[27 Pa.B. 1282]
[Continued from previous Web Page] The 1972 proposed version of F.R.E. 612, which was submitted to Congress, provided for access as of right to a writing when it was used to refresh a memory both while testifying and before testifying. Notes of the Advisory Committee on 1972 Proposed Rule 612. This was amended by the House Judiciary Committee ''so as still to require the production of writings used . . . while testifying but to render the production of writings used . . . before testifying discretionary with the court in the interests of justice.'' Notes of the Committee on the Judiciary, House Report No. 93 650. It was this version of the Federal Rule that was finally adopted. Pa.R.E. 612(a) takes the same approach, and this is consistent with the Pennsylvania decisions.
In Proctor, 253 Pa. Super. at 374, 385 A.2d at 385--86, the court said that it was clearly settled that once a witness has resorted to a writing to refresh memory while testifying, ''the adverse party is entitled to inspect the writing and have it available for reference in cross-examining the witness.'' Id. (emphasis added); see Commonwealth v. Allen, 220 Pa. Super. 403, 289 A.2d 476 (1972). However, when a writing is used to refresh memory before testifying, production of it to the adverse party is discretionary with the court. Commonwealth v. Samuels, 235 Pa. Super. 192, 340 A.2d 880 (1975); Commonwealth v. Fromal, 202 Pa. Super. at 47--50, 195 A.2d at 175--176. In the latter case, a policeman, who testified without notes, admitted on cross-examination that before trial he had refreshed his recollection by reading the police file containing day by day reports of the investigation. In holding that there was no abuse of discretion in denying defendant access to the file, the Superior Court pointed out that in view of the length and scope of the file, the opportunity for abuse and confusion was obvious, and there was a great likelihood of raising many collateral issues with no real guide for limiting cross-examination of the witness.
Pa.R.E. 612(a) is not intended to change the result in Commonwealth v. Kantos, 442 Pa. 343, 276 A.2d 830 (1971). There the Supreme Court held that in a criminal case, the defendant must be given the written statements made by a witness to the police prior to trial, following the testimony of the witness on direct examination, even if the statements had not been used to refresh memory.
There is no Pennsylvania authority on the question of whether the adverse party may introduce into evidence the writing or other item used to refresh memory. Pa.R.E. 612(a), like F.R.E. 612, specifically provides that this may be done. This will enable the trier of fact to put the whole matter, i.e., what the witness was shown and how the witness testified on direct examination and cross-examination, in proper context. The evidence is received only for impeachment purposes unless it comes within one of the exceptions to the hearsay rule in Pa.R.E. 803, 803.1 and 804(b).
By its terms, Pa.R.E. 612(a) is made applicable to testimony given at a deposition; this is not what was done in F.R.E. 612, which refers only to having ''the writing produced at a hearing.'' Nevertheless, most of the cases have applied the Federal Rule to depositions based upon Fed. R. Civ. P. 30(c), which states: ''Examination and cross-examination of witnesses [at a deposition] may proceed as permitted at trial under the provisions of the Federal Rules of Evidence.'' Wright and Gold, Federal Practice and Procedure: Evidence, § 6183; see, e.g., Sporck v. Peil, 759 F.2d 312, (3d Cir. 1985), cert. denied, 474 U. S. 903.
There are no Pennsylvania cases considering this issue, and the Pennsylvania Rules of Civil Procedure do not have a provision similar to Fed. R. Civ. P. 30(c). However, by statute and procedural rules, Pennsylvania has provided for the introduction of deposition testimony at trial in certain circumstances. The procedure for taking a deposition outside of Pennsylvania by either the prosecution or defendant in a criminal case is set forth in 42 Pa.C.S.A. § 5325, and a deposition taken pursuant to that statute may be read into evidence at the trial of any criminal matter under 42 Pa.C.S.A. § 5919, unless the deponent is present at the trial, has been or can be subpoenaed, or his or her attendance could otherwise be procured. In addition, Pa.R.Crim.P. 9015 authorizes the taking of a deposition upon order of the court or by agreement of the parties to preserve the testimony of any witness who may be unavailable for trial or ''when due to exceptional circumstances, it is in the interests of justice that the witness' testimony be preserved.'' Pa.R.Crim.P. 9015A sets forth the procedures for videotaping the deposition.
In civil cases, Pa.R.C.P. 4020(a)(3) provides that the deposition of a witness, whether or not a party, may be used at the trial by any party for any purpose if the witness is unavailable within the terms of that Rule or there are exceptional circumstances, and under subsection (a)(5) of that Rule, the deposition of a non-party medical witness may be used for any purpose whether or not the witness is available (and see also 42 Pa.C.S.A. § 5936). Moreover, Pa.R.C.P. 4017.1(g) authorizes the use at trial of a videotape deposition of a medical witness or an expert witness, other than a party, for any purpose even though the witness may be available.
Because of these statutes and procedural rules, there are many possibilities for the introduction of a deposition into evidence at the trial, and one can never be sure in advance when these possibilities will become realities. In view of this, the need of an adverse party to test a deponent, who has used a writing or other item to refresh memory, by getting access to the writing or other item and cross-examining the deponent on it, is as great at the deposition as it would be at trial. Apart from this, if deposition testimony can be challenged, any suggestion arising from the refreshing can be exposed immediately with the result that it may be eliminated at the time of trial. For these reasons, Pa.R.E. 612(a) is specifically made applicable to depositions.
By its terms, Pa.R.E. 612(a) applies to the use of a writing or other item to refresh memory ''for the purpose of testifying.'' F.R.E. 612 contains the same phrase, and the Advisory Committee explained that it was intended ''to safeguard against using the rule as a pretext for wholesale exploration of an opposing party's files and to insure that access is limited only to those writings which may fairly be said in fact to have an impact upon the testimony of the witness.'' This view of the phrase was recognized in Sporck, 759 F.2d at 317 19, in a case in which a deposition witness had examined a large number of documents, selected for him by counsel, in preparation for testifying at the deposition.
