THE COURTS
Title 225--RULES
OF EVIDENCE
[225 PA. CODE ART. I AND VII--IV]
Proposed Changes Corresponding to Recent Amendments to the Federal Rules of Evidence
[31 Pa.B. 405] Introduction
The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania amend Rules of Evidence 103, 701, 803, and 902, and approve the revision of the Comment to Rule of Evidence 404. These changes are being proposed to update the Pennsylvania Rules of Evidence in view of the recent changes to the Federal Rules of Evidence. 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 Committee 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. Additions are shown in bold and are underlined, and deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel, Richard L. Kearns, Staff Counsel, Supreme Court of Pennsylvania, Committee on Rules of Evidence, 5035 Ritter Road Suite 800, Mechanicsburg, PA 17055.
no later than Wednesday, February 14, 2001.
By the Committee on Rules of Evidence
CHARLES B. GIBBONS,
Chair
Annex A
TITLE 225. EVIDENCE
ARTICLE I. GENERAL PROVISIONS Rule 103. Rulings on Evidence
(a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling [which] that admits or excludes evidence unless
* * * * * Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
* * * * *
Comment Paragraph 103(a) differs from F.R.E. 103(a) in that the Federal [Rule] 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 prior Pennsylvania case 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 prior Pennsylvania case law. See Dilliplaine v. Lehigh Valley Trust Co., [457 Pa. 255,] 322 A.2d 114 (Pa. 1974); Commonwealth v. Clair, [458 Pa. 418,] 326 A.2d 272 (Pa. 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.
Pa.R.E. 103(a) was amended in 2001 by adding the second paragraph. The amendment, which is identical to the amendment to F.R.E. 103(a) that became effective December 1, 2000, is consistent with prior Pennsylvania case law. See Bell v. City of Philadelphia, 491 A.2d 1396 (Pa. Super 1985). It is also consistent with the second paragraph of this Comment.
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 prior Pennsylvania case 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).]
Official Note: Adopted May 8, 1998, effective October 1, 1998; amended , 2001; effective , 2001.
Committee Explanatory Reports:
Report explaining the proposed amendments published at 31 Pa.B. 408 (January 20, 2001).
ARTICLE N. RELEVANCY AND ITS LIMITS 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 forthe purpose of proving action in conformity therewith on a particular occasion, except as follows:
* * * * * (3) Character of [witness] Witness. * * *
(b) Other Crimes, Wrongs, or Acts.
* * * * * (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.
* * * * *
Comment The basic principle of Pa.R.E. 404 is consistent with F.R.E. 404 and prior Pennsylvania case 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] rule differ from F.R.E. 404 as indicated below.
Subsection (a). Subsection (a) of the rule differs from F.R.E. 404(a).
Paragraph (a)(1) has not been amended to conform with the December 1, 2000 amendments to F.R.E. 404(a)(1), which provide that the prosecution may respond to the accused's offer of evidence of the character of the alleged victim of a crime by offering evidence of the same trait of character of the defendant, because this is not consistent with present Pennsylvania law.
Subsection (a)(2) is consistent with prior Pennsylvania case law. See, e.g., Commonwealth v. Dillon, [528 Pa. 417,] 598 A.2d 963 (Pa. 1991); Commonwealth v. Amos, [445 Pa. 297,] 284 A.2d 748 (Pa. 1971); see also Pa.R.E. 405 (regarding means of proof of the complainant's character for violence).
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 (Pa. Super. 1985).
Subsection (b). This [rule] paragraph 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 (Pa. 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.
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised , 2001; effective , 2001.
Committee Explanatory Reports:
Report explaining the proposed Comment revision published at 31 Pa.B. 408 (January 20, 2001).
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY Rule 701. Opinion Testimony by Lay Witnesses.
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness, [and] helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Comment * * * * * F.R.E. 701 was amended, effective December 1, 2000, to clarify that testimony based on scientific, technical, or specialized knowledge is governed by F.R.E. 702, and not F.R.E. 701. The 2001 amendment to Pa.R.E. 701 is likewise aimed at clarifying that testimony based on scientific, technical, and specialized knowledge is governed by Pa.R.E. 702.
Pa.R.E. 701 is consistent with prior Pennsylvania case law. See Lewis v. Mellor, [259 Pa. Super. 509,] 393 A.2d 941 (Pa. Super. 1978)(adopting F.R.E. 701). Under Lewis, lay opinion may embrace the ultimate issue. See Pa.R.E. 704. The trial judge may exclude the opinion if the trial judge decides that it would not be helpful, or would confuse, mislead, or prejudice the jury, or would waste time. Lewis, [259 Pa. Super. at 523,] 393 A.2d at 949.
Official Note: Adopted May 8, 1998, effective October 1, 1998; amended , 2001; effective , 2001.
Committee Explanatory Reports:
Report explaining the proposed amendments published at 31 Pa.B. 408 (January 20, 2001).
