[27 Pa.B. 1282]
[Continued from previous Web Page] This exception to the hearsay rule was applied multiply in Commonwealth v. Doa, 381 Pa. Super. 181, 553 A.2d 416 (1989), a prosecution for robbery and related crimes. The court, affirming convictions, approved admission of testimony from a police detective that five witnesses, who were unable to make in-court identifications of defendants at trial, had identified them from photographic arrays nine days after the robbery. The court also approved admission of testimony from an assistant district attorney that one of the same witnesses identified defendant Doa at his preliminary hearing.
For the same reasons that a statement of prior identification of a person merits exception to the hearsay rule, so, too, does a statement of prior identification of a thing.
For example, shortly after a robbery a witness may be asked by the police to describe the robber. He may also be asked to describe an article of stolen goods, or the robber's clothing, or a weapon brandished by the robber, or the getaway car. At time of trial, when the witness's memory is no longer fresh, he may be unable to repeat any of these identifications. Evidence that the witness previously identified the robber's automobile as a blue Cadillac with New Jersey license plates and the right rear tail light missing is just as reliable as evidence that the witness previously identified the robber as a white man in his twenties about six feet tall with long black hair.
We have found no Pennsylvania cases that discuss prior identification of a thing as an exception to the hearsay rule. However, in United States v. Booz, 451 F2d 719 (3d Cir 1971), which was decided prior to the adoption of the Federal Rules of Evidence, the Third Circuit approved admission of a witness's prior identification of the license number of a truck that he observed at the scene of a bank robbery, which number he promptly relayed to an FBI agent. At trial, testimony verifying the prior identification was presented from the witness and the agent who wrote the number down.
(3) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory, providing that the witness testifies that the record correctly reflects that knowledge. If admitted, the memorandum or record may be read into evidence and received as an exhibit, but may be shown to the jury only in exceptional circumstances or when offered by an adverse party.
Comment Pa.R.E. 803.1(3) is similar to F.R.E. 803(5), but differs in the following ways:
1. Pa.R.E. 803.1(3) classifies recorded recollection as an exception to the hearsay rule in which the testimony of the declarant is necessary, not as an exception in which the availability of the declarant is immaterial.2. Pa.R.E. 803.1(3) makes clear that, in order to qualify recorded recollection to the hearsay rule, the witness must testify that the record correctly reflects the knowledge that the witness once had, i.e., the witness must vouch for the reliability of the record. The federal rule is ambiguous on this point, and federal cases thereunder are conflicting.3. Pa.R.E. 803.1(3) allows the record to be received as an exhibit, and grants the trial judge discretion to show it to the jury in exceptional circumstances, even when not offered by an adverse party.Pa.R.E. 803.1(3) is consistent with prior Pennsylvania decisional law.
The rationale for excepting recorded recollection to the hearsay rule is much the same as that for excepting a prior statement of identification. See Pa.R.E. 803.1(2) and Comment thereto. The recorded past observation of a witness, when the matter was fresh in the witness's memory, is more trustworthy than the present eroded recollection of the witness, particularly if the witness currently vouches for the correctness of the matter recorded.
Because the witness must testify at trial and vouch for the correctness of the recorded information, and must be willing to undergo cross-examination concerning it, the trier of fact has substantial opportunity to gauge the credibility of the witness, even though the witness testifies to a faded, or fading, memory of the matters recorded.
This exception to the hearsay rule has proved useful to the prosecution in criminal cases in dealing with a ''turncoat witness,'' i.e., one who makes a statement implicating the defendant prior to trial, but who, when trial comes, testifies to a loss of memory concerning the crime.
See Commonwealth v. Shaw, 494 Pa. 364, 431 A.2d 897 (1981), a murder case. A witness, who was an accomplice of defendant, made a confession that implicated defendant. At trial the witness testified to a loss of memory concerning some, but not all, of the assertions in his confession. He also testified that what he had said in his confession was the truth. The Court, affirming a conviction, approved admission of the confession as recorded recollection. The Court explained that recorded recollection qualifies for exception to the hearsay rule if the declarant lacks ''sufficient'' present recollection of the matter recorded. Declarant need not lack all present recollection thereof.
See also, Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982), another murder case. A witness was interviewed by a police detective, who recorded his statement, on the morning following the crime. At trial the witness testified to a memory loss concerning the murder. He said, at various times during his testimony, that he had told the truth to the detective when his statement was recorded, and that he didn't remember whether he told the detective the truth. The Court, affirming a conviction, said that recorded recollection qualifies for exception to the hearsay rule if the witness vouches for the correctness of the recorded information at some time in his testimony. If he gives conflicting testimony on the point, it goes to the weight, not the admissibility, of the recorded recollection.