Section (b).--Except for the changes noted above concerning sanctions in criminal cases when the prosecution fails to comply with an order to produce, Pa.R.E. 612(b) is the same as the last three sentences of F.R.E. 612. An adverse party has rights only to those parts of any materials used to refresh memory that bear upon the witness' testimony. When the party who did the refreshing contends that some part of what the witness was shown goes beyond the scope of the testimony, section (b) requires the court to make an in camera inspection and to remove any extraneous matter. Of course, what is excised must be preserved in the event that the redaction is challenged on appeal. This process is a well recognized technique.
The last sentence of section (b) is aimed at what in all probability will be the rare case of a failure to comply with an order to produce. In a civil case, the court is given broad discretion to deal with this. The problem is akin to the failure of a party to comply with discovery orders, and Pa.R.C.P. 4019 provides for a wide range of sanctions in that case. Similarly, under section (b), the court may employ a sanction best calculated to remedy the harm caused by the failure to produce.
When the prosecution does not produce in a criminal case, this interferes with the defendant's right to confront the witness by limiting cross-examination. Striking the witness' testimony will generally be a sufficient cure. However, if the testimony is so significant that the jury would be hard put to disregard it, despite its having been stricken, a mistrial may be in order. Since declaring a mistrial may create double jeopardy problems, which could preclude a retrial (see, e.g., Oregon v. Kennedy, 456 U. S. 667 (1982)), care must be exercised in employing this sanction.
The elimination of the word ''elects,'' which appears in F.R.E. 612 in connection with the prosecution's non-compliance with an order to produce, is meant to remove any implication that the prosecution has an option to withhold refreshing materials. This complements the inclusion in Pa.R.E. 612(b) of contempt procedures as an additional sanction, thus providing the court with a means of forcing compliance with an order to produce when an occasion arises where the witness' testimony or what was shown to the witness is important to the defendant's theory of the case.
Rule 613. Prior Statements of Witnesses.
(a) Examining Witness Concerning Prior Statement A witness may be examined concerning a prior statement made by the witness, whether written or not, and the statement need not be shown or its contents disclosed to the witness at that time, but on request the statement or contents shall be shown or disclosed to opposing counsel.
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Unless the interests of justice otherwise require, extrinsic evidence of a prior inconsistent statement by a witness 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) the opposite party is given an opportunity to question the witness.
This section does not apply to admissions of a party-opponent as defined in rule 803(25) (relating to admissions by a party opponent).
(c) Evidence of Prior Consistent Statement of Witness. Evidence of a prior consistent statement by a witness is admissible for rehabilitation purposes if the opposite party is given an opportunity to question the witness concerning the statement, and the statement is offered to rebut an expressed or implied charge of:
(1) recent fabrication, bias, improper influence or other motive, and the consistent statement, or where there are two or more consistent statements, at least one of the statements was made before the charged fabrication, bias, improper influence or other motive;
(2) faulty memory at the trial and the consistent statement was made prior to the onset of any alleged defect in memory; or
(3) inconsistent accounts arising from the admission of evidence of an alleged prior inconsistent statement of the witness, which the witness has denied or explained, and under all the surrounding circumstances, the consistent statement is related to or supports the witness' denial or explanation of the inconsistent statement.
Comment This Rule differs from F.R.E. 613 both in organization and in many substantive respects. Unlike its Federal counterpart, it covers both impeachment by prior inconsistent statements and rehabilitation by prior consistent statements; the Federal rule deals only with the former.
Section (a).--This section of the Rule is identical to F.R.E. 613(a). By dispensing with the need to show the prior statement or disclose its contents to the witness before proceeding with an examination about it, section (a) repudiates the decision in the Queen's Case, 2 Br. & B. 284, 129 Eng. Rep. 9761 (1820). What scant authority there is in Pennsylvania on this point is ambiguous. In Kann v. Bennett, 223 Pa. 36, 72 A. 342 (1909), the Supreme Court stated, relying only on 1 Greenleaf, Evidence § 88 (Lewis ed. 1896), that before a witness may be cross-examined about a prior inconsistent statement, the witness must be shown the statement and asked if he wrote it. But later, in Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974), the Court, overlooking the Kann case, said it never had had occasion to consider the question, and found it unnecessary to resolve the matter under the facts involved in the case before it. Section (a) settles the matter.
Section (b).--The first sentence of section (b) of the Rule differs from F.R.E. 613(b) by providing that extrinsic evidence of a prior inconsistent statement may be introduced only if the witness was confronted with or informed of the statement during his or her examination, thus providing the witness with a chance to deny or explain the statement; the Federal Rule also provides for furnishing the witness with this opportunity, but sets no particular time or sequence for when this must be done. Notes of the Advisory Committee on Rule 613. Section (b) of the Rule follows the traditional common law approach, and it is different from the statements found in several Pennsylvania decisions to the effect that it is not mandatory that a witness be shown or be made aware of a prior inconsistent statement before extrinsic evidence of it may be introduced, but that the matter is one within the discretion of the trial court. See, e.g., Commonwealth v. Manning, 495 Pa. 652, 435 A.2d 1207 (1981); Commonwealth v. Dennison, 441 Pa. 334, 272 A.2d 180 (1971). The first sentence of section (b) changes the emphasis of these cases by establishing the traditional common law approach as the preferred and usual manner of proceeding in all cases except where the interests of justice would be better served by a relaxation of the rule.
The rationale for the last sentence of section (b) exempting certain admissions of a party opponent from the requirements of the section is that ''parties have ample opportunities to testify and explain or deny statements attributed to them.'' Wright & Gold, Federal Practice and Procedure: Evidence § 6205. The exemption is in accord with Pennsylvania law. Commonwealth by Truscott v. Binenstock, 358 Pa. 644, 57 A.2d 884 (1948); Commonwealth v. Dilworth, 289 Pa. 498, 137 A. 683 (1927).
