THE COURTS

Title 225--RULES
OF EVIDENCE

[225 PA. CODE ART. VI]

Rule 601 Comment Changes

[34 Pa.B. 2987]

   The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania approve the revision of the Comment to Rule of Evidence 601. This Comment Revision is being proposed to alert the bench and bar to the adoption by the Supreme Court of the concept of ''taint'' in child competency hearings.

   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 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 explanatory Report.

   The text of the proposed Comment changes precedes the Report. Additions are bold.

   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 700
Mechanicsburg, PA 17055

no later than July 15, 2004.

By the Committee on Rules of Evidence

CHARLES B. GIBBONS,   
Chair

Annex A

TITLE 225. RULES OF EVIDENCE

ARTICLE VI. WITNESSES

Rule 601. Competency.

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Comment

*      *      *      *      *

   The competency of a child witness may be impaired or tainted by the implantation of false memories or the distortion of real memories caused by improper interview techniques, suggestive questioning, vilification of a party, or interview bias. Commonwealth v. Delbridge, ____ A.2d. ____ (Pa. 2003). Delbridge is consistent with Pa.R.E. 601(b)(3). If a party challenges the competency of a child witness and