THE COURTS
Title 225--RULES OF EVIDENCE
SUPREME COURT OF PENNSYLVANIA AD HOC COMMITTEE ON EVIDENCE
Proposed Pennsylvania Rule of Evidence
[27 Pa.B. 1282] In 1995 the Supreme Court authorized its Ad Hoc Committee on Evidence to draft Rules of Evidence to be considered for adoption by the Court. The Committee has drafted these Rules, and the Court has now authorized the publication of the Rules for comments and suggestions by interested persons.
Written comments should be submitted no later than June 1, 1997 and directed to:
Pennsylvania Supreme Court
Ad Hoc Committee on Evidence
c/o A.O.C.P., Office of Judicial Services
1515 Market Street, Suite 1428
Philadelphia, PA 19102
Comments The comments accompanying the Proposed Rules were drafted for discussion purposes only. It is intended that the comments will be substantially revised after the period for comment and suggestion has been concluded.
NANCY M. SOBOLEVITCH,
Court Administrator of Pennsylvania
Annex A
TITLE 225. RULES OF EVIDENCE Art.
I. GENERAL PROVISIONS II. JUDICIAL NOTICE III. PRESUMPTIONS IV. RELEVANCY AND ITS LIMITS V. PRIVILEGES VI. WITNESSES VII. OPINIONS AND EXPERT TESTIMONY VIII. HEARSAY IX. AUTHENTICATION AND IDENTIFICATION X. CONTENTS OF WRITINGS, RECORDING, AND PHOTOGRAPHS
ARTICLE I. GENERAL PROVISIONS Rule
101. Scope and Citation of the Rules. 102. Purpose and Construction. 103. Rulings on Evidence. 104. Preliminary Questions. 105. Limited Admissibility. 106. Remainder of or Related Writings or Recorded Statements. Rule 101. Scope and Citation of the Rules.
(a) Scope. These rules of evidence shall govern proceedings in all courts of the Commonwealth of Pennsylvania's unified judicial system, except as otherwise provided by law.
(b) Citation. These rules of evidence are adopted by the Supreme Court of Pennsylvania under the authority of Article V § 10(c) of the Constitution of Pennsylvania, adopted April 23, 1968. They shall be known as the Pennsylvania Rules of Evidence and shall be cited as ''Pa.R.E.''
Comment A principal goal of these rules is to construct a comprehensive code of evidence governing court proceedings in the Commonwealth of Pennsylvania. However, these rules cannot be all-inclusive. Some of our law of evidence is governed by the Constitutions of the United States and of Pennsylvania. Some is within the authority of the legislative branch. Some evidentiary rules are contained in the Rules of Civil and Criminal Procedure and the rules governing proceedings before courts of limited jurisdiction. Traditionally, our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings, bail hearings, grand jury proceedings, sentencing hearings, parole and probation hearings, extradition or rendition hearings, and others. Traditional rules of evidence have also been relaxed to some extent in custody matters, see e.g., Pa.R.C.P. 1915.11(b) (court interrogation of a child, and other domestic relations matters), Pa.R.C.P. 1930.3 (telephone testimony). These rules are not intended to supersede these other provisions of law unless they do so expressly or by necessary implication.
These rules are applicable only to courts. They are applicable in all divisions of the Courts of Common Pleas including the Civil Division, Criminal Division, Trial Division, Orphans' Court Division and Family Division. They are not applicable to other tribunals, such as administrative agencies and arbitration panels, except as provided by law or unless the tribunal chooses to apply them.
Rule 102. Purpose and Construction.
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
Comment This rule is identical to F.R.E. 102.
Rule 103. Rulings on Evidence.
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless
(1) Objection. In case the ruling is one admitting evidence, a timely objection, motion to strike or motion in limine appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or by motion in limine or was apparent from the context within which the evidence was offered.
(b) Record of Offer and Ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
Comment Paragraph 103(a) differs from F.R.E. 103(a) in that the Federal Rule says ''Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and.'' (emphasis added). The italicized words have been deleted because they are inconsistent with Pennsylvania law in both criminal and civil cases. In criminal cases the accused is entitled to relief for an erroneous ruling unless the court is convinced beyond a reasonable doubt that the error is harmless. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). In civil cases, Pa.R.C.P. 126 permits the court to disregard an erroneous ruling ''which does not affect the substantial rights of the parties.'' The deletion of the underlined words is intended to retain the present Pennsylvania law in both criminal and civil cases.
Paragraphs 103(a)(1) and (a)(2) are consistent with Pennsylvania law. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Paragraphs 103(a)(1) and (a)(2) are similar to F.R.E. 103(a)(1)--(a)(2). The term ''motion in limine'' has been added in paragraph (a)(2), and the last three words have been changed. Motions in limine permit the trial court to make rulings on evidence prior to trial or at trial but before the evidence is offered. Such motions can expedite the trial and assist in producing just determinations. Care must be taken, however, to assure that the record is preserved should there be post trial motions or appeals. The change in language is intended to make it clear that the requirement that offers of proof be made is applicable to testimonial and other types of evidence.