Finally, it should be remembered, as noted in the Comment to Pa.R.E. 607(a), that a prior inconsistent statement may be used only for impeachment purposes and not substantively unless it is an admission of a party opponent under Pa.R.E. 803(25), the statement of a witness other than a party opponent within the hearsay exception of Pa.R.E. 803.1(1), which is a codification of Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), or a statement of prior identification under the hearsay exception of Pa.R.E. 803.1(2).
Section (c).--This section of this Rule covering the use of prior consistent statements for rehabilitation purposes, does not appear in F.R.E. 613. Instead, some consistent statements are dealt with in the Federal Rules as part of the definition of statements that are not hearsay. Under F.R.E. 801(d)(1)(B), a prior statement of a declarant, who testifies at the trial or hearing and is subject to cross-examination, is not hearsay, and is substantive evidence, when the statement is consistent with the declarant's testimony and it ''is offered to rebut an express or implied charge against the declarant of recent fabrication, or improper influence or motive.'' Section (c) adds ''bias,'' ''faulty memory'' and ''inconsistent accounts'' to the kind of charges that may be rebutted by a consistent statement. In addition, it clearly provides in subsection (c)(1) that the consistent statement must have been made before the fabrication, bias, improper influence or other motive. Although F.R.E. 801(d)(1)(B) is silent on this point, the U. S. Supreme Court recently held that it permits the introduction of a declarant's consistent statements as substantive evidence only when they were made before the challenged fabrication, influence or motive. Tome v. United States, 513 U. S. 150 (1995).
It should be remembered that under section (c), a prior consistent statement is always received for rehabilitative purposes only and not as substantive evidence. See Comment d. to Pa.R.E. 801 (relating to the definition of hearsay).
Subsection (c)(1) is consistent with existing Pennsylvania law. Commonwealth v. Hutchinson, 521 Pa. 482, 556 A.2d 370 (1989) (use of consistent statement to rebut charge of recent fabrication); Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988) (use of consistent statement to counter alleged corrupt motive); Commonwealth v. McEachin; 371 Pa. Super. 188, 537 A.2d 883 (1988), appeal denied, 520 Pa. 603, 553 A.2d 965 (1988) (use of consistent statement to negate improper influence). All of these cases require that the consistent statement be made before the fabrication, corrupt motive or improper influence, otherwise the statement does not logically negate any of these charges.
Subsection (c)(2) is intended to cover those instances where the accuracy of the witness' memory at the trial is attacked on the grounds that because of the passage of time, some intervening mental deficiency or the like, the trial testimony is suspect. Evidence of a prior consistent statement made shortly after the event before there was time to forget or before any intervening defect will support the accuracy of the trial testimony. In Commonwealth v. Swinson, 426 Pa. Super. 167, 626 A.2d 627 (1993), where there had been a searching cross-examination of a robbery victim designed to cast doubt on his memory, the prosecution was permitted to introduce evidence of the victim's prior consistent statement given to the police two days after the robbery. See also, 1 McCormick, Evidence, § 47 at n. 18 (4th ed. 1992). As previously noted, there is no counterpart to subsection (c)(2) in the Federal Rules.
Subsection (c)(3) is directed at the situation of an attack upon a witness with a prior inconsistent statement. Note that this type of attack does not necessarily connote that the witness has lied; it may indicate only that the witness is mistaken, confused or generally unreliable.
Subsection (c)(3) has some support in, but is not completely congruent with, the Pennsylvania decisions. In Commonwealth v. Berrios, 495 Pa. 444, 434 A.2d 1173, 1177 (1981), the Supreme Court held that a witness' consistent statement can be used for rehabilitation purposes to counteract the witness' inconsistent statement where the former is made prior to the latter. From the Court's statement of the facts, one could infer that the witness was confronted with his inconsistent statements and made no denial; however, the Court did not discuss this in reaching the result. See also, Commonwealth v. Fisher, 447 Pa. 405, 290 A.2d 262 (1972). The Court, in Risbon v. Cottom, 387 Pa. 155, 127 A.2d 101 (1956), allowed the use of a consistent statement for rehabilitation where it preceded the making of an inconsistent statement that the witness had denied making.
However, in Commonwealth v. White, 340 Pa. 139, 16 A.2d 407 (1940), where the defendant in a murder case admitted making a confession and offered a lame explanation, the Court held that the defendant's consistent statement, made after his confession, was not admissible; the Court placed no emphasis on either the explanation or the timing of the consistent statement. The Court, adopting language from the opinion of the trial judge, said ''[w]here as in the case of this defendant and his witnesses, the self contradiction is conceded, it remains as a damaging fact, and is in no sense explained away by the consistent statement . . . . No matter how many times the consistent story may have been told, the inconsistent one is not erased.'' Id. at 142--44, 16 A.2d at 408--09. The White decision was distinguished in Commonwealth v. Willis, 380 Pa. Super. 555, 552 A.2d 682 (1988), on the ground that in that case, the witness' consistent statement was made after the admitted inconsistent statement, whereas in the case before the court the consistent statement came first, and under all the circumstances, including the witness' explanation, it buttressed the witness' credibility. Subsequently, in Commonwealth v. Jubilee, 403 Pa. Super. 589, 589 A.2d 1112 (1991), appeal denied, 529 Pa. 617, 600 A.2d 534 (1991), the Superior Court refused to follow Willis, adhering instead to the decision in White, in a case where the inconsistent statement was admitted and explained and the consistent statement came later.
The keys to admissibility of a consistent statement under subsection (c)(3) are the witness' denial or plausible explanation of the alleged inconsistent statement and the consistent statement's relation to or support of the denial or explanation. In view of the requirements of section (b), it is unlikely that a witness will not have an opportunity to deny or explain an alleged inconsistency. Where the witness denies making the alleged inconsistent statement, the consistent statement should almost invariably be admitted, regardless of its timing. When the witness admits and explains the inconsistent statement, the use of the consistent statement will depend upon the nature of the explanation and all of the circumstances that prompted the making of the consistent statement; the timing of that statement, although not conclusive, is one of the factors to be considered. If the witness acknowledges making the inconsistent statement and offers no explanation, a consistent statement, whether made earlier or later, should not be admitted.
