THE COURTS
Title 225--RULES OF EVIDENCE
[225 PA. CODE ARTICLES IV, VI AND VIII]
Order Adopting Changes to Rules 410, 612, 613, 802 and 803; No. 218 Supreme Court Rules Doc. No. 1
[29 Pa.B. 1712]
Order Per Curiam:
Now, this 23rd day of March, 1999, upon the recommendation of the Committee on Rules of Evidence; this Recommendation for technical and clerical changes having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3), and a Final Report to be published with this Order:
It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules of Evidence 410, 612, 613, 802, and 803 are hereby amended as follows.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective immediately.
Annex A
TITLE 225. RULES OF EVIDENCE
ARTICLE IV. RELEVANCY AND ITS LIMITS Rule 410. Inadmissibility of Pleas, Plea Discussions and Related Statements.
* * * * *
Comment * * * * * In addition, Pa.R.E. 410 does not govern the admissibility of pleas in summary proceedings involving motor vehicle matters, which is addressed in 42 [Pa.C.S.A.] Pa.C.S. § 6142. § 6142 provides:
* * * * * Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 23, 1999, effective immediately.
Committee Explanatory Reports:
Final Report explaining the March 23, 1999 technical revisions of the Comment published with the Court's Order at 29 Pa.B. 1714 (April 3, 1999).
ARTICLE VI. WITNESSES Rule 612. Writing or Other Item Used to Refresh Memory.
(a) Right to Refresh Memory and Production of Refreshing Materials.
A witness may use a writing or other item to refresh memory for the purpose of testifying. If the witness does so, either--
(1) while testifying, or
(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, [an adverse party is entitled to have the writing or other item produced at the hearing, trial or deposition, to inspect it, to cross-examine the witness on it and to introduce in evidence those portions which relate to the testimony of the witness.]
an adverse party is entitled to have the writing or other item produced at the hearing, trial or deposition, to inspect it, to cross-examine the witness on it and to introduce in evidence those portions that relate to the testimony of the witness.
* * * * * Official Note: Adopted May 8, 1998, effective October 1, 1998; amended March 23, 1999, effective immediately.
Committee Explanatory Reports:
Final Report explaining the March 23, 1999 technical amendments to paragraph (a) published with the Court's Order at 29 Pa.B. 1714 (April 3, 1999).
Rule 613. Prior Statements of Witnesses.
* * * * * (b) Extrinsic Evidence of Prior Inconsistent Statement of Witness.
Unless the interests of justice otherwise require, extrinsic evidence of a prior inconsistent statement by a witness is admissible only if, during the examination of the witness,
(1) the statement, if written, is shown to, or if not written, its contents are disclosed to, the witness;
(2) the witness is given an opportunity to explain or deny the making of the statement; and
(3) the [opposite] opposing party is given an opportunity to question the witness.
This section does not apply to admissions of a party-opponent as defined in Rule 803(25) (relating to admissions by a party opponent).
* * * * * Official Note: Adopted May 8, 1998, effective October 1, 1998; amended March 23, 1999, effective immediately.
Committee Explanatory Reports:
Final Report explaining the March 23, 1999 technical amendments to paragraph (b)(3) published with the Court's Order at 29 Pa.B. 1714 (April 3, 1999).
ARTICLE VIII. HEARSAY Rule 802. Hearsay Rule.
* * * * *
Comment * * * * * Also, hearsay may be admitted pursuant to a state statute. Examples include:
1. A public record may be admitted pursuant to 42 [Pa.C.S.A.] Pa.C.S. § 6104. See Comment located at Pa.R.E. 803(8) [Not Adopted].
2. A record of vital statistics may be admitted pursuant to 35 [Pa.C.S.A.] Pa.C.S. § 450.810. See Comment located at Pa.R.E. 803(9) [Not Adopted].
3. In an action arising out of a contract under the Uniform Commercial Code, a document in due form purporting to be a bill of lading, policy or certificate of insurance, official weigher's or inspector's certificate, consular invoice, or any other document authorized or required by the contract to be issued by a third party, may be introduced as prima facie evidence of the document's own authenticity and of the facts stated therein by the third party, pursuant to 13 [Pa.C.S.A.] Pa.C.S. § 1202.
4. In a civil case, a deposition of a licensed physician may be admitted pursuant to 42 [Pa.C.S.A.] Pa.C.S. § 5936.
5. In a criminal case, a deposition of a witness may be admitted pursuant to 42 [Pa.C.S.A.] Pa.C.S. § 5919.
6. In a criminal case, an out-of-court statement of a witness under 13 years of age, describing certain kinds of sexual abuse, may be admitted pursuant to 42 [Pa.C.S.A.] Pa.C.S. § 5985.1.
[7. In a dependency hearing, an out-of-court statement of a witness under 14 years of age, describing certain types of sexual abuse, may be admitted pursuant to 42 Pa.C.S.A. § 5986.]
7. In a dependency hearing, an out-of-court statement of a witness under 14 years of age, describing certain types of sexual abuse, may be admitted pursuant to 42 Pa.C.S. § 5986.
