THE COURTS
Title 225--RULES OF EVIDENCE
SUPREME COURT OF PENNSYLVANIA
Pennsylvania Rules of Evidence
[28 Pa.B. 2369]
Order Now, this 8th day of May, 1998, upon recommendation of the Pennsylvania Supreme Court Ad Hoc Committee on Evidence; the proposed draft of the Pennsylvania Rules of Evidence having been published in the Pennsylvania Bulletin (Vol. 27, No. 11 at 1282 et seq., March 15, 1997); and public review of the proposal having been solicited, received, and considered:
It Is Hereby Ordered pursuant to Article V, Section 10 of the Constitution of the Commonwealth of Pennsylvania that the Pennsylvania Rules of Evidence are hereby adopted in the attached form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective October 1, 1998.
JOHN P. FLAHERTY,
Chief Justice
Preface The Comments to these rules have been prepared by the Ad Hoc Committee on Evidence for the convenience of the Bench and Bar. They have not been adopted by the Supreme Court of Pennsylvania, and it is not intended that they have precedential significance.
The Comments are designed to identify the sources for the rules, to compare the Pennsylvania Rules of Evidence to the Federal Rules of Evidence, and to explain the differences. Although the Pennsylvania rules closely follow the format of the Federal Rules, the guiding principle has been to preserve the Pennsylvania law of evidence. For that reason, the decisions of other courts applying the Federal Rules are not intended to have precedential significance. Whenever a rule departs from Pennsylvania law the Comments identify the departure.
Annex A
TITLE 225. RULES OF EVIDENCE
ARTICLE I. GENERAL PROVISIONS Rule
101. Scope and Citation of the Rules. 102. Purpose and Construction. 103. Rulings on Evidence. 104. Preliminary Questions. 105. Limited Admissibility. 106. Remainder of or Related Writings or Recorded Statements. Rule 101. Scope and Citation of the Rules.
(a) Scope. These rules of evidence shall govern proceedings in all courts of the Commonwealth of Pennsylvania's unified judicial system, except as otherwise provided by law.
(b) Citation. These rules of evidence are adopted by the Supreme Court of Pennsylvania under the authority of Article V § 10(c) of the Constitution of Pennsylvania, adopted April 23, 1968. They shall be known as the Pennsylvania Rules of Evidence and shall be cited as ''Pa.R.E.''
Comment A principal goal of these rules is to construct a comprehensive code of evidence governing court proceedings in the Commonwealth of Pennsylvania. However, these rules cannot be all-inclusive. Some of our law of evidence is governed by the Constitutions of the United States and of Pennsylvania. Some is governed by statute. Some evidentiary rules are contained in the Rules of Civil and Criminal Procedure and the rules governing proceedings before courts of limited jurisdiction. Traditionally, our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings, bail hearings, grand jury proceedings, sentencing hearings, parole and probation hearings, extradition or rendition hearings, and others. Traditional rules of evidence have also been relaxed to some extent in custody matters, see, e.g., Pa.R.C.P. 1915.11(b) (court interrogation of a child), and other domestic relations matters, see, e.g., Pa.R.C.P. 1930.3 (telephone testimony). The Pennsylvania Rules of Evidence are not intended to supersede these other provisions of law unless they do so expressly or by necessary implication.
These rules are applicable only to courts. They are applicable in all divisions of the Courts of Common Pleas including the Civil Division, Criminal Division, Trial Division, Orphans' Court Division and Family Division. They are not applicable to other tribunals, such as administrative agencies and arbitration panels, except as provided by law or unless the tribunal chooses to apply them. See, e.g., Pa.C.R.P. 1305 (rules of evidence shall be followed in compulsory arbitration hearings, with specific provisions relating to the admissibility of certain written evidence and official documents).
Rule 102. Purpose and Construction.
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
Comment This rule is identical to F.R.E. 102.
Rule 103. Rulings on Evidence.
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless
(1) Objection. In case the ruling is one admitting evidence, a timely objection, motion to strike or motion in limine appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or by motion in limine or was apparent from the context within which the evidence was offered.
(b) Record of Offer and Ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
Comment Paragraph 103(a) differs from F.R.E. 103(a) in that the Federal Rule says, ''Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and'' (emphasis added). The italicized words have been deleted because they are inconsistent with Pennsylvania law in criminal cases. In criminal cases, the accused is entitled to relief for an erroneous ruling unless the court is convinced beyond a reasonable doubt that the error is harmless. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). Civil cases are governed by Pa.R.C.P. 126 which permits the court to disregard an erroneous ruling ''which does not affect the substantial rights of the parties.'' Pa.R.E. 103(a) does not change the existing rule.