Usually, evidence of a prior consistent statement is rebuttal evidence that may not be introduced until after witness has testified on direct examination and an express or implied attack has thereafter been made on the witness' testimony in one of the ways set forth in subsection (c). But in at least two situations, Pennsylvania Courts have upheld the admission of a prior consistent statement in anticipation of an attack on the witness.
In Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988), the Supreme Court, affirming a conviction of murder, held that the trial judge did not abuse his discretion when he permitted the Commonwealth to introduce prior consistent statements made by a witness for the prosecution on direct examination of the witness. The justification for this was that defense counsel, in his opening address to the jury, suggested that the witness, who had pled guilty to other lesser offenses in connection with the murder, had motives to fabricate evidence against the defendant in order to obtain a lenient sentence for herself.
A similar preemptive use of a prior consistent statement has been countenanced in rape cases where evidence of a prompt complaint of rape by the alleged victim may be introduced in the prosecution's case in chief. Commonwealth v. Freeman, 295 Pa. Super. 467, 477, 441 A.2d 1327, 1332 (1982). The Superior Court stated that ''the testimony of a woman that she was raped is automatically vulnerable to attack by the defendant as recent fabrication in the absence of evidence of hue and cry on her part.''
Rule 614. Calling and Interrogation of Witnesses by Court.
(a) Calling by Court. Consistent with its function as an impartial arbiter, the court, with notice to the parties, may, on its own motion or at the suggestion of a party call witnesses, and all parties are entitled to cross-examine witnesses thus called.
(b) Interrogation by Court. Where the interest of justice so requires, the court may interrogate witnesses, whether called by itself or by a party.
(c) Objections. An objection to the calling of a witness by the court must be made at the time of the court's notice of an intention to call the witness. An objection to a question by the court must be made at the time the question is asked; when requested to do so, the court shall give the objecting party an opportunity to make objections out of the presence of the jury.
Comment This Rule differs from F.R.E. 614 in several respects. The phrase relating to the court's ''function as an impartial arbiter'' and the provision for notice have been added in section (a), and the clause regarding ''interest of justice'' has been added in section (b). The additions dealing with the court as an ''impartial arbiter'' and the ''interest of justice'' are cautions to any trial judges who might be inclined to inject themselves too much into the trial of a case. The provision for notice of the court's intention to call a witness will give all parties an opportunity to be heard upon the need for this, to object thereto and to prepare for the cross-examination of the witness.
Section (c) changes the Federal Rule by eliminating the option of objecting to the calling or interrogation of the witnesses by the court ''at the next available opportunity when the jury is not present.'' The purpose of this option is to relieve counsel of ''the embarrassment'' which might arise by objecting to the judge's questions in the jury's presence, a theory comparable to that which prompted the ''automatic'' objection in F.R.E. 605 when the judge is called as a witness. Notes of the Advisory Committee to F.R.E. 614(c). The option has been removed from Pa.R.E. 614(c) just as the ''automatic'' objection was done away with in Pa.R.E. 605. The appropriate time for objecting to the calling of a witness by the court is when notice of the court's intention to do so is given as required by section (a) of the Rule, and this should always take place out of the presence of the jury.
When the court's questions to a witness are thought to be objectionable, the issue should be raised when the questions are put. In this way, the jury will not hear the evidence sought if the objections are sustained--a far better course than an instruction to the jury to disregard the evidence when the objections are not made until some time after the questions have been asked and answered. The fear of ''embarrassment'' from making the objections in the jury's presence is in all probability an exaggeration; throughout a trial, jurors are accustomed to hearing objections and the rulings thereon, and they are always admonished that no inferences should be drawn from the objections or the rulings. In the extreme case (e.g., persistent questioning thought to be objectionable), opportunity for a side-bar conference should be provided as set forth in the final clause of section (c). In requiring objections, section (c) is consistent with the provisions of Pa.R.E. 103(a)(1) regarding objections generally.
Pa.R.E. 614 is basically consistent with Pennsylvania law. It is well established that, ''as a general rule, a trial judge may in the exercise of a sound discretion call and examine witnesses of his own accord . . .'' Commonwealth v. Crews, 429 Pa. 16, 239 A.2d 350 (1968); Commonwealth v. DiPasquale, 424 Pa. 500, 230 A.2d 449 (1967). The leading case on the interrogation of witnesses by the court is Commonwealth v. Myma, 278 Pa. 505, 508, 123 A.2d 486, 487 (1924) where the Supreme Court said: ''Witnesses should be interrogated by the judge only when he conceives the interest of justice so requires. It is better to permit counsel to bring out the evidence and clear up disputed points on cross-examination unaided by the court; but where an important fact is indefinite or a disputed point needs to be clarified, the court may see that it is done by taking part in the examination . . . . ''See also, Commonwealth v. Roldan, 524 Pa. 366, 572 A.2d 1214 (1990); see generally, 1 McCormick, Evidence, § 8 (4th ed. 1992).
When the court does question a witness, an instruction that the jury should not conclude that the court has any opinion concerning the merits of the case or the credibility of the witness is appropriate. Commonwealth v. Blount, 387 Pa. Super. 603, 564 A.2d 952 (1989); Fleck v. Durawood, Inc., 365 Pa. Super. 123, 529 A.2d 3 (1987).
Rule 615. Sequestration of Witnesses.
At the request of a party or on its own motion, the court may order witnesses sequestered so that they cannot learn of the testimony of other witnesses. This section does not authorize sequestration of the following:
(1) a party who is a natural person or the guardian of a party who is a minor or an incapacitated person;
(2) an officer or employee of a party which is not a natural person (including the Commonwealth) designated as its representative by its attorney; or
(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.
