[27 Pa.B. 1282]
[Continued from previous Web Page] This rationale is not valid when a physician, or other health care provider, is consulted for a purpose unrelated to medical treatment, such as an examination solely to prepare the examiner to testify as a witness for one side or the other. That is why Pennsylvania, like several other states, departs from the federal rule, and does not include within this exception to the hearsay rule assertions made to health care providers unconnected with treatment.
Note: A physician, who is presented as an expert medical witness, may testify to a patient's assertions concerning the patient's symptoms, and the inception and cause thereof, as part of the history upon which the physician, in part, bases his or her opinion. See Pa.R.E. 703, 705. When offered only to help explain the foundation for an expert witness's opinion, the assertions are not substantive evidence, i.e., are not hearsay. Thus, evidence of assertions made by a patient to an examining physician will often come to the attention of the jury, regardless of its exception to the hearsay rule.
(5) [See Comment]
Comment Recorded recollection, the subject of F.R.E. 803(5), is dealt with in Pa.R.E. 803.1(3). It is an exception to the hearsay rule in which the current testimony of the declarant is necessary.
(6) Record of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances indicate lack of trustworthiness. The term ''business'' as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
Comment Pa.R.E. 803(6) is similar to F.R.E. 803(6), but with two differences, one major and one minor. The major difference is that Pa.R.E. 803(6), consistent with prior Pennsylvania decisional law, does not include opinions and diagnoses in the exception. The minor difference is that Pa.R.E. 803(6) allows the court to exclude business records that would otherwise qualify for exception to the hearsay rule if the ''sources of information or other circumstances indicate lack of trustworthiness.'' The federal rule allows the court to do so only if ''the source of information or the method or circumstances of preparation indicate lack of trustworthiness.''
The biggest regularly conducted business activity is that of government, federal, state and local. Governmental records are included within this exception to the hearsay rule. That is one reason that Pennsylvania has not adopted Federal Rule of Evidence 803(8), dealing with public records. See Comment under Pa.R.E. 803(8).
For example, police reports are business records. See Commonwealth v. Graver, 461 Pa. 131, 334 A.2d 667 (1975), a suit to enjoin the operation of a taproom as a nuisance. The court approved admission of police department records listing the dates, times, and names of policemen dispatched to the area of the taproom, their observations, and the actions that they took.
Pa.R.E. 803(6) differs only slightly from 42 Pa.C.S. § 6108, which is an adaptation of the Uniform Business Records as Evidence Act, a prototype statute that was originally promulgated by the National Conference of Commissioners on Uniform State Laws in 1936, but was later withdrawn by it. 42 Pa.C.S. § 6108 provides:
(a) Short title of section. This section shall be known and may be cited as the ''Uniform Business Records as Evidence Act.''(b) General Rule. A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.(c) Definition. As used in this section ''business'' includes every kind of business, profession, occupation, calling, or operation of institutions whether carried on for profit or not.Pa.R.E. 803(6) is worded a little broader than the statute. By expressly referring to a ''data compilation,'' and including a record ''in any form,'' it clearly encompasses computerized data storage, a form of record retention that is assuming increased importance in this cybernetic age.
Both Pa.R.E. 803(6) and the statute define ''business'' broadly, but Pa.R.E. 803(6) expressly includes an association, and the statute does not.
The wording of Pa.R.E. 803(6) also places the burden on an opposing party to show that the sources of information or other circumstances indicate that a business record is untrustworthy, and thus does not qualify for exception to the hearsay rule. The statute places the burden on the proponent of the evidence to show circumstantial trustworthiness.
Other than that, there appears to be little difference between Pa.R.E. 803(6) and the statute. Therefore, decisional law under the statute should, by and large, continue to be good precedent.
Pennsylvania decisional law holds that opinions contained in business records are not excepted to the hearsay rule. See Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975); Williams v. McClain, 513 Pa. 300, 520 A.2d 1374 (1987).
However, the line between opinion and fact is not sharply defined. See, e.g., Commonwealth v. Campbell, 244 Pa. Super. 505, 509--10, 368 A.2d 1299 (1976), a rape case. The Commonwealth introduced an entry in a hospital record asserting that spermatozoa was present in the victim's vagina. The Superior Court held, 5 to 2, affirming a conviction, that this entry was one of fact, not opinion.
Business records are considered by the part, not the whole, for purposes of this exception to the hearsay rule. One entry may be excepted to the hearsay rule, and another may not, though both are contained in the same document or other form of data compilation.
See Haas v. Kasnot, 371 Pa. 580, 92 A.2d 171 (1952), a suit for personal injuries arising out of an automobile accident. A police report was introduced by defendant, pursuant to the Uniform Business Records as Evidence Act (now 42 Pa.C.S. § 6108). The Court, reversing a jury verdict for defendant, said that certain entries in the report were admissible, such as the investigating police officer's observations as to the weather and the location of the cars after the accident. But it was error to admit entries describing how the accident happened that were based on information obtained from unidentified witnesses. In the language of the Uniform Business Records As Evidence Act, the ''sources of information'' were not such as to justify their admission.