Paragraphs 103(a)(1) and (a)(2) are consistent with Pennsylvania law. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Paragraphs 103(a)(1) and (a)(2) are similar to F.R.E. 103(a)(1) and (a)(2). The term ''motion in limine'' has been added and the last three words have been changed. Motions in limine permit the trial court to make rulings on evidence prior to trial or at trial but before the evidence is offered. Such motions can expedite the trial and assist in producing just determinations. A ruling on a motion in limine on the record is sufficient to preserve the issue for appeal, without renewal of the objection or offer at trial. The change in language is intended to make clear that the requirement that offers of proof be made is applicable to testimonial and other types of evidence.
Paragraphs 103(b) and (c) are identical to F.R.E. 103(b) and (c) and are consistent with Pennsylvania practice.
F.R.E. 103(d) permits a court to grant relief for ''plain errors affecting substantial rights although they were not brought to the attention of the court.'' This paragraph has been deleted because it is inconsistent with paragraphs (a)(1) and (a)(2) and with Pennsylvania law as established in Dilliplaine and Clair. In some capital cases, the Supreme Court has relaxed traditional waiver concepts. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982).
Rule 104. Preliminary Questions.
(a) Questions of Admissibility Generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy Conditioned on Fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(c) Hearing of Jury. Hearings on the admissibility of evidence alleged to have been obtained in violation of the defendant's rights shall in all cases be conducted outside the presence of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.
(d) Testimony by Accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
(e) Weight and Credibility. Even though the court has decided that evidence is admissible, this does not preclude a party from offering evidence relevant to the weight or credibility of that evidence.
Comment Paragraph 104(a) is identical to F.R.E. 104(a). The first sentence is consistent with Pennsylvania law. See Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991).
The second sentence of paragraph 104(a) is based on the premise that, by and large, the law of evidence is a ''child of the jury system'' and that the rules of evidence should not be applied when the judge is the fact finder. The theory is that the judge should be empowered to hear any relevant evidence to resolve questions of admissibility. Under the Federal Rule, the court may consider even the allegedly inadmissible evidence in deciding whether to admit the evidence. See Bourjaily v. United States, 483 U.S. 171 (1987). There is no express authority in Pennsylvania on whether the court is bound by the rules of evidence in making its determinations on preliminary questions. In view of this, the approach of the Federal Rule has been adopted.
Pa.R.E. 104(a) does not resolve whether the allegedly inadmissible evidence alone is sufficient to establish its own admissibility. Some other rules specifically address this issue. For example, Pa.R.E. 902 provides that some evidence is self-authenticating. But under Pa.R.E. 803(25), the allegedly inadmissible evidence alone is not sufficient to establish some of the preliminary facts necessary for admissibility. In other cases the question must be resolved by the trial court on a case-by-case basis.
Paragraph 104(b) is identical to F.R.E. 104(b) and appears to be consistent with Pennsylvania law. See Commonwealth v. Carpenter, 472 Pa. 510, 372 A.2d 806 (1977).
The first sentence of paragraph 104(c) differs from the first sentence of F.R.E. 104(c) in that the Federal Rule says ''Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury.'' The first sentence of Pa.R.E. 104(c) has been changed to be consistent with Pa.R.Crim.P. 323(f), which requires hearings outside the presence of the jury in all cases in which it is alleged that the evidence was obtained in violation of the defendant's rights.
The second sentence of paragraph 104(c) is identical to the second sentence of F.R.E. 104(c). Paragraph 104(c) indicates that hearings on other preliminary matters, both criminal and civil, shall be conducted outside the jury's presence when required by the interests of justice. Certainly, the court should conduct the hearing outside the presence of the jury when the court believes that it is necessary to prevent the jury from hearing prejudicial information. The right of an accused to have his testimony on a preliminary matter taken outside the presence of the jury does not appear to have been discussed in Pennsylvania law.
Paragraph 104(d) is identical to F.R.E. 104(d). In general, when a party offers himself as a witness, the party may be questioned on all relevant matters in the case. See Agate v. Dunleavy, 398 Pa. 26, 156 A.2d 530 (1959). Under Pa.R.E. 104(d), however, when the accused in a criminal case testifies only with regard to a preliminary matter, he or she may not be cross-examined as to other matters. Although there is no Pennsylvania authority on this point, it appears that this rule is consistent with Pennsylvania practice. This approach is consistent with paragraph 104(c) in that it is designed to preserve the defendant's right not to testify generally in the case.
Paragraph 104(e) differs from F.R.E. 104(e) to clarify the meaning of this paragraph. See 21 Wright and Graham, Federal Practice and Procedure § 5058 (1977). This paragraph is consistent with Pennsylvania law.
Rule 105. Limited Admissibility.