ARTICLE VIII. HEARSAY 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:
* * * * * (6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conductedbusiness activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness. The term ''business'' as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
Comment Pa.R.E. 803(6) is similar to F.R.E. 803(6), but with two differences. One difference is that Pa.R.E. 803(6) does not include opinions and diagnoses. This is consistent with prior Pennsylvania case law. See Williams v. McClain, [513 Pa. 300,] 520 A.2d 1374 (Pa. 1987); Commonwealth v. DiGiacomo, [463 Pa. 449,] 345 A.2d 605 (Pa. 1975). The second difference is that Pa.R.E. 803(6) allows the court to exclude business records that would otherwise qualify for exception to the hearsay rule if the ''sources of information or other circumstances indicate lack of trustworthiness.'' The [federal] Federal rule allows the court to do so only if ''the source of information or the method or circumstances of preparation indicate lack of trustworthiness.''
Rule 803(6) was amended in 2001 consistent with the December 1, 2000 amendments to F.R.E. 803(6) that permit records of regularly conducted activity to be authenticated by certification. This amendment is designed to save the expense and time consumption caused by calling needless foundation witnesses. The notice requirements provided in Pa.R.E. 902(11) and (12) will give other parties a full opportunity to test the adequacy of the foundation.
If offered against a defendant in a criminal case, an entry in a business record may be excluded if its admission would violate the defendant's constitutional right to confront the witnesses against him or her. See Commonwealth v. McCloud, [457 Pa. 310,] 322 A.2d 653 (Pa. 1974).
Pa.R.E. 803(6) differs only slightly from 42 Pa.C.S.[A.] § 6108, which provides:
* * * * * Pa.R.E. 803(6) permits records of regularly conducted activity to be authenticated by certification.
* * * * * Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 23, 1999, effective immediately; Comment revised March 10, 2000, effective immediately; amended ____ , 2001; effective ____ , 2001.
* * * * * Committee Explanatory Reports:
* * * * * Report explaining the proposed amendments to paragraph 6 published at 31 Pa.B. 408 (January, 2001).
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION Rule 902. Self-Authentication.
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
* * * * * (11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, verified as provided in Pa.R.C.P. 76, certifying that the record -
(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
(12) Certified foreign records of regularly conducted activity. In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record--
(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
Comment * * * * * Paragraphs (11) and (12), which were added in 2001, permit the authentication of domestic and foreign records of regularly conducted activity by certification. This is new to Pennsylvania law for records of regularly conducted activity, but is consistent with Pa.R.E. 902(2), (3), and (4) which permit authentication of various kinds of public documents and records by certification. These paragraphs are similar to F.R.E. 902(11) and (12) that were adopted effective December 1, 2000. The language of Pa.R.E. 902(11) differs from F.R.E. 902(11) in that it refers to Pa.R.C.P. 76, rather than tofederal law. The amendment is intended to implement the amendment to Pa.R.E. 803(6).
Official Note: Adopted May 8, 1998, effective October 1, 1998; amended , 2001; effective , 2001.
Committee Explanatory Reports:
Report explaining the proposed amendments published at 31 Pa.B. 408 (January 20, 2001).
Report
Proposed Amendments to Pa.Rs.E. 103, 701, 803, and 902, and Revision of the Comment to Pa.R.E. 404
CHANGES CORRESPONDING TO THE RECENT AMENDMENTS TO THE FEDERAL RULES OF EVIDENCE The Committee is proposing amendments to Rules of Evidence 103 (Rulings on Evidence), 701 (Opinion Testimony by Lay Witness), 803 (Hearsay Exceptions; Availability of Declarant Immaterial) and 902 (Self-Authentication), and the revision of the Comment to Rule 404 (Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes). These changes update the rules in view of the recent changes to the Federal Rules of Evidence, which became effective on December 1, 2000.
I. Introduction
Beginning in May 2000, aware of the proposed changes to the Federal Rules of Evidence, the Committee undertook an extensive review of the proposed Federal rule changes and Pennsylvania's Rules of Evidence. Although the Federal Rules have no direct impact on Pennsylvania's Rules of Evidence, and in many cases Pennsylvania's rules go their own way, the rules usually refer to the Federal rules in the Comments. In view of this, the Committee noted that, at a minimum, some of the Comments to Pennsylvania's rules would need to be updated. As we reviewed the rules, the Committee agreed that some of the proposed changes to the Federal rules merited consideration for inclusion in Pennsylvania's rules, while other changes were inconsistent with Pennsylvania practice. As explained more fully below, the Committee is proposing that:
(1) Rule 103(a) be amended consistent with the changes to F.R.E. 103(a), with an explanatory provision added to the Comment;
(2) F.R.E. 404 not be followed, but an explanation be added to the Rule 404 Comment,
(3) Rule 701 be amended consistent with the changes to F.R.E. 103(a), with an explanatory provision added to the Comment;1 and
(4) Rules 803(6) and 902 be amended consistent with the changes to F.Rs.E. 803(6) and 902, with an explanatory provision added to the Comments.