To qualify for this exception to the hearsay rule, a record must have been made ''at or near the time'' of the act, event, or condition that it reports. However, there is no set length of time after which an entry in a business record will be too stale to qualify for exception to the hearsay rule. As the Court explained in In Re Estate of Indyk, 488 Pa. 567, 572, 413 A.2d 371, 373, n.2 (1979), the appropriate test of contemporaneity is whether the time span between the event and its entry ''is so great that it suggests a danger of inaccuracy resulting from memory lapse.''
See Henderson v. Zubik, 390 Pa. 521, 136 A22d 127 (1957), a suit by one former partner against another to recover his share of the net profits of a business that bought and sold steel and scrap iron. Under the accounting system employed by the partnership, no book entries were made at the time that the material was purchased. However, when it was sold entries were made naming the purchaser, the sale price, and the original purchase price, the latter item being dependent on the memory and recollection of the entrant. The court, affirming a jury verdict for plaintiff, held that the trial judge properly exercised his discretion to admit the entries under the business records exception to the hearsay rule, despite the delay in recording the purchase prices.
To be excepted to the hearsay rule, a business record must be authenticated by the testimony of a ''custodian or other qualified witness.'' This often is, but need not be, the person who made the entries in question, or the custodian of the record at the time of trial. It is sufficient if ''the authenticating witness can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness of the business records.'' Indyk, 488 Pa. at 573, 413 A.2d at 373--74.
Pennsylvania will not except an entry in a business record to the hearsay rule if the subject matter of the entry is extraneous to the purpose of the business. See Commonwealth v. Harris, 351 Pa. 325, 41 A.2d 688 (1945), a murder case. The court held that an entry in a hospital record that the victim said that he had been shot by a white man was not pathologically germane to the hospital's business. Therefore, it was not excepted to the hearsay rule.
Pennsylvania may also refuse to except an entry in a business record to the hearsay rule if the source of the information contained in the entry is not known. See Isaacson v. Mobile Propane Corp, 315 Pa. Super. 42, 461 A.2d 625 (1983), a suit for personal injuries allegedly caused by an explosion. Defendant offered in evidence an entry in the emergency room record of a hospital that asserted that plaintiff's legs had been run over by a fire truck. The court approved exclusion of this evidence because the source of the recorded information was not known.
The exception to the hearsay rule for an entry in a business record is one of the most important, and most useful, of the hearsay exceptions. By avoiding the necessity of calling as witnesses all those who supply, and all those who record, information that a business regularly collects, records, and keeps, trials are made easier, shorter, and less expensive. And business enterprises are less disrupted by the demands of litigation.
The right of the court to exclude from evidence an entry in a business record that would otherwise qualify for exception to the hearsay rule, because the circumstances indicate that it is not trustworthy, is a valuable safeguard with which few other hearsay exceptions are endowed.
Caveat: If offered against a defendant in a criminal case, an entry in a business record, though excepted to the hearsay rule, may be excluded if its admission would violate defendant's right to confront the witnesses against him, under either the Sixth Amendment to the United States Constitution, or Article I, § 9, of the Pennsylvania Constitution.
See Commonwealth v. McCloud, 457 Pa. 310, 322 A.2d 653 (1974), a murder case. The Court, reversing a conviction, held that admission of an autopsy report under the Uniform Business Records as Evidence Act (now 42 Pa.C.S. § 6108), to prove the cause of death, violated defendant's constitutional right of confrontation under Article I, § 9, of the Pennsylvania Constitution.
(7) [See Comment].
Comment Pennsylvania has not adopted F.R.E. 803(7), which reads as follows:
Absence of Entry in Records Kept in Accordance With the Provisions of Paragraph (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.Principles of logic and internal consistency have led Pennsylvania to reject this rule. The absence of an entry in a record is not hearsay, as defined in Pa.R.E. 801(c). Hence, it appears irrational to except it to the hearsay rule.
Pennsylvania law is in accord with the object of Federal Rule of Evidence 803(7), i.e., to allow evidence of the absence of a record of an act, event, or condition to be introduced to prove the nonoccurrence or nonexistence thereof, if the matter was one which would ordinarily be recorded.
On analysis, absence of an entry in a business record is circumstantial evidence, i.e., it tends to prove something by implication, not assertion. Its admissibility is governed by principles of relevance, not hearsay. See Pa.R.E. 401, et seq.
For example, assume that in the ordinary course of its business Harvard University records and preserves the names of all its graduates. Evidence that the University's records do not list the name of Fred Zilch may be offered as circumstantial evidence from which the trier of fact may infer that Zilch did not graduate from Harvard.
