In Re: Order Amending Rules 803.1 and 804, and Approving the Revision of the Comment to Rule 613 of the Pennsylvania of Pennsylvania Rules of Evidence ( 2017 )

Rule 613. Witness’s Prior Inconsistent Statement to Impeach; Witness’s Prior
Consistent Statement to Rehabilitate
(a) Witness’s Prior Inconsistent Statement to Impeach. A witness may be
examined concerning a prior inconsistent statement made by the witness to
impeach the witness’s credibility. The statement need not be shown or its
contents disclosed to the witness at that time, but on request, the statement or
contents must be shown or disclosed to an adverse party’s attorney.
(b) Extrinsic Evidence of a Witness’s Prior Inconsistent Statement. Unless the
interests of justice otherwise require, extrinsic evidence of a witness’s prior
inconsistent statement is admissible only if, during the examination of the
witness,
(1) the statement, if written, is shown to, or if not written, its contents are
disclosed to, the witness;
(2) the witness is given an opportunity to explain or deny the making of the
statement; and
(3) an adverse party is given an opportunity to question the witness.
This paragraph does not apply to an opposing party’s statement as defined in
Rule 803(25).
(c) Witness’s Prior Consistent Statement to Rehabilitate. Evidence of a
witness’s prior consistent statement is admissible to rehabilitate the witness’s
credibility if the opposing party is given an opportunity to cross-examine the
witness about the statement and the statement is offered to rebut an express or
implied charge of:
(1) fabrication, bias, improper influence or motive, or faulty memory and the
statement was made before that which has been charged existed or
arose; or
(2) having made a prior inconsistent statement, which the witness has denied
or explained, and the consistent statement supports the witness's denial or
explanation.
Comment
Pa.R.E 613 differs from F.R.E. 613 to clarify its meaning and to conform to
Pennsylvania law.
Pa.R.E. 613(a) and (b) are similar to F.R.E. 613(a) and (b), but the headings and
the substance make it clear that the paragraphs are dealing with the use of an
inconsistent statement to impeach. The disclosure requirement in paragraph (a) is
intended to deter sham allegations of the existence of an inconsistent statement.
Pa.R.E. 613(b) differs from F.R.E. 613(b) in that extrinsic evidence of a prior
inconsistent statement is not admissible unless the statement is shown or disclosed to
the witness during the witness’s examination. Paragraph (b) is intended to give the
witness and the party a fair opportunity to explain or deny the allegation.
To be used for impeachment purposes, an inconsistent statement need not
satisfy the requirements of Pa.R.E. 803.1(1)(A)-(C).
F.R.E. 613 does not contain a paragraph (c); it does not deal with rehabilitation of
a witness with a prior consistent statement. Pa.R.E. 613(c) gives a party an opportunity
to rehabilitate the witness with a prior consistent statement where there has been an
attempt to impeach the witness. In most cases, a witness’s prior statement is hearsay,
but F.R.E. 801(d)(1)(B) treats some prior consistent statements offered to rebut
impeachment as not hearsay. Pa.R.E. 613(c) is consistent with Pennsylvania law in
that the prior consistent statement is admissible, but only to rehabilitate the witness.
See Commonwealth v. Hutchinson, [521 Pa. 482,] 556 A.2d 370 (Pa. 1989) (to rebut
charge of recent fabrication); Commonwealth v. Smith, [518 Pa. 15,] 540 A.2d 246 (Pa.
1988) (to counter alleged corrupt motive); Commonwealth v. Swinson, [426 Pa. Super.
167,] 626 A.2d 627 (Pa. Super. 1993) (to negate charge of faulty memory);
Commonwealth v. McEachin, [371 Pa. Super. 188,] 537 A.2d 883 (Pa. Super. 1988) (to
offset implication of improper influence).
Pa.R.E. 613(c)(2) is arguably an extension of Pennsylvania law, but is based on
the premise that when an attempt has been made to impeach a witness with an alleged
prior inconsistent statement, a statement consistent with the witness's testimony should
be admissible to rehabilitate the witness if it supports the witness's denial or explanation
of the alleged inconsistent statement.
Note: Adopted May 8, 1998, effective October 1, 1998; amended March 23, 1999,
effective immediately; amended March 10, 2000, effective July 1, 2000; rescinded and
replaced January 17, 2013, effective March 18, 2013; amended March 1, 2017,
effective April 1, 2017.
Committee Explanatory Reports:
Final Report explaining the March 23, 1999 technical amendments to paragraph
(b)(3) published with the Court’s Order at 29 Pa.B. 1714 (April 3, 1999).
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Final Report explaining the March 10, 2000 amendments adding ‘‘inconsistent’’
to section (a) published with the Court’s Order at 30 Pa.B. 1645 (March 25, 2000).
