THE COURTS
Title 225--RULES OF EVIDENCE
[225 PA. CODE ARTS. I, IV, VI, VIII AND X]
Order Amending Rule 410; and Approving the Revisions of the Comments to Rules 104, 408, 604, 609, 802 and 1003; No. 268, Supreme Court Rules; Doc. No. 1
[31 Pa.B. 1993] The Committee on Rules of Evidence has prepared a Final Report explaining the amendments to Rule 410 and the revisions of the Comments to Rules 104, 408, 604, 609, 802 and 1003 that were adopted on March 29, 2001, effective April 1, 2001. The changes renumber the cross-references to the Rules of Criminal Procedure, make other editorial changes, and conform the Rule 802 Comment with the recent changes to 42 Pa.C.S. § 5985.1. The Final Report follows the Court's Order.
Order Per Curiam
Now, this 29th day of March, 2001, 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 Rule of Evidence 410 is hereby amended, and the revisions of the Comments to Rules of Evidence 104, 408, 604, 609, 802 and 1003 are approved, all in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective April 1, 2001.
Annex A
TITLE 225. RULES OF EVIDENCE
ARTICLE I. GENERAL PROVISIONS Rule 104. Preliminary Questions.
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Comment Paragraph 104(a) is identical to F.R.E. 104(a). The first sentence is consistent with prior Pennsylvania case law. See Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991).
* * * * * Paragraph 104(b) is identical to F.R.E. 104(b) and appears to be consistent with prior Pennsylvania case law. See Commonwealth v. Carpenter, 472 Pa. 510, 372 A.2d 806 (1977).
The first sentence of paragraph 1049(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)] 581(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. 1049(c). Paragraph 1049(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 or her 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 or herself 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 prior Pennsylvania case law.
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 29, 2001, effective April 1, 2001.
Committee Explanatory Reports:
Final Report explaining the March 29, 2001 revision of the Comment published with the Court's Order at 31 Pa.B. 1995 (April 14, 2001).
ARTICLE IV. RELEVANCY AND ITS LIMITS Rule 408. Compromise and Offers to Compromise.
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Comment * * * * * Pa.R.E. 408 is consistent with 42 Pa.C.S. § 6141 which provides, in pertinent part, as follows:
§ 6141. Effect of certain settlements
* * * * * (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.
* * * * * 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 prior Pennsylvania case law. See Commonwealth v. Pettinato, 520 A.2d 437 (Pa. Super. 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]586 (relating to dismissal of criminal charges not committed by force or violence upon payment of restitution) or Pa.R.Crim.P. [145]546 (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.
Official Note: Adopted May 8, 1998, effective October 1, 1998; amended March 10, 2000; effective July 1, 2000; Comment March 29, 2001, effective April 1, 2001.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 29, 2001 revision of the Comment published with the Court's Order at 31 Pa.B. 1995 (April 14, 2001).
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:
* * * * * (3) any statement made in the course of any proceedings under Rules [59, 64, 69, 177, 179 or 319]409, 414, 424, 311, 313, or 590 of the Pennsylvania Rules of Criminal Procedure, Fed. R. Crim. P. 11, or any comparable rule or provision of law of Pennsylvania or any other jurisdiction regarding the pleas identified in subsections (1) and (2) of this rule; or
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Comment This rule is similar to F.R.E. 410. References to Rules [59, 64, 69, 177, 179, and 319]409, 414, 424, 311, 313, and 590 of the Pennsylvania Rules of Criminal Procedure and the comparable rules or other provisions of Pennsylvania or other jurisdictions 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, 544 A.2d 54 (1988); Commonwealth ex rel. Warner v. Warner, 40 A.2d 886 (Pa. Super. 1945); Pa.R.Crim.P. [177(b), 179(b)]311(B), 313(B).
* * * * * Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 23, 1999, effective immediately; amended March 10, 2000, effective immediately; amended March 29, 2001, effective April 1, 2001.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 29, 2001 amendments published with the Court's Order at 31 Pa.B. 1995 (April 14, 2001).
ARTICLE VI. WITNESSES Rule 604. Interpreters.
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Comment This [Rule] rule adopts the substance of F.R.E. 604; the only change is the explicit reference to Pa.Rs.E. 702 and 603, rather than the general reference to ''the provisions of these rules'' in F.R.E. 604.