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court upon request shall, or on its own initiative may, restrict the evidence to its proper scope and instruct the jury accordingly.
Comment This rule differs from F.R.E. 105 in that the language ''or on its own initiative may'' has been added. This rule, as amended, is consistent with Pennsylvania law. In addition to the approach taken by Pa.R.E. 105, there are other ways to deal with evidence that is admissible as to one party or for one purpose, but not admissible as to another party or for another purpose. For example, the evidence may be redacted. See Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977). Or, a severance may be an appropriate remedy. See Commonwealth v. Young, 263 Pa. Super. 333, 397 A.2d 1234 (1979). Where the danger of unfair prejudice outweighs probative value, the evidence may be excluded. See Pa.R.E. 403; McShain v. Indemnity Ins. Co. of North America, 338 Pa. 113, 12 A.2d 59 (1940).
Rule 106. Remainder of or Related Writings or Recorded Statements.
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
Comment This rule is identical to F.R.E. 106. It is consistent with Pennsylvania law. See Pedretti v. Pittsburgh Rys. Co., 417 Pa. 581, 209 A.2d 289 (1965). A similar principle is expressed in Pa.R.C.P. 4020(a)(4), which states: ''If only part of a deposition is offered in evidence by a party, any other party may require him to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.''
The purpose of Pa.R.E. 106 is to give the adverse party an opportunity to correct a misleading impression that may be created by the use of portions of a writing or recorded statement that are taken out of context. This rule gives the adverse party the right to correct the misleading impression at the time that the evidence is introduced. The trial court has discretion to decide whether other parts, or other writings or recorded statements, ought in fairness to be considered contemporaneously with the original portion.
ARTICLE II. JUDICIAL NOTICE Rule
201. Judicial Notice of Adjudicative Facts. Rule 201. Judicial Notice of Adjudicative Facts.
(a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
(c) When Discretionary. A court may take judicial notice, whether requested or not.
(d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.
(e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing Jury. The court shall instruct the jury that it may, but is not required to, accept as conclusive, any fact judicially noticed.
Comment This rule is identical to F.R.E. 201, except for paragraph (g).
Paragraph (a) limits the application of this rule to adjudicative facts. This rule is not applicable to judicial notice of law. Adjudicative facts are facts about the events, persons and places relevant to the matter before the court. See 2 McCormick, Evidence § 328 (4th ed. 1992).
In determining the law applicable to a matter, the judge is sometimes said to take judicial notice of law. See 21 Wright and Graham, Federal Practice and Procedure, § 5102 (1977). In Pennsylvania, judicial notice of law has been regulated by decisional law and statute. See In re Annual Controller's Reports for Years 1932, 1933, 1934, 1935 and 1936, 333 Pa. 489, 5 A.2d 201 (1939) (judicial notice of public laws); 42 Pa.C.S.A. § 6107 (judicial notice of municipal ordinances); 42 Pa.C.S.A. § 5327 (judicial notice of laws of any jurisdiction outside the Commonwealth); 45 Pa.C.S.A. § 506 (judicial notice of the contents of the Pennsylvania Code and the Pennsylvania Bulletin). These rules are not intended to change existing provisions of law.
Paragraph (b) is consistent with Pennsylvania law. See Appeal of Albert, 372 Pa. 13, 92 A.2d 663 (1952); In re Siemens' Estate, 346 Pa. 610, 31 A.2d 280 (1943).
Paragraph (c) is consistent with Pennsylvania practice.
Paragraph (d) is new to Pennsylvania. Heretofore, the taking of judicial notice has been discretionary, not mandatory. The approach of the Federal Rule has been adopted because it has not been problematic in the jurisdictions that have adopted it.
Paragraph (e) provides that parties will have an opportunity to be heard on the propriety of the court's taking judicial notice. No formal procedure has been provided. Pennsylvania practice appears to have operated satisfactorily without a formal procedure.
Paragraph (f) resolves an apparent inconsistency in Pennsylvania law. Pennsylvania law has not been completely consistent with regard to whether a court may take judicial notice at the pleading stage of proceedings. See Clouser v. Shamokin Packing Co., 240 Pa. Super. 268, 361 A.2d 836 (1976) (trial court generally should not take judicial notice at the pleading stage); Bykowski v. Chesed Co., 425 Pa. Super. 595, 625 A.2d 1256 (1993) (trial court may take judicial notice in ruling on motion for judgment on the pleadings). Similarly, older authority has held that judicial notice may not be taken at the appellate stage. See Wilson v. Pennsylvania R.R. Co., 421 Pa. 419, 219 A.2d 666 (1966). More recently, the Supreme Court has taken judicial notice at the appellate stage. See Commonwealth v. Tau Kappa Epsilon, 530 Pa. 416, 609 A.2d 791 (1992). Pa.R.E. 201(f) permits judicial notice to be taken at any stage.