See Klein v. F.W. Woolworth Co., 309 Pa. 320, 163 A.532 (1932), a suit for personal injuries caused by a fall in defendant's store. Morse, a witness for plaintiff, testified that he was defendant's janitor at the time of the accident, and had washed and oiled the floor, but had not powdered it to make it reasonably safe to walk on. Defendant's bookkeeper then testified for defendant that she kept payroll records of all defendant's employees, and that Morse's name did not appear therein. The Court held that this absence of a business entry was proper evidence to be considered by the jury, along with other evidence in the case, on the issue of whether Morse was defendant's employee at the time of the accident.
See also, Stack v. Wapner, 244 Pa. Super. 278, 368 A.2d 292 (1976), a medical malpractice case. Plaintiffs alleged that physicians at a hospital failed to monitor the administration of Pitocin (a labor inducing drug) to the wife-plaintiff. The court, affirming judgments for plaintiffs, held that plaintiffs properly overcame testimony from the defendant physicians that they were present in the labor room, by introducing evidence of the absence of entries to that effect on the labor room chart. Plaintiffs had previously introduced evidence of an official hospital policy requiring such entries.
(8) [See Comment].
Comment Pennsylvania has not adopted F.R.E. 803(8), which reads as follows:
Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.Pennsylvania has not adopted the federal rule for several reasons:
1. Experience with Federal Rule of Evidence 803(8) in the federal courts has not been exemplary. It has spawned a lot of litigation, particularly over the meaning and scope of terms like ''law enforcement personnel,'' and ''factual findings.'' Conflicts abound in reported federal cases over whether particular investigative findings and conclusions, such as those made by the Equal Employment Opportunities Commission, should be admitted under the rule.2. Public records are business records. Therefore, entries therein may be excepted to the hearsay rule pursuant to Pa.R.E. 803(6).3. An exception to the hearsay rule for public records is provided by 42 Pa.C.S. § 6104:(a) General rule.--A copy of a record of governmental action or inaction authenticated as provided in section 6103 (relating to proof of official records) shall be admissible as evidence that the governmental action or inaction disclosed therein was in fact taken or omitted.(b) Existence of facts.--A copy of a record authenticated as provided in section 6103 disclosing the existence or nonexistence of facts which have been recorded pursuant to official duty or would have been so recorded had the facts existed shall be admissible as evidence of the existence or nonexistence of such facts, unless the sources of information or other circumstances indicate lack of trustworthiness.It is worthy of note that subsection (b) of the statute is limited to ''facts.'' This is consistent with Pa.R.E. 803(6), as well as Pennsylvania decisional law interpreting 42 Pa.C.S. § 6108 (Uniform Business Records As Evidence Act). See Comment to Pa.R.E. 803(6).
Examples of public records that have qualified for exception to the hearsay rule under the statute include a computer printout obtained from the Pennsylvania Bureau of Employment Compensation showing a schedule of payments made to defendant (Commonwealth v. Visconto, 301 Pa. Super. 543, 448 A.2d 41 (1982)); a certified copy of a report from the United States Weather Bureau (Haas v. Kasnot, 371 Pa. 580, 92 A.2d 171 (1952)); life expectancy tables published by the United States Department of Health, Education and Welfare (Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959)); and a chart on speed and stopping distances contained in the Digest of Vehicle Code of Pennsylvania, compiled and issued by the Pennsylvania Department of Revenue (Finnin v. Neubert, 378 Pa. 40, 105 A.2d 77 (1954); DeMarco and Rose v. Ross, 392 Pa. 1, 139 A.2d 634 (1958); Grippo v. Pennsylvania Truck Lines, Inc., 402 Pa. 1, 165 A.2d 618 (1960)).
The facts contained in a public record need not have originated with a public employee. The facts may have come from private individuals who were under a duty to report to a public agency. See Commonwealth v. Visconto, 301 Pa. Super. 543, 448 A.2d 41 (1982), a prosecution for making false statements to obtain public assistance. The court, affirming a conviction, approved admission of a document listing wages paid by the Pittsburgh Hilton Hotels Corporation (Hilton) to a group of employees, including defendant, that Hilton had filed with the Pennsylvania Department of Welfare pursuant to statute. The document was qualified by certification of an officer in the Department, which had retained custody of the document.
Pennsylvania has no counterpart to Federal Rule of Evidence 803(8)(C), which excepts to the hearsay rule ''factual findings resulting from an investigation made pursuant to authority granted by law.''
In Beech Aircraft Corp. v. Rainey, 488 U. S. 153, (1988), the United States Supreme Court, resolving a conflict among the federal circuits, held that the ''factual findings'' referred to in the rule include opinions, so long as the opinions are based on factual investigations.
Adoption of this rule would conflict with long standing Pennsylvania decisional law that favors subjecting all those who express opinions, particularly expert witnesses, to contemporaneous cross-examination, under oath, in the presence of the trier of fact.
