[27 Pa.B. 1282]
[Continued from previous Web Page] The predicate supporting the rejection of hearsay evidence is its assumed unreliability because the declarant from which the statement originates is not before the trier of fact and therefore cannot be challenged as to the accuracy of the information sought to be conveyed.
Testimony, ideally, should have the following three indicia of reliability:
(1) it should be given under oath, subject to the penalty of perjury;
(2) it should be given in the presence of the trier of fact; and
(3) it should be subject to contemporaneous cross-examination by parties-opponent.
All hearsay lacks one or more of the above characteristics. Therefore, hearsay is a relatively untrustworthy kind of evidence. This is true as a general rule. But the exception proves the rule, and there are many exceptions.
From an evidential point of view, four main approaches can be taken:
(1) Admit all hearsay in evidence, to be considered by the trier of fact for what it is worth;
(2) Exclude all hearsay from evidence;
(3) Have the trial judge evaluate each individual item of hearsay that is offered, and admit it if the judge thinks that it is substantially more trustworthy than hearsay in general, or that its admission is otherwise necessary in order to do justice in the particular case at hand; and
(4) Classify hearsay into categories that, on the whole, have substantially greater trustworthiness than hearsay in general, and admit an item of hearsay only if it fits within one of these categories.
Approaches (1) and (2) are easy to administer, but both are rejected as too inflexible, and likely to lead to many unjust results. Approach (3) has initial attractiveness, but its implementation would require the exercise of too much discretion by too many judges with too many personal evidential points of view, thus making the admissibility of a particular item of hearsay at trial too hard to predict.
All American jurisdictions have opted for approach (4), i.e., they classify hearsay that they consider exceptionally trustworthy into numerous categories and call them exceptions to the hearsay rule. The number of exceptions that there are depends upon the fineness with which they are classified.
The Federal Rules of Evidence list 24 exceptions to the hearsay rule in which the availability of the declarant is immaterial, five exceptions in which the declarant must be unavailable, and four exceptions to the definition of hearsay (which are, in reality, exceptions to the hearsay rule), for a total of 33.
The Pennsylvania Rules of Evidence, while following the federal numbering system as far as possible, recognize fewer exceptions, and arrange them more logically. Article VIII of the Pennsylvania Rules of Evidence lists 16 exceptions to the hearsay rule in which the availability of the declarant is immaterial, four exceptions in which the declarant must be unavailable, and three exceptions in which the testimony of the declarant is necessary, for a total of 23.
Thus, the hearsay rule, considered together with its many exceptions, is class oriented. An offered item of hearsay is excepted to the hearsay rule if it fits within one of the categorized exceptions thereto, regardless of whether the offered item itself appears particularly trustworthy. Individualized trustworthiness is a criterion for exception to the hearsay rule only when hearsay is offered under the business records exception (Pa.R.E. 803(6)), the residual exception (Pa.R.E. 803(24)), or the exception for a statement against penal interest (Pa.R.E. 804(b)(3)). It is also a criterion under the statutory exceptions for public records (42 Pa.C.S. § 6104(b)), and for certain statements concerning sexual abuse made by children (42 Pa.C.S. § 5985.1 applies in criminal cases; 42 Pa.C.S. § 5986 applies in dependency proceedings).
Defendant's Constitutional Right of Confrontation in Criminal Cases The hearsay rule is applicable both in civil and criminal cases. In a criminal case, however, hearsay that is offered against a defendant under an exception to the hearsay rule may sometimes be excluded because its admission would violate defendant's right ''to be confronted with the witnesses against him'' under the Sixth Amendment to the United States Constitution, or Article I, § 9, of the Pennsylvania Constitution.
Constitutional provisions providing a right of confrontation to a defendant in a criminal case are, many say, a reaction to the infamous seventeenth century trial of Sir Walter Raleigh. The redoubtable Raleigh was accused of high treason. The Crown, over Raleigh's objection, was allowed to introduce in evidence an affidavit signed by Lord Cobham, who was then imprisoned in the Tower of London, in which Cobham asserted that both he and Sir Walter were participants in a plot to overthrow Queen Elizabeth and replace her on the throne with Arabella Stewart. Raleigh was convicted. (He wasn't beheaded, though. That occurred many years later, as a punishment for subsequent transgressions.)
The relationship between the hearsay rule and the Confrontation Clause in the Sixth Amendment was explained by the Supreme Court in California v. Green, 399 U. S. 149, 155--56, 90 S.Ct. 1930, 26 LEd.2d 489 (1970):
While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. . . .Given the similarity of the values protected . . . the modification of a State's hearsay rules to create new exceptions for the admission of evidence against a defendant, will often raise questions of compatibility with the defendant's constitutional right to confrontation.More recently, in Idaho v. Wright, 497 U. S. 805, 814, 110 SCt 3139, 111 LEd2.d 638 (1990), the Supreme Court said, ''The Confrontation Clause . . . bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule.''
In short, when hearsay is offered against a defendant in a criminal case, the defendant may interpose three separate objections: (1) admission of the evidence would violate the hearsay rule, (2) admission of the evidence would violate defendant's right to confront the witnesses against him under the Sixth Amendment to the United States Constitution, and (3) admission of the evidence would violate defendant's right to confront the witnesses against him under Article I, § 9, of the Pennsylvania Constitution.