Rule 804. Hearsay Exceptions; Declarant Unavailable.
(a) Definition of Unavailability ''Unavailability as a witness'' includes situations in which the declarant:
(1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; or
(2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or
(3) testifies to a lack of memory of the subject matter of the declarant's statement; or
(4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
(b) Hearsay Exceptions The following statements, as hereinafter defined, are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former Testimony.
(2) Statement Under Belief of Impending Death.
(3) Statement Against Interest.
(4) Statement of Personal or Family History.
(5) [Vacant. See Comment]
Comment Pa.R.E. 804(a) is identical to F.R.E. 804(a). Though there is no common definition of unavailability for hearsay purposes in prior Pennsylvania law, the rule does not conflict with case law applying the four hearsay exceptions that require unavailability.
Pa.R.E. 804(b) differs somewhat from F.R.E. 804(b). The differences are explained in the Comments to the rule's subdivisions, which define individual exceptions to the hearsay rule.
The exceptions to the hearsay rule in subsection (b) apply only if the declarant is unavailable to testify in person. It seems reasonable to apply the same definition of unavailability to all of them. This definition is supplied by subsection (a).
a. Definition of Unavailability There is little that is controversial about the five kinds of unavailability spelled out in this rule. They have been culled from case law throughout the country, refined a little, and categorized. The rule seems to have worked satisfactorily in the federal courts, and in the many states that have adopted rules patterned after it.
(1) Privilege. A ruling of court is required before a witness becomes unavailable because of a privilege not to testify. Assertion of a privilege by a witness, or by a lawyer, is not enough, without a court ruling.(2) Refusal to Testify. An order of court is required before the refusal of a witness to testify makes the witness unavailable. The witness's refusal, in and of itself, is not enough.(3) Memory Loss. If a witness testifies, under oath, to a memory loss concerning the subject matter of the hearsay statement sought to be introduced under Pa.R.E. 804(b), the witness is unavailable. It doesn't matter whether you believe the witness or not.(4) Death or Illness. This is a common type of unavailability. Death is fairly conclusive. However, a ruling by the court may be necessary to determine whether an illness, physical or mental, of a witness is serious enough to prevent the witness from testifying in person, thus making the witness unavailable.(5) Absence of Witness. When the witness simply doesn't show up in court, the party who wants to introduce evidence of the witness's out-of-court assertion under Pa.R.E. 804(b) has the burden of convincing the court that the party has used due diligence to contact the witness, subpoena the witness if possible, or persuade the witness to appear voluntarily if the witness can't be subpoenaed.Moreover, if the hearsay sought to be introduced is a dying declaration (Pa.R.E. 804(b)(2)), a statement against interest (Pa.R.E. 804(b)(3)), or a statement of pedigree (Pa.R.E. 804(b)(4)), the proponent must also convince the court that he could not reasonably have taken the deposition of the witness, either in the same or another jurisdiction.
Caveat: Pa.R.E. 804(a) contains a proviso at the end: if it can be shown that the offerer of hearsay under Pa.R.E. 804(b) wrongfully caused the witness to become unavailable, for the purpose of preventing the witness from testifying in person, then the witness will not be considered unavailable. In other words, the offerer forfeits the right to introduce the hearsay.
b. Hearsay Exceptions There are four exceptions to the hearsay rule in which the offerer of the out-of-court assertion must show that the declarant is unavailable to testify at trial, as unavailability is defined in subsection (a). A Comment pertinent to each of these exceptions follows its definition.
(1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an adequate opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Comment Pa.R.E. 804(b)(1) is identical to F.R.E. 804(b)(1), except that it adds the word ''adequate'' in front of opportunity. It is consistent with prior Pennsylvania law.
Pennsylvania has two statutes, both of which enact exceptions to the hearsay rule for former testimony, and both of which are entitled, ''Notes of evidence at former trial.'' 42 Pa.C.S. § 5917 applies only to criminal cases. 42 Pa.C.S. § 5934 applies only to civil cases. Both are reenactments of statutes that were originally passed in 1887.
These two statutes, which are limited in scope, have less significance than they might otherwise have because the Pennsylvania Supreme Court has recognized a broader exception to the hearsay rule for former testimony as a matter of its developing common law.
See Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977), a murder case. The Court, affirming a conviction, approved admission, upon offer by the Commonwealth, of testimony given by a witness at defendant's preliminary hearing. The witness refused to testify at defendant's trial on the ground of the Fifth Amendment.