Paragraph (g) differs from F.R.E. 201(g). Under the Federal Rule the court is required to instruct the jury to accept as conclusive any fact judicially noticed in a civil case. In a criminal case, the judicially noticed fact is not treated as conclusive. Under Pennsylvania law, the judicially noticed fact has not been treated as conclusive in either civil or criminal cases, and the opposing party may submit evidence to the jury to disprove the noticed fact. See Appeal of Albert, 372 Pa. 13, 92 A.2d 663 (1952); Commonwealth v. Brown, 428 Pa. Super. 587, 631 A.2d 1014 (1993). This paragraph follows established Pennsylvania law.
ARTICLE III. PRESUMPTIONS Rule
301. General Rule. Rule 301. General Rule.
Presumptions as they now exist or may be modified by law shall be unaffected by the adoption of these rules.
Comment Pa.R.E. 301 is similar to F.R.E. 301 in that it does not modify existing law. Pa.R.E. 301 differs from F.R.E. 301 in that this rule does not establish the effect of a presumption on the burden of proof.
ARTICLE IV. RELEVANCY AND ITS LIMITS Rule
401. Definition of ''Relevant Evidence.'' 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible. 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. 404. Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes. 405. Methods of Proving Character. 406. Habit; Routine Practice. 407. Subsequent Remedial Measures. 408. Compromise and Offers to Compromise. 409. Payment of Medical and Similar Expenses. 410. Inadmissibility of Pleas, Plea Discussions and Related Statements. 411. Liability Insurance. 412. Sex Offense Cases: Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition (Rape Shield Law) [Not Adopted]. Rule 401. Definition of ''Relevant Evidence.''
''Relevant evidence'' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Comment Pa.R.E. 401 is identical to F.R.E. 401. The rule codifies existing Pennsylvania law, as represented by the Supreme Court's definition of relevance in Commonwealth v. Scott, 480 Pa. 50, 54, 389 A.2d 79, 82 (1978): ''Evidence which tends to establish some fact material to the case, or which tends to make a fact at issue more or less probable, is relevant.'' Whether evidence has a tendency to make a given fact more or less probable is to be determined by the court in the light of reason, experience, scientific principles and the other testimony offered in the case.
The relevance of a piece of evidence may be conditional, or dependent on facts not yet of record. Under Pa.R.E. 104(b), the evidence may be admitted subject to the introduction of further evidence demonstrating that all conditions necessary to a finding of relevance have been met.
Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible.
All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible.
Comment Pa.R.E. 402 is similar to F.R.E. 402. The only variance is in the language of the exceptions clause in the first sentence. The exceptions clause of the federal rule specifically enumerates the various sources of federal rule-making power. Pa.R.E. 402 substitutes the phrase, ''by law,'' to encompass analogous sources of rule-making power within the Commonwealth.
The rule states a fundamental concept of the law of evidence. Relevant evidence is admissible; evidence that is not relevant is not admissible. This concept is modified by the exceptions clause of the rule, which states another fundamental principle of evidentiary law. Evidence otherwise relevant may be excluded by operation of constitutional law, by statute, by rules of evidence created by decisional law, by these rules, or by other rules promulgated by the Supreme Court.
As noted in the Comment to Pa.R.E. 101, a principal goal of these rules is to construct a comprehensive code of evidence governing court proceedings in the Commonwealth. Pa.R.E. 402 explicitly recognizes, however, that these rules cannot be all inclusive. The law of evidence is also shaped by constitutional principle, legislative enactment, procedural rule-making and decisional law. These rules of evidence are not intended to supersede other provisions of law, unless they do so expressly or by necessary implication.
Examples of decisionally created rules of exclusion that are not abrogated by the adoption of these rules include: the corpus delicti rule, Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974); the collateral source rule, Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A.2d 259 (1963); the parol evidence rule, Gianni v. R. Russell and Co., Inc., 281 Pa. 320, 126 A. 791 (1924); and the rule excluding certain evidence to rebut the presumption of legitimacy, John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990).
Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.
Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Comment Pa.R.E. 403 differs from F.R.E. 403. The federal rule provides that relevant evidence may be excluded if its probative value is ''substantially outweighed.'' Pa.R.E. 403 eliminates the word ''substantially'' to conform the text of the rule more closely to Pennsylvania law. See Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982); Morrison v. Commonwealth, Dept. of Pub. Welfare, 538 Pa. 122, 646 A.2d 565 (1994).
''Unfair prejudice'' means a tendency to suggest decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially.
With regard to evidence of other crimes, wrongs or acts of the defendant in a criminal case, see Pa.R.E. 404(b)(3).
Rule 404. Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes.