Investigational findings that are not in the opinion category may qualify for exception to the hearsay rule under Pa.R.E. 803(6). Examples include demographic information that is gathered and recorded statistically by the United States Bureau of the Census in the ordinary course of its business, or information on the incidence and mortality rates of various diseases that is gathered, recorded and published by the United States Center for Disease Control. But a governmental investigator's conclusion as to the probable cause of an airplane crash, which was the subject of the United State Supreme Court's opinion in the Rainey case, would not qualify for exception to the hearsay rule in Pennsylvania.
Note: Investigational findings by reputable persons or organizations, private or governmental, may be relied upon by an expert witness, in part, in forming the witness's opinion, if they are of a type reasonably relied upon by other experts in the witness's particular field of expertise. They may thus be brought to the attention of the trier of fact, though they will not be substantive evidence. See Pa.R.E. 703.
(9) [See Comment].
Comment Pennsylvania has not adopted F.R.E. 803(9), which reads as follows:
Records of Vital Statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.Pennsylvania has not adopted the federal rule because it is not needed, for the following reasons:
1. Records of vital statistics are business records. Therefore, they may be excepted to the hearsay rule pursuant to Pa.R.E. 803(6).2. Records of vital statistics are public records. Therefore, they may be excepted to the hearsay rule by 42 Pa.C.S. § 6104:(a) General rule.--A copy of a record of governmental action or inaction authenticated as provided in section 6103 (relating to proof of official records) shall be admissible as evidence that the governmental action or inaction disclosed therein was in fact taken or omitted.(b) Existence of facts.--A copy of a record authenticated as provided in section 6103 disclosing the existence or nonexistence of facts which have been recorded pursuant to official duty or would have been so recorded had the facts existed shall be admissible as evidence of the existence or nonexistence of such facts, unless the sources of information or other circumstances indicate lack of trustworthiness.3. The Vital Statistics Law of 1953 (35 P. S. § 450.101 et seq.) provides for registration of births, deaths, fetal deaths, and marriages, with the State Department of Health. The records of the Department, and duly certified copies thereof, are excepted to the hearsay rule by section 810 of the statute (35 P. S. § 450.810):Any record or duly certified copy of a record or part thereof which is (1) filed with the department in accordance with the provisions of this act and the regulations of the Advisory Health Board and which (2) is not a ''delayed'' record filed under section seven hundred two of this act or a record ''corrected'' under section seven hundred three of this act shall constitute prima facie evidence of its contents, except that in any proceeding in which paternity is controverted and which affects the interests of an alleged father or his successors in interest no record or part thereof shall constitute prima facie evidence of paternity unless the alleged father is the husband of the mother of the child.Most of the litigation arising out of this exception to the hearsay rule involves death certificates. A death certificate is generally admissible to prove the fact of death, the date of death, and the physical cause of death (e.g., heart attack, infection, drowning, trauma). See Castor v. Ruffing, 178 Pa. Super. 124, 112 A.2d 412 (1955), in which the court held that a death certificate was properly admitted to prove that the decedent died of heat exhaustion.
However, it has been held that a death certificate is not prima facie evidence to prove the manner of death, i.e., whether it was natural, accidental, suicide, homicide, etc.
See Pittsburgh National Bank v. Mutual Life Insurance Co. of New York, 273 Pa. Super. 592, 417 A.2d 1206 (1980), aff'd, 493 Pa. 96, 425 A.2d 383 (1981), a suit for accidental death benefits under three life insurance policies. The court, affirming a jury verdict for defendant, said that the trial judge correctly ruled that a death certificate was not admissible to prove that the death was accidental.
See also, Heffron v. Prudential Insurance Co., 137 Pa. Super. 69, 8 A.2d 491 (1939).
In Kondrat v. W.C.A.B., 145 Pa. Commonwealth Ct. 428, 603 A.2d 689 (1992), the court held that a death certificate is not admissible to prove the physical cause of death if it was signed by a lay coroner. However, the validity of this holding has been called into question by the Supreme Court's more recent opinion in Miller v. The Brass Rail Tavern, Inc., 541 Pa. 474, 664 A.2d 525 (1995), holding that a lay coroner may be qualified to give expert opinion testimony with respect to time of death.
Extraneous matter entered in a record of vital statistics is not excepted to the hearsay rule. See District of Columbia's Appeal, 343 Pa. 65, 21 A.2d 883 (1941), an audit of the account of a trust. The court held that a death certificate was admissible to prove the fact and date of death, but not to prove the date of birth. The recital of the date of birth was an extraneous entry.
See also, Meyers v. Metropolitan Insurance Co, 36 D. & C.2d 479 (1964), in which the court held that a death certificate could not be introduced to prove the circumstances leading up to the cause of death.
Marriage records of foreign countries are excepted to the hearsay rule in Pennsylvania. See Estate of Loik, 493 Pa. 512, 426 A.2d 1134 (1981), a will contest. The court held it reversible error to exclude a Soviet marriage certificate offered as evidence that decedent married a claimant on August 10, 1940.
(10) [See Comment].