Comment Besides using the term ''sequestration'' instead of ''exclusion,'' and substituting ''learn of'' for ''hear'' in the first sentence, this Rule differs from F.R.E. 615 by placing sequestration within the discretion of the court rather than making it mandatory upon motion of a party and by adding the guardian of a minor or incapacitated person to the first category of those who may not be sequestered.
Sequestration, i.e., barring a witness from the courtroom during the testimony of certain other witnesses and prohibiting direct and indirect communication both in and out of the courtroom, is designed to prevent a witness from learning what other witnesses have said or intend to say as a means of discouraging and exposing fabrication, collusion, inaccuracies and inconsistencies. 1 McCormick, Evidence, § 50 (4th ed. 1992). This rule is in conformity with Pennsylvania law. Commonwealth v. Albrecht, 510 Pa. 603, 619--620, 511 A.2d 764, 772 (1986) (''The decision of whether or not to sequester a witness is within the province of the trial judge and, absent a clear abuse of discretion, will not be reversed . . . .'') Examples of abuse of discretion may be found in Commonwealth v. Fant, 480 Pa. 586, 391 A.2d 1040 (1978), cert. denied, 441 U. S. 951, 99 S.Ct. 2180 (1979) and Commonwealth v. Turner, 371 Pa. 417, 88 A.2d 915 (1952). In Fant, the Court, in a murder case, denied the defendant's motion to sequester several prosecution witnesses who had made no pretrial identifications of him, and permitted them to make identifications in the courtroom. In Turner, an important element in the prosecution's case was an alleged inculpatory statement made by defendant to two detectives; defendant denied making the statements. His motion to sequester the detectives was denied by the trial court.
The three categories of persons who may not be sequestered are, with some slight differences, akin to those in the Federal Rule. Clause (1) covers natural persons who are parties; their exclusion would raise constitutional problems of confrontation and due process. It also includes guardians of parties who are minors or incapacitated persons; this brings the rule into conformity with Pa.R.C.P. 2027 (minors) and 2053 (incapacitated persons), which place the conduct of actions on behalf of those parties under the supervision and control of their guardians. Clause (2) applies to the designated representatives of a party which is not a natural personal. The parenthetical phrase relating to the Commonwealth does not appear in F.R.E. 615(2); it is meant to make clear what is said to be intended by the Federal Rule, that in a criminal case, the prosecution has a right to have the law enforcement agent primarily responsible for investigating the case at the counsel table to assist in presenting the case, even though the agent will be a witness. See Notes of the Committee on the Judiciary, Senate Report No. 93--1274, and Notes of the Advisory Committee to F.R.E. 615(2). Clause (3) refers to persons such as the one who handled the transaction involved in the case or an expert relied upon by counsel for advice in managing the litigation.
The trial court has discretion in choosing a remedy for violation of a requestration order. Commonwealth v. Smith, 464 Pa. 314, 346 A.2d 757 (1975). Remedies may include ordering a mistrial, forbidding the testimony of the offending witness, or an instruction to the jury. Commonwealth v. Scott, 496 Pa. 78, 436 A.2d 161 (1981).
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY Rule
701. Opinion Testimony by Lay Witnesses. 702. Testimony by Experts. 703. Basis of Expert Testimony. 704. Opinion on Ultimate Issue. 705. Disclosure of Facts or Data Underlying Expert Opinion. 706. Court Appointed Experts. Rule 701. Opinion Testimony by Lay Witnesses.
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
Comment This rule is identical to F.R.E. 701 except for the deletion of the (a) and (b) divisions within the text of the rule. No substantive changes result from this deletion.
The Superior Court decision in Lewis v. Mellor, 259 Pa. Super. 509, 393 A.2d 941 (1978) (en banc), adopted F.R.E. 701 and in doing so condensed and somewhat changed, but did not specifically overrule, earlier Pennsylvania evidence law. Prior to Lewis, there were four rules that prohibited lay witness opinion testimony: Travelers Ins. Co. v. Heppenstall, 360 Pa. 433, 61 A.2d 809 (1948) (no lay opinion testimony where opinion requires special training, education or experience); Smith v. Clark, 411 Pa. 142, 190 A.2d 441 (1963) (no lay opinion testimony where the opinion is not based on personal knowledge); Graham v. Pennsylvania Co., 139 Pa. 149, 21 A. 151 (1891) (no lay opinion testimony whenever the circumstances can be fully and adequately described to the jury, and are such that their bearing on the issue can be estimated by all men without special knowledge or training); Starner v. Wirth, 440 Pa. 177, 269 A.2d 674 (1970) (no lay opinion testimony going to the ultimate issue in the case).
Under Lewis, lay opinion is admissible where it is based on a witness' first-hand knowledge, rationally based on perception and ''helpful'' to the fact finder in determining or clarifying facts in issue; it may embrace the ultimate issue. If the trial judge decides that the proffered opinion would not be helpful, or if even helpful, would confuse, mislead, or prejudice the jury, or would waste time, the trial judge may exclude it. Lewis, 259 Pa. Super. at 523--24, 393 A.2d at 949. The trial judges discretion in this regard will be reversed on appeal only in cases where the discretion has been clearly abused, and actual prejudice has occurred. Id. Pa.R.E. 701 is, for the most part, consistent with Pennsylvania common law which has long deviated from the traditional exclusionary principal that witnesses may testify only to facts and not to opinions or inferences. Lay witnesses have been permitted to express opinions in such areas as intoxication, Whyte v. Robinson, 421 Pa. Super. 33, 617 A.2d 380 (1992); mental capacity, Weir by Gasper v. Ciao, 364 Pa. Super. 490, 528 A.2d 616 (1987), aff'd, 521 Pa. 491, 556 A.2d 819 (1989); mental condition/sanity, In re Owens Estate, 167 Pa. Super. 10, 74 A.2d 705 (1950); Commonwealth v. Young, 276 Pa. Super. 409, 419 A.2d 523 (1980) (citing Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902 (1976)); physical condition, Travelers Ins. Co. v. Heppenstall Co., 360 Pa. 433, 61 A.2d 809 (1948); speed, Catina v. Maree, 498 Pa. 443, 447 A.2d 228 (1982); and value, Richards v. Sun Pipe Line Co., 431 Pa. Super. 429, 636 A.2d 1162 (1994). The Pennsylvania Supreme Court has not reviewed the decision in Lewis.
