental United States.

The intent of this bill is to require Federal trial judges in granting instructions to the jury in trials of civil or criminal cases to proceed in the same manner and form as required by the State law of the State in which his court district may be located.

In the trial of cases in the Federal courts, the trial judge in submitting the case to the jury, may express his opinion upon the facts, if no rule is incorrectly stated, by merely saying to the jury: "This is my view of the evidence, but of course, this is my opinion only." And the jury being the sole judges of the facts in the case are not

bound by the opinion of the court, and may decide upon the facts as they believe them to be (U. S. v. Phila. R. R., 125 U. S. 113; 31 Law Ed. 138) (Games v. Stiles, 14 Pet. 322; 10th Law Ed. 476).

It is a well-known fact that whenever the court so expresses its opinion upon the evidence, the verdict of the jury immediately follows, and the submission of the facts to a jury under such circumstances is merely formal and a mere gesture. A directed verdict would be far more courageous, and would not subject the judge to the constant charge of bias and favoritism, which prevails under the present practice. Such belief upon the part of litigants is productive of vastly more harm to the prestige of the judges of our Federal courts than the exercise of such power can bring them, when we realize that most of the States of the Union have by statute prohibited and prevented the State courts from exercising such privilege.

We believe the adoption of this statute by the Congress will not only restore to the judges of the Federal courts the full confidence of the people, but will bring great satisfaction to the bar in general, as it will place them on familiar ground, to wit, in having their practice and procedure of the granting and giving of instructions to the jury upon the same terms and in the same manner as their State courts.

The great vice of the rule, which permits judges to discuss the weight of evidence, as it appears to us, is that the courts hold "that opinion upon evidence advanced by the court, cannot be held as taking a case from the jury (Pittsburg R. Co. v. Bloomer, 146 Fed. 722). And the courts in upholding this privilege of the court to express its opinions of the evidence, has even gone so far as to hold that "whatever expression the court may have made, is not reviewable error" (Union Pac. R. R. v. Thomas, 152 Fed. 371).

Our Supreme Court has declared, in Nudd v. Burrows (91 U. S. 426), that by the act of Congress of June 1, 1872 (17 Stat., sec. 5)—

that the practice, pleadings, and forms and modes of proceedings in civil causes, other than equity and admiralty causes, in the circuit and district courts, shall conform as near as may be to the same things existing at the time in the courts of record of the State within which such circuit and district courts are held. The identity required is to be in the practice, pleadings, and forms and modes of proceedings. The personal conduct and administration of the judge in the discharge of his separate functions is, in our judgment, neither practice, pleading, nor a form nor mode of proceeding within the meaning of those terms as found in the context. In seven States there is a provision in the Constitution forbidding judges to comment on the evidence: Arkansas, Arizona, Delaware, Nevada, South Carolina, Tennessee, Washington.

Sixteen States have statutes to the same effect: Alabama, Florida, Georgia, Illinois, Iowa, Louisiana, Maine, Massachusetts, Michigan, Mississippi, North Carolina, North Dakota, New Mexico, Oregon, South Dakota, Texas.

In 14 other States the same result has been reached by way of judicial decisions: Colorado, Indiana, Kansas, Kentucky, Ohio, Oklahoma, Maryland, Montana, Missouri, Nebraska, Virginia, West Virginia, Wyoming, and Wisconsin, making a total of 37 States that do not permit their judges in the State courts to comment in instructions on the weight of evidence to the jury.

The outstanding feature of the American courts, differentiating them from the courts of the motherland, is that 17 courts of appeals of the various States named above have decided that the commonlaw rule permitting judges of the trial court to comment to the jury

upon the weight of the evidence does not apply to trials in this country and is no part of the American common law.

There is no Federal statute on this subject to amend, and our own Supreme Court in Nudd v. Burrows, supra, has decided that comments on the evidence by judges is "neither practice, pleading, nor any form or mode of proceeding."

A reading of the resolution of Congress submitting to the Supreme Court the right to formulate a code of rules of practice and procedure in Federal trial courts does not include the giving or granting of instructions to juries, as the Supreme Court in the Nudd case has decided "that the granting of instructions is the personal conduct and administration of the judge in the discharge of his duties."

O

1st Session

No. 1028

COURT OF CLAIMS TO RENDER JUDGMENT ON CLAIMS OF UTE INDIANS

JUNE 15, 1937.-Committed to the Committee of the Whole House on the state of the Union and ordered to be printed

Mr. O'CONNOR of Montana, from the Committee on Indian Affairs, submitted the following

REPORT

[To accompany H. R. 3162]

The Committee on Indian Affairs, to whom was referred the bill (H. R. 3162) conferring jurisdiction upon the United States Court of Claims to hear, examine, adjudicate, and render judgment on any and all claims which the Uncompahgre (Tabegauche), Uintah (Uinta), and White River (Yampa and Grand River) Bands of the Ute Indians may have against the United States, and for other purposes, having considered the same, report thereon with a recommendation that it do pass with the following amendments:

On page 3, line 8, after the period following the word "necessary" add a new sentence as follows:

The petition or petitions shall be subject to amendment at any time prior to final submission of the case to the Court of Claims.

On page 3, lines 12 and 13, strike the words "one year" and insert in lieu thereof the words "a reasonable time".

On page 3, line 14, after the word "and", insert a comma and the following: "in addition to the usual copies for the Attorney General, shall".

On page 3, line 15, strike out the words "each member of the court" and insert in lieu thereof the words "to the Secretary of the Interior". On page 3, line 23, after the word "time", strike out the comma and insert the word "or".

On page 3, line 24, after the word "limitation", strike out the comma, insert a period in lieu thereof, and strike out the balance of line 24, all of line 25, and all of lines 1, 2, and 3 on page 4.

On page 4, line 10, after the word "upon", insert the following words: "or in satisfaction of".

On page 4, line 16, strike out the word "or" and insert in lieu thereof the word "on".