Paragraphs 103(b) and (c) are identical to F.R.E. 103(b) and (c) and are consistent with Pennsylvania practice.
F.R.E. 103(d) permits a court to grant relief for ''plain errors affecting substantial rights although they were not brought to the attention of the court.'' This paragraph has been deleted because it is inconsistent with paragraphs (a)(1) and (a)(2) and with Pennsylvania law as established in Dilliplaine and Clair. In capital cases, the Supreme Court has relaxed traditional waiver concepts and has considered alleged errors on their merits. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982).
Rule 104. Preliminary Questions.
(a) Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(c) Hearing of Jury. Hearings on the admissibility of evidence alleged to have been obtained in violation of the defendant's rights shall in all cases be conducted outside the presence of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.
(d) Testimony by Accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
(e) Weight and Credibility. Even though the court has decided that evidence is admissible, this does not preclude a party from offering evidence relevant to the weight or credibility of that evidence.
Comment Paragraph 104(a) is identical to F.R.E. 104(a). The first sentence is consistent with Pennsylvania law. See Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367, cert. denied, Laird v. Pennsylvania, 502 U. S. 849 and Chester v. Pennsylvania, 502 U. S. 959 (1991).
The second sentence of paragraph 104(a) is based on the premise that, by and large, the law of evidence is a ''child of the jury system'' and that the rules of evidence should not be applied when the judge is the fact finder. The theory is that the judge should be empowered to hear any relevant evidence in order to resolve questions of admissibility. Under the Federal Rule the court may consider even the allegedly inadmissible evidence in deciding whether to admit the evidence. See Bourjaily v. United States, 483 U. S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). There is no express authority in Pennsylvania on whether the court is bound by the rules of evidence in making its determinations on preliminary questions. In view of this, the approach of the Federal Rule has been adopted.
The Federal Rules have not specifically resolved the question of whether the allegedly inadmissible evidence may be sufficient in and of itself to establish its own admissibility. See Bourjaily v. United States, supra. This question cannot be resolved in the abstract. Certainly, there are some instances in which the disputed evidence will be sufficiently reliable to establish its own admissibility. For example, Pa.R.E. 902 provides that some evidence is self-authenticating. But, in some cases, additional evidence will be required. Sufficiency of the evidence is a question that must be resolved by the trial court on a case-by-case basis.
Paragraph 104(b) is identical to F.R.E. 104(b) and appears to be consistent with Pennsylvania law. See Commonwealth v. Carpenter, 472 Pa. 510, 372 A.2d 806 (1977).
The first sentence of paragraph 104(c) differs from the first sentence of F.R.E. 104(c) in that the federal rule says ''Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury.'' The first sentence of Pa.R.E. 104(c) has been changed to be consistent with Pa.R.Crim.P. 323(f), which requires hearings outside the presence of the jury in all cases in which it is alleged that the evidence was obtained in violation of the defendant's rights.
The second sentence of paragraph 104(c) is identical to the second sentence of F.R.E. 104(c) and indicates that hearings on other preliminary matters, both criminal and civil, shall be conducted outside the jury's presence when required by the interests of justice. Certainly, the court should conduct the hearing outside the presence of the jury when the court believes that it will be necessary to do so in order to prevent prejudicial information being heard by the jury. The right of an accused to have his testimony on a preliminary matter taken outside the presence of the jury does not appear to have been discussed in Pennsylvania law.
Paragraph 104(d) is identical to F.R.E. 104(d). In general, when a party offers himself as a witness, the party may be questioned on all relevant matters in the case. See Agate v. Dunleavy, 398 Pa. 26, 156 A.2d 530 (1959). Under Pa.R.E. 104(d), when the accused in a criminal case testifies only with regard to a preliminary matter, he or she may not be cross-examined as to other matters. Although there is no Pennsylvania authority on this point, it appears that this rule is consistent with Pennsylvania practice. This approach is consistent with paragraph 104(c) in that it is designed to preserve the defendant's right not to testify generally in the case.
Paragraph 104(e) differs from F.R.E. 104(e) in order to clarify the meaning of this paragraph. See 21 Wright and Graham, Federal Practice and Procedure § 5058. This paragraph is consistent with Pennsylvania law.
Rule 105. Limited Admissibility.
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court upon request shall, or on its own initiative may, restrict the evidence to its proper scope and instruct the jury accordingly.