8. In a prosecution for speeding under the Pennsylvania Vehicle Code, a certificate of accuracy of an electronic speed timing device (radar) from a calibration and testing station appointed by the Pennsylvania Department of Motor Vehicles may be admitted pursuant to 75 [Pa.C.S.A.] Pa.C.S. § 3368(d).
* * * * * Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 23, 1999, effective immediately.
Committee Explanatory Reports:
Final Report explaining the March 23, 1999 technical revisions to the Comment published with the Court's Order at 29 Pa.B. 1714 (April 3, 1999).
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial.
The following statements, as hereinafter defined, are not excluded by the hearsay rule, even though the declarant is available as a witness:
* * * * * (25) Admission by Party-Opponent.
The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a [coconspirator] co-conspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement may be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).
Comment Pa.R.E. 803(25) differs from F.R.E. 801(d)(2), in that the word ''shall'' in the second sentence has been replaced with the word ''may.''
The federal rules call an admission by a party-opponent an exception to the definition of hearsay, and place it in [rule] Rule 801 under the heading of ''Definitions.'' The Pennsylvania rules, like the common law, call an admission by a party-opponent an exception to the hearsay rule. The Pennsylvania rules, therefore, place admissions by a party-opponent in Pa.R.E. 803 with other exceptions to the hearsay rule in which the availability of the declarant is immaterial. The difference between the federal and Pennsylvania formulations is organizational. It has no substantive effect.
The second sentence of Pa.R.E. 803(25), as amended, is consistent with Pennsylvania law. See Commonwealth v. Smith, 523 Pa. 577, 568 A.2d 600 (1989); Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981).
The personal knowledge rule (Pa.R.E. 602) is not applicable to admissions. See Salvitti v. Throppe, 343 Pa. 642, 23 A.2d 445 (1942).
A. Party's Own Statement. The admissibility of a party's own statement offered against the party as an exception to the hearsay rule is consistent with Pennsylvania law. See Salvitti v. Throppe, supra.
B. Adoptive Admission. Pa.R.E. 803(25) [(b)] (B) is consistent with Pennsylvania law. See Commonwealth v. Cheeks, 429 Pa. 89, 239 A.2d 793 (1968)(party expressly adopted statement); Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981) (party impliedly adopted statement by failing to deny the truth of a statement that party would be expected to deny under the circumstances).
* * * * * E. Statement by a Co-conspirator. The admissibility of a statement by a [coconspirator] co-conspirator as provided by this rule is consistent with Pennsylvania law. See Commonwealth v. Mayhue, 536 Pa. 271, 639 A.2d 421 (1994); Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981).
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 23, 1999, effective immediately.
Committee Explanatory Reports:
Final Report explaining the March 23, 1999 technical revisions to the Comment for paragraph 25 published with the Court's Order at 29 Pa.B. 1714 (April 3, 1999).
Final Report1
Amendments of Pa.Rs.E. 410, 612, 613, 802 and 803
Editorial Changes and Technical CorrectionsOn March 23, 1999, upon the recommendation of the Committee on Rules of Evidence, the Supreme Court adopted changes to Pa.Rs.E. 410, 612, 613, 802, and 803, effective immediately. These changes correct some technical and clerical errors in the text or Comments to the Rules of Evidence that have come to the Committee's attention since the final printing of the rules following their adoption in 1998. In addition, the changes include a few other stylistic or editorial corrections that make the Rules of Evidence consistent with the Court's other rules. None of the rule changes are substantive in nature, but have been made to ensure that the errors do not create confusion concerning the interpretation of the rules. The rule changes are described below.
(1) The current citations to Pennsylvania statutes in the rules appear as ''Pa.C.S.A.'' So that these citations in the Rules of Evidence will be consistent with the statutory citations in the Court's other rules, it was agreed that ''Pa.C.S.A.,'' as used in the Rules of Evidence, should be replaced with ''Pa.C.S.'' This change has been made in the rules that are the subject of the Court's March 23, 1999 Order. The citations in the remainder of the rules will be corrected when a rule is being amended for other reasons.
(2) The fourth paragraph of the Rule 410 Comment has been revised by adding ''410'' after ''Pa.R.E.'' in the first line.
(3) Rule 612(a) has been amended by moving the last phrase of paragraph (a)(2) from (a)(2) into the text of paragraph (a). The change was made to make it clear that the concept expressed in the phrase applied to both paragraphs (a)(1) and (a)(2).
(4) Rule 613(b)(3) has been amended by changing ''opposite'' to ''opposing.''
(5) The margin of section seven of the third paragraph of the Comment to Rule 802 has been corrected.
(6) Paragraph (25) of Rule 803 has been amended by adding a hyphen to ''co-conspirator'' in the seventh line of text, and the correlative Comment has been revised by adding hyphens to ''party-opponent'' in the fourth line of the second paragraph and to ''co-conspirator'' in the first line of paragraph E.
[Pa.B. Doc. No. 99-532. Filed for public inspection April 2, 1999, 9:00 a.m.] _______
1 The Committee's Final Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.
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