* * * * * Pa.R.E. 604 is consistent with those Pennsylvania statutes providing for the appointment of interpreters for the deaf. See 42 Pa.C.S.A. § 7103 (deaf party in a civil case); 2 Pa.C.S.A. § 505.1 (deaf party in hearing before Commonwealth agency); 42 Pa.C.S.A. § 8701 (deaf defendant in criminal case); see also Commonwealth v. Wallace, 433 Pa. Super. 518, 641 A.2d 321 (1994) (applying § 8701). Under each of these statues, an interpreter must be ''qualified and trained to translate for or communicate with deaf persons'' and must ''swear or affirm that he will make a true interpretation to the deaf person and that he will repeat the statements of the deaf person to the best of his ability.''
There is little statutory authority for the appointment of interpreters, but the practice is well established. See Pa.R.Crim.P. [264(b)]231(B) (authorizing presence of interpreter while investigating grand jury is in session if supervising judge determines necessary for presentation of evidence); 51 Pa.C.S.A. § 5507 (under regulations prescribed by governor, convening authority of military court may appoint interpreters). The decision whether to appoint an interpreter is within the discretion of the trial court. See Commonwealth v. Pana, 469 Pa. 43, 364 A.2d 895 (1976) (holding that it was an abuse of discretion to fail to appoint an interpreter for a criminal defendant who had difficulty in understanding and expressing himself in English).
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 29, 2001, effective April 1, 2001.
Committee Explanatory Reports:
Final Report explaining the March 29, 2001 revision of the Comment published with the Court's Order at 31 Pa.B. 1995 (April 14, 2001).
Rule 609. Impeachment by Evidence of Conviction of Crime.
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Comment Pa.R.E. 609(a) differs from F.R.E. 609(a). Pa.R.E. 609(a), subject to the time limitations in Pa.R.E. 609(b), is similar to F.R.E. 609(a)(2) because it permits impeachment of any witness by evidence of conviction of a crime involving dishonesty or false statement, regardless of what the punishment for that crime may be. However, Pa.R.E. 609(a) does not permit use of evidence of conviction of a crime punishable by death or imprisonment for more than one year, which is allowed under F.R.E. 609(a)(1), subject to certain balancing tests. This limitation on the type of crime evidence admissible is consistent with prior Pennsylvania case law. See Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). Moreover, Pa.R.E. 609(a), unlike F.R.E. 609(a)(2), specifically provides that a conviction based upon a plea of nolo contendere may be used to impeach; this, too, is consistent with prior Pennsylvania case law. See Commonwealth v. Snyder, 408 Pa. 253, 182 A.2d 495 (1962).
As a general rule, evidence of a jury verdict of guilty or a plea of guilty or nolo contendere may not be used to impeach before the court has pronounced sentence. See Commonwealth v. Zapata, 455 Pa. 205, 314 A.2d 299 (1974). In addition, evidence of admission to an Accelerated Rehabilitative Disposition program under Pa.Rs.Crim.P. [176-186] 310-320 may not be used to impeach credibility. See Commonwealth v. Krall, 290 Pa. Super. 1, 434 A.2d 99 (1981).
Where the target of impeachment is the accused in a criminal case, 42 Pa.C.S.A. § 5918 again comes into play. See Comment to Pa.Rs.E. 607, 608 pointing out that § 5918's prohibition against questioning defendant who takes stand about conviction of any offense other than the one for which he is on trial applies only to cross-examination. Hence, evidence of conviction of a crime may be introduced in rebuttal after the defendant has testified. See Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973).
* * * * * Pa.R.E. 609(d) differs from F.R.E. 609(d). Under the latter, evidence of juvenile adjudications is generally inadmissible to impeach credibility, except in criminal cases against a witness other than the accused where the court finds that the evidence is necessary for a fair determination of guilt or innocence. Pa.R.E. 609(d), to be consistent with 42 Pa.C.S.A. § 6354(b)(4), permits a broader use; a juvenile adjudication of an offense may be used to impeach in a criminal case if conviction of the offense would be admissible if committed by an adult. Juvenile adjudications may also be admissible for other purposes. See 42 Pa.C.S.A. § 6354(b)(1), (2), and (3).
* * * * * Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 29, 2001, effective April 1, 2001.