Additionally, the Superior Court has permitted voice identification through lay opinion testimony when the witness is familiar with, and is able to identify, a voice by its sound or tone quality. See Sterling v. Huey, 155 Pa. Super. 398, 38 A.2d 515 (1944) (shooting victim identified his assailant by voice, shouted from a distance greater than 300 yards); Commonwealth v. Johnson, 201 Pa. Super. 448, 193 A.2d 833 (1963) (multiple rape victims identified their attacker by voice only because visual identification was impossible in the darkness); Commonwealth v. Woodbury, 329 Pa. Super. 34, 477 A.2d 890 (1984) (when a person was murdered in a hallway, a witness identified the assailant by voice through her closed apartment door). See also, United States v. Whitaker, 372 F. Supp. 154 (M.D. Pa.), aff'd, 503 F.2d 1400 (3d Cir. 1974) (one who first hears a person's voice over the telephone may later identify it as the one heard in a face-to-face conversation).
See also, Pa.R.E. 602 (witness may not testify to a matter unless witness has personal knowledge of it).
Rule 702. Testimony By Experts.
If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
Comment Pa.R.E. 702 is more restrictive than F.R.E. 702. Under Pa.R.E. 702 expert opinion testimony, to be admissible, must (1) ''assist the trier of fact to understand the evidence or to determine a fact in issue'' (the federal standard for admissibility), and (2) pertain to specialized knowledge ''beyond that possessed by a layperson.''
Case law in Pennsylvania has consistently rejected expert opinion testimony pertaining to the credibility of a witness. See, e.g., Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621 (1995); Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988); Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988); Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986); Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976).
Pa.R.E. 702 is consistent with explicatory language contained in some of these cases stating that expert opinion testimony is admissible only when its subject matter is ''beyond the knowledge or experience of the average layman.'' See Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976); Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992).
With respect to the admissibility of expert scientific evidence, Pennsylvania, additionally, has heretofore applied the standard promulgated by the United States Court of Appeals for the District of columbia in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), i.e., the evidence must have acquired ''general acceptance'' in the relevant scientific community. See Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977); Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981); Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992).
The Frye standard was generally applied in the federal courts, and in most states, until the United States Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), held that it was superseded in the federal courts by the adoption of F.R.E. 702. The new standard enunciated in the Daubert case makes the admission of new or novel scientific evidence somewhat easier by providing that general acceptance in the relevant scientific community is only one factor to be considered in determining admissibility. Other factors include whether the expert's opinion is grounded in the methods and procedures of science (as opposed to subjective belief or unsupported speculation), whether the technique or methodology used by the expert can be or has been tested for ''falsifiability, or refutability,'' its known or potential rate of error, the existence and maintenance of standards controlling the technique's operation, and whether the expert's opinion has been subjected to peer review and publication.
In Commonwealth v. Crews, 536 Pa. 508, n.2, 640 A.2d 395 (1994), the Pennsylvania Supreme Court, after reviewing the United States Supreme Court's opinion in the Daubert case, said: ''Whether or not the rationale of Daubert will supersede or modify the Frye test in Pennsylvania is left to another day.''
Adoption of Pa.R.E. 702 has not, in and of itself, decided this issue. Whether Pennsylvania will adhere to the Frye standard for admission of expert scientific testimony, or whether it will adopt the Daubert standard, awaits a ruling by the Pennsylvania Supreme Court.
Case law in Pennsylvania is liberal in qualifying a witness to testify as an expert. In Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 480--81, 664 A.2d 525, 528 (1995), the Court said:
The test to be applied when qualifying a witness to testify as an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.Pa.R.E. 702 does not change Pennsylvania case law on this point.
Expert testimony, like lay testimony, is subject to Pa.R.E. 403, i.e., it is excludable if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or one or more of the other factors enumerated therein.
Rule 703. Basis of Expert Testimony.
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Comment Pa.R.E. 703 is identical to F.R.E. 703 and consistent with current Pennsylvania law. Historically, Pennsylvania courts limited the facts or data upon which an expert could base an opinion to those obtained from firsthand knowledge or from the trial record. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968). Beginning in 1971 with Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), Pennsylvania courts have endorsed and expanded the principle that experts may base their opinions upon evidence which is otherwise inadmissible as long as it is of a type reasonably relied upon by experts in the particular field. See Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Commonwealth v. Bowser, 425 Pa. Super. 24, 624 A.2d 125 (1993); In Re Glosser Bros., Inc., 382 Pa. Super. 177, 555 A.2d 129 (1989); Bolus v. United Penn Bank, 363 Pa. Super. 247, 525 A.2d 1215 (1987).