Final Report explaining the January 17, 2013 rescission and replacement
published with the Court’s Order at 43 Pa.B. 620 (February 2, 2013).
Final Report explaining the March 1, 2017 revision of the Comment
published with the Court’s Order at __ Pa.B. __ (_____ __, 2017).
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Rule 803.1. Exceptions to the Rule Against Hearsay - Testimony of Declarant
Necessary
The following statements are not excluded by the rule against hearsay if the
declarant testifies and is subject to cross-examination about the prior statement:
Comment
A witness must be subject to cross-examination regarding the prior
statement. See Commonwealth v. Romero, 722 A.2d 1014, 1017-1018 (Pa. 1999)
(witness was not available for cross-examination when witness refused to answer
questions about prior statement).
(1) Prior Inconsistent Statement of Declarant-Witness. A prior statement by a
declarant-witness that is inconsistent with the declarant-witness’s testimony and:
(A) was given under oath subject to the penalty of perjury at a trial, hearing, or
other proceeding, or in a deposition;
(B) is a writing signed and adopted by the declarant; or
(C) is a verbatim contemporaneous electronic [, audiotaped, or videotaped]
recording of an oral statement.
Comment
The Federal Rules treat statements corresponding to Pa.R.E. 803.1(1) and (2) as
“not hearsay” and places them in F.R.E. 801(d)(1)(A) and (C). Pennsylvania follows the
traditional approach that treats these statements as exceptions to the hearsay rule if the
declarant testifies at the trial.
Pa.R.E. 803.1(1) is consistent with prior Pennsylvania case law. See
Commonwealth v. Brady, [510 Pa. 123,] 507 A.2d 66 (Pa. 1986) (seminal case that
overruled close to two centuries of decisional law in Pennsylvania and held that the
recorded statement of a witness to a murder, inconsistent with her testimony at trial,
was properly admitted as substantive evidence, excepted to the hearsay rule);
Commonwealth v. Lively, [530 Pa. 464,] 610 A.2d 7 (Pa. 1992). In Commonwealth v.
Wilson, [550 Pa. 518,] 707 A.2d 1114 (Pa. 1998), the Supreme Court held that to be
admissible under this rule an oral statement must be a verbatim contemporaneous
recording in electronic, audiotaped, or videotaped form.
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An inconsistent statement of a witness that does not qualify as an exception to
the hearsay rule may still be introduced to impeach the credibility of the witness. See
Pa.R.E. 613.
[Rule 803.1(2). Prior Statement of Identification]
(2) Prior Statement of Identification by Declarant-Witness. A prior statement by
a declarant-witness identifying a person or thing, made after perceiving the
person or thing, provided that the declarant-witness testifies to the making of the
prior statement.
Comment
Pennsylvania treats a statement meeting the requirements of Pa.R.E. 803.1(2)
as an exception to the hearsay rule. F.R.E. 801(d)(1)(C) provides that such a statement
is not hearsay. This differing organization is consistent with Pennsylvania law.
Pa.R.E. 803.1(2) differs from F.R.E. 801(d)(1)(C) in several respects. It requires
the witness to testify to making the identification. This is consistent with Pennsylvania
law. See Commonwealth v. Ly, [528 Pa. 523,] 599 A.2d 613 (Pa. 1991). The
Pennsylvania rule includes identification of a thing, in addition to a person.
[Rule 803.1(3). Recorded Recollection]
(3) Recorded Recollection of Declarant-Witness. A memorandum or record
made or adopted by a declarant-witness that:
(A) is on a matter the declarant-witness once knew about but now cannot
recall well enough to testify fully and accurately;
(B) was made or adopted by the declarant-witness when the matter was fresh
in his or her memory; and
(C) the declarant-witness testifies accurately reflects his or her knowledge at
the time when made.
If admitted, the memorandum or record may be read into evidence and received
as an exhibit, but may be shown to the jury only in exceptional circumstances or when
offered by an adverse party.
Comment
Pa.R.E. 803.1(3) is similar to F.R.E. 803(5), but differs in the following ways:
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1. Pennsylvania treats a statement meeting the requirements of Pa.R.E.
803.1(3) as an exception to the hearsay rule in which the testimony of the
declarant is necessary. F.R.E. 803(5) treats this as an exception
regardless of the availability of the declarant. This differing organization is
consistent with Pennsylvania law.
2. Pa.R.E. 803.1(3)(C) makes clear that, to qualify a recorded recollection as
an exception to the hearsay rule, the witness must testify that the
memorandum or record correctly reflects the knowledge that the witness
once had. In other words, the witness must vouch for the reliability of the
record. The Federal Rule is ambiguous on this point and the applicable
federal cases are conflicting.