Comment Pennsylvania has not adopted F.R.E. 803(10), which reads as follows:
Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.Pennsylvania has not adopted this rule for the same reasons that it did not adopt F.R.E. 803(7). See Comment under Pa.R.E. 803(7).
Pennsylvania law is in general accord with the object of F.R.E. 803(10), i.e., to allow evidence of the absence of a public record to be introduced to prove the nonoccurrence or nonexistence of a matter of which a record would normally be made and preserved by a public office or agency. Such evidence may consist of (1) testimony that a diligent search failed to disclose the record, or (2) a certificate that no such record exists prepared in accordance with 42 Pa.C.S. § 6103.
Absence of an entry in a public record is circumstantial evidence, i.e., it tends to prove something by implication, not assertion. Its admissibility is governed by principles of relevance, not hearsay. See Pa.R.E. 401, et seq.
A statute, 42 Pa.C.S. § 6104(b), provides, in pertinent part, for admissibility of evidence of the absence of an entry in a public record to prove the nonexistence of a fact:
(b) Existence of facts.--A copy of a record authenticated as provided in section 6103 disclosing the . . . nonexistence of facts which . . . would have been . . . recorded had the facts existed shall be admissible as evidence of the . . . nonexistence of such facts, unless the sources of information or other circumstances indicate lack of trustworthiness.For example, evidence that the taxpayer records of the Pennsylvania Department of Revenue for 1994 do not list the name of Fred Zilch may be offered as circumstantial evidence that Zilch did not file a tax return that year.
See Commonwealth v. Cunningham, 275 Pa. Super. 46, 418 A.2d 603 (1980), a prosecution for carrying a firearm without a license. The court, affirming a conviction, approved admission of a certificate signed by the commissioner of state police, as well as by the director of its records division, asserting that the records of the state police did not show that defendant had been issued a license to carry a pistol. This evidence was admitted pursuant to former 28 P. S. § 110, the predecessor of 42 Pa.C.S. § 6104.
Pennsylvania also has a complementary statute, 42 Pa.C.S. § 5328, entitled ''Proof of Official Records,'' which provides, in pertinent part:
(d) Lack of records.--A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in this section in the case of a domestic record, or complying with the requirements of this section for a summary in the case of a record in a foreign country, is admissible as evidence that the records contain no such record or entry.(11) Record of Religious Organization. Statements of births, marriages, divorces, deaths, legitmacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.
Comment Pa.R.E. 803(11) is identical to F.R.E. 803(11). It is an expansion of a more limited exception that was statutorily adopted in Pennsylvania.
This is a minor exception to the hearsay rule. These days public records are normally available to prove pedigree, in the absence of knowledgeable live witnesses. Introducing church records is pretty much a last resort.A limited exception to the hearsay rule for records of a religious organization is provided by 42 Pa.C.S. § 6110:(a) General rule.--The registry kept by any religious society in their respective meeting book or books of any marriage, birth or burial, within this Commonwealth, shall be held good and authentic, and shall be allowed of upon all occasions whatsoever.(b) Foreign burials.--The registry of burials of any religious society or corporate town, in places out of the United States, shall be prima facie evidence of the death of any person whose burial is therein registered, and of the time of his interment, if the time be stated in the registry, and extracts from such registries, certified by the proper officers, in the mode of authentication usual in the place in which they are made and authenticated as provided in section 5328 (relating to proof of official records), shall be received as copies of such registries, and be evidence accordingly.This is a time honored statute. Subsection (a) was originally enacted in 1700, and subsection (b) in 1837.
For some unexplained reason, the statute provides for the admission of records of burials that take place either in Pennsylvania or a foreign country, but not burials that take place in one of the other 49 states in this country.
Marriages and births must take place within Pennsylvania to be covered by the statute. See In Re Garrett's Estate, 371 Pa. 284, 89 A.2d 531 (1952), in which the court held that private church records from Hungary were not admissible to establish the birth of individuals or their parentage. (Such records would now be excepted to the hearsay rule by Pa.R.E. 803(11)).
The adoption of Pa.R.E. 803(11) conforms Pennsylvania evidential law to that prevailing in the federal courts, and in at least eighty percent of the state courts throughout the country.
(12) Marriage, Baptismal, or Similar Certificate. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.
Comment Pa.R.E. 803(12) is identical to F.R.E. 803(12). It is consistent with prior Pennsylvania law, though cases are sparse.
This is a minor exception to the hearsay rule. It encompasses only an assertion contained in a marriage, baptismal, or similar certificate that the maker performed the ceremony and the date thereof.
Proof that the maker of the certificate was authorized to perform the ceremony is required. If the maker was a public official, the court may take judicial notice thereof under Pa.R.E. 201. However, if the maker was an official of a religious organization, judicial notice is less likely, and evidence thereof may have to be produced.