See also, Commonwealth v. Graves, 484 Pa. 29, 398 A.2d 644 (1979), a murder case. The Court, affirming a conviction, approved admission, upon offer by the Commonwealth, of testimony given by a witness at a previous trial of defendant. The Court held that the witness was unavailable because he expressed a partial loss of memory concerning pertinent events. The Court explained that it was applying the common law exception to the hearsay rule for former testimony, not 42 Pa.C.S. § 5917.
The party against whom former testimony is offered must have had a similar motive to examine or cross-examine the witness at the prior hearing, not necessarily the same motive.
Testimony given at a preliminary hearing in a criminal case is a recurring problem. The issue at a preliminary hearing is whether probable cause to prosecute defendant exists. This is different than the issue at trial, which is whether defendant is guilty beyond a reasonable doubt. Defendant's motive to cross-examine a witness at a preliminary hearing is sometimes the same as at trial, i.e., to destroy the credibility of the witness. Sometimes, though, defendant's motive at a preliminary hearing is one of discovery, particularly when defendant is convinced that a finding of probable cause is a fait accompli. Sometimes defendant may cross-examine cursorily, or not at all, preferring, as a matter of strategy, to save his best shots for trial.
Nonetheless, most cases have held that testimony given at a preliminary hearing by a subsequently unavailable witness is excepted to the hearsay rule when offered against defendant at trial. See California v. Green, 399 U. S. 149 (1970); Commonwealth v. Clarkson, 438 Pa. 523, 265 A.2d 802 (1970); Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977).
Cf. Commonwealth v. Bazemore, 531 Pa. 582, 614 A.2d 684 (1992), a homicide case. The Commonwealth sought to introduce testimony that a witness for the prosecution, subsequently unavailable, gave at defendant's preliminary hearing. At the time of the preliminary hearing, defendant had not been informed (1) that the witness had made a prior inconsistent statement, (2) that the witness had a criminal record, and (3) that the district attorney was, at that time, contemplating filing criminal charges against the witness for homicide and conspiracy in connection with the same incident that gave rise to the criminal charges against defendant. The Court, ruling on a motion in limine, excluded the evidence. Defendant, in the circumstances, had not had an adequate opportunity to cross-examine and impeach the credibility of the witness at the preliminary hearing.
The Bazemore case is a good example of why the word ''adequate'' was added in front of the word ''opportunity'' in Pa.R.E. 804(b)(1).
Depositions Depositions are the most common form of prior testimony that is introduced at a modern trial. Their use is provided for not only by Pa.R.E. 804(b)(1), but also by statute and written rules of procedure promulgated by the Pennsylvania Supreme Court.
The Judicial Code provides for the use of depositions in criminal cases. 42 Pa.C.S. § 5919 provides:
Depositions in criminal mattersThe testimony of witnesses taken in accordance with section 5325 (relating to when and how a deposition may be taken outside this Commonwealth) may be read in evidence upon the trial of any criminal matter unless it shall appear at the trial that the witness whose deposition has been taken is in attendance, or has been or can be served with a subpoena to testify, or his attendance otherwise procured, in which case the deposition shall not be admissible.42 Pa.C.S. § 5325 sets forth the procedure for taking depositions, by either prosecution or defendant, outside Pennsylvania. A prior statute, enacted in 1909, had provided for the taking of such depositions by the defendant only (former 19 P. S. § 611).
Again, the Pennsylvania Supreme Court, as a matter of common law development, has recognized an exception to the hearsay rule for depositions that is broader than the statute. In Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d 350 (1977), the Court approved admission of a videotape deposition of a sick witness who was located within Pennsylvania. It was taken by the Commonwealth pursuant to court order less than two weeks prior to trial.
In civil cases, the introduction of depositions, or parts thereof, at trial is provided for by Pa.R.C.P. No. 4020(a)(3) and (5):
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds(a) that the witness is dead, or(b) that the witness is at a greater distance than one hundred (100) miles from the place of trial or is outside the Commonwealth, unless it appears that the absence of the witness was procured by the party offering the deposition, or(c) that the witness is unable to attend or testify because of age, sickness, infirmity or imprisonment, or(d) that the party offering the deposition has been unable to procure the attendance of the witness by subpoena, or(e) upon application and notice that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.(5) A deposition upon oral examination of a medical witness, other than a party, may be used at trial for any purpose whether or not the witness is available to testify.The term ''medical witness'' in Pa.R.C.P. No. 4020(a)(5) is not limited to physicians. It includes, for example, a registered nurse when testifying about her care of a patient. See Russell v. Albert Einstein Medical Center, 543 Pa. 532, 673 A.2d 876 (1996).
A videotape deposition of a medical witness, or any expert witness, other than a party to the case, may be introduced in evidence at trial, regardless of the witness's availability, pursuant to Pa.R.C.P. No. 4017.1(g).