(a) Character Evidence Generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except as follows:
(1) Character of Accused. In a criminal case, evidence of a pertinent trait of character of the accused is admissible when offered by the accused, or by the prosecution to rebut the same.
(2) Character of Complainant.
(i) In a criminal case, evidence of a pertinent trait of character of the complainant is admissible when offered by the accused, or by the prosecution to rebut the same.
(ii) In a homicide case, where the accused has offered evidence that the deceased was the first aggressor, evidence of a character trait of the deceased for peacefulness is admissible when offered by the prosecution to rebut the same.
(iii) In a civil action for assault and battery, evidence of a character trait of violence of the plaintiff may be admitted when offered by the defendant to rebut evidence that the defendant was the first aggressor.
(3) Character of witness. Evidence of a pertinent trait of character of a witness is admissible as provided in rules 607 (impeachment of witness), 608 (character and conduct of witness) and 609 (evidence of conviction of crime).
(b) Other Crimes, Wrongs, or Acts.
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
(3) Evidence of other crimes, wrongs, or acts proffered under subsection (b)(2) of this rule may be admitted in a criminal case only upon a showing that the probative value of the evidence outweighs its potential for prejudice.
(4) In criminal cases, the prosecution shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of any such evidence it intends to introduce at trial.
Comment The basic principle of Pa.R.E. 404 is consistent with F.R.E. 404 and Pennsylvania law. Pa.R.E. 404, with certain enumerated exceptions, provides that character evidence cannot be used to prove conduct. Under this rule, evidence that an employee had a character trait of absent-mindedness would not be admissible to prove that on a particular occasion he or she failed to fasten the safety latch on a piece of equipment. The rule does not preclude the use of character evidence for other purposes, including where character is an element of a claim or defense. See, e.g., Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 246 A.2d 418 (1968) (negligent employment); Commonwealth ex rel. Grimes v. Grimes, 281 Pa. Super 484, 422 A.2d 572 (1980) (parental fitness).
The exceptions to the Rule differ from F.R.E. 404 as indicated below.
Subsection (a). Subsection (a) of the rule differs from F.R.E. 404(a). The exception provided at Pa.R.E. 404(a)(2)(iii) does not appear in the federal rule. It is consistent with Pennsylvania decisional law. See Bell v. Philadelphia, 341 Pa. Super. 534, 491 A.2d 1386 (1985).
Subsection (a)(2) is consistent with Pennsylvania law. See, e.g., Commonwealth v. Dillon, 528 Pa. 417, 598 A.2d 963 (1991); Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971); see also Pa.R.E. 405 (regarding means of proof of the complainant's character for violence).
Subsection (b). This rule is similar to F.R.E. 404(b) in recognizing legitimate evidentiary purposes for the introduction of evidence of other crimes, wrongs or bad acts. Unlike the federal rule, however, Pennsylvania law provides a distinct standard for balancing the inherent prejudice of such evidence against its probative value. Under federal law, if evidence of other crimes, wrongs or bad acts is offered for a legitimate evidentiary purpose, the evidence is admissible if it meets the general standard of F.R.E. 403. F.R.E. 403 provides that relevant evidence is admissible unless its probative value is substantially outweighed by prejudicial danger. Under Pennsylvania law, evidence of other crimes, wrongs or bad acts offered for a legitimate evidentiary purpose is admissible only if its probative value outweighs the potential for prejudice. See Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981). Pa.R.E. 404(b)(3) codifies Pennsylvania decisional law and is an exception to the general rule defined by Pa.R.E. 403.
Rule 405. Methods of Proving Character.
(a) Reputation Evidence. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation. On cross-examination of the reputation witness, inquiry is allowable into specific instances of conduct probative of the character trait in question, except that in criminal cases inquiry into arrests of the accused not resulting in conviction is not permissible.
(b) Specific Instances of Conduct. Specific instances of conduct are not admissible to prove character or a trait of character, except as follows:
(1) In civil cases where character or a trait of character is admissible as an element of a claim or defense, character may be proved by specific instances of conduct.
(2) In criminal cases where character or a trait of character is admissible under Pa.R.E. 404(a)(2), the accused may prove the complainant's character or trait of character by specific instances of conduct.
Comment Pa.R.E. 405 differs from F.R.E. 405. One of the principal points of divergence is that Pennsylvania law does not permit proof of character by opinion evidence. See Com. v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967).
Reputation evidence is an exception to the hearsay rule under Pa.R.E. 803(21).