As a rule of judicial economy, the court will usually, but not always, rule upon the hearsay objection first, and decide the constitutional issues only if it has to.
Rule 801. Definitions.
The following definitions apply under this article:
(a) Statement. A ''statement'' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A ''declarant'' is a person who makes a statement.
(c) Hearsay. ''Hearsay'' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
(d) [See Comment]
Comment Pa.R.E. 801 is identical to subsections (a), (b) and (c) of F.R.E. 801. It is consistent with prior Pennsylvania law. Subsection (d), which the federal rule entitles ''Statements Which Are Not Hearsay,'' is not adopted. The subjects thereof, admissions and prior statements of witnesses, are really exceptions to the hearsay rule. They are covered in Pa.R.E. 803(25) and Pa.R.E. 803.1, respectively. They are also discussed later in this Comment.
a. Statement Subsection (a) defines ''statement'' as an oral or written assertion or nonverbal conduct intended as an assertion. It would have been simpler just to use the word assertion to define hearsay. For the sake of uniformity, Pennsylvania uses the federal formulation, as do most states.
Subsection (a)(2), which includes nonverbal conduct as hearsay, when intended as an assertion, is consistent with prior Pennsylvania law. See Commonwealth v. Rush, 529 Pa. 498, 605 A.2d 792 (1992), a prosecution for, inter alia, aggravated assault. The victim testified that the man who attacked her said that his hobby was making picture frames out of cigarette boxes. A detective testified that he went to defendant's home and asked his mother if she had any picture frames made by her son, and that she then went upstairs and got a picture frame made out of cigarette boxes. The Court, reversing a conviction, held that the detective's testimony was hearsay and its admission was reversible error.
b. Declarant Subsection (b) is also consistent with prior Pennsylvania law. For hearsay purposes, the ''declarant'' is the person who makes an out-of-court assertion, not the person who repeats it on the witness stand.
c. Definition of Hearsay Subsection (c), which defines hearsay, is also consistent with prior Pennsylvania decisional law. See Heddings v. Steele, 514 Pa. 569, 573, 526 A.2d 349 (1987), in which the Court said, ''[h]earsay is an out-of-court statement offered into evidence to prove the truth of the matter asserted.'' See also, Commonwealth v. Rosario, 438 Pa. Super. 241, 652 A.2d 354 (1994).
In short, the definition of hearsay is three-pronged. Hearsay is:
1. an assertion,
2. made out of court, and
3. offered to prove its truth.
For hearsay purposes, an assertion is an intended expression of fact or opinion. It may be (1) oral, (2) written, or (3) behavioral. For example, a witness to a crime may be asked by the police to pick out the culprit from a lineup. The witness may say, ''The man on the left did it.'' Or the witness may fill out a written form designating the man on the left. Or the witness may silently point to the man on the left. In all of these cases the witness has made an assertion. If at trial a police officer relates what the witness said or did at the lineup to identify the culprit, the testimony of the officer is hearsay.
For hearsay purposes, an assertion is considered out-of-court unless ''made by the declarant while testifying at the trial or hearing.'' Pa.R.E. 801(c).
Only some, not all, out-of-court assertions are hearsay. As explained by the United States Supreme Court in Anderson v. United States, 417 U. S. 211, 219 (1974):
Out-of-court statements constitute hearsay only when offered in evidence to prove the truth of the matter asserted.The upshot is that evidence of most out-of-court utterances is not hearsay, either because the utterance is not an assertion, or because it is not offered to prove its truth.
Out-of-court utterances that are not assertions include greetings, pleasantries, expressions of gratitude, questions, offers, instructions, warnings, demands, exclamations, expressions of emotion, etc.
See, for example, Commonwealth v. DiSilvio, 232 Pa. Super. 386, 335 A.2d 785 (1975), a prosecution for, inter alia, bookmaking. The court, affirming a conviction, approved admission of testimony from police officers that, while executing a search warrant at defendant's premises, they answered in excess of fifty telephone calls in which the callers either asked to speak to defendant, or gave instructions to place bets, or both. The callers' utterances were not assertions of fact or opinion, and thus not hearsay. They had probative value, though, as circumstantial evidence from which the trier of fact could reasonably infer that the premises were being used for illegal gambling.
Out-of-court assertions that are not offered to prove their truth include those that have direct legal significance, regardless of their truth. These include assertions that constitute all or part of a contract, deed, will, notice, demand, disclosure, threat, obscenity, defamation, perjury, warranty, representation allegedly relied upon, etc. Indeed, when an out-of-court assertion is offered to prove perjury or defamation, the offerer will attempt to prove that the assertion is false.
Most out-of-court assertions that are not offered to prove their truth are offered as circumstantial evidence from which the existence or non-existence of a fact in issue may be inferred.
For example, an assertion, regardless of its truth, may be offered to prove the state of mind of the declarant. See, In re Ryman, 139 Pa. Super. 212, 11 A.2d 677 (1940), a proceeding to have a man declared incompetent and to have a guardian of his property appointed. The court approved admission of testimony that the man had asserted that his wife was unfaithful, that he was not the father of some of her children, and that they were trying to poison him. The assertions were not admitted to prove their truth. Thus they were not hearsay. They were admitted as circumstantial evidence that the declarant's mind was unbalanced.