3. Pa.R.E. 803.1(3) allows the memorandum or record to be received as an
exhibit, and grants the trial judge discretion to show it to the jury in
exceptional circumstances, even when not offered by an adverse party.
Pa.R.E. 803.1(3) is consistent with Pennsylvania law. See Commonwealth v.
Cargo, [498 Pa. 5,] 444 A.2d 639 (Pa. 1982).
[This is an entirely new paragraph.]
(4) Prior Statement by a Declarant-Witness Who Claims an Inability to
Remember the Subject Matter of the Statement. A prior statement by a
declarant-witness who testifies to an inability to remember the subject matter of
the statement, unless the court finds the claimed inability to remember to be
credible, and the statement:
(A) was given under oath subject to the penalty of perjury at a trial, hearing, or
other proceeding, or in a deposition;
(B) is a writing signed and adopted by the declarant; or
(C) is a verbatim contemporaneous electronic recording of an oral statement.
Comment
Pa.R.E. 803.1(4) has no counterpart in the Federal Rules of Evidence. The
purpose of this hearsay exception is to protect against the “turncoat witness” who once
provided a statement, but now seeks to deprive the use of this evidence at trial. It is
intended to permit the admission of a prior statement given under demonstrably reliable
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and trustworthy circumstances, see, e.g., Commonwealth v. Hanible, 30 A.3d 426, 445
n. 15 (Pa. 2011), when the declarant-witness feigns memory loss about the subject
matter of the statement.
A prior statement made by a declarant-witness having credible memory loss
about the subject matter of the statement, but able to testify that the statement
accurately reflects his or her knowledge at the time it was made, may be admissible
under Pa.R.E. 803.1(3). Otherwise, when a declarant-witness has a credible memory
loss about the subject matter of the statement, see Pa.R.E. 804(a)(3).
Note: Adopted May 8, 1998, effective October 1, 1998; amended March 10, 2000,
effective July 1, 2000; rescinded and replaced January 17, 2013, effective March 18,
2013; amended March 1, 2017, effective April 1, 2017.
Committee Explanatory Reports:
Final Report explaining the amendment to [subsection] paragraph (1) and the
updates to the Comment to [subsection] paragraph (1) published with the Court’s
Order at 30 Pa.B. 1645 (March 25, 2000).
Final Report explaining the January 17, 2013 rescission and replacement
published with the Court’s Order at 43 Pa.B. 620 (February 2, 2013).
Final Report explaining the March 1, 2107 revision of the Comment and
addition of paragraph (4) published with the Court’s Order at __ Pa.B. __ (_____
__, 2017).
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Rule 804. Exceptions to the Rule Against Hearsay – When the Declarant is
Unavailable as a Witness
(a) Criteria for Being Unavailable. A declarant is considered to be unavailable as
a witness if the declarant:
(1) is exempted from testifying about the subject matter of the declarant’s
statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter, except as provided in
Rule 803.1(4);
(4) cannot be present or testify at the trial or hearing because of death or a
then-existing infirmity, physical illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s proponent has not
been able, by process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception
under Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of a hearsay
exception under Rule 804(b)(2), (3), or (4).
But this [subdivision] paragraph (a) does not apply if the statement’s proponent
procured or wrongfully caused the declarant’s unavailability as a witness in order to
prevent the declarant from attending or testifying.
Comment
[Pa.R.E. 804(a) is identical to F.R.E. 804(a).] Pa.R.E. 804(a)(3) differs from
F.R.E. 804(a)(3) in that it excepts from this rule instances where a declarant-
witness’s claim of an inability to remember the subject matter of a prior statement
is not credible, provided the statement meets the requirements found in Pa.R.E.
803.1(4). This rule is otherwise identical to F.R.E. 804(a). A declarant-witness
with credible memory loss about the subject matter of a prior statement may be
subject to this rule.
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Rule 804(b). The Exceptions
(b) The Exceptions. The following are not excluded by the rule against hearsay if
the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful deposition,
whether given during the current proceeding or a different one; and
(B) is now offered against a party who had – or, in a civil case, whose
predecessor in interest had - an opportunity and similar motive to
develop it by direct, cross-, or redirect examination.
Comment
Pa.R.E. 804(b)(1) is identical to F.R.E. 804(b)(1).
In criminal cases the Supreme Court has held that former testimony is admissible
against the defendant only if the defendant had a “full and fair” opportunity to examine
the witness. See Commonwealth v. Bazemore, [531 Pa. 582,] 614 A.2d 684 (Pa.
1992).
Depositions
Depositions are the most common form of former testimony that is introduced at
a modern trial. Their use is provided for not only by Pa.R.E. 804(b)(1), but also by
statute and rules of procedure promulgated by the Pennsylvania Supreme Court.