This exception to the hearsay rule was recognized in District of Columbia's Appeal, 343 Pa. 65, 73, 21 A.2d 883, 888 (1941), in which the court said:
The appellees argue the admissibility of the recitals of birth dates in the baptismal records of Helen Fink and Cora Fink . . . . It is settled in this state that such certificates are admissible to prove the fact and date of baptism . . . but not to prove the birth date . . . .In Estate of Loik, 493 Pa. 512, 426 A.2d 1134 (1981), a will contest, the Court held that a Soviet marriage certificate was admissible to prove that a claimant was married to the decedent.
(13) Family Record. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.
Comment Pa.R.E. 803(13) is identical to F.R.E. 803(13). It seems to be consistent with prior Pennsylvania law, though there are no recent reported cases.
This is a minor exception to the hearsay rule. These days public records are normally available to prove pedigree, in the absence of knowledgeable live witnesses. Introducing something like an entry in a family bible, or an engraving on an urn or tombstone, is pretty much a last resort.
There is some time honored precedent for this exception to the hearsay rule in Pennsylvania decisional law. In Douglass's Lessee v. Sanderson, 2 Dall. 116 (1791), the Court approved admission of a leaf cut out of a family bible on which were written the name and date of birth of a man under whom the plaintiff's lessor claimed title to real estate.
(14) Record of Document Affecting an Interest in Property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.
Comment Pa.R.E. 803(14) is identical to F.R.E. 803(14). It seems to be consistent with prior Pennsylvania law, though cases are sparse.
This is a minor exception to the hearsay rule. Many documents affecting an interest in property, such as deeds, mortgages, security interests under the Uniform Commercial Code, etc., are recorded, pursuant to statute. A copy or other record of such a document, kept by the public office in which the document is recorded, is excepted to the hearsay rule if offered to prove the content of the original and its proper execution and delivery.
This exception to the hearsay rule has been recognized in Pennsylvania decisional law. In David v. Titusville & Oil City Railway Co., 114 Pa. 308, 6 A. 736 (1886), the Court held that records of deeds that were recorded in accordance with a Pennsylvania statute were admissible to establish the contents of the originals and, inferentially, to establish their due execution and delivery.
(15) Statement in Document Affecting an Interest in Property. A statement contained in a document, other than a will, purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.
Comment Pa.R.E. 803(15) is identical to F.R.E. 803(15), except that Pennsylvania does not include a statement made in a will.
Pa.R.E. 803(15) is consistent with 21 P. S. § 451, which provides that an affidavit, swearing to matters delineated in the statute, that may affect the title to real estate in Pennsylvania, filed in the county in which the real estate is located, shall be admissible evidence of the facts stated therein.
Pa.R.E. 803(15) appears inconsistent with dictum in Brock v. Atlantic Refining Co., 273 Pa. 76, 80, 116 A. 552, 553 (1922), that ''recitals in deeds are mere hearsay, and inadmissible as against third persons who claim by a paramount title.'' However, the holding in the Brock case approved admission of such a recital on the ground that there was an exception ''in the case of ancient deeds accompanied by possession.''
Whatever the significance of the above cited ancient dictum, unaccompanied by a collateral holding, Pa.R.E. 803(15) brings Pennsylvania law close to that which now prevails in the great majority of jurisdictions in this country.
Pennsylvania's variation from the federal rule with respect to wills is consistent with its more recent decisional law. See In Re Estate of Kostik, 514 Pa. 591, 526 A.2d 746 (1987), a suit over a widow's right to elect against her late husband's will. He disinherited her, and asserted in his will that she had wilfully and maliciously deserted him. The Court, holding for the widow, said that statements contained in a will ''have no evidentiary value as proof of a fact in issue.'' Id. at 595--96, 526 A.2d at 748 49.
Note: If a document purporting to establish or affect an interest in property is 30 years old, an assertion therein may qualify for exception to the hearsay rule under Pa.R.E. 803(16) (statement in ancient document). If the declarant is dead, or otherwise unavailable, an assertion of pedigree in such a document may qualify for exception to the hearsay rule under Pa.R.E. 804(b)(4) (statement of personal or family history).
(16) Statement in Ancient Document. Statements in a document in existence thirty years or more the authenticity of which is established.
Comment Pa.R.E. 803(16) is similar to F.R.E. 803(16), except that Pennsylvania adheres to the common law view that a document must be at least 30 years old to qualify as an ancient document. The federal rule would reduce the age to 20 years.
This is a venerable exception to the hearsay rule, one long recognized at common law. For some reason, it seems to be seldom utilized in Pennsylvania, if the dearth of reported cases is any indication.
One fairly recent case is Louden v. Apollo Gas Co., 273 Pa. Super. 549, 417 A.2d 1185 (1980), in which the court approved admission, as an ancient document, of an unrecorded memorandum of agreement that granted a natural gas transmission pipe line easement to defendant's predecessor in interest. The court emphasized that it was (1) more than 30 years old, (2) free from suspicious alterations and erasures, and (3) in the custody of the party legally entitled to it.