Comment This rule differs from F.R.E. 105, in that the language ''or on its own initiative may'' has been added. This rule as amended is consistent with Pennsylvania law. It should be noted that there are other approaches that may be utilized when evidence is admissible as to one party or for one purpose, but not admissible as to another party or for another purpose. The evidence may be redacted. See Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977). A severance may be an appropriate remedy. See Commonwealth v. Young, 263 Pa. Super. 333, 397 A.2d 1234 (1979). Where the danger of unfair prejudice outweighs probative value, the evidence may be excluded. See Pa.R.E. 403 and McShain v. Indemnity Insurance Co. of North America, 338 Pa. 113, 12 A.2d 59 (1940).
Rule 106. Remainder of or Related Writings or Recorded Statements.
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
Comment This section is identical to F.R.E. 106. It is consistent with Pennsylvania law. See Pedretti v. Pittsburgh Railways Co., 417 Pa. 581, 209 A.2d 289 (1965). A similar principle is expressed in Pa.R.C.P. 4020(a)(4) which provides ''If only part of a deposition is offered in evidence by a party, any other party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.''
The purpose of Pa.R.E. 106 is to give the adverse party an opportunity to correct a misleading impression that may be created by the use of portions of a writing or recorded statement that are taken out of context. This rule gives the adverse party the right to correct the misleading impression at the time that the evidence is introduced. The trial court has discretion to decide whether other parts, or other writings or recorded statements, ought in fairness to be considered contemporaneously with the original portion.
ARTICLE II. JUDICIAL NOTICE Rule
201. Judicial Notice of Adjudicative Facts. Rule 201. Judicial Notice of Adjudicative Facts.
(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial notice, whether requested or not.
(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing Jury. The court shall instruct the jury that it may, but is not required to, accept as conclusive, any fact judicially noticed.
Comment This rule is identical to F.R.E. 201, except for paragraph (g).
Paragraph (a) limits the application of this rule to adjudicative facts. This rule is not applicable to judicial notice of law. Adjudicative facts are facts about the events, persons and places relevant to the matter before the court. See McCormick, Evidence § 328 (4th ed. 1992).
In determining the law applicable to a matter, the judge is sometimes said to take judicial notice of law. See Wright and Graham, Federal Practice and Procedure, § 5102. In Pennsylvania, judicial notice of law has been regulated by decisional law and statute. See, In re Annual Controller's Reports for Years 1932, 1933, 1934, 1935 and 1936, 333 Pa. 489, 5 A.2d 201 (1939) (judicial notice of public laws); 42 Pa.C.S.A. § 6107 (judicial notice of municipal ordinances); 42 Pa.C.S.A. § 5327 (judicial notice of laws of any jurisdiction outside the Commonwealth); 45 Pa.C.S.A. § 506 (judicial notice of the contents of the Pennsylvania Code and the Pennsylvania Bulletin). These rules are not intended to change existing provisions of law.
Paragraph (b) is consistent with Pennsylvania law. See, Appeal of Albert, 372 Pa. 13, 92 A.2d 663 (1952); In re Siemens' Estate, 346 Pa. 610, 31 A.2d 280 (1943), cert. denied, 320 U. S. 758, 64 S. Ct. 66, 88 L.Ed. 452 (1943).
Paragraph (c) is consistent with Pennsylvania practice.
Paragraph (d) is new to Pennsylvania. Heretofore, the taking of judicial notice has been discretionary, not mandatory. The approach of the Federal Rule has been adopted because it has not been problematic in the jurisdictions that have adopted this paragraph.
Paragraph (e) provides that parties will have an opportunity to be heard on the propriety of the court's taking judicial notice. No formal procedure has been provided. Pennsylvania practice appears to have operated satisfactorily without a formal procedure.
Paragraph (f). Pennsylvania law has not been completely consistent with regard to whether a court may take judicial notice at the pleading stage of proceedings. See Clouser v. Shamokin Packing Co., 240 Pa. Super. 268, 361 A.2d 836 (1976) (trial court generally should not take judicial notice at the pleading stage); Bykowski v. Chesed Co., 425 Pa. Super. 595, 625 A.2d 1256 (1993) (trial court may take judicial notice in ruling on motion for judgment on the pleadings). Similarly, older authority has held that judicial notice may not be taken at the appellate stage. See Wilson v. Pennsylvania R.R. Co., 421 Pa. 419, 219 A.2d 666 (1966). More recently, the Supreme Court has taken judicial notice at the appellate stage. See Commonwealth v. Tau Kappa Epsilon, 530 Pa. 416, 609 A.2d 791 (1992). This paragraph will resolve these apparent inconsistencies.
Paragraph (g) differs from F.R.E. 201(g). Under the Federal Rule the court is required to instruct the jury to accept as conclusive any fact judicially noticed in a civil case. In a criminal case the judicially noticed fact is not treated as conclusive.
