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December 31, 1963

JOHNS-MANVILLE CORPORATION, Keasbey and Mattison Company, Robert F . Orth, Louis F. Frazza, Robert R. Porter, Norman L. Barr, and James R. Reichel

The opinion of the court was delivered by: DUSEN

On December 6, 1963, defendants filed with the pre-trial judge their MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION FOR A PRETRIAL RULING THAT 28 U.S.C.A. § 1732, RELATING TO THE ADMISSIBILITY OF BUSINESS RECORDS, IS INAPPLICABLE IN A CRIMINAL PROCEEDING, which has been docketed as Document 153. This Memorandum, relying on the Sixth Amendment provision that 'the accused shall enjoy the right * * * to be confronted with the witnesses against him,' concludes with the following language at page 10:

'III. Conclusion

 'For the above stated reasons the defendants request that the Court rule that 28 U.S.C.A. § 1732 is inapplicable in the present case.'

 This request for ruling must be denied in view of the federal appellate cases on this subject. In United States v. Leathers, 135 F.2d 507, 511 (2nd Cir. 1943), the court said:

 'The appellant Thomas argues that the records in question would not be admissible under the early common law rules and that the recent judicial and statutory changes we have referred to are in contravention of the Sixth Amendment. But statements by relatives as to pedigree, declarations against interest, and most important of all in criminal trials, dying declarations, have long been recognized as admissible. It is not necessary to say what limits the Sixth Amendment may set to the extension of exceptions to the rule against hearsay. Probably the permissible extension is a question of degree. We think that business records kept as a matter of ordinary routine are often likely to be more reliable than dying declarations. It cannot be reasonably argued that the extension of the common law book entry rule which we discussed in Massachusetts Bonding & Ins. Co. v. Norwich Pharmacal Co., 2 Cir., 18 F.2d 934, supra, or the statute cited above, involve any violation of the Sixth Amendment.'

 Similarly, other federal appellate courts have stated that 'the Sixth Amendment does not prevent creation of new exceptions to the hearsay rule based upon real necessity and adequate guarantees of trustworthiness' *fn1" in the light of the requirement of confrontation of the Sixth Amendment. See, also, Kay v. United States, 255 F.2d 476, 480-481 (4th Cir. 1958), where the court said:

 'Admission of the certificate did not deprive the defendant of his right of confrontation by witnesses. Neither the Sixth Amendment to the Constitution of the United States nor Article I, Section 8 of the Constitution of Virginia can be said to have incorporated the rule against hearsay evidence, as understood at the time of their adoption. Each was intended to prevent the trial of criminal cases upon affidavits, not to serve as a rigid and inflexible barrier against the orderly development of reasonable and necessary exceptions to the hearsay rule.

 'The power of Congress and of a state legislature to provide for the admission of evidence is not subject to any such arbitrary limitation as the defendant supposes. They may carve out a new exception to the hearsay rule, without violating constitutional rights, where there is reasonable necessity for it and where it is supported by an adequate basis for assurance that the evidence has those qualities of reliability and trustworthiness attributed to other evidence admissible under long established exceptions to the hearsay rule.'

 In Tot v. United States, 319 U.S. 463, 467, 63 S. Ct. 1241, 1244, 87 L. Ed. 1519 (1943), the court said:

 'The rules of evidence, however, are established not alone by the courts but by the legislature. The Congress has power to prescribe what evidence is to be received in the courts of the United States.'

 The question may arise, when a document falling under 28 U.S.C. § 1732(a) is offered at the trial: does that statute transgress the right of confrontation granted by the Sixth Amendment? No blanket pre-trial ruling, as requested by defendants, is possible on this record. Similarly, the undersigned agrees with the contention of the above Memorandum that all documents covered by 28 U.S.C. § 1732(a) may not be admissible in a criminal trial and that the trial judge has the duty to determine whether such documents are constitutionally admissible under the Sixth Amendment guarantee of confrontation.

 Although there are many reports, such as those made primarily for use in litigation, as opposed to use in conduct of the business (in this case, making and selling asbestos-cement pipe), which are not admissible under 28 U.S.C. § 1732(a) (see Palmer v. Hoffman, 318 U.S. 109, 114, 63 S. Ct. 477, 480, 87 L. Ed. 645 (1942)), some accounting records of the corporate defendants covered by the language of 28 U.S.C. § 1732(a), for example, may be admissible in this case without producing the person who made them. See Palmer v. Hoffman, supra, 318 at 112-113, 63 S. Ct. at 480, including footnotes 2 and 3, and United States v. Olivo, 278 F.2d 415, 417 (3rd Cir. 1960), as well as cases cited above. The Government should produce the maker of any important record wherever possible, having in mind the language of the federal courts on this subject *fn2" and the language of the Sixth Amendment. *fn3"

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