The Judicial Code provides for the use of depositions in criminal cases. 42
Pa.C.S. § 5919 provides:
Depositions in criminal matters. The testimony of witnesses taken in
accordance with section 5325 (relating to when and how a deposition may
be taken outside this Commonwealth) may be read in evidence upon the
trial of any criminal matter unless it shall appear at the trial that the
witness whose deposition has been taken is in attendance, or has been or
can be served with a subpoena to testify, or his attendance otherwise
procured, in which case the deposition shall not be admissible.
42 Pa.C.S. § 5325 sets forth the procedure for taking depositions, by either
prosecution or defendant, outside Pennsylvania.
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In civil cases, the introduction of depositions, or parts thereof, at trial is provided
for by Pa.R.C.P. No. 4020(a)(3) and (5).
A video deposition of a medical witness, or any expert witness, other than a party
to the case, may be introduced in evidence at trial, regardless of the witness's
availability, pursuant to Pa.R.C.P. No. 4017.1(g).
42 Pa.C.S. § 5936 provides that the testimony of a licensed physician taken by
deposition in accordance with the Pennsylvania Rules of Civil Procedure is admissible
in a civil case. There is no requirement that the physician testify as an expert witness.
[Rule 804(b)(2). Statement Under Belief of Imminent Death]
(2) Statement Under Belief of Imminent Death. A statement that the
declarant, while believing the declarant’s death to be imminent, made
about its cause or circumstances.
Comment
Pa.R.E. 804(b)(2) differs from F.R.E. 804(b)(2) in that the Federal Rule is
applicable in criminal cases only if the defendant is charged with homicide. The
Pennsylvania Rule is applicable in all civil and criminal cases, subject to the defendant’s
right to confrontation in criminal cases.
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court interpreted
the Confrontation Cause in the Sixth Amendment of the United States Constitution to
prohibit the introduction of “testimonial” hearsay from an unavailable witness against a
defendant in a criminal case unless the defendant had an opportunity to confront and
cross-examine the declarant, regardless of its exception from the hearsay rule.
However, in footnote 6, the Supreme Court said that there may be an exception, sui
generis, for those dying declarations that are testimonial.
[Rule 804(b)(3). Statement Against Interest]
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position would have made
only if the person believed it to be true because, when made, it was
so contrary to the declarant’s proprietary or pecuniary interest or
had so great a tendency to invalidate the declarant’s claim against
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someone else or to expose the declarant to civil or criminal liability;
and
(B) is supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends
to expose the declarant to criminal liability.
Comment
This rule is identical to F.R.E. 804(b)(3).
[Rule 804(b)(4). Statement of Personal or Family History]
(4) Statement of Personal or Family History. A statement made before the
controversy arose about:
(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage,
divorce, relationship by blood, adoption or marriage, or similar facts
of personal or family history, even though the declarant had no way
of acquiring personal knowledge about that fact; or
(B) another person concerning any of these facts, as well as death, if
the declarant was related to the person by blood, adoption, or
marriage or was so intimately associated with the person’s family
that the declarant’s information is likely to be accurate.
Comment
Pa.R.E. 804(b)(4) differs from F.R.E. 804(b)(4) by requiring that the statement be
made before the controversy arose. See In re McClain’s Estate, [481 Pa. 435,] 392
A.2d 1371 (Pa. 1978). This requirement is not imposed by the Federal Rule.
[Rule 804(b)(5). Other exceptions (Not Adopted)]
(5) Other exceptions (Not Adopted)
Comment
Pennsylvania has not adopted F.R.E. 804(b)(5) (now F.R.E. 807).
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[Rule 804(b)(6). Statement Offered Against a Party That Wrongfully Caused the
Declarant’s Unavailability]
(6) Statement Offered Against a Party That Wrongfully Caused the
Declarant’s Unavailability. A statement offered against a party that
wrongfully caused – or acquiesced in wrongfully causing – the declarant’s
unavailability as a witness, and did so intending that result.
Comment
This rule is identical to F.R.E. 804(b)(6).
Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 10,
2000, effective immediately; rescinded and replaced January 17, 2013, effective March
18, 2013; amended March 1, 2017, effective April 1, 2017.
Committee Explanatory Reports:
Final Report explaining the March 10, 2000 revision of the Comment to
paragraph (b)(4) published with the Court’s Order at 30 Pa.B. 1641 (March 25, 2000).
Final Report explaining the January 17, 2013 rescission and replacement
published with the Court’s Order at 43 Pa.B. 620 (February 2, 2013).
Final Report explaining the March 1, 2017 amendment of paragraph (a)(3)
published with the Court’s Order at __ Pa.B. __ (_____ __, 2017).
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