Committee Explanatory Reports:
Final Report explaining the March 29, 2001 revision of the Comment published with the Court's Order at 31 Pa.B. 1995 (April 14, 2001).
ARTICLE VIII. HEARSAY Rule 802. Hearsay Rule.
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Comment Pa.R.E. 802 is similar to F.R.E. 802. It differs by referring to other rules prescribed by the Pennsylvania Supreme Court, rather than the United States Supreme Court, and by referring to statutes in general, rather than Acts of Congress. This rule is consistent with prior Pennsylvania case law.
* * * * * 6. In a criminal or civil case, an out-of-court statement of a witness [under 13]12 years of age or younger, describing certain kinds of sexual abuse, may be admitted pursuant to 42 Pa.C.S. § 5985.1.
* * * * * Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 23, 1999, effective immediately; Comment revised March 10, 2000, effective immediately; Comment revised March 29, 2001, effective April 1, 2001.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 29, 2001 revision of the Comment published iwth the Court's Order at 31 Pa.B. 1995 (April 14, 2001).
ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS Rule 1003. Admissibility of Duplicates.
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Comment * * * * * In addition, various Pennsylvania statutes have treated some accurate copies as admissible. See 42 Pa.C.S.A. § 6104 (governmental records in the Commonwealth); 42 Pa.C.S.A. § 5328 (domestic records outside the Commonwealth and foreign records); 42 Pa.C.S.A. § 6106 (documents recorded or filed in a public office); 42 Pa.C.S.A. § 6109 (photographic copies of business and public records); 42 Pa.C.S.A. §§ 6151-59 (certified copies of medical records).
The extension of similar treatment to all accurate copies seems justified in light of modern practice. Pleading and discovery rules such as Pa.R.C.P. 4009.1 (requiring production of originals of documents and photographs etc.) and Pa.R.Crim.P. [305(B)(1)(f) and (g)] 573 (B)(1)(f) and (g) (requiring disclosure of originals of documents, photographs and recordings of electronic surveillance) will usually provide an adequate opportunity to discover fraudulent copies. As a result, Pa.R.E. 1003 should tend to eliminate purely technical objections and unnecessary delay. In those cases where the opposing party raises a genuine question as to authenticity or the fairness of using a duplicate, the trial court may require the production of the original under this rule.
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 29, 2001, effective April 1, 2001.
Committee Explanatory Reports:
Final Report explaining the March 29, 2001 revision of the Comment published with the Court's Order at 31 Pa.B. 1995 (April 14, 2001).
FINAL REPORT1
Amendment to Pa.R.E. 410; and
Revision of the Comments to Pa.Rs.E. 104, 408, 604, 609, 802 and 1003
Editorial Changes and Technical Corrections Correlative to the Renumbering of the Rules of Criminal Procedure and to Recent Statutory Changes On March 29, 2001, upon the recommendation of the Committee on Rules of Evidence, the Supreme Court adopted an amendment to Pa.R.E. 410 and approved the revision of the Comments to Pa.Rs.E. 104, 408, 604, 609, 802 and 1003, effective April 1, 2001.
On March 1, 2000, the Court adopted the reorganization and renumbering of the Rules of Criminal Procedure, effective April 1, 2000. Because there are several cross-references to the Criminal Rules in the Rules of Evidence, the Court approved the renumbering of the cross-references to the Criminal Rules to reflect the changes.The Court also approved stylistic and editorial corrections in order to make the rules consistent with the Court's other rules.
In addition to the renumbering changes, the Court approved the revision of the Comment to Pa.R.E. 802 that updates the reference to 42 Pa.C.S. § 5985.1 that was amended on October 18, 2000. The Comment to Rule 802 references § 5985.1 as an example of when hearsay may be admitted pursuant to statute. Paragraph 6 of the Comment reads:
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. § 5985.1.The statute provides, inter alia, that an out-of-court statement made by a child victim or witness who at the time of the statement was made was 12 years of age or younger, . . . , is admissible in evidence in any criminal or civil proceedings.
To conform the Rule 802 Comment with the changes to 42 Pa.C.S. § 5985.1, the Comment has been revised by adding ''or civil'' after ''criminal'' and changing ''under 13 years of age or younger'' to ''12 years of age or younger.''
______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.
[Pa.B. Doc. No. 01-630. Filed for public inspection April 13, 2001, 9:00 a.m.]
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