VOIR DIRE SURVEY

Judge Kaufman advised the Conference that the committee in April 1969 addressed a questionnaire to all federal district judges designed to elicit data relating to voir dire procedures in the several courts and seeking suggestions for reducing the time consumed between the first appearance of a prospective juror at the courthouse and his selection as a juror. The responses to this questionnaire are under study and will be the subject of report to the Conference when the committee is ready to make specific recommendations. Among other things, the committee is considering the supplemental questionnaire in use in some districts to facilitate the juror selection process.

Judge Kaufman stated that at the August meeting of his committee, Assistant Attorney General Leonard of the Civil Rights Division of the Department of Justice delivered a comprehensive report on the results of a survey of the views of United States Attorneys on the operation of the new Jury Selection and Service Act of 1968. Among other things, Mr. Leonard pointed out that the great majority of United States Attorneys believed the Act is functioning well. He stated that none of the reports reflected any legal challenge to the respective selection systems since the Act became effective.

AUTOMATION OF JURY SELECTION

Judge Kaufman advised the Conference that three metropolitan courts are now automated and substantially all juror clerical tasks are now performed by computer in the District of Columbia and the Eastern and Southern Districts of New York. It is hoped that during fiscal year 1970 an additional four to eight courts will be automated. This computer service, when fully utilized, will not only address the juror summons but will simultaneously imprint the juror's name, address and number on his pay voucher through use of a newly devised procedure that joins this voucher to the juror's

summons.

CHARGE TO A DEADLOCKED JURY

Judge Kaufman stated that his committee had considered an extensive report submitted by Judge Steckler on the "current status of the law as respects the Allen charge." Judge Kaufman stated

that his committee favored the recommendation on this subject matter of the American Bar Association's "Project on Minimum Standards for Criminal Justice, Trial by Jury." He noted, however, that the subject matter was currently the subject of litigation in the courts and, accordingly, the Conference adopted a motion to table further consideration of the subject of a charge to a deadlocked jury.

RULES OF PRACTICE AND PROCEDURE

The report of the standing Committee of the Conference on Rules of Practice and Procedure was presented by the Committee Chairman, Judge Albert B. Maris.

Judge Maris summarized the work of the advisory committees and stated that the Advisory Committee on Criminal Rules is currently in the process of approving preliminary drafts of amendments to a number of the Federal Rules of Criminal Procedure which will shortly be circulated to the bench and bar for comment. He noted, with sorrow, the death on March 27, 1969 of Senior Circuit Judge Walter L. Pope who had rendered distinguished service over a period of ten years as Chairman of the Advisory Committee on Admiralty Rules. He stated that Judge Herbert W. Christenberry has been appointed to succeed Judge Pope and that the Advisory Committee on Admiralty Rules is continuing its study of the operation of the Unified Federal Rules of Civil Procedure and especially the supplemental admiralty rules in cases of admiralty and maritime jurisdiction. A request has been submitted to all members of the Maritime Law Association of the United States to furnish the Advisory Committee with their experience in this regard. When the responses to this request have been received, the Advisory Committee will undertake to formulate such amendments as may be found desirable and they will be circulated to the bench and bar.

The Advisory Committee on Bankruptcy Rules is continuing the large task of preparing rules of procedure for bankruptcy proceedings and also for the various forms of debtor relief proceedings provided by the Bankruptcy Act.

The preliminary draft of Uniform Rules of Evidence for Federal Courts is now being circulated to the bench and bar for comment.

RULES OF PROCEDURE IN HABEAS CORPUS AND SECTION 2255 Cases

Judge Maris stated that in the opinion of the Supreme Court, concurring in this respect with the dissenting opinion of Mr. Justice Harlan in the case of Harris v. Nelson, 1969, 394 U.S. 286, 300 (Footnote 7), it is stated to be the view of the Court that the rule-making machinery should be invoked to formulate rules of practice with respect to federal habeas corpus and (28 U.S.C.) § 2255 proceedings on a comprehensive basis and not merely confined to discovery. Accordingly, the committee recommended to the Conference that it grant authorization to prepare such rules of procedure. The Conference agreed and concurred further in the recommendation of the committee that the task be assigned to the Advisory Committee on Criminal Rules since both habeas corpus and § 2255 proceedings relate in fact to and are in substance extensions of criminal cases even though they have been treated technically as civil proceedings.

APPELLATE RULES

Judge Maris reminded the Conference that upon the discharge of the Advisory Committee on Appellate Rules the standing Committee assumed the responsibility for the study of the operation and improvement of the Federal Rules of Appellate Procedure. He said that the committee has already received a number of suggestions for changing the appellate rules but it determined that most of the suggestions should await further study and experience with the rules which have been in effect only since July 1, 1968. He said that the committee did, however, propose immediate consideration of two amendments to the appellate rules: (1) that Rule 30(c) be amended to require permission of a court of appeals before the filing of the appendix to the briefs may be deferred, and (2) that Rules 30(a) and 31(a) be amended to permit a court of appeals to reduce the time allowed for filing of briefs and the appendix if reduction of the time will expedite the hearing of argument.