Under Pennsylvania law the judicially noticed fact has not been treated as conclusive in either civil or criminal cases, and the opposing party may submit evidence to the jury to disprove the noticed fact. See Appeal of Albert, 372 Pa. 13, 92 A.2d 663 (1952); Commonwealth v. Brown, 428 Pa. Super. 587, 631 A.2d 1014 (1993). This paragraph follows the established Pennsylvania law.
ARTICLE III. PRESUMPTIONS Rule
301. General Rule. Rule 301. General Rule.
Presumptions as they now exist or may be modified by law shall be unaffected by the adoption of these rules.
Comment The Federal Rules of Evidence do not modify the existing law with regard to presumptions. These rules take a similar approach.
ARTICLE IV. RELEVANCY AND ITS LIMITS Rule
401. Definition of ''Relevant Evidence.'' 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible 403. Exclusion of Relevant Evidence on Grounds of Prejudice 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes 405. Methods of Proving Character 406. Habit; Routine Practice 407. Subsequent Remedial Measures 408. Compromise and Offers to Compromise 409. Payment of Medical and Similar Expenses 410. Inadmissibility of Pleas, Plea Discussions and Related Statements 411. Liability Insurance 412. [Vacant] Rule 401. Definition of ''Relevant Evidence.''
''Relevant evidence'' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Comment Pa.R.E. 401 is identical to F.R.E. 401. The rule codifies existing Pennsylvania law, as represented by the Supreme Court's definition of relevance in Commonwealth v. Scott, 480 Pa. 50, 389 A.2d 79, 82 (1978): ''Evidence which tends to establish some fact material to the case, or which tends to make a fact at issue more or less probable, is relevant.'' See also, Commonwealth v. Stewart, 461 Pa. 274, 336 A.2d 282, 284 (1975), describing the relevance inquiry under Pennsylvania law. Whether evidence has a tendency to make a given fact more or less probable is to be determined by the court in the light of reason, experience, scientific principles and the other testimony offered in the case.
A finding of relevance may be conditional, or dependent on facts not yet of record. Under Pa.R.E. 104(b) such evidence may be admitted subject to the introduction of further evidence demonstrating that all conditions necessary to a finding of relevance have been met.
The word, ''fact,'' as used in Pa.R.E. 401 should be construed liberally to conform to existing Pennsylvania law. In conformity with existing law, the rule applies to proof of a negative, or ''negative evidence.'' See, e.g., Klein v. Woolworth, 309 Pa. 320, 163 A. 532 (1932), holding that the absence of entries in a payroll record was relevant and admissible to prove that a person was not an employee, and Stack v. Wapner, 244 Pa. Super.. 278, 368 A.2d 292 (1976), holding that the absence of entries in a hospital record was relevant and admissible to prove that the defendant-physician was not present during a critical time period. These same principles appear in statutory law. Under 42 Pa.C.S. § 6104(b) the absence of entries in an official record is relevant and admissible to prove the nonexistence of a fact, provided the fact is of the type that would have been recorded pursuant to an official duty. See also, Comment under subsection (7) of Pa.R.E. 803, regarding the absence of entries in records of regularly conducted activity.
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible.
All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible.
Comment Pa.R.E. 402 is substantively the same as F.R.E. 402. The only variance is in the language of the exceptions clause in the first sentence. The exceptions clause of the federal rule specifically enumerates the various sources of federal rulemaking power. Pa.R.E. 402 substitutes the phrase, ''by law,'' to encompass analogous sources of rulemaking power within the Commonwealth.
The rule states a fundamental concept of the law of evidence. Relevant evidence is admissible; evidence that is not relevant is not admissible. This concept is modified by the exceptions clause of the rule, which states another fundamental principle of evidentiary law. Evidence otherwise relevant may be excluded by operation of constitutional law, by statute, by rules of evidence created by decisional law, by these rules, or by other rules promulgated by the Supreme Court.
As noted in the Comment to Pa.R.E. 101, a principal goal of these rules is to construct a comprehensive code of evidence governing court proceedings in the Commonwealth. Pa.R.E. 402 explicitly recognizes, however, that these rules cannot be all inclusive. The law of evidence is also shaped by constitutional principle, legislative enactment, procedural rulemaking and decisional law. These rules of evidence are not intended to supersede other provisions of law, unless they do so expressly, or by necessary implication.
Examples of decisionally created rules of exclusion that are not abrogated by the adoption of these rules include: the corpus delecti rule, Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974); the collateral source rule, Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A.2d 259 (1963); the parol evidence rule, Gianni v. R. Russell and Co., Inc., 281 Pa. 320, 126 A. 791 (1924); and the rule excluding certain evidence to rebut the presumption of legitimacy, John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), cert. denied, 498 U. S. 850.
Option I Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice.
Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Comment Pa.R.E. 403 differs from F.R.E. 403. The federal rule provides that relevant evidence may be excluded if its probative value is ''substantially outweighed'' by the danger of unfair prejudice. Pa.R.E. 403 eliminates the word, ''substantially,'' in order to conform the text of the rule more closely to decisional law.
''Unfair prejudice'' means a tendency to suggest decision on an improper basis or to divert the jury's attention away from their duty of weighing the evidence impartially.
Pa.R.E. 403 provides a single standard for civil and criminal cases. The rule may differ in application, however, because evidentiary questions in criminal cases may have a constitutional dimension not found in civil cases. In criminal cases, procedural rules cannot be applied to the detriment of the defendant's due process right to a fair trial. See, generally, Chambers v. Mississippi, 410 U. S. 284 (1973); Commonwealth v. Spiewak, 533 Pa. 1, 617 A.2d 696 (1992). The absence of analogous constitutional constraints in civil cases may result in more liberal application of the rule in civil cases.
Civil cases. Pennsylvania decisional law prior to adoption of this rule did not reflect a uniform standard for balancing probative value against prejudice in civil cases. Although a number of intermediate appellate cases have used the language of the federal rule in discussing the admissibility of contested evidence, see, e.g., Daset Mining Co. v. Industrial Fuels Corp., 326 Pa.Super. 14, 473 A.2d 584, 588 (1984), Whyte v. Robinson, 421 Pa.Super. 33, 617 A.2d 380, 383 (1992), an equal number of cases have been decided without reference to a standard for balancing probative value against prejudice. See, e.g., Morrison v. Com., Dept. of Pub. Welfare, 538 Pa. 122, 646 A.2d 565, 572 (1994); Egelkamp v. Egelkamp, 362 Pa.Super. 269, 524 A.2d 501, 504 (1987); Christy v. Darr, 78 Pa.Cmwlth. 354, 467 A.2d 1362, 1364 (1983). Codification of a uniform standard by adoption of this rule is not intended to change substantive law regarding the admissibility of evidence in civil cases.
Criminal cases. Pa.R.E. 403 is consistent with existing law in criminal cases. See, Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250, 254 (1982); Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212, 1218 (1992); Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846, 854 (1989); Commonwealth v. Ulatowski, 472 Pa. 53, 371 A.2d 186, 191, n. 11 (1977).
In criminal cases, there are exceptions to the application of this general standard. The degree of prejudice associated with certain types of evidence has been found high enough to shift the balance away from admissibility and towards exclusion, and the evidence is not admitted unless the proponent can demonstrate that its probative value outweighs its potential for unfair prejudice. See, Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715, 729 (1981) (even where a legitimate evidentiary purpose is demonstrated, evidence of other crimes is not admissible unless its probative value is shown to outweigh its potential for prejudice); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167, 1182 (1986)(inflammatory photographs are admissible only upon a showing that the photos are of such evidentiary value that their need clearly outweighs the potential for unfair prejudice); Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468, 481 (1977) (same). Pa.R.E. 403 does not overrule decisional law favoring the exclusion of certain types of evidence which the courts have found to be highly prejudicial in criminal cases. Under Pa.R.E. 403 courts may continue to recognize that the prejudice inherent in certain types of evidence is strong enough to shift the balance towards exclusion.
With regard to evidence of other crimes, wrongs or acts of the defendant in a criminal case, Pa.R.E. 404(b)(iii) codifies the standard set by Commonwealth v. Morris, supra. Rule 404(b)(iii) provides that such evidence, when offered for a legitimate evidentiary purpose, is admissible only upon a showing that the probative value outweighs the potential for prejudice.
Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; 0ther Crimes.
(a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except as follows:
(1) Character of Accused. In a criminal case, evidence of a pertinent trait of character of the accused is admissible when offered by the accused, or by the prosecution to rebut the same.
(2) Character of Alleged Victim.
(i) In a criminal case, evidence of a pertinent trait of character of the alleged victim is admissible when offered by the accused, or by the prosecution to rebut the same.
(ii) In a homicide case, where the accused has offered evidence that the deceased was the first aggressor, evidence of a character trait of the deceased for peacefulness is admissible when offered by the prosecution to rebut the same.
(iii) In a civil action for assault and battery, evidence of a character trait of violence of the plaintiff may be admitted when offered by the defendant to rebut evidence that the defendant was the first aggressor.
(3) Character of witness. Evidence of a pertinent trait of character of a witness is admissible as provided in rules 607 (who may impeach), 608 (character and conduct of witness) and 609 (evidence of conviction of crime).
(b) Other Crimes, Wrongs, or Acts.
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
(3) Evidence of other crimes, wrongs, or acts proffered under subsection (ii) of this rule may be admitted only upon a showing that the probative value of the evidence outweighs its potential for prejudice.
(4) In criminal cases, the prosecution shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of any such evidence it intends to introduce at trial.