By statute the testimony of a licensed physician, taken by deposition in accordance with the Pennsylvania Rules of Civil Procedure, is admissible in a civil case. There is no requirement that the physician testify as an expert witness. 42 Pa.C.S. § 5936 provides:
Medical testimony by deposition(a) General rule.--The testimony of any physician licensed to practice medicine may be taken by oral interrogation in the manner prescribed by general rule for the taking of depositions.(b) Admissibilty.--A deposition taken under subsection (a) shall be admissible in a civil matter.(2) Statement Under Belief of Impending Death. A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
Comment Pa.R.E. 804(b)(2) is the same as F.R.E. 804(b)(2), except that the Pennsylvania rule applies in all cases, not just in homicide cases and civil actions. This is a departure from prior Pennsylvania decisional law, which applied the exception only to assertions made by the victim in a criminal prosecution for homicide.
This is one of the more venerable exceptions to the hearsay rule. It is usually referred to as the exception for a ''dying declaration.''
The declarant doesn't have to be dying, though. He just has to think that he is. If he survives and is available to testify at trial, his out-of-court declarations do not qualify for this exception to the hearsay rule. If he doesn't survive, or survives and is not available to testify, as availability is defined in Pa.R.E. 804(a), they do.
The rationale for this exception to the hearsay rule was set forth in Commonwealth v. Smith, 454 Pa. 515, 517--18, 314 A.2d 224, 225 (1973):
The reliability of a dying declaration is provided not by an oath, nor by cross-examination; rather, its admissibility is based on the premise that no one ''who is immediately going into the presence of his Maker will do so with a lie upon his lips.'' Luch, L.J., Regina v. Osman, 15 Cox C.C. 1, 3 (Eng. 1881).True enough, if a man believes that hellfire and brimstone will follow should he die with a lie on his lips, his dying declaration will likely represent what he believes to be the truth. But this is far from a guarantee thereof. A dying man, in extremis, may be less lucid than normal. Or his dying declaration may be based on suspicion, not personal knowledge. Like Sherlock Holmes, he may be paranoid, and quick, without proof, to attribute his ill fortune to an old enemy. ''This is Moriarty's doing.''
See Commonwealth v. Fugmann, 330 Pa. 4, 198 A 99 (1938), a murder case, in which the victim received a bomb in the mail. Before he died, the victim said, ''Fugmann done this.'' The Court excluded evidence of this assertion on the ground that the victim had no personal knowledge of who sent the bomb. It wasn't offered as a dying declaration, but the court, in dictum, indicated that the result would have been the same had it been so offered.
As the United States Supreme Court explained in Shepard v. United States, 290 U. S. 96, 101 (1933):
Homicide may not be imputed to a defendant on the basis of mere suspicions, though they are the suspicions of the dying. To let the declaration in, the inference must be permissible that there was knowledge or the opportunity for knowledge as to the acts that are declared . . . . The form is not decisive, though it be that of a conclusion, a statement of the result with the antecedent steps omitted. . . . ''He murdered me,'' does not cease to be competent as a dying declaration because in the statement of the act there is also an appraisal of the crime. . . . One does not hold the dying to the observance of all the niceties of speech to which conformity is exacted from a witness on the stand. What is decisive is something deeper and more fundamental than any difference of form. The declaration is kept out if the setting of the occasion satisfies the judge, or in reason ought to satisfy him, that the speaker is giving expression to suspicion or conjecture, and not known facts.In Commonwealth v. Miller, 490 Pa. 457, 470--71, 417 A.2d 128, 135 (1980), the Court said that to qualify for exception to the hearsay rule, a dying declaration ''must be based on observations of the declarant and may not merely be an expression of opinion based on reflection or reasoning.''
This is, on analysis, an application of a separate evidential rule. If the circumstances indicate that declarant does not have personal knowledge of the matter asserted, the declaration is excludable. See Pa.R.E. 602.
The common law has traditionally, but illogically, excepted a dying declaration to the hearsay rule in a criminal prosecution for homicide, but not in a criminal prosecution for another crime, or in a civil case. Prior Pennsylvania case law followed the common law. See Commonwealth v. Antonini, 165 Pa. Super. 501, 69 A.2d 436 (1949).
Reasoned analysis dictates a change. If a dying declaration is trustworthy enough to be introduced against a defendant charged with murder, it should be trustworthy enough to be introduced against a defendant charged with attempted murder, or robbery, or rape. It should also be trustworthy enough to be introduced against a party in a civil case, where, presumably, the stakes are less important than a person's life.