See also, Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982), in which the Court affirmed the second conviction of Tony Boyle, a former president of the United Mine Workers Union, for the murder of rival candidate ''Jock'' Yablonski, his wife, and his daughter. The Court approved the Commonwealth's introduction of certain testimony that Boyle gave at his first trial, which the Commonwealth later proved to be false, ''as proof of a consciousness of guilt.''
Some non-hearsay assertions, particularly those that accompany ambiguous conduct, are referred to as ''verbal acts.'' For example, an assertion that accompanies a transfer of property, regardless of its truth, may indicate whether the transfer is a loan, a repayment of a loan, a gift, or a bailment. If the transferor said, while transferring some money, ''You are my favorite nephew. I never forget your birthday,'' this would be circumstantial evidence that the transfer was a gift. (The assertions are not hearsay because they are not offered to prove that the recipient was declarant's favorite nephew, or that declarant never forgets his birthday.)
An out-of-court utterance may be offered to prove the state of mind of one who heard it. See Commonwealth v. Principatti, 260 Pa. 587, 104 A 53, 56--58 (1918), in which the Court, reversing a conviction of first degree murder, held it reversible error to exclude, inter alia, defendant's offer to prove that the decedent, nine days prior to the killing, told defendant that he was a member of the dreaded ''Black Hand Gang'' sent over to murder defendant. Such assertion, regardless of its truth, was relevant to show that defendant reasonably feared the victim and, if believed by the jury, might have resulted in a verdict of acquittal (justifiable homicide by reason of self-defense), or of voluntary manslaughter, instead of murder.
See also, Wasserman v. Fifth & Reed Hospital, 442 Pa. Super. 563, 660 A.2d 600, 607--08 (1995), a suit for personal injuries by a lady who ingested oven cleaner solution (it had been placed in a vinegar container) at the defendant hospital's cafeteria. Plaintiff, who suffered a recurrence of a dormant ulcerative colitis condition following her meal, testified that one of her treating physicians told her that this created an increased risk that she would eventually develop colon cancer. The court, affirming a substantial jury verdict for plaintiff, approved admission of her testimony on the ground that the physician's assertion was not offered for its truth, and thus was not hearsay. It was circumstantial evidence from which the jury could infer that plaintiff suffered significant mental pain and suffering, for which she was entitled to be compensated.
Most nonverbal conduct is not assertive. Hence, most evidence thereof is not hearsay.
d. Federal Rule Not Adopted Pa.R.E. 801 does not include a counterpart to F.R.E. 801(d), which excepts all admissions by a party-opponent, and some prior statements by witnesses, to the definition of hearsay set forth in subsection (c). This internal inconsistency of F.R.E. 801 adds an unnecessary and confusing complexity to rules that are otherwise logically arranged. Excepting an assertion to the definition of hearsay does nothing more, nor less, than except it to the hearsay rule. Exceptions to the hearsay rule belong in Rules 803 and 804, not in Rule 801.
An admission by a party-opponent, which is considered an exception to the hearsay rule at common law, and in Pennsylvania decisional law, is covered by Pa.R.E. 803(25), thus placing it in the same rule (803) with other exceptions to the hearsay rule in which the availability of the declarant is immaterial.
Prior statements of a witness were not considered substantive evidence at common law. Thus they were not hearsay. Thus there was no reason to except them to the hearsay rule. However, recent Pennsylvania decisional law has recognized some prior inconsistent statements of a witness, and statements of prior identification, as substantive evidence, and has excepted them to the hearsay rule. These prior statements, along with recorded recollection, are covered by Pa.R.E. 803.1, which delineates exceptions to the hearsay rule in which the current testimony of the declarant is necessary.
Unlike the Federal Rules of Evidence, Pennsylvania adheres to the common law and does not treat any prior consistent statement of a witness as substantive evidence. Therefore, no prior consistent statement comes within the definition of hearsay in Pa.R.E. 801(c). Therefore, there is no need to except any prior consistent statements from the hearsay rule (or from the definition of hearsay).
The admissibility of a prior consistent statement is governed by principles of relevance, not hearsay. See Pa.R.E. 613(b).
Rule 802. Hearsay Rule.
Hearsay is not admissible except as provided by these rules, or by other rules prescribed by the Pennsylvania Supreme Court, or by statute.
Comment Pa.R.E. 802 is similar to its federal counterpart. It differs by referring to other rules prescribed by the Pennsylvania Supreme Court, rather than the United States Supreme Court, and by referring to statutes in general, rather than Acts of Congress.
The words ''not admissible'' do not mean that hearsay will automatically be excluded from evidence. An opposing party must make a timely objection. As the Pennsylvania Supreme Court explained in Jones v. Spidle, 446 Pa. 103, 106, 286 A.2d 366, 367 (1971):
It is well established that hearsay evidence, admitted without objection, is accorded the same weight as evidence legally admissible as long as it is relevant and material to the issues in question.Generally, hearsay is excludable, if timely objected to, unless it comes within one of the exceptions to the hearsay rule enumerated in Pa.R.E. 803, 803.1, and 804.
Caveat: Just because hearsay comes within one of the exceptions enumerated in these rules, does not mean that it is admissible in evidence. All it means is that it cannot be excluded by a hearsay objection. It may be excluded because it is irrelevant, or inflammatory, or privileged, or for a host of other reasons.
On occasion, hearsay may be admitted pursuant to another rule promulgated by the Pennsylvania Supreme Court. For example, in civil cases all or part of a deposition may be admitted pursuant to Pa.R.C.P. No. 4020, or a videotape deposition of an expert witness pursuant to Pa.R.C.P. No. 4017.1(g).