Pennsylvania courts follow such a rule and allow experts to testify in such a manner for practical reasons. An expert's opinion may be based upon years of professional experience, schooling and knowledge, not all of which can be presented on a firsthand basis in court. Primavera v. Celotex Corp., 415 Pa. Super. 41, 608 A.2d 515 (1992), appeal denied, 533 Pa. 641, 622 A.2d 1374 (1993). The fact that experts reasonably and regularly rely on this type of information merely to practice their profession lends strong indicia of reliability to source material, when it is presented through a qualified expert's eyes. Id. Thus, when the expert witness has consulted numerous sources and uses that information, together with his or her own professional knowledge and experience, to arrive at an opinion, that opinion is regarded as evidence in its own right and not hearsay in disguise. Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978). In Daniels, a forensic pathologist was permitted to testify as to his opinion regarding the cause and manner of the victims death based upon material which such an expert customarily relies on in the practice of his profession. This material included, in part, information gathered in interviews with hospital residents, certain hospital records, the death certificate, police reports, etc. But this type of an exception is not limited to the medical profession. In In Re Glosser Bros., Inc., the court allowed opinion testimony by a stock valuation expert who used appraisal reports, not admitted into evidence and conducted by an independent appraisal company, to determine the value of shares in a leveraged buyout. Such testimony was permitted because the appraisal was the type of source material that an expert valuing stock would reasonably rely on in forming an opinion. But see Spotts v. Reidell, 345 Pa. Super. 37, 497 A.2d 630 (1985) (testimony of defendant doctor as to preoperative conversation with pathologist regarding nature of polyp to be removed found not admissible under doctrine that expert can express opinion based, in part, on reports of others where hearsay was oral and not written, and was used to justify course of action by defendant doctor).
When an expert testifies as to the underlying facts and data that support the expert's opinion and the testimony would be otherwise inadmissible, the trial judge should instruct the jury only to consider the testimony to explain the basis for the expert's opinion, and not as substantive evidence.
However, an expert's testimony is inadmissible if the opinion given is not the opinion of the expert testifying but rather a recitation or reaction to an opinion given by another expert not testifying. See Dierolf v. Slade, 399 Pa. Super. 9, 581 A.2d 649 (1990) (medical expert's testimony inadmissible when merely a reaction to another expert's report rather than own medical opinion); Primavera v. Celotex Corp., 415 Pa. Super. 41, 608 A.2d 515 (1992) (expert may not act as a mere conduit or transmitter of the content of an extra-judicial source); Foster v. McKeesport Hospital, 260 Pa. Super. 485, 394 A.2d. 1031 (1978) (expert opinion based on belief that another expert, since deceased, was a competent physician ruled inadmissible). The premise for this proposition is that the basis for the expert's opinion should be part of the record in order for the jury to evaluate the expert's opinion and the credibility of the expert's testimony. Commonwealth v. Rounds, 518 Pa. 204, 542 A.2d 997 (1988); Allen v. Kaplan, 439 Pa. Super. 263, 653 A.2d 1249 (1995).
Evidence admitted under this rule is subject to the balancing test as outlined in Pa.R.E. 403. Furthermore, Pa.R.E. 104 authorizes the court, in its discretion, to resolve any and all preliminary questions regarding the admissibility of evidence under this rule.
Rule 704. Opinion on Ultimate Issue.
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
Comment Pa.R.E. 704 is substantively the same as F.R.E. 704(a) and is consistent with current Pennsylvania law. However, this rule completely deletes F.R.E. 704(b) as discussed below.
The text of Pa.R.E. 704 does not limit opinion on the ultimate issue to experts. Expert testimony on the ultimate issue is already permitted in Pennsylvania. Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978). Pennsylvania law allows lay opinion on the ultimate issue subject to the trial judges discretion based upon a consideration of the helpfulness of the testimony tempered by a consideration of whether its admission will cause confusion or prejudice. Lewis v. Mellor, 259 Pa. Super. 509, 393 A.2d 941 (1978) (en banc).
The Pennsylvania Supreme Court discussed expert opinion testimony on the ultimate issue in Kozak v. Struth, 515 Pa. 554, 531 A.2d 420 (1987). Kozak cited Lewis v. Mellor, for the assertion that it is up to the judge to decide if testimony which goes to the ultimate issue is confusing for the jury. In Kozak, the court prohibited expert testimony on the ultimate issue of causation and due care. There is a long line of cases, however, including Superior Court interpretations of Kozak, solidifying the view that Pennsylvania permits expert testimony on the ultimate issue where it will not be misleading or cause confusion or prejudice. See Milan v. Commonwealth, 153 Pa. Commwlth. 276, 620 A.2d 721 (1993), appeal denied, 535 Pa. 650, 633 A.2d 154 (1993) (permitting an accident reconstruction expert to testify on the ultimate issue as to the causation of an accident because the opinion was based on the contents of a police accident report and other documents previously testified to by a trooper and the driver); Porter v. Kalas, 409 Pa. Super. 159, 597 A.2d 709 (1991) (permitting a real estate lawyer to testify as an expert and assist the trier of fact as to title searches and deeds and opine about the ultimate issue of whether an express easement was still valid); Commonwealth v. Brown, 408 Pa. Super. 246, 596 A.2d 840 (1991) (permitting a police officer, qualified as an expert, to testify to the ultimate issue of whether, in his opinion, a defendant possessed drugs with the intent to deliver rather than for personal use); In Interest of Paul S., 380 Pa. Super. 476, 552 A.2d 288 (1988) (permitting the opinion of a caseworker as to the ultimate issue of which parent should get legal and physical custody of a minor child). Thus, Pa.R.E. 704 does not change current Pennsylvania law.
Pa.R.E. 704 omits F.R.E. 704(b) which prohibits an expert from testifying as to the mental state or condition of a criminal defendant with regard to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. When the Pennsylvania Superior Court in Lewis v. Mellor, adopted F.R.E. 704 in 1978, it only contained part (a). F.R.E. 704(b), or the ''Hinkley Rule,'' was added on October 12, 1984, as part of the Insanity Defense Reform Act, 18 U. S.C. § 17. McCormick, Evidence § 12 (4th Ed. 1992).