The Advisory Committee appointed by the United States Supreme Court to draft the Federal Rules of Evidence drafted the dying declaration exception to apply in all cases. Traditionalists objected. Congress, in its wisdom, compromised and redrafted Federal Rule of Evidence 804(b)(2) so that it applies in homicide cases and civil cases, but not in nonhomicide criminal cases. This may have been good politics, but it is not good logic. Nor is it good law.
Many states, 23 so far, that have adopted rules of evidence patterned after the Federal Rules of Evidence, depart therefrom and apply the dying declaration exception to the hearsay rule in all cases. Pennsylvania now joins them.
Note: A dying declaration will sometimes qualify for exception to the hearsay rule as an excited utterance. See Pa.R.E. 803(2). See also, Sadowski v. Eazor Express, Inc., 213 Pa. Super. 471, 249 A.2d 842 (1968).
(3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. In a criminal case, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
Comment The first sentence of Pa.R.E. 804(b)(3) is identical to the first sentence of F.R.E. 804(b)(3). The second sentence differs in that it requires corroborating circumstantial trustworthiness before an assertion against the declarant's penal interest can be introduced by either side in a criminal case. The federal formulation requires such corroboration only when the statement is offered to exculpate the defendant.
Pa.R.E. 804(b)(3) is consistent with prior Pennsylvania decisional law.
Indiscriminate and inappropriate use of the hybrid term, ''admission against interest,'' has spawned confusion between this exception to the hearsay rule and the separate exception for an admission by a party-opponent. The differences between the two exceptions are significant.
An admission by a party-opponent (1) must be made by, or attributed to, a party in the case, (2) may be introduced only against the party who made the admission, or a party to whom it is attributed, (3) may be introduced whether or not the declarant is available, and (4) need not be contrary to the declarant's interest when made. See Pa.R.E. 803(25).
A statement against interest (1) may be made by anyone, (2) may be introduced against any party, (3) may be introduced only if the declarant is unavailable, and (4) must have been contrary to the declarant's interest (pecuniary, proprietary, or penal) when made.
The rationale for an exception to the hearsay rule for a statement against interest is set forth in Chambers v. Mississippi, 410 U. S. 284, 298--99 (1973):
A number of exceptions have developed over the years to allow admission of hearsay statements made under circumstances that tend to assure reliability and thereby compensate for the absence of the oath and opportunity for cross-examination. Among the most prevalent of these exceptions is the one applicable to declarations against interest--an exception founded on the assumption that a person is unlikely to fabricate a statement against his own interest at the time it is made.At common law this exception to the hearsay rule encompassed only an assertion against declarant's pecuniary or proprietary interest. It did not include an assertion against declarant's penal interest. This was the law in the federal courts, and the majority view in the state courts, prior to the enactment of Federal Rule of Evidence 804(b)(3) in 1975.
Currently the federal courts, and virtually all state courts, recognize an exception to the hearsay rule for a statement against the declarant's penal interest, at least in some circumstances. There are a number of variations. Cases conflict concerning if, and when, circumstantial corroboration of trustworthiness is required. A few states do not include within the exception a statement that implicates both declarant and defendant when offered against the defendant in a criminal case.
Assertion Against Pecuniary or Proprietary Interest An assertion against pecuniary or proprietary interest, by an unavailable declarant, has long been excepted to the hearsay rule at common law. It has also long been excepted to the hearsay rule in Pennsylvania, though cases are few and far between.
''Pecuniary'' and ''proprietary'' interests are usually considered together, for purposes of the hearsay rule, and rightly so, because there is a substantial overlap. An assertion against a declarant's proprietary interest, i.e., against the declarant's legal interest in real or personal property, will also be against the declarant's pecuniary interest, unless the property is worthless.
At any rate, Pennsylvania decisional law recognizes an exception to the hearsay rule for an assertion against either the declarant's pecuniary interest, or proprietary interest, or both. See Heddings v. Steele, 514 Pa. 569, 526 A.2d 349 (1987).
Assertion Against Penal Interest Prior to 1973, Pennsylvania followed the common law and did not recognize an exception to the hearsay rule for an assertion against the declarant's penal interest.
Then came Chambers v. Mississippi, 410 U. S. 284, (1973), a murder case. The United States Supreme Court, reversing a conviction, held that defendant's constitutional right to due process was violated because a Mississippi state court would not permit him to introduce out-of-court assertions against penal interest made by a witness. The witness had confessed to others that he had committed the crime with which defendant was charged.
Following hot on the heels of the Chambers case, the Superior Court recognized an exception to the hearsay rule for an assertion against penal interest in Commonwealth v. Hackett, 225 Pa. Super. 22, 307 A.2d 334 (1973), a drug case. The opinion appeared to limit the exception to an assertion that was (1) offered by a defendant in a criminal case for exculpation, and (2) made in circumstances that particularly indicated trustworthiness.