Also, hearsay may be admitted pursuant to a state statute. Examples include:
1. A public record may be admitted pursuant to 42 Pa.C.S. § 6104. See Comment located at Pa.R.E. 803(8).
2. A record of vital statistics may be admitted pursuant to 35 Pa.C.S. § 450.810. See Comment located at Pa.R.E. 803(9).
3. In an action arising out of a contract under the Uniform Commercial Code, a document in due form purporting to be a bill of lading, policy or certificate of insurance, official weigher's or inspector's certificate, consular invoice, or any other document authorized or required by the contract to be issued by a third party, may be introduced as prima facie evidence of the document's own authenticity and of the facts stated therein by the third party, pursuant to 13 Pa.C.S. § 1202.
4. In a civil case, a deposition of a licensed physician may be admitted, pursuant to 42 Pa.C.S. § 5936.
5. In a criminal case, a deposition of a witness may be admitted, pursuant to 42 Pa.C.S. § 5919.
6. In a criminal case, an out-of-court assertion of a witness under 13 years of age, describing certain kinds of sexual abuse, may be admitted, pursuant to 42 Pa.C.S. § 5985.1.
7. In a dependency hearing, an out-of-court assertion of a witness under 14 years of age, describing certain types of sexual abuse, may be admitted, pursuant to 42 Pa.C.S. § 5986.
8. In a prosecution for speeding under the Pennsylvania Vehicle Code, a certificate of accuracy of an electronic speed timing device (radar) from a calibration and testing station appointed by the Pennsylvania Department of Motor Vehicles may be admitted, pursuant to 75 Pa.C.S. § 3368(d).
On rare occasion, hearsay may be admitted pursuant to a federal statute. For example, when a person brings a civil action, in either federal or state court, against a common carrier to enforce an order of the Interstate Commerce Commission requiring the payment of damages, the findings and order of the Commission may be introduced as evidence of the facts stated therein. 49 U.S.C. § 11704(d)(1).
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial.
The following statements, as hereinafter defined, are not excluded by the hearsay rule, even though the declarant is available as a witness:
(1) Present Sense Impression.
(2) Excited Utterance.
(3) Statement of Then Existing Mental, Emotional, or Physical Condition.
(4) Statement Made for Purposes of Medical Diagnosis or Treatment.
(5) [Vacant. See Comment.]
(6) Record of Regularly Conducted Activity.
(7) [Vacant. See Comment.]
(8) [Vacant. See Comment.]
(9) [Vacant. See Comment.]
(10) [Vacant. See Comment.]
(11) Record of Religious Organization.
(12) Marriage, Baptismal, or Similar Certificate.
(13) Family Record.
(14) Record of Document Affecting an Interest in Property.
(15) Statement in Document Affecting an Interest in Property.
(16) Statement in Ancient Document.
(17) Market Report, Commercial Publication.
(18) [Vacant. See Comment.]
(19) Reputation Concerning Personal or Family History.
(20) Reputation Concerning Boundaries or General History.
(21) Reputation as to Character.
(22) [Vacant. See Comment.]
(23) [Vacant. See Comment.]
(24) [Vacant. See Comment.]
(25) Admission by Party-Opponent.
(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
Comment Pa.R.E. 803(1) is identical to F.R.E. 803(1). It is consistent with prior Pennsylvania law.
For this exception to apply, declarant need not be excited or otherwise emotionally affected by the event or condition perceived. The trustworthiness of the assertion arises from its timing. The requirement of contemporaneousness, or near contemporaneousness, reduces the chance of premeditated prevarication or loss of memory.
For example, the assertions of a sportscaster describing and explaining what he observes on a baseball field as a game is taking place are quintessential present sense impressions. However, the sportscaster's between-innings or post-game analysis does not qualify for this hearsay exception.
If a present sense impression is made under stress of excitement from the event or condition that it describes or explains, then it overlaps the exception for an excited utterance. See Pa.R.E. 803(2). This is often the case. For example, if a sportscaster is excited by the sporting event that he is watching, his play-by-play description qualifies both as a present sense impression and as an excited utterance. If he is bored by it, his description qualifies only as a present sense impression.
The most common use of this exception in the federal courts has been to permit a witness to relate assertions that someone made immediately after participating in a telephone conversation, repeating or summarizing what was said on the phone. See United States v. Portsmouth Paving Corp., 694 F2d 312, 321--23 (4th Cir. 1982); United States v. Peacock, 654 F2d 339, 350 (5th Cir 1981); United States v. Earley, 657 F2d 195, 197--98 (8th Cir 1981); Phoenix Mutual Life Insurance Co. v. Adams, 828 F.Supp. 379, (D.S.C. 1993), aff'd, 30 F.3d 554 (4th Cir. 1994).
In Pennsylvania an exception to the hearsay rule for a present sense impression was first recognized in Chief Justice Jones' plurality opinion in Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d 387 (1974).
Subsequently, in a majority opinion, the Court said that an exception to the hearsay rule for a present sense impression is recognized in Pennsylvania under the ''res gestae'' rubric. Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858, 860 (1978).