There appears to be no good reason to reduce the age of an ancient document, for hearsay purposes, to 20 years, and compelling reasons not to do so. The case of Jarndyce and Jarndyce, so eloquently chronicled by Charles Dickens in Bleak House, is apocryphal, yet instructive concerning the possibility that a particularly complex item of litigation may, on occasion, grace the courts for a score or more years. See, e.g., Pennsylvania Human Relations Commission v. School District of Phila., 161 Pa. Commonwealth Ct. 658, 638 A.2d 304 (1994). If the age of an ancient document were reduced to 20 years, it might be possible for the plaintiff in such a case to introduce his own complaint as substantive evidence, excepted to the hearsay rule as an ancient document. And so with other pleadings, exhibits and briefs.
Assertions in old documents are no more trustworthy than assertions in new documents. The rationale for this exception to the hearsay rule is necessity, i.e., the need to prove facts when witnesses are no longer available to testify about them. Life expectancies in this country, and throughout most of the world, have increased over the last century. Therefore, there is greater likelihood today that witnesses will be available to testify to matters that are memorialized in a 30 year old document than when the common law rule was established. Therefore, a lengthening, not a shortening, of the time span for defining an ancient document would seem to be justified.
On the whole, it seems safer, and wiser, to reject the federal formulation and retain the common law definition of an ancient document, one that is at least 30 years old.
(17) Market Report, Commercial Publication. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
Comment Pa.R.E. 803(17) is identical to F.R.E. 803(17). It is consistent with prior Pennsylvania law.
A publication may be qualified for this exception by the testimony of a knowledgeable witness. Alternatively, its qualification for the exception may be judicially noticed by the trial judge under Pa.R.E. 201.
This exception to the hearsay rule has been recognized in Pennsylvania decisional law. See Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959), holding that standard life expectancy and annuity tables are excepted to the hearsay rule.
More recently, the Pennsylvania Supreme Court, in dictum, said that a trial judge could properly have taken judicial notice of used car values contained in the Redbook published by National Market Reports, Inc., if only there had been evidence presented concerning the condition of the car in question. See Savoy v. Beneficial Consumer Discount Co., 503 Pa. 74, 458 A.2d 465 (1983).
When the price or value of goods that are regularly bought and sold in a commodity market is at issue, the Uniform Commercial Code, which has been adopted by all states save Louisiana, not only excepts relevant market reports and similar publications to the hearsay rule, but expressly makes them admissible in evidence. Section 2 724 of the Code, which has been adopted in Pennsylvania as 13 Pa.C.S. § 2724, provides:
Whenever the prevailing price or value of any goods regularly bought and sold in any established commodity market is in issue, reports in official publications or trade journals or newspapers or periodicals of general circulation published as the reports of such markets shall be admissible in evidence. The circumstances of the preparation of such a report may be shown to affect its weight but not its admissibility.(18) [See Comment].
Comment Pennsylvania has not adopted F.R.E. 803(18), which reads as follows:
Learned Treatise. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
Opinions from the Pennsylvania Supreme Court have never discussed an exception to the hearsay rule for learned treatises. However, in 1988 the Superior Court said that Pennsylvania does not recognize an assertion in a learned treatise as an exception to the hearsay rule. Majdic v. Cincinnati Machine Co., 370 Pa. Super. 611, 537 A.2d 334 (1988).
Case law in Pennsylvania has allowed an assertion in a learned treatise to be brought to the attention of the trier of fact if an expert witness testifies that it is authoritative. Nigro v. Remington Arms Co., Inc., 432 Pa. Super. 60, 637 A.2d 983 (1993). The Superior Court said that the passages from the book, though not admissible as substantive evidence to prove that the rifle was safe, were properly admitted to bolster the credibility of Davis, since they were consistent with his testimony that the rifle was safe.
Also, under Pa.R.E. 703, an expert witness may base his opinion, in part, on information obtained from a publication, whether or not it has been qualified as a learned treatise, so long as it is of a type reasonably relied upon by experts in the witness' particular field of expertise in forming opinions or inferences on the subject. In such case, the witness may bring the publication to the attention of the trier of fact.
Moreover, an expert witness may be cross-examined with a learned treatise so long as the witness, or any other expert witness in the case, testifies that the treatise is an authoritative publication on the subject at issue. See McDaniel v. Merck, Sharp & Dohme, 367 Pa. Super. 600, 533 A.2d 436 (1987).
(19) Reputation Concerning Personal or Family History. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.
Comment Pa.R.E. 803(19) is identical to F.R.E. 803(19). It changes prior Pennsylvania decisional law by expanding the venue from which the reputation may be drawn to include (1) a person's associates, and (2) the community. Prior Pennsylvania decisional law, none of which is recent, limited the venue to the person's family.
Reputation evidence is composite hearsay. It attempts to persuade the trier of fact that something is true because many people say so. Reputation, at least among family members, has long been recognized at common law as an exception to the hearsay rule for matters of personal or family history, such as birth, marriage, ancestry, etc. These things are generally referred to as matters of pedigree.