Next year the Supreme Court followed suit. In Commonwealth v. Nash, 457 Pa. 296, 324 A.2d 344 (1974), the Court held it reversible error to preclude defendant from introducing evidence that another person admitted that he committed the robbery with which defendant was charged. However, there was no majority opinion. The members of the Court expressed differing views about the scope of the exception.
A year later a plurality of the Supreme Court narrowed the exception substantially. In Commonwealth v. Colon, 461 Pa. 577, 337 A.2d 554 (1975), a murder case, defendant unsuccessfully sought to introduce the confession of one Jose Hernandez, in which Hernandez asserted that he killed the victim while acting alone. The plurality opinion for the Court, affirming a conviction, said that an assertion against penal interest is severable, and only that portion of the assertion that is against declarant's penal interest is excepted to the hearsay rule. Thus Hernandez' assertion that he acted alone was not excepted to the hearsay rule. (His assertion that he committed the murder was properly excluded as irrelevant, since the prosecution's theory was that he and defendant acted in concert.)
(It turns out that the Pennsylvania Supreme Court's plurality was ahead of its time. In Williamson v. United States, ____U. S. ____, 114 S.Ct 2431 (1994), the United States Supreme Court, resolving a split in the federal circuits, held that Federal Rule of Evidence 804(b)(3) does not except to the hearsay rule a non self-inculpatory assertion, even when contained in a narrative that is generally self-inculpatory. The Supreme Court explained:
The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession's non-self-inculpatory parts. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.114 S.Ct. at 2435.
In Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 228 (1982), the Court, affirming a conviction of murder, arson, and other crimes, approved admission, upon offer by the prosecution, of testimony relating assertions against penal interest that were made by the deceased victim (he told a witness that defendant promised him money to set fire to defendant's restaurant, and that he did so).
In Commonwealth v. Bracero, 515 Pa. 355, 528 A.2d 936 (1987), the Court, affirming a conviction of burglary, approved exclusion of evidence offered by defendant that somebody else, in the course of a social conversation that occurred about a week after the burglary, confessed to the crime. There was no majority opinion, though.
Then, in Commonwealth v. Williams, 537 Pa. 1, 640 A.2d 1251 (1994), the Court, affirming a conviction of murder, held that testimony offered by defendant that an inmate of a state prison subsequently confessed to the crime was not excepted to the hearsay rule. The Court, in a majority opinion, said, citing the Bracero case:
Declarations against penal interest are admissible as an exception to the hearsay rule only where there are existing circumstances that provide clear assurances that such declarations are trustworthy and reliable.537 Pa. at 26 n.8, 640 A.2d at 1263 n.8.
Pa.R.E. 803(b)(3) follows this recent evidential pronouncement from the Pennsylvania Supreme Court and requires circumstantial corroboration of trustworthiness before excepting an assertion against penal interest to the hearsay rule in any criminal case, whether offered by prosecution or defendant.
Courts, over the years, have expressed skepticism about such evidence when offered by the defendant in a criminal case. Courts are particularly suspicious of post-conviction evidence that a witness for the prosecution has made an out-of-court recantation of incriminating testimony given at trial, i.e., has admitted perjury. See Commonwealth v. Woods, 394 Pa. Super. 223, 575 A.2d 601 (1990), in which the court refused to admit, as an assertion against penal interest, a recanting affidavit of the chief prosecution witness, at a postconviction hearing.
Courts have expressed skepticism about this type of evidence when offered by the prosecution, too. For example, a confessor's assertion that incriminates another may well be inspired by revenge, a natural proclivity to pass the buck, a desire to curry favor with authorities, or an attempt to divert attention to others.
If an assertion against penal interest was excepted to the hearsay rule, without circumstantial corroboration of its trustworthiness, and was offered against the defendant in a criminal case, it would probably be excluded because its admission would violate defendant's right to confront the witnesses against him under either the Sixth Amendment of the United States Constitution, or Article I, § 9 of the Pennsylvania Constitution.
See Lee v. Illinois, 476 U. S. 530 (1986), a murder case. The United States Supreme Court, reversing a conviction, held that defendant's constitutional right to confront the witnesses against him was violated when the government was allowed to introduce a nontestifying codefendant's confession that implicated them both.
The Pennsylvania Supreme Court has agreed, unanimously, not to recognize an exception to the hearsay rule for an assertion against social interest, an exception that is recognized in at least ten states. See Heddings v. Steele, 514 Pa. 569, 526 A.2d 349 (1987).
(4) Statement of Personal or Family History. A statement, made before the controversy arose:
(A) concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or
(B) concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage, or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.