Later, in Commonwealth v. Peterkin, 511 Pa. 299, 312, 513 A.2d 373 (1986), the Court, affirming a conviction of murder, approved, under the present sense exception to the hearsay rule, admission of testimony from a witness for the prosecution that, shortly before the crime, one victim made assertions to him over the telephone that defendant was locking a door and getting into the car of a second victim.
Accord: Commonwealth v. Harris, 422 Pa. Super. 6, 658 A.2d 392 (1995), a murder case. The court, affirming a conviction, approved admission of testimony from a witness for the prosecution that the victim, during a telephone conversation about one and one-half hours before she was found dead, said her door bell was ringing, left the phone briefly, then came back and whispered that it was defendant at her door.
(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
Comment Pa.R.E. 803(2) is identical to F.R.E. 803(2). It is consistent with prior Pennsylvania law.
This exception has a more narrow base than the exception for a present sense impression, because it requires an event or condition that is startling. However, it is broader in scope because an excited utterance (1) need not describe or explain the startling event or condition; it need only relate to it, and (2) need not be made contemporaneously therewith, or immediately thereafter. It is sufficient if the stress of excitement created by the startling event or condition persists as a substantial factor in provoking the utterance.
The prerequisite to an excited utterance is a startling event or condition. The startling event or condition is usually something dramatic, like an accident or a crime. But it need not be, so long as it has an exciting effect on the declarant.
A surprising discovery can precipitate an excited utterance. A classic example occurred when the renowned Greek mathematician, Archimedes, finally ascertained how he could calculate the volume of an irregular solid. One day he observed the amount of water that spilled over the side of his full bathtub when he stepped into it. He became excited and reportedly ran naked through the streets of Syracuse, shouting, ''Eureka! Eureka!'' (I found it!)
A more recent example appears in State v. Carlson, 311 Or. 201, 808 P.2d 1002 (1991), a drug case. A policeman testified that, when responding to a report of a domestic dispute at an apartment house, he asked defendant about what appeared to be needle marks on his arm. Defendant said that the marks were injuries that he had received from working on a car. His wife, who overheard this, broke in by yelling, ''You liar, you got them from shooting up in the bedroom with all your stupid friends!'' The court, affirming a conviction, approved admission of the policeman's testimony under Oregon Evid. Code § 803(2), which is identical to Pa.R.E. 803(2). The court said that while defendant's lie to the policeman would not ordinarily cause excitement, in the particular circumstances involved its actual effect on his wife was upsetting (exciting). The court explained:
Whether an event or condition is sufficiently startling cannot be determined from the nature of the event or condition itself. For the purposes of the excited utterance exception, an event or condition is not inherently startling. The startling-nature component is a relational concept, i.e., whether an event is sufficiently startling to qualify cannot be determined without focusing on the event's effect on the declarant. 311 Or. at 216, 808 P.2d at 1011.There is no set time interval following a startling event or condition after which an utterance relating thereto will be ineligible for exception to the hearsay rule as an excited utterance. Each case is governed by its individual circumstances. The general rule is that an utterance following a startling event or condition must be made soon enough thereafter that it can reasonably be considered a product of the stress of excitement engendered thereby, rather than of intervening reflection or deliberation.
In Commonwealth v. Gore, 262 Pa. Super. 540, 547--48, 396 A.2d 1302, 1305 (1978), the court explained:
The declaration need not be strictly contemporaneous with the existing cause, nor is there a definite and fixed time limit. . . . Rather, each case must be judged on its own facts, and a lapse of time of several hours has not negated the characterization of a statement as an ''excited utterance.'' . . . The crucial question, regardless of the time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance.In the federal courts the existence of a startling event or condition may be inferred from the excited utterance alone, or in combination with surrounding circumstances. See Insurance Co. v. Mosley, 75 U. S. 397, (1869); United States v. Moore, 791 F.2d 566 (7th Cir 1986).
However, Pennsylvania decisional law has required the startling event or condition to be proved by extrinsic evidence. See Commonwealth v. Barnes, 310 Pa. Super. 480, 456 A.2d 1037 (1983), a prosecution for, inter alia, robbing Lemuel Rock, a man who died prior to trial. A policeman testified that, in response to a call on his radio, he went to Rock's apartment where Rock, in an excited state, told him that defendant had entered Rock's apartment, assaulted Rock, and stolen $300. The court, reversing a conviction, held it reversible error to admit the policeman's testimony. The court explained:
[T]he only evidence that a startling event had in fact occurred was contained in the statement sought to be admitted as a spontaneous reaction thereto. The extra-judicial statement was the only evidence in the case that Rock had been beaten or that any crime had been committed. There was no independent evidence that a forced entry of Rock's apartment had been made . . . no independent evidence that he had $300 in his possession prior to the alleged robbery, and no independent evidence that money in any amount had been stolen . . . .We are thus presented with the troublesome situation in which the excited utterance itself is being used to prove that an exciting event did, in fact, occur. This circuitous reasoning is unacceptable. Where there is no independent evidence that a startling event has occurred, an alleged excited utterance cannot be admitted as an exception to the hearsay rule. 315 Pa. Super. at 485; 456 A.2d at 1039 40.With the adoption of Pa.R.E. 104(a), it appears that the court may now take the proffered excited utterance itself into consideration, along with extrinsic evidence, in determining whether a sufficient foundation exists to permit admission of the excited utterance as an exception to the hearsay rule. See Pa.R.E. 104(a), and Comment thereunder.