A common example of this exception to the hearsay rule is the testimony of a witness concerning his own age. A witness, of course, has no personal recollection of his birth. His testimony as to his age, therefore, must be based on reputation among his family, and, perhaps, close friends and associates.
Time honored decisional law in Pennsylvania recognizes this exception to the hearsay rule, but appears to limit it to reputation among family members. See American Life Insurance and Trust Co. v. Rosenagle, 77 Pa. 507, 516 (1875), in which the court said:
The term pedigree includes not only descent and relationship, but also the facts of birth, marriage and death, and the times when these events happened. These facts may be established by general repute in the family, proved by a surviving member of it, in all cases where they occur incidentally and in relation to pedigree . . . .In Picken's Estate, 163 Pa. 14, 18, 29 A.875, 875 (1894), the court, quoting from Wharton's Treatise on Evidence, declared:
Common reputation in a family connection as to who are members of the family is admissible, when no superior evidence is attainable, or in connection with superior evidence, to prove pedigree, legitimacy, and marriage.The above decisional law from the nineteenth century represents the old common law view that the venue from which reputation may be drawn should be limited to the family. Times, though, have changed. People travel more, and, for good or ill, spend less time with their families. They tend to work and socialize in other communities, to which they have ever greater accessibility. Therefore, it makes sense to expand the venue from which reputation evidence of pedigree may be drawn.
At any rate, the federal courts and at least 80 percent of our sister states have already done so. By adopting Pa.R.E. 803(19), Pennsylvania conforms to what is now, by far, the majority view in the country.
(20) Reputation Concerning Boundaries or General History. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.
Comment Pa.R.E. 803(20) is identical to F.R.E. 803(20). It is consistent with prior Pennsylvania law, at least with respect to boundaries of land.
This is a minor exception to the hearsay rule. Boundaries of land and easements thereon are usually proved by reference to deeds and other documentary evidence. Events of general history are often judicially noticed.
So far as this exception to the hearsay rule applies to boundaries of land in the community, it is consistent with prior Pennsylvania decisional law. See Hostetter v. Commonwealth, 367 Pa. 603, 606, 80 A.2d 719, 719 (1951), in which the Court said ''[m]aps, surveys, monuments, pedigree and even reputation evidence have been held to be admissible to establish boundaries . . . .''
With respect to ''customs'' affecting lands in the community, we have found no reported cases.
With respect to ''events of general history,'' we also have found no reported cases. Courts generally take judicial notice of events of substantial historical importance, most of which are not controverted. However, when the historical event is of modest renown, formal proof may be necessary. If the event took place so long ago that there are no living witnesses to verify it, an exception to the hearsay rule for reputation evidence concerning the event can be justified on the basis of necessity.
F.R.E. 803(20) was adopted more than 20 years ago, and at least 80 percent of the states have already followed suit. There appears to be no good reason why Pennsylvania should not now conform to what is, by far, the majority rule in this country. Pa.R.E. 803(20) does just that.
(21) Reputation as to Character. Reputation of a person's character among associates or in the community.
Comment Pa.R.E. 803(21) is identical to F.R.E. 803(21). It is consistent with prior Pennsylvania law. It is also consistent with Pa.R.E. 404(a), 405(a), and 608(a).
In any case in which it is relevant to prove a trait of human character, reputation evidence thereof may be offered as an exception to the hearsay rule. This exception is recognized in all states, in addition to the federal courts. (Cases conflict, however, concerning the breadth of the community from which the reputation may be drawn, and concerning the foundation that must be laid to qualify a witness to testify to another's reputation.) The most common trait of character that is the subject of reputation evidence is truthfulness. See Pa.R.E. 608(a).
In criminal cases, a trait of character that is often the subject of reputation evidence is defendant's law abiding disposition. Defendant has a right to offer such evidence. This is commonly called ''placing his character in issue.'' If defendant does so, the prosecution may, in rebuttal, offer evidence of defendant's bad reputation for a law abiding disposition. A leading and often cited case is Michelson v. United States, 335 U. S. 469 (1948). See Pa.R.E. 404(a)(1).
(22) [See Comment].
Comment Pennsylvania has not adopted F.R.E. 803(22), which reads as follows:
Judgment of Previous Conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.This exception to the hearsay rule is a relatively new one. It was not recognized at common law, and it is not recognized in Pennsylvania.
The mere fact that a judgment of criminal conviction exists, as distinguished from the facts upon which it is based, is sometimes relevant. It may be proved by (1) persuading the court to take judicial notice of it pursuant to Pa.R.E. 201, or (2) introducing a record of it. Such a record qualifies for exception to the hearsay rule as a business and public record. See Pa.R.E. 803(6) and 42 Pa.C.S. § 6104.
With respect to facts essential to sustain a judgment of criminal conviction, there are four basic approaches that a court can take:
[Continued on next Web Page]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