Comment Pa.R.E. 404 differs from F.R.E. 404. The differences are discussed in the subsection Comments that follow.
Subsection (a). Pa.R.E. 404(a) is substantively the same as F.R.E. 404(a). The rules differ only as to structure. Although the exception provided at Rule (a)(2)(iii) does not appear in the federal rule, it is consistent with both federal and Pennsylvania decisional law. See, Hackbart v. Cincinnati Bengals, 601 F.2d 516 (10th Cir. 1979); Bell v. Philadelphia, 341 Pa. Super.. 534, 491 A.2d 1386 (1985).
This rule does not control the use of character evidence in civil actions where character is an element of a claim or defense. For example, in actions for negligent entrustment, evidence of the defendant's knowledge of the character of the person to whom he entrusted some duty is both relevant and admissible. It is not excluded by this rule, because it is not offered to prove action in conformity therewith. Pa.R.E. 405 (b)(i) provides that in a civil action where character is an element of a claim or defense, character may be proved either by reputation evidence or by specific instances of conduct.
Subsection (a)(2) is a restatement of Pennsylvania law. In cases of homicide and assault, an accused who claims self-defense is permitted to introduce evidence of the alleged victim's violent or aggressive character for the following purposes: (i) to demonstrate the reasonableness of the accused's apprehension of immediate danger; or (ii) to show that the alleged victim was, in fact, the aggressor. For the first purpose, there must be a showing that the accused had knowledge of the alleged victim's violent character. For the second purpose, the accused's knowledge of the alleged victim's character for violence is not required. Commonwealth v. Dillon, 528 Pa. 417, 598 A.2d 963, 965 (1991). Under Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971), evidence of the alleged victim's criminal record for violence is admissible for both purposes. See, also, Pa.R.E. 405, providing that the alleged victim's character for violence may be proven either by reputation evidence or by specific instances of conduct.
After the accused has offered evidence regarding the alleged victim's violent character, the prosecution is permitted to rebut such evidence by offering proof of the peaceful character of the alleged victim. Under Pa.R.E. 405, the peaceful character of the alleged victim may be proven by reputation evidence.
Subsection (b). This subsection reflects the courts' long-standing concern regarding the prejudicial impact of evidence of other crimes, wrongs and acts in the trial of a criminal accused. In Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978) the Court characterized evidence of other crimes as, ''probably only equalled by a confession in its prejudicial impact upon a jury.'' Id. at 606, 391 A.2d at 1050. ''The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence.'' Id. In Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715, 720 (1981), the Court held that evidence of other crimes, wrongs or acts offered for a legitimate evidentiary purpose is admissible, ''if the probative worth . . . outweighs the tendency to prejudice the jury''. Pa.R.E. 404(b)(iii) adopts the standard used in Morris.
The Supreme Court has cautioned lower courts against liberal interpretation of the ''other purposes'' clause to permit the introduction of other crimes evidence under subsection (b)(ii). Commonwealth v. Spruill, 391 A.2d at 1050. Cases in which the Supreme Court has approved admission of evidence under the ''other purposes'' clause include: where the other crimes were part of a chain or sequence of events which formed the history of the case and were part of its natural development, Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988), and where the defendant used other crimes to threaten or intimidate the alleged victim. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985).
Rule 405. Methods of Proving Character.
(a) Reputation Evidence. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation. A witness whose testimony is to be admitted under this Rule may not be called at trial under this Rule unless the party seeking to call the witness makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the evidence, the proponent's intention in calling the witness, the particulars of the witness' expected testimony, and the name and address of the witness. The particulars of the witness' expected testimony should include the identity of any person the witness spoke to in the community in order to reach a conclusion about the person's reputation for the relevant trait of character, the nature of the information provided by such person(s) in the community, and what relationship, if any, the person in the community has with the person who is the subject of the testimony. On cross-examination of the reputation witness, inquiry is allowable into specific instances of conduct probative of the character trait in question, except that in criminal cases inquiry into arrests of the accused not resulting in conviction is not permissible.
(b) Specific Instances of Conduct. Specific instances of conduct are not admissible to prove character or a trait of character, except as follows:
(i) In civil cases, specific instances of a person's conduct may be admitted to prove character or a trait of character, where character or a trait of character is an element of a claim or defense.
(ii) In criminal cases, the accused may prove the alleged victim's character or a trait of character by specific instances of conduct.
Comment Pa.R.E. 405 differs from F.R.E. 405. One of the principal points of divergence is that Pennsylvania law does not permit proof of character by opinion evidence. Such evidence is admissible to prove character under the federal rules. In criminal cases, Pennsylvania law also imposes additional restrictions on the use of specific acts evidence to prove character. These restrictions are discussed in the subsection Comments that follow.