Subsection (a). Pa.R.E. 405(a) differs from F.R.E. 405 because Pa.R.E. 405(a) prohibits cross-examination of reputation witnesses offered on behalf of a defendant in a criminal case regarding arrests of the defendant not resulting in conviction. This is consistent with Pennsylvania law. See Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981). Where a reputation witness is cross-examined regarding specific instances of conduct, the court should take care that the cross-examiner has a reasonable basis for the questions asked. See Commonwealth v. Adams, 426 Pa. Super. 332, 626 A.2d 1231 (1993).
Subsection (b). Unlike F.R.E. 405(b), Pa.R.E. 405(b) distinguishes between civil and criminal cases in permitting the use of specific instances of conduct to prove character.
Cf. Pa.R.E. 608(b)(use of specific instances of conduct to attack or support credibility of witness, either on cross-examination or as extrinsic evidence).
Subsection (b)(1). With regard to civil cases, Pa.R.E. 405(b)(1) is identical to the federal rule in permitting proof of character by specific instances of conduct where character is an essential element of the claim or defense. This is consistent with Pennsylvania law. See Matusak v. Kulczewski, 295 Pa. 208, 145 A. 94 (1928); Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 246 A.2d 418 (1968); Commonwealth ex rel. Grimes v. Grimes, 281 Pa. Super. 484, 422 A.2d 572 (1980).
Subsection (b)(2). In criminal cases under Pa.R.E. 404(a)(2), the accused may offer evidence of a pertinent trait of character of the complainant. In such a case the trait may be proven by specific instances of conduct. This is consistent with Pennsylvania law. See Commonwealth v. Dillon, 528 Pa. 417, 598 A.2d 963 (1991); Commonwealth v. Amos, 445 Pa. 297, 284 A.2d 748 (1971).
Rule 406. Habit; Routine Practice.
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
Comment This rule is identical to F.R.E. 406 and is consistent with Pennsylvania law. See Baldridge v. Matthews, 378 Pa. 566, 106 A.2d 809 (1954) (uniform practice of hotel permitted to establish conduct in conformity with practice). The concepts of ''habit'' and ''routine practice'' denote conduct that occurs with fixed regularity in repeated specific situations. Like the federal rule, Pa.R.E. 406 does not set forth the ways in which habit or routine practice may be proven, but leaves this for case-by-case determination. See, e.g., Commonwealth v. Rivers, 537 Pa. 394, 644 A.2d 710 (1994) (allowing testimony based on familiarity with another's conduct); Baldridge, 378 Pa. at 570; 106 A.2d at 811 (testimony of uniform practice apparently permitted without examples of specific instances).
Evidence of habit must be distinguished from evidence of character. Character applies to a generalized propensity to act in a certain way without reference to specific conduct, and frequently contains a normative, or value-laden, component (e.g., a character for truthfulness). Habit connotes one's conduct in a precise factual context, and frequently involves mundane matters (e.g., recording the purpose for checks drawn). The Advisory Committee's Note to F.R.E. 406 sets forth a description of this distinction: ''Character is a generalized description of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. . . . A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving.'' F.R.E. 406 advisory committee's note (quoting 1 McCormick, Evidence § 162).
Rule 407. Subsequent Remedial Measures.
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove that the party who took the measures was negligent or engaged in culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for impeachment or to prove other controverted matters, such as ownership, control, or feasibility of precautionary measures.
Comment Pa.R.E. 407 is consistent with Pennsylvania law. It restates the traditional Pennsylvania doctrine that evidence of subsequent remedial measures is not admissible to prove fault or negligence. See Baran v. Reading Iron Co., 202 Pa. 274, 51 A. 979 (1902).
Pa.R.E. 407 differs from F.R.E. 407 in several ways. First, F.R.E. 407 provides that evidence of subsequent measures is not admissible to prove ''a defect in a product, a defect in a product's design, or a need for a warning or instruction.'' Pa.R.E. 407 is silent on the issue whether it excludes subsequent remedial measures when offered to prove a defect in strict products liability. The Pennsylvania Superior Court has issued partially conflicting decisions on whether subsequent remedial measures are admissible to prove defect in strict products liability cases. Compare Matsko v. Harley Davidson Motor Co., Inc., 325 Pa. Super. 452, 473 A.2d 155 (1984) (proof of recall admitted to prove defect) (2-1 split opinion), with Connelly v. Roper Corp., 404 Pa. Super. 67, 590 A.2d 11 (1991) (post-sale design changes not admissible to prove design defect) (2-1 split opinion); Dunkle v. West Penn Power Co., 400 Pa. Super. 334, 583 A.2d 814 (1990) (post-sale safety standard not admissible to prove defective design or inadequate warning where no recall required); and Gottfried v. American Can Co., 339 Pa. Super. 403, 489 A.2d 222 (1985) (post-sale design changes not admissible to prove design defect). Pa.R.E. 407 allows the Pennsylvania courts to continue to develop the law in this area, leaving the Supreme Court of Pennsylvania free to decide this matter in the context of a case or controversy.