II. Discussion
A. Pa.R.E. 103 (Rulings on Evidence)
Federal Rule of Evidence 103 (Rulings On Evidence) has been amended by the addition of the following to paragraph (2):2
(a)(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 was apparent from the context within which questions were asked.
Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
This new language is consistent with Pennsylvania law, see Bell v. City of Philadelphia, 491 A.2d 1386 at 1391 (Pa. Super. 1985), and appears to clarify an issue that might not have been entirely clear to the bench and bar.3 In view of these considerations, the Committee agreed that a comparable provision should be added to Rule 103(a). This will avoid the possible confusion the bench and bar might have if the two rules were different in this regard. The Comment would be revised by the addition of a paragraph explaining the new rule provision and cross-referencing Bell, supra.
B. Pa.R.E. 404 (Character Evidence Not Admissible to Prove Character; Exceptions; Other Crimes)
Federal Rule 404 (Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes) has been amended by the addition of new language in paragraph (a)(1) and ''alleged'' before ''victim'' in paragraph (a)(2), as follows:
(a)(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by prosecution.
(a)(2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.
This amendment to F.R.E. 404(a)(1) adds a new concept to the Federal rules that does not presently exist in Pennsylvania law. The rationale for the Federal rule amendment is that when a defendant offers evidence of a character trait of the victim, such as the trait of violence in assault cases, the prosecution should be able to respond by showing evidence of a corresponding trait of the defendant.
The Committee considered proposing the inclusion of this new concept in the Pennsylvania rules, but declined to do so. However, we agreed that the Comment should be revised to explain that because the Federal rule change is not consistent with Pennsylvania law, Rule 404 has not been amended.
Federal Rule 404(a)(2) has been amended by adding the adjective ''alleged'' to modify ''victim.'' Pa.R.E. 404(a)(2) uses the term ''complainant,'' which was adopted after lengthy consideration. After reviewing the rule history and the Federal rule change, the Committee agreed there is no reason to revert to ''victim.''
C. Pa.R.E. 701 (Opinion Testimony by Lay Witness)
Federal Rule 701 (Opinion Testimony By Lay Witnesses) has been amended as follows:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
This amendment is intended to prevent parties from offering expert testimony without the need for qualifying the witness as an expert and without the need for establishing that the witness' testimony was based on reliable scientific, technical, or other specialized knowledge. See F.R.E. 702. It also is intended to prevent parties from avoiding discovery rules.
The Committee agreed that this same reasoning makes sense for Pennsylvania. By adding a comparable provision to Pa.R.E. 701, the relationship between Pa.Rs.E. 701 and 702 will be clarified, and, as with the Federal rule, the change will prevent parties from trying to avoid the requirements of Pa.R.E. 702 and the discovery rules, see, e.g., Pa.R.C.P. 4003.5 and Pa.R.Crim.P. 305(B)(1)(e), by offering expert testimony under the guise of lay testimony.
D. Pa.Rs.E. 803 (Hearsay Exceptions; Availability of Declarant Immaterial) and 902 (Self-Authentication)
Federal Rule 803 (Hearsay Exceptions; Availability Of Declarant Immaterial) has been amended as follows:
(6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902 (11), Rule 902 (12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term ''business'' as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
In a correlative change, Federal Rule 902 (Self-Authentication) has been amended as follows:
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
* * * * * (11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record -
(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
(12) Certified foreign records of regularly conducted activity. In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record -
(A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;
(B) was kept in the course of the regularly conducted activity; and
(C) was made by the regularly conducted activity as a regular practice.
The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.
These amendments are aimed at eliminating the time and expense involved in presenting foundation witnesses in situations in which there is really no question about the authenticity of the records. This concept is new for records of regularly conducted activity, but it is consistent with the self-authentication provisions of F.R.E. 902(2)--(4) for governmental records and other kinds of documents.
The Committee, in reviewing these changes, noted that, in Pennsylvania law, there are similar provisions provided by statute for authenticating governmental records in 42 Pa.C.S. §§ 5328 and 6103, and medical records in 42 Pa.C.S. §§ 6151-6159. We agreed that the reasons for the Federal rule changes apply equally well in Pennsylvania, and therefore are proposing comparable changes to Pa.Rs.E. 803 and 902.
[Pa.B. Doc. No. 01-62. Filed for public inspection January 19, 2001, 9:00 a.m.] _______
1 The Committee deferred consideration of the amendments to F.Rs.E 702 and 703 pending the Supreme Court's decision in Blum v. Merrell Dow. The Court handed down its decision on December 22, 2000.
2 The Federal rule amendments are highlighted by underlining.
3 A similar but more limited idea is expressed in the second paragraph of the Pa.R.E. 103 Comment.
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