Reputation evidence is an exception to the hearsay rule under Pa.R.E. 803(21).
Subsection (a). Pa.R.E. 405(a) differs from F.R.E. 405 in providing that reputation witnesses offered on behalf of a defendant in a criminal case may not be cross-examined regarding arrests of the defendant not resulting in conviction. There is no similar restriction under the federal rule. The restriction set forth in Pa.R.E. 405(a) derives from Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607, 611--612 (1981), holding that arrests not resulting in conviction may not be used to impeach testimony that the accused was a person of good character. Pa.R.E. 405(a) also differs from F.R.E. 405 in that it provides a notice requirement. This requirement is intended to eliminate unfair surprise.
See, also, Comment to Pa.R.E. 608(b), infra, regarding the use of specific instances of conduct, either on cross-examination or as extrinsic evidence, to attack or support the credibility of a witness.
Subsection (b). Pa.R.E. 405(b) is substantively the same as F.R.E. 405(b). The difference between the two rules is essentially structural. The federal rule does not distinguish between civil and criminal cases in permitting the use of specific instances of conduct to prove character. Pa.R.E. 405(b) does distinguish civil and criminal cases.
Subsection (b)(i). With regard to civil cases, Pa.R.E. 405(b)(i) is identical to the federal rule in permitting proof of character by specific instances of conduct only where character is an essential element of the claim or defense. Historically, the use of specific acts to prove character was prohibited under Pennsylvania law. Frazier v. Pennsylvania R.R. Co., 38 Pa. 104 (1861), Rosenstiel v. Pittsburg Rys. Co., 230 Pa. 273, 79 A. 556 (1911); Commonwealth v. Jones, 280 Pa. 368, 124 A. 486 (1924). The rationale for exclusion was that such evidence would confuse the case with collateral issues, prolong the trial, and mislead and distract the jury. Rosensteil, 79 A. at 559. Without overruling these earlier cases, the Court in Matusak v. Kulczewski, 295 Pa. 208, 145 A. 94 (1928) held that specific acts of conduct were admissible to prove character in a suit for alienation of affection. Specific acts of conduct have more recently been admitted to prove character in actions alleging negligent employment, Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 246 A.2d 418 (1968), and in custody cases on the issue of parental fitness. Commonwealth ex rel. Grimes v. Grimes, 281 Pa. Super. 484, 422 A.2d 572 (1980). Pa.R.E. 405 is intended to reflect the approach of these cases by permitting specific instances of conduct to prove character in a civil action only where character is an element of a claim or defense.
Subsection (b)(ii). Under F.R.E. 405(b) criminal cases are subject to the general rule that specific instances of conduct are admissible to prove character, where character is an element of the claim or defense. Pa.R.E. 405(b)(ii) is facially more restrictive than the federal rule by permitting specific acts evidence to prove character in criminal cases in only one instance: when offered by the defendant to prove the character of the alleged victim. This rule is consistent with Pennsylvania law. See, Commonwealth v. Dillon, 528 Pa. 417, 598 A.2d 963 (1991); Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971). See also, Comment to Pa.R.E. 404(a)(2), supra, regarding the admissibility of character evidence on behalf of a defendant in a criminal case to prove the alleged victim's character for violence in support of a claim of self-defense. Although different in form, Pa.R.E. 405(b)(ii) does not differ significantly from the federal rule in substance, since there are few, if any, identifiable instances in criminal cases where character will be an essential element of the claim or defense.
Rule 406. Habit; Routine Practice.
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
Comment This rule is identical to F.R.E. 406 and restates Pennsylvania law. See Baldridge v. Matthews, 378 Pa. 566, 106 A.2d 809 (1954)(uniform practice of hotel permitted to establish conduct in conformity with practice). The concepts of ''habit'' and ''routine practice'' denote conduct that occurs with fixed regularity in repeated specific situations. Like the federal rule, Pa.R.E. 406 does not set forth the ways in which habit or routine practice may be proven, but leaves this for case-by-case determination. Evidence of specific past instances of conduct, as well as opinion based on adequate factual foundation, are potential methods of proof. See, e.g., Commonwealth v. Rivers, 537 Pa. 394, 644 A.2d 710 (1994) (allowing testimony based on familiarity with another's conduct); Baldridge, 106 A.2d at 811 (testimony of uniform practice apparently permitted without examples of specific instances). The court may determine whether evidence of specific instances of conduct should be treated as a preliminary question. The questions whether testimony on habit or routine practice is supported by adequate foundation, or should be conditionally received subject to further foundation, are matters for the court's discretion.
