Pennsylvania Code
Pennsylvania Code & Bulletin
COMMONWEALTH OF PENNSYLVANIA

• No statutes or acts will be found at this website.

The Pennsylvania Bulletin website includes the following: Rulemakings by State agencies; Proposed Rulemakings by State agencies; State agency notices; the Governor’s Proclamations and Executive Orders; Actions by the General Assembly; and Statewide and local court rules.

PA Bulletin, Doc. No. 00-1313

THE COURTS

Title 225--RULES OF EVIDENCE

[225 PA. CODE ART. IV]

Order Adopting Amendments to Rule 405; No. 249, Supreme Court Rules; Doc. No. 1

[30 Pa.B. 3919]

   The Committee on Rules of Evidence has prepared a Final Report explaining the amendments to Rule 405 (Methods of Proving Character) that were adopted July 20, 2000, effective October 1, 2000. These amendments expand the limitation on cross-examination of defense character witnesses consistent with Commonwealth v. Morgan, 739 A.2d 1033 (Pa. 1999). The Final Report follows the Court's Order.

Order

Per Curiam:

   Now, this 20th day of July, 2000, upon the recommendation of the Committee on Rules of Evidence, this Recommendation 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 Rule of Evidence 405 is hereby amended as follows.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective October 1, 2000.

Annex A

TITLE 25.  RULES OF EVIDENCE

ARTICLE IV.  RELEVANCY AND ITS LIMITS

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] allegations of other criminal misconduct 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.] Commonwealth v. Lopinson, [427 Pa. 284,] 234 A.2d 552 (Pa. 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 (Pa. 1981). Subsection (a) was amended in 2000 in view of Commonwealth v. Morgan, 739 A.2d 1033 (Pa. 1999). 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 (Pa. Super. 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 (Pa. 1928); Dempsey v. Walso Bureau, Inc., [431 Pa. 562,] 246 A.2d 418 (Pa. 1968); Commonwealth ex rel. Grimes v. Grimes, [281 Pa. Super. 484,] 422 A.2d 572 (Pa. Super. 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 (Pa. 1991); Commonwealth v. Amos, [445 Pa. 297,] 284 A.2d 748 (Pa. 1971).

   Official Note:  Adopted May 8, 1998, effective October 1, 1998; amended July 20, 2000, effective October 1, 2000.

*      *      *      *      *

Committee Explanatory Reports:

   Final Report explaining the July 20, 2000 amendment of paragraph (a) concerning allegations of other criminal misconduct published with the Court's Order at 30 Pa.B. 3920 (August 5, 2000).

FINAL REPORT 1

Amendments to Pa.R.E. 405

Cross-Examination of Defense Character Witness

   On July 20, 2000, upon the recommendation of the Committee on Rules of Evidence, the Supreme Court adopted amendments to Pa.R.E. 405, effective October 1, 2000. The rule changes conform the rule to recent changes in case law.

   Present Rule 405(a), which was based on Commonwealth v. Scott, 436 A.2d 607 (Pa. 1981), and was approved and adopted by the Court effective October 1, 1998, permits cross-examination into specific instances of conduct that is probative of the character trait in question. The only limitation is in criminal cases with regard to arrests of the accused not resulting in conviction.

   In 1999, the Court in Commonwealth v. Morgan, 739 A.2d 1033 (Pa. 1999), expanded the limitation on cross-examination of defense character witnesses, holding that in criminal cases, defense character witnesses cannot be cross-examined regarding conduct of the caused not resulting in conviction. In view of this expansion of the limitation on cross-examination of defense witnesses, the Committee recommended that the Court amend Rule 405(a) to reflect the change in the law set forth in Morgan.

   Accordingly, Pa.R.E. 405(a) has been amended as follows:

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] allegations of other criminal misconduct of the accused not resulting in conviction is not permissible.

   In addition, a cross-reference to Morgan has been added to the Comment.

[Pa.B. Doc. No. 00-1313. Filed for public inspection August 4, 2000, 9:00 a.m.]

_______

1  The Committee's Final Report 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 Report.


No part of the information on this site may be reproduced for profit or sold for profit.

This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.