Pennsylvania law permits ultimate issue testimony about the defendant's mental state. In Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976), the Supreme Court held admissible expert psychiatric testimony concerning the mental capacity to form the type of specific intent required in a prosecution for first-degree murder. The Pennsylvania Supreme Court has consistently held that expert psychiatric testimony is admissible to negate the specific intent to kill which is essential to first degree murder. Commonwealth v. Anderson, 410 Pa. Super. 524, 600 A.2d 577 (1991) (citing Commonwealth v. Terry, 513 Pa. 381, 521 A.2d 398 (1987), cert. denied, 482 U. S. 920, (1987)); Commonwealth v. Garcia, 505 Pa. 304, 479 A.2d 473 (1984); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). Thus, Pennsylvania law is quite different from Federal law in that Pennsylvania courts have found expert testimony as to mental state in first degree murder cases both relevant and competent and therefore admissible.
Rule 705. Disclosure of Facts or Data Underlying Expert Opinion.
The expert may testify in terms of opinion or inference and give reasons therefor; however, the expert must testify as to the facts or data on which the opinion or inference is based.
Comment The text as well as the interpretation of Pa.R.E. 705 differs significantly from F.R.E. 705. The federal rule generally does not require an expert witness to disclose the facts upon which an opinion is based prior to expressing the opinion. Instead, the cross-examiner bears the burden of probing the basis of the opinion. In Kozak v. Struth, 515 Pa. 554, 531 A.2d 420 (1987), the Pennsylvania Supreme Court declined to adopt F.R.E. 705 stating that ''[we believe] that requiring the proponent of an expert opinion to clarify for the jury the assumptions upon which the opinion is based avoids planting in the jurors mind a general statement likely to remain with him in a jury room when the disputed details are lost.'' Kozak, 515 Pa. at 560, 531 A.2d at 423. Relying on cross examination to illuminate the underlying assumption, as F.R.E. 705 does, may further confuse jurors already struggling to follow complex testimony. Id.
Accordingly, Kozak requires disclosure of the facts used by the expert in forming an opinion when not based on personal knowledge. Such disclosure can be accomplished in several ways. For example, the expert can be asked to assume the truth of the testimony of a witness or witnesses whose testimony the expert has heard or read. The Kroeger Co. v. W.C.A.B., 101 Pa. Cmwlth. Ct. 629, 516 A.2d 1335 (1986); Tobash v. Jones, 419 Pa. 205, 213 A.2d 588 (1965). Another option is to pose a hypothetical question to the expert. Dietrich v. J.I. Case Co., 390 Pa. Super. 475, 568 A.2d 1272 (1990); Hussy v. May Department Stores, Inc., 238 Pa. Super. 431, 357 A.2d 635 (1976).
It is essential that the salient facts relied upon as the basis of the opinion be in the record. Commonwealth v. Rounds, 518 Pa. 204, 542 A.2d 997 (1988). The jury must be able to evaluate the expert's opinion and can only do so if the facts on which the opinion is based are part of the record. Id. See also, Pa.R.E. 703.
Further, the expert witness cannot be asked to state his opinion upon the whole case, ''because that necessarily includes the determination of what are the facts, and this can only be done by the jury'' Kozak v. Struth, supra (citing Yardley v. Cuthburtson, 108 Pa. 395, 450, 1 A. 765, 773 (1885)).
When an expert's opinion is based on personal knowledge and not on assumed facts, there is no requirement that the expert be questioned in any particular manner. Commonwealth v. Neil, 362 Pa. 507, 67 A.2d 276 (1949).
Rule 706. Court Appointed Experts.
Where the court has appointed an expert witness, the witness appointed shall advise the parties of the witness' findings, if any. The witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. In civil cases, the witness' deposition may be taken by any party.
Comment Pa.R.E. 706 differs from F.R.E. 706. Unlike the federal rule, Pa.R.E. 706 does not affect the scope of the courts existing powers to appoint experts. This rule is limited to providing the procedures for obtaining the testimony of such experts, once appointed.
Currently, there are few instances allowing for the court-appointment of expert witnesses. Experts are appointed in disputed paternity proceeding under 23 Pa.C.S. 5104, and, in equity proceedings under Pa.R.C.P. 1515 and 1530(e), the court may appoint accountants and auditors as experts. A 1944 case did allow for the appointment of experts in civil matters. Galante v. West Penn Power Co., 349 Pa. 616, 37 A.2d 548 (1944). A later decision pointed out the lack of statutory authority or procedures for courts to appoint or compensate expert witnesses in Pennsylvania. Poltorak v. Sandy, 236 Pa. Super. 355, 345 A.2d 201 (1975) (Spaeth, J., dissenting). In criminal cases, the Superior Court recognized the trial judge's inherent power to appoint an expert under the state constitution:
As a general rule a trial judge may in the exercise of [a] sound discretion call and examine witnesses of his own accord. In fact, under certain circumstances, it is necessary and imperative for the court to do so. As stated in 9 Wigmore, Evidence § 2484 (3d ed. 1940), ''The general judicial power itself, expressly allotted in every State Constitution, implies inherently a power to investigate as auxiliary to the power to decide; and the power to investigate implies necessarily a power to summon and question witnesses.''Commonwealth v. Correa, 437 Pa. Super. 1, 648 A.2d 1199, 1201 n.2 (1994), citing Commonwealth v. DiPasquale, 424 Pa. 500, 230 A.2d 449, 450--451 (1967).
See also, Pa.R.E. 614 (Calling and Interrogation of Witnesses By Court).
ARTICLE VIII. HEARSAY Rule
801. Definitions. 802. Hearsay. 803. Hearsay Exceptions; Availability of Declarant Immaterial. 803.1. Hearsay Exceptions; Testimony of Declarant Necessary. 804. Hearsay Exceptions; Declarant Unavailable. 805. Hearsay Within Hearsay. 806. Attacking and Supporting Credibility of Declarant.
Comment
The Hearsay Problem The problem with hearsay is that it is thought to be an untrustworthy kind of evidence, so unreliable that it should not be considered by the trier of fact in resolving the issues in a case. In Commonwealth v. Smith, 523 Pa. 577, 568 A.2d 600 (1989), the Supreme Court, reversing the murder conviction and death sentence of a former high school principal on the ground that hearsay had been admitted against him at trial, explained:
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