Pennsylvania decisional law has also espoused the minority position that an excited utterance may not be in narrative form, or attempt to explain past events. See Cody v. SKF Industries, Inc., 447 Pa. 558, 291 A.2d 772 (1972), a worker's compensation case. The court, holding that an assertion made by a man to his wife, after returning home, that he had injured his head in an accident at work, was not admissible as an excited utterance, said:
The basis for the admission of the utterance is its spontaneity, thus all utterances which do not display the mandated instinctive naturalness must be excluded for fear that the words will emanate in whole or in part from the declarant's reflective faculties. The declaration must be spoken under conditions which insure that it is not the result of premeditation, consideration or design, and it cannot be in the form of a narration or attempted explanation of past events. Id. at 564, 291 A.2d at 775.Pennsylvania decisional law also holds that declarant's personal knowledge of the facts that he asserts cannot be inferred from his excited utterance alone. There must be other corroborating evidence introduced sufficient to enable the trier of fact reasonably to conclude that he actually perceived the event of which he spoke. See Carney v. Pennsylvania Railroad Co., 428 Pa. 489, 240 A.2d 71 (1968). On analysis, this is simply an application of the separate evidential rule that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. See Pa.R.E. 602.
(3) Statement of Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health. A statement of memory or belief offered to prove the fact remembered or believed is included in this exception only if it relates to the execution, revocation, identification, or terms of declarant's will.
Comment Pa.R.E. 803(3) is similar to F.R.E. 803(3). The wording has been changed to improve readability, and to eliminate a confusing double negative. The meaning remains the same.
This exception combines what might otherwise be considered several different exceptions to the hearsay rule. The common factor is that they are all sometimes referred to by the non specific phrase, ''state of mind.'' (Some out-of-court assertions that are not hearsay, because they are not offered to prove their truth, are also referred to as ''state of mind.'')
Assertion of Then Existing Intent This exception includes an assertion of the declarant's then existing intent, plan or design. The leading case is Mutual Life Insurance Co. v. Hillmon, 145 U. S. 285 (1892), a suit for the proceeds of insurance on the life of John Hillmon. The defense was that the body found in a miner's camp was that of a man named Walters, not that of Hillmon. Defendant sought, unsuccessfully, to introduce evidence of letters written by Walters to his sister and fiancee approximately two weeks before the body was found, in which Walters declared his immediate intention to accompany Hillmon on a westward journey. The United States Supreme Court held it reversible error to exclude this evidence, explaining:
A man's state of mind or feeling can only be manifested to others by countenance, attitude or gesture, or by sounds or words, spoken or written. The nature of the fact to be proved is the same, and evidence of its proper tokens is equally competent to prove it, whether expressed by aspect or conduct, by voice or pen. When the intention to be proved is important only as qualifying an act, its connection with that act must be shown, in order to warrant the admission of declarations of the intention. But whenever the intention is of itself a distinct and material fact in a chain of circumstances, it may be proved by contemporaneous oral or written declarations of the party.The existence of a particular intention in a certain person at a certain time being a material fact to be proved, evidence that he expressed that intention at that time is as direct evidence of the fact, as his own testimony that he then had that intention would be. After his death there can hardly be any other way of proving it; and while he is still alive, his own memory of his state of mind at a former time is no more likely to be clear and true than a bystander's recollection of what he then said, and is less trustworthy than letters written by him at the very time and under circumstances precluding a suspicion of misrepresentation. Id. at 295.Only an assertion of present intent is encompassed by this exception to the hearsay rule. An out-of-court assertion of past intent remembered is excludable hearsay. See Shepard v. United States, 290 U. S. 96, 104--06 (1933), in which the United States Supreme Court explained:
There are times when a state of mind, if relevant, may be proved by contemporaneous declarations of . . . intent. . . . Declarations of intention, casting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past. There would be an end, or nearly that, to the rule against hearsay if the distinction were ignored.Pennsylvania has long recognized an exception to the hearsay rule for an assertion of present intent. See Commonwealth v. Marshall, 287 Pa. 512, 135 A. 301 (1926), a murder case. The Court, affirming a conviction, approved admission of testimony that on the morning of the day she was killed the victim told a fellow passenger on a train that she was going to meet defendant that evening. The Court explained:
Intention, viewed as a state of mind, is a fact, and the commonest way for such a fact to evince itself is through spoken or written declarations. It is therefore because of the impossibility, in many cases, of proving intention apart from personal declarations, that they are admitted. The true basis of their admission, then, is necessity, because of which an exception to the hearsay rule is recognized, rather than that they are part of the res gestae. Id. at 522; 135 A. at 304.
See also, Commonwealth v. Henderson, 324 Pa. Super. 538, 472 A.2d 211 (1984).
See also, Smith v. Smith, 364 Pa. 1, 70 A.2d 630 (1950), in which the court held admissible evidence of defendant's out-of-court assertion that he intended to stay in Florida. This was relevant on the issue of his domicile at the time that he filed for divorce from the plaintiff. There has been a lot of academic debate over whether, under the rationale of the Hillmon case, evidence of an out-of-court assertion of intent by A can be introduced as circumstantial evidence of subsequent conduct by B. Whatever the correct answer, this issue is one of relevance, not hearsay. So far as the hearsay rule is concerned, if a person's intent at a particular point in time is relevant to an issue in the case, evidence of the person's then existing expression thereof is excepted to the hearsay rule.