Comment Pa.R.E. 804(b)(4) is similar to F.R.E. 804(b)(4), except that it requires the statement of pedigree to be made ante litem motem. It represents a slight broadening of prior Pennsylvania decisional law.
This is generally known as the exception to the hearsay rule for a statement of ''pedigree.'' It is a minor exception to the hearsay rule. These days matters of pedigree are usually proved by public records, or by testimony from knowledgeable witnesses.
When no record exists, and no knowledgeable witnesses are available, assertions made by deceased, or otherwise unavailable, family members, or persons intimately associated therewith, may be the only evidence on the issue of pedigree that exists. On the assumption that it is better to have some evidence, hearsay though it is, than no evidence at all, this exception to the hearsay rule is justified.
Pa.R.E. 804(b)(4) expands prior Pennsylvania decisional law in two respects:
(1) The declarant no longer needs to be dead. The exception applies if the declarant is unavailable, as ''unavailability'' is defined in Pa.R.E. 804(a).(2) The declarant no longer needs to be related to the family of which he spoke. The exception now applies if the declarant ''was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared.''The primary reason for this expansion is to conform Pennsylvania law more closely to the law in other jurisdictions, i.e., the federal courts and at least eighty percent of the states. This now represents, by far, the majority view.
In addition, the expansion makes sense. The need for the evidence is the same, whether the declarant is dead, or whether the declarant is unavailable to testify for one of the other reasons delineated in Pa.R.E. 804(a). And a declaration concerning pedigree by one who is ''so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared,'' should be as trustworthy, if not more so, than a declaration by anybody that happens to be related to the other by blood or marriage.
Pennsylvania has, though, retained the requirement that an assertion of pedigree, to qualify for exception to the hearsay rule, be made ante litem motem. This is an important indicium of trustworthiness that outweighs the desirability of uniformity among jurisdictions.
An assertion of pedigree may also, on occasion, qualify for exception to the hearsay rule pursuant to the exceptions for an entry in a business record (Pa.R.E. 803(6)), a public record (42 Pa.C.S. § 6104), a record of a religious organization (Pa.R.E. 803 (11)), a marriage, baptismal and similar certificate (Pa.R.E. 803(12)), a family record (Pa.R.E. 803(13)), a document affecting an interest in property (Pa.R.E. 803(15)), an ancient document (Pa.R.E. 803(16)), reputation concerning pedigree (Pa.R.E. 803(19)), and an assertion against interest (Pa.R.E. 804(b)(3)).
The exception to the hearsay rule for an assertion of pedigree is not employed often. When it is, it is usually in an estate case.
A. Declarant's Own Pedigree In In re McClain's Estate, 481 Pa. 435, 392 A.2d 1371 (1978), four alleged grandnieces of decedent challenged the probate of his will, and the validity of several of his inter vivos conveyances. To prove their relationship to decedent, they offered testimony of a witness as to declarations made by the testator himself about his family and relatives. The trial judge excluded this testimony because there was no proof, dehors the declarations themselves, that the testator was related to the claimants. The Court held it reversible error to exclude the testimony. The Court said:
[W]hen the out-of-court declarant is the very person whose pedigree is in issue, the declarations are admissible under the pedigree exception to hearsay upon a showing that (1) the declarant is dead, and (2) the declarations were made before the controversy arose.Id. at 441, 392 A.2d 1374.
Note: Under Pa.R.E. 804(b)(4) the declarant does not have to be dead. Unavailability, as defined in Pa.R.E. 804(a), will suffice.
B. Another Person's Pedigree In In re Garrett's Estate, 371 Pa. 284, 89 A.2d 531 (1952), a wealthy widow died intestate. Nearly 26,000 claims were filed by persons alleging to be her next of kin. The Court, affirming rejection of one such claim, said:
Pedigree is an exception, arising ex necessitate, to the hearsay rule. Pedigree may be proved by certain limited types of hearsay evidence, including . . . declarations of members of the family.. . .Declarations as to pedigree are admissible if (1) the declarant is dead; (2) the declarations were made before the controversy arose or as is frequently said, ''ante litem motam''; and (3) the declarant was related to the family of which he spoke, and this relationship is proved by evidence dehors the declaration. The rule does not require that the witness who testifies in court must be related to the person whose pedigree is under consideration, but that the declarant whose statements are given in evidence by the witness was so related . . . .Id. at 287 88, 89 A.2d at 532--33.
Note: Under Pa.R.E. 804(b)(4), the declarant does not have to be dead, nor does the declarant have to be related to the family of which he spoke. See discussion, above.
(5) [See Comment].