Pa.R.E. 407 makes clear in the first sentence that the rule of exclusion operates only in favor of a party who took the subsequent remedial measures. F.R.E. 407 is silent as to whether there is any restriction on the actor who must have taken the subsequent remedial measure for the rule to preclude admissibility of such evidence. The majority of federal courts have held that the rule does not apply when one other than the allegedly liable party takes the action because the reason for the rule (to encourage remedial measures) is not implicated. See, e.g., TLT-Babcock, Inc. v. Emerson Electric Co., 33 F.3d 397 (4th Cir. 1994) (collecting cases). Pa.R.E. 407 does not, however, address whether measures taken by another party are admissible against a party that did not take the measures.
Regardless of Pa.R.E. 407, evidence of subsequent remedial measures is not admissible unless it satisfies the standards of Pa.R.E. 401, 402, and 403.
The last sentence of Pa.R.E. 407 differs from F.R.E. 407 to make clear that, when subsequent remedial measures are offered to prove issues such as ownership, control or feasibility of precautionary measures, those issues must be controverted.
Rule 408. Compromise and Offers to Compromise.
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. This rule does not require the exclusion of an admission of fact merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Comment This rule is similar to F.R.E. 408. Contrary to its federal counterpart, however, Pa.R.E. 408 does not bar the use of all statements and conduct occurring during settlement negotiations. In this respect, the rule is consistent with Pennsylvania law that distinct admissions of fact made during settlement discussions are admissible. See Rochester Machine Corp. v. Mulach Steel Corp., 498 Pa. 545, 449 A.2d 1366 (1982) (plurality); Heyman v. Hanauer, 302 Pa. 56, 152 A. 910 (1930); Hammel v. Christian, 416 Pa. Super. 78, 610 A.2d 979 (1992).
Like the federal rule, Pa.R.E. 408 permits evidence relating to compromises and offers to compromise to be admitted for purposes other than proving liability, such as showing bias or prejudice. See Heyman v. Hanauer, 302 Pa. 56, 152 A. 910 (1930) (if proposal was offer to settle, it could have been used to impeach witness).
Pa.R.E. 408 is consistent with 42 Pa.C.S.A. § 6141 which provides, in pertinent part, as follows:
§ 6141. Effect of certain settlements(a) Personal injuries.--Settlement with or any payment made to an injured person or to others on behalf of such injured person with the permission of such injured person or to anyone entitled to recover damages on account of injury or death of such person shall not constitute an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary.(b) Damages to property.--Settlement with or any payment made to a person or on his behalf to others for damages to or destruction of property shall not constitute an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary.(c) Admissibility in evidence.--Except in an action in which final settlement and release has been pleaded as a complete defense, any settlement or payment referred to in subsections (a) and (b) shall not be admissible in evidence on the trial of any matter.See Hatfield v. Continental Imports, Inc., 530 Pa. 551, 610 A.2d 446 (1992) (evidence of Mary Carter agreement admissible to show bias or prejudice, and not excluded by § 6141(c)).
Under Pa.R.E. 408, as under F.R.E. 408, evidence of offers to compromise or completed compromises is admissible when used to prove an effort to obstruct a criminal investigation or prosecution. This is consistent with Pennsylvania law. See Commonwealth v. Pettinato, 360 Pa. Super. 242, 520 A.2d 437 (1987). Pa.R.E. 408 does not permit, however, the use of evidence relating to good faith compromises or offers to compromise when made for the purpose of reaching an agreement such as those sanctioned by Pa.R.Crim.P. 314 (relating to dismissal of criminal charges not committed by force or violence upon payment of restitution) or Pa.R.Crim.P. 145 (relating to dismissal upon satisfaction or agreement). The court may need to conduct, out of the hearing of the jury, a preliminary inquiry into the circumstances surrounding compromises in criminal matters to determine whether to permit such evidence.
Rule 409. Payment of Medical and Similar Expenses.
Evidence of furnishing or offering or promising to pay medical, hospital or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
Comment This rule is identical to F.R.E. 409 and is consistent with Pennsylvania law. See 42 Pa.C.S.A. § 6141(c) (payment of expenses not admissible) (text quoted in Comment to Pa.R.E. 408); see also Burns v. Joseph Flaherty Co., 278 Pa. 579, 123 A. 496 (1924) (guarantee of medical expenses cannot be used as basis for liability). As with F.R.E. 409 and Pa.R.E. 408 (but not F.R.E. 408), collateral admissions of fact made in the course of offering to pay for medical expenses are not excluded by this rule.
Rule 410. Inadmissibility of Pleas, Plea Discussions and Related Statements.