Assertion of Then Existing Motive This exception includes an assertion of the declarant's then existing motive. A leading case is Lawlor v. Loewe, 235 U. S. 522 (1915), a civil antitrust suit brought by hat manufacturers against labor union organizers, under the Sherman Act. The United States Supreme Court, affirming judgments for plaintiffs, approved admission of testimony from plaintiffs' salesmen that potential customers told them that they would not buy plaintiffs' hats because of the boycott sponsored by defendants. The court, per Justice Oliver Wendell Holmes, said, ''The reasons given by customers for ceasing to deal with sellers of the Loewe hats, including letters from dealers to Loewe & Co., were admissible.'' Id. at 536.
However, evidence of an out-of-court assertion of the facts behind the declarant's motive is excludable hearsay. See Buckeye Powder Co. v. E.I. DuPont de Nemours Powder Co., 248 U. S. 55 (1918).
Pennsylvania has long recognized evidence of a declarant's out-of-court assertion of his then existing motive as an exception to the hearsay rule. See Ickes v. Ickes, 237 Pa. 582, 591, 85 A. 885, 887--88 (1912), in which the Court said:
When the court determines in any case that a man's state of mind, or the reason why he did a certain act, is a relevant principal fact to be ascertained, that is the particular thing under immediate investigation, and what he may have said concerning it is usually the best and only evidence that can be obtained on the subject; but the proofs must always be restricted to declarations indicating the state of mind at the time of their utterance.When evidence of this character is produced sufficient to show a then present intention, or state of mind, it may be assumed to have continued and formed the motive which controlled the doing of a subsequent act following closely thereafter, if, under all the surrounding circumstances, one would naturally associate the two together; and it is for the jury to draw the conclusion.
See also, Adoption of Harvey, 375 Pa. 1, 99 A.2d 276 (1953).
Assertion of Then Existing Physical or Emotional Feeling This exception includes an assertion of the declarant's then existing physical or emotional feeling. A leading case is Shepard v. United States, 290 U. S. 96, 104--05 (1933), in which the Supreme Court explained:
There are times when a state of mind, if relevant, may be proved by contemporaneous declarations of feeling. . . . Thus, in proceedings for the probate of a will, where the issue is undue influence, the declarations of a testator are competent to prove his feelings for his relatives, but are incompetent as evidence of his conduct or of theirs. . . . In suits for alienation of affections, letters passing between the spouses are admissible in aid of a like purpose. . . . In damage suits for personal injuries, declarations by the patient to bystanders or physicians are evidence of suffering or symptoms . . . but are not received to prove the acts, the external circumstances through which the injuries came about.Under Pennsylvania decisional law evidence of a declarant's out-of-court assertion of his then existing physical or emotional feeling is excepted to the hearsay rule under the rubric of the non specific phrase, ''res gestae.'' In Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978), the Court said that the res gestae exception to the hearsay rule includes ''(1) declarations as to present bodily conditions; (2) declarations of present mental states and emotions. . . .''
See also, Commonwealth v. Blackwell, 343 Pa. Super. 201, 494 A.2d 426 (1985), in which a declarant's out-of-court assertion to a nurse, ''I'm so frightened,'' was held admissible to prove his fright at the time.
Pennsylvania decisional law also includes this exception to the hearsay rule under the rubric of the non specific phrase, ''state of mind.'' See Adoption of Harvey, 375 Pa. 1, 99 A.2d 276 (1953).
Assertion of Memory or Belief Concerning Declarant's Will This exception includes a declarant's assertion of memory or belief concerning declarant's will. The exception has long been recognized in Pennsylvania, at least when the declarant is dead. See Lappe v. Gfeller, 211 Pa. 462, 60 A 1049 (1905); Glockner v. Glockner, 263 Pa. 393, 106 A 731 (1919).
In a more modern case, In Re Kirkander, 326 Pa. Super. 380, 474 A.2d 290 (1984), two daughters challenged the probate of their father's will. The court, holding it reversible error to preclude the daughters from introducing testimony as to assertions made by their father shortly before his death, about what was in his will, said:
A decedent's utterance regarding his planned disposition of his estate, said after the questioned will was supposedly executed, has been admitted in a will contest; since, if a will is to be admitted to probate, a decedent must have been aware of its contents. . . . Therefore, contestants should have been allowed to introduce testimony concerning statements allegedly made by the decedent regarding his testamentary scheme. Id. at 386, 474 A.2d at 293.Pa.R.E. 803(3) makes it clear that the exception applies whether or not the declarant is dead. Disputes concerning wills, though, usually don't arise until the testator (declarant) dies.
(4) Statement Made for Purposes of Medical Diagnosis or Treatment. A statement made for purposes of medical treatment, or medical diagnosis in contemplation of treatment, and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to treatment, or diagnosis in contemplation of treatment.
Comment Pa.R.E. 803(4) is similar to F.R.E. 803(4), with one major difference. The federal rule excepts to the hearsay rule assertions made for purposes of medical diagnosis, whether or not treatment is contemplated. This means that in the federal courts doctors or other medical personnel who are hired to examine a party for litigation purposes only can testify to what the party told them, and this testimony will be admitted as substantive evidence, excepted to the hearsay rule. Pa.R.E. 803(4), on the other hand, includes assertions made for purposes of medical diagnosis only when treatment is contemplated.