Comment Pennsylvania has not adopted F.R.E. 804(b)(5) which reads as follows:
Other Exceptions. A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.The Federal rule is inconsistent with Pennsylvania law, which does not recognize a catch-all exception to the hearsay rule.
Rule 805. Hearsay Within Hearsay
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
Comment Pa.R.E. 805 is identical to F.R.E. 805. It is consistent with prior Pennsylvania law.
See Commonwealth v. Galloway, 302 Pa. Super. 145, 448 A.2d 568 (1982), a prosecution for, inter alia, aggravated assault. The victim, who was defendant's wife, appeared at a local hospital in a hysterical state, and was ministered to by a nurse. At trial the nurse testified that the victim said that defendant said that he was going to kill her. The court, affirming a conviction, approved admission of this testimony. The court explained:
As to the victim's statements . . . concerning the declaration made by Appellant that he was going to kill the victim, Appellant claims this was hearsay on hearsay.First, the statement was admissible, as between Appellant and victim, as an admission. See Commonwealth v. Cooley, 484 Pa. 14, 398 A.2d 637 (1979). Secondly, as between the victim and the witness, the excited utterance exception . . . qualifies it for admission.Therefore, Appellant's claim is meritless.Id. at 158--59, 448 A.2d 575.
Double, or multiple, hearsay is often encountered with respect to business records. The assertion of the entrant is one level of hearsay. If the entrant recorded information supplied by somebody else, then somebody else's assertion is the second level of hearsay. If the person who supplied the information was a person ''with knowledge,'' and if the person's assertion was recorded and kept ''in the course of a regularly conducted business activity,'' both levels of hearsay may be excepted to the hearsay rule by Pa.R.E. 803(6). If not, then another exception to the hearsay rule must be satisfied before the entry will be excepted to the hearsay rule.
For example, a police officer may make a prompt written report following a motor vehicle accident. So far as an entry in the report reflects the officer's own observations, it is a single level of hearsay and is excepted to the hearsay rule by Pa.R.E. 803(6). If an entry in the report relates a statement made by one of the drivers of the vehicles involved, this is a second level of hearsay. Such an entry is excepted to the hearsay rule if offered by a party-opponent by Pa.R.E. 803(25). But if an entry in the report relates a statement made by a bystander, which lacks circumstantial indicia of reliability, that entry would not be excepted to the hearsay rule.
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, since the police obtained that information second hand from their post accident interviews of unidentified witnesses.
As the court explained in Hreha v. Benscoter, 381 Pa. Super. 556, 565, 554 A.2d 525, 529 (1989), ''[w]here a business record contains multiple levels of hearsay . . . it is admissible only if each level falls within a recognized exception to the hearsay rule.''
Rule 806. Attacking and Supporting Credibility of Declarant.
When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
Comment Pa.R.E. 806 is the same as F.R.E. 806, except that it makes no reference to Rule 801(d)(2). That is because there is no Pa.R.E. 801(d)(2). The subject matter of F.R.E. 801(d)(2) (admissions) is covered by Pa.R.E. 803(25). At any rate, Pa.R.E. 806 has the same effect as F.R.E. 806.
Pa.R.E. 806 is consistent with prior Pennsylvania decisional law.
Pa.R.E. 806 is a codification of common sense. If an out-of-court assertion of a nontestifying witness is introduced against a party, pursuant to an exception to the hearsay rule, the party has no opportunity to cross-examine the witness and thereby expose the weaknesses of the witness's assertion. The party, then, should have the right to impeach the credibility of the witness by whatever other means are available. This includes introduction of any inconsistent statement that the witness has made, in which case it would be impossible to enforce the Rule in Queen Caroline's Case, or the modified version thereof set forth in Pa.R.E. 613(b). You can't confront a witness who isn't there with an inconsistent statement, or anything else.
See Commonwealth v. Davis, 363 Pa. Super. 562, 526 A.2d 1205 (1987), a murder case. Defendant introduced testimony that a defense witness gave at defendant's preliminary hearing, after the witness became unavailable at trial. The Commonwealth then called a policeman who read into evidence a prior inconsistent statement that he took from the witness immediately following the crime. The court, affirming a conviction, held, over a hearsay objection, that this evidence was properly admitted to impeach the credibility of the witness, whose former testimony had been introduced by defendant.
The last sentence of Pa.R.E. 806 allows the party against whom a hearsay statement has been admitted to call the declarant as a witness and cross-examine him or her about the statement.
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION Rule
901. Requirement of Authentication or Identification. 902. Self-Authentication. 903. Subscribing Witness' Testimony Unnecessary. Rule 901. Requirement of Authentication or Identification
(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert Opinion on Handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by Trier or Expert Witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
(4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
(6) Telephone Conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
(7) Public Records or Reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
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