(a) General rule. Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under Rules 59, 177, 179 or 319 of the Pennsylvania Rules of Criminal Procedure, Fed. R. Crim. P. 11, or any comparable rule or provision of law of another state regarding the pleas identified in subsections (1) and (2) of this rule; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which does not result in a plea of guilty or which results in a plea of guilty later withdrawn.
(b) Exception. A statement made in the course of a plea, proceedings or discussions identified in subsection (a) of this rule is admissible (1) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced by the defendant and the statement ought in fairness to be considered contemporaneously with it, or (2) in a criminal proceeding for perjury, false swearing or unsworn falsification to authorities if the statement was made by the defendant, under oath, and in the presence of counsel.
Comment This rule is similar to F.R.E. 410. References to Rules 59, 177, 179 and 319 of the Pennsylvania Rules of Criminal Procedure and the comparable rules or other provisions of other states have been added. Unlike the federal rule, subsection (b) of the Pennsylvania rule is set forth separately to indicate that it creates an exception applicable to all of subsection (a).
Pa.R.E. 410 reflects present Pennsylvania law. See Commonwealth v. Jones, 375 Pa. Super. 194, 544 A.2d 54 (1988); Commonwealth ex rel. Warner v. Warner, 156 Pa. Super. 465, 40 A.2d 886 (1945); Pa.R.Crim.P. 177(b), 179(b).
Pa.R.E. 410 does not prohibit the use of a conviction that results from a plea of nolo contendere, as distinct from the plea itself, to impeach in a later proceeding (subject to Pa.R.E. 609) or to establish an element of a charge in a later administrative proceeding. See Commonwealth v. Snyder, 408 Pa. 253, 182 A.2d 495 (1962) (conviction based on nolo contendere plea could be used to impeach witness in later criminal proceeding); Eisenberg v. Commonwealth, Dep't. of Public Welfare, 512 Pa. 181, 516 A.2d 333 (1986) (conviction based on nolo contendere plea permitted to establish element of charge in administrative proceeding).
In addition, Pa.R.E. does not govern the admissibility of pleas in summary proceedings involving motor vehicle matters, which is addressed in 42 Pa.C.S.A. § 6142. § 6142 provides:
§ 6142. Pleas in vehicle matters(a) General Rule.--A plea of guilty or nolo contendere, or a payment of the fine and costs prescribed after any such plea, in any summary proceeding made by any person charged with a violation of Title 75 (relating to vehicles) shall not be admissible as evidence in any civil matter arising out of the same violation or under the same facts or circumstances.(b) Exception.--The provisions of subsection (a) shall not be applicable to administrative or judicial proceedings involving the suspension of a motor vehicle or tractor operating privilege, learner's permit, or right to apply for a motor vehicle or tractor operating privilege, or the suspension of a certificate of appointment as an official inspection station, or the suspension of a motor vehicle, tractor, or trailer designation.Rule 411. Liability Insurance.
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Comment This rule is identical to F.R.E. 411 and is consistent with Pennsylvania law that evidence of insurance may be admitted, notwithstanding some prejudicial effect, if the evidence is relevant to prove an issue other than negligence or wrongful conduct. E.g., Beechwoods Flying Serv. v. Al Hamilton Contracting Corp., 504 Pa. 618, 476 A.2d 350 (1984); Price v. Yellow Cab Co., 443 Pa. 56, 278 A.2d 161 (1971) (plurality) (collecting cases); Fleischman v. Reading, 388 Pa. 183, 130 A.2d 429 (1957); Copozi v. Hearst Publishing Co., 371 Pa. 503, 92 A.2d 177 (1952); McGowan v. Devonshire Hall Apartments, 278 Pa. Super. 229, 420 A.2d 514 (1980); Jury v. New York Central R.R. Co., 167 Pa. Super. 244, 74 A.2d 531 (1950). As with all evidence, evidence not excluded by this rule may be excluded under Pa.R.E. 403.
Rule 412. Sex Offense Cases: Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition (Rape Shield Law) [Not Adopted].
Comment Pennsylvania has not adopted a Rule of Evidence comparable to F.R.E. 412. In Pennsylvania this subject is governed by 18 Pa.C.S. § 3104 (the ''Rape Shield Law'').
18 Pa.C.S.A. § 3104 provides as follows:
§ 3104. Evidence of victim's sexual conduct(a) General rule.--Evidence of specific instances of the alleged victim's past sexual conduct, opinion evidence of the alleged victim's past sexual conduct, and reputation evidence of the alleged victim's past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim's past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.(b) Evidentiary proceedings.--A defendant who proposes to offer evidence of the alleged victim's past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).F.R.E. 412 is applicable in civil cases. There is no comparable provision in Pennsylvania law.
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