The rationale for this exception to the hearsay rule was well set forth by Judge Learned Hand in Meaney v. United States, 112 F2d 538, 539--40 (2d Cir 1940):
A man goes to his physician expecting to recount all that he feels, and often he has with some care searched his consciousness to be sure that he will leave out nothing. If his narrative of present symptoms is to be received as evidence of the facts, as distinguished from mere support for the physician's opinion, these parts of it can only rest upon his motive to disclose the truth because his treatment will in part depend upon what he says. . . .The same reasoning applies with exactly the same force to a narrative of past symptoms. . . . A patient has an equal motive to speak the truth; what he has felt in the past is as apt to be important in his treatment as what he feels at the moment.The assertion need not be made by the patient. It may be made by someone else on the patient's behalf, such as a mother concerning her child, or a policeman concerning an unconscious victim of an accident or crime.
The assertion need not be made to a doctor. It may be made to a nurse, ambulance attendant, physical therapist, admitting clerk at a hospital, etc., for relay to a physician or other health care practitioner. It is the purpose of the assertion, i.e., to aid in medical treatment, or diagnosis leading to treatment, not the identity of its immediate recipient, that qualifies it for exception to the hearsay rule.
An assertion made for purposes of medical treatment, or diagnosis in contemplation of treatment, has long been excepted to the hearsay rule in Pennsylvania, at least when it relates to the patient's symptoms. See Freedman v. Mutual Life Insurance Co. of New York, 342 Pa. 404, 21 A.2d 81 (1941).
Pennsylvania decisional law has been ambiguous as to whether assertions concerning the cause of a patient's injuries are included in the exception. In Ferne v. Chadderton, 375 Pa. 302, 305--06, 100 A.2d 854, 856 (1953), the Court said:
It has long been the law in this commonwealth that a doctor may testify to the symptoms and history of anatomical violence related by a patient, which enable the doctor properly to treat and prescribe for the patient.However, in Cody v. SKF Industries, Inc, 447 Pa. 558, 291 A.2d 772 (1972), a worker's compensation case, the Court said that the law theretofore in Pennsylvania had been that an assertion of symptoms that was made for purposes of medical treatment was excepted to the hearsay rule, but an assertion as to the cause of an injury was not, unless it was part of the ''res gestae.'' The Court then expanded the exception and approved admission, as substantive evidence, of testimony from the worker's treating physician that the worker, since deceased, said that he had been struck over the head by a garage door at work three days previously. The court said, in footnote 4, ''We leave for another time and appropriate case the question of whether this rule would apply outside the workmen's compensation area.'' Id. at 569, 291 A.2d at 77.
Thereafter, in Commonwealth v. Blackwell, 343 Pa. Super. 426, 494 A.2d 201 (1985), a murder case, the Superior Court, citing the Cody case, held admissible evidence that the victim, who suffered from heart disease, told a nurse at the hospital to which he was taken by police that he was having trouble breathing, that he was frightened, and that he had just been abducted at gunpoint and robbed.
In Commonwealth v. Sanford, 397 Pa. Super. 581, 594 98, 580 A.2d 784 (1990), a prosecution for various crimes arising out of the sexual assault of a three year old girl, the victim was taken to the hospital with an inflamed vagina. The Superior Court, again citing the Cody case, approved admission of testimony from the girl's treating physician at the hospital relating her description to him of the assault.
And, in Commonwealth v. Smith, ____ Pa. ____ , 681 A.2d 1288 (1996), the Supreme Court confirmed that its holding in the Cody case, i.e., that an assertion as to the cause of an injury or illness is encompassed by this exception to the hearsay rule, is not limited to worker's compensation cases.
Pa.R.E. 803(4) is consistent with the Supreme Court's opinion in the Smith case, and makes clear that Pennsylvania now excepts all assertions made for purposes of medical treatment, or diagnosis in contemplation of treatment, to the hearsay rule. This includes not only symptoms, past and present, but also the cause thereof.
Caveat: Any assertion as to the cause of a patient's injuries must be reasonably pertinent to diagnosis or treatment, to qualify for this exception to the hearsay rule. In Commonwealth v. Smith, ____Pa. ____, 681 A.2d 1288, 1292 (1996), the Court explained:
By way of example, a person's statement, ''I was hit by a car,'' made for the purpose of receiving medical treatment would come within the exception. It is important for doctors to know how the person sustained the injuries. However, a person's statement, ''I was hit by the car which went through the red light,'' would not come within the exception, or at least that part of the statement which indicated that the car ''went through the red light'' would not. It is inconsequential and irrelevant to medical treatment to know that the car went through the red light.See also, Hreha v. Benscoter, 381 Pa. Super. 556, 554 A.2d 525 (1989).
Usually the identity of a person who inflicts harm on a patient is not reasonably pertinent to diagnosis or treatment of the patient's injuries. In Commonwealth v. Smith, ____Pa. ____, 681 A.2d 1288 (1996), a prosecution for aggravated assault, the Court held it reversible error to permit a nurse to testify that a five year old girl told the nurse that her father (the defendant) placed her under scalding hot water.
No doubt one who is contemplating medical treatment for illness or injuries has strong incentive to tell the truth to his or her health care providers, and to be accurate in doing so, to insure that the medical treatment will be effective. Therefore, assertions that he or she makes for this purpose are especially trustworthy, substantially more so than hearsay in general. This is what justifies their exception to the hearsay rule.
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