After some discussion, a change was made by the Conference in the proposed amendment to Rule 31(a) and the Conference approved the transmission to the Supreme Court, with recommendation for approval, the following changes in the Federal Rules of Appellate Procedure:

30(a) Duty of Appellant to Prepare and File; Content of Appendix: Time for Filing; Number of Copies. The appellant shall prepare and file an appendix to the briefs which shall contain: (1) the relevant docket entries in the proceeding below; (2) any relevant portions of the pleadings, charge, findings or opinion; (3) the judgment, order or decision in question; and (4) any other parts of the record to which the parties wish to direct the particular attention of the court. The fact that parts of the record are not included in the appendix shall not prevent the parties or the court from relying on such parts.

Unless filing is to be deferred pursuant to the provisions of subdivision (c) of this rule, the appellant shall serve and file the appendix within 40 days of the date on which the record is filed with his brief. Ten copies of the appendix shall be filed with the clerk, and one copy shall be served on counsel for each party separately represented, unless the court shall by rule or order direct the filing or service of a lesser number.

(c) Alternative Method of Designating Contents of the Appendix; How References to the Record may be Made in the Briefs When Alternative Method is Used. If the appellant shall se eleet; or if the court shall so provide by rule for classes of cases or by order in specific cases, preparation of the appendix may be deferred until after the briefs have been filed, and the appendix may be filed 21 days after service of the brief of the appellee. Notice of the election by the appellant to defer preparation of the appendix shall be filed and served by him within 10 days after the date on which the record is filed. If the preparation and filing of the appendix is thus deferred, the provisions of subdivision (b) of this Rule 30 shall apply, except that the designations referred to therein shall be made by each party at the time his brief is served, and a statement of the issues presented shall be unnecessary. 31(a) Time for Serving and Filing Briefs. The appellant shall serve and file his brief within 40 days after the date on which the record is filed. The appellee shall serve and file his brief within 30 days after service of the brief of the appellant. The appellant may serve and file a reply brief within 14 days after service of the brief of the appellee, but, except for good cause shown, a reply brief must be filed at least 3 days before argument. If a court of appeals is prepared to consider cases on the merits promptly after briefs are filed, and its practice is to do so, it may shorten the periods prescribed above for serving and filing briefs, either by rule for all cases or for classes of cases, or by order for specific cases.

CIVIL RULES

Judge Maris said that the committee had received from the Advisory Committee on Civil Rules its revised draft of amendments to the Federal Rules of Civil Procedure relating to the discovery procedure. He said that the draft had been approved by the Advisory Committee in April after it had received and considered the comments and suggestions of the bench and bar with respect to the preliminary draft which had been published and widely circulated in November 1967 and after the Advisory Committee had modified

portions of the draft in the light of those suggestions. Judge Maris stated that the standing committee carefully considered this draft at its meeting and modified some of the Advisory Committee's proposals in comparatively minor respects. He recommended to the Conference that it approve for transmission to the Supreme Court of the United States, with a recommendation for approval, amendments to Rules 5, 9, 26, 30, 31, 32, 33, 34, 35, 36, 37, 45 and 69 and Form 24 of the Federal Rules of Civil Procedure. The Conference approved the Committee recommendation and directed the transmission of these proposed rule changes to the Supreme Court.

COMMITTEE ON INTERCIRCUIT ASSIGNMENTS

Chief Judge Roy W. Harper, Chairman, presented the report of the Committee on Intercircuit Assignments covering the period September 8, 1968 to August 11, 1969.

Judge Harper stated that during the period in question the committee recommended 54 assignments to be undertaken by 43 judges. Of this number four were circuit judges in active status, four were senior circuit judges, 15 were district judges in active status and 12 were senior district judges. The other assignments were by judges of the special courts and by retired Supreme Court Justices. Judge Harper advised that there were 15 assignments to the circuit courts of appeals, ten assignments to the Court of Customs and Patent Appeals, one assignment to the Court of Claims and 28 assignments to the district courts.

COMMITTEE ON TRIAL PRACTICE AND

TECHNIQUE

The report of the Committee on Trial Practice and Technique was presented by its Chairman, Chief Judge Joe E. Estes.

Judge Estes stated that his committee has undertaken several studies to develop methods and techniques of effective judicial administration, including first drafts of sample jury instructions to be used in tax and antitrust cases, techniques to be used in proceedings under Rules 16 and 17.1 of the Federal Rules of Criminal Procedure and is planning further studies on the use of a panel of impartial medical experts, bifurcated trials before the same jury of the issues of liability and damages, methods of achieving a specification of issues in patent cases prior to discovery and a suggested post-conviction conference in criminal cases to consider any possible. post-conviction remedies.