THE COURTS

[225 PA. CODE ARTICLE VI]

Proposed Amendment to Rule 613 Prior Statements of Witnesses

[29 Pa.B. 2264]

Introduction

   The Committee on Rules of Evidence is planning to recommend that the Supreme Court amend Rule 613 (Prior Statements of Witnesses) by including ''inconsistent'' in the title and text of section (a). This proposal would make it clear that both sections (a) and (b) apply to attacks on credibility through prior inconsistencies. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.

   The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Reports should not be confused with the official Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.

   The text of the proposed rule changes precedes the Report. Deletions are in bold and brackets, and additions are in bold and underlined.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel, Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Committee on Rules of Evidence, 5035 Ritter Road, Suite 800, Mechanicsburg, PA 17055 no later than Wednesday, June 2, 1999.

THOMAS C. RAUP,   
Chair

Annex A

TITLE 225.  RULES OF EVIDENCE

ARTICLE VI.  WITNESSES

Rule 613.  Prior Statements of Witnesses.

   (a)  Examining Witness Concerning Prior Inconsistent Statement. A witness may be examined concerning a prior inconsistent statement made by the witness, whether written or not, and the statement need not be shown or its contents disclosed to the witness at that time, but on request the statement or contents shall be shown or disclosed to opposing counsel.

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Comment

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   Section (a). This section of the Rule is [identical to] basically the same as F.R.E. 613(a), except that the word ''inconsistent'' does not appear in the Federal Rule. Its inclusion makes clear that both sections (a) and (b) involve attacks on credibility through prior inconsistencies. It has been suggested that its omission from the Federal Rule was a ''drafting oversight.'' Charles A. Wright & Victor J. Gold, Federal Practice & Procedure § 6203, n. 13 (1993); J. Weinstein, 3 Weinstein's Evidence §  613.021, n. 1 (1991). By dispensing with the need to show the prior statement or disclose its contents to the witness before proceeding with examination about it, section (a) repudiates the decision in the Queen's Case, 129 Eng. Rep. 9761 (1820). Pa.R.E. 613(a) resolves the ambiguity in the scant Pennsylvania authority on this point. Compare Kann v. Bennett, 223 Pa. 36, 72 A. 342 (1909) (before witness may be cross-examined about prior inconsistent statement, witness must be shown the statement and asked if he wrote it) with Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974) (overlooking Kann case, court stated it had never considered question of showing statement to witness, and found no need to resolve question under facts of case).

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   Official Note:   Adopted May 1, 1998, effective October 1, 1998; amended ______ , 1999, effective ______ , 1999.

Committee Explanatory Reports:

   Report explaining the proposed amendments adding ''inconsistent'' to paragraph (a) published at 29 Pa.B. 2265 (May 1, 1999).

Report

Proposed Amendments to Pa.R.E. 613

Impeachment of Witness Using Prior
Inconsistent Statement

   The Committee is proposing that Rule 613 (Prior Statements of Witnesses) be amended to clarify that section (a) applies to prior inconsistent statements by adding the term ''inconsistent'' to the title and text of section (a).

   As part of its ongoing review of the Rules of Evidence, and in response to some correspondence, the Committee has reexamined Rule 613, and agreed with the correspondence that by using ''prior statements,'' section (a) could be subject to misconstruction about its application to both consistent and inconsistent statements. Since section (a) was modeled on F.R.E. 613(a), we researched the history of the federal rule, and found that authorities agree that 1) the omission of the term ''inconsistent'' in F.R.E. 613(a) is inadvertent, and 2) F.R.E. 613(a) is intended to apply only to inconsistent statements. See Charles A. Wright & Victor J. Gold, Federal Practice & Procedure § 6203, n.13 (1993) and J. Weinstein, 3 Weinstein & Berger, Weinstein's Evidence § 613[01], n. 1 (1991). We agreed, therefore, that it would be helpful to members of the bench and bar to clarify that Pa.R.E. 613(a) applies only to inconsistent statements by adding the term ''inconsistent'' to the title and text of section (a). The Committee is also proposing correlative revisions to the Comment.

[Pa.B. Doc. No. 99-692. Filed for public inspection April 30, 1999, 9:00 a.m.]

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