Evidence of habit must be distinguished from evidence of character. Character applies to a generalized propensity to act in a certain way without reference to specific conduct, and frequently contains a normative, or value-laden, component (e.g., a character for truthfulness). Habit connotes one's conduct in a precise factual context, and frequently involves mundane matters (e.g., recording the purpose for checks drawn). The Advisory Committee's Note to F.R.E. 406 sets forth a description of this distinction: ''Character is a generalized description of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. . . . A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving.'' F.R.E. 406 adv. comm. notes ¶ 2 (quoting McCormick on Evidence § 162 p. 340).
Option I Rule 407. Subsequent Remedial Measures.
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove that the party who took the measures was negligent or engaged in culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for impeachment or to prove other controverted matters, such as ownership, control, or feasibility of precautionary measures.
Comment This rule is similar to F.R.E. 407. The rule restates the traditional Pennsylvania doctrine that evidence of subsequent remedial measures is not admissible to prove fault or negligence. Baran v. Reading Iron Co., 202 Pa. 274, 51 A. 979 (1902).
Pa.R.E. 407 is silent on the issue whether it excludes subsequent remedial measures when offered to prove a defect in strict liability. The Pennsylvania Superior Court has issued partially conflicting decisions on whether subsequent remedial measures are admissible to prove defect in strict liability cases. Compare Matsko v. Harley Davidson Motor Co., Inc., 325 Pa. Super. 452, 473 A.2d 155 (1984)(proof of recall admitted to prove defect)(2 1 split opinion), with Connelly v. Roper Corp., 404 Pa. Super. 67, 590 A.2d 11 (1991)(post-sale design changes not admissible to prove design defect)(2 1 split opinion); Dunkle v. West Penn Power Co., 400 Pa. Super. 334, 583 A.2d 814 (1990)(post-sale safety standard not admissible to prove defective design or inadequate warning where no recall required); and Gottfried v. American Can Co., 339 Pa. Super. 403, 489 A.2d 222 (1985)(post-sale design changes not admissible to prove design defect). Pa.R.E. allows the Pennsylvania courts to continue to develop the law in this area, leaving the Supreme Court of Pennsylvania free to decide this matter in the context of a case or controversy.
The majority of federal circuits to address this issue have decided that F.R.E. 407 does not permit subsequent remedial measures to be used to prove defect in strict liability cases. See Raymond v. Raymond Corp., 938 F.2d 1518, 1522 (1st Cir. 1991); Chase v. G.M. Corp., 856 F.2d 17, 22 (4th Cir. 1988); Gauthier v. AMF, Inc., 788 F.2d 634, 637 (9th Cir. 1986); Flaminio v. Honda Motor Co., 733 F.2d 463, 469 (7th Cir. 1984); Alexander v. Conveyors & Dumpers, Inc., 731 F.2d 1221, 1229 (5th Cir. 1984); Grenada Steel Indus., Inc. v. Alabama Oxygen Co., 695 F.2d 883, 888 (5th Cir. 1983); Hall v. American Steamship Co., 688 F.2d 1062, 1066--67 (6th Cir. 1982); Josephs v. Harris Corp., 677 F.2d 985, 991 (3d Cir. 1982); Cann v. Ford Motor Co., 658 F.2d 54, 60 (2d Cir. 1981), cert. denied, 456 U. S. 960 (1982); Werner v. Upjohn Co., 628 F.2d 848 (4th Cir. 1980), cert. denied, 449 U. S. 1080 (1981); Knight v. Otis Elevator Co., 596 F.2d 84, 91 (3d Cir. 1979). See also Dine v. Western Exterminating Co., 1988 U. S. Dist. Lexis 4745 (D.D.C. March 9, 1988). Two federal circuits, the Eighth and the Tenth, have held that Rule 407 does not exclude evidence of subsequent remedial measures in strict liability actions. See Huffman v. Caterpillar Tractor Co., 908 F.2d 1470, 1483 (10th Cir. 1990); Donahue v. Phillips Petroleum Co., 866 F.2d 1008, 1013 (8th Cir. 1989); Roth v. Black & Decker, U. S., Inc., 737 F.2d 779, 782 (8th Cir. 1984); Herndon v. Seven Bar Flying Serv., Inc., 716 F.2d 1322, 1327 (10th Cir. 1983), cert. denied, 466 U. S. 958 (1984). See also McFarland v. Bruno Mach. Co., 626 N.E.2d 659, 664 (Ohio 1994) (the Ohio Supreme Court held that Ohio Rule 407, a duplicate of the federal rule, should not apply in a strict products liability case). The Eighth Circuit apparently is reconsidering its position. See Burke v. Deere & Co., 6 F.3d 497, 506 (8th Cir. 1993) (''[T]his case illustrates the dangers inherent in our present approach and further . . . it may indeed be wise to revisit the issue en banc in a proper case.''); see also DeLuryea v. Winthrop Laboratories, 697 F.2d 222, 227--29 (8th Cir. 1983) (allowing 407 to exclude evidence in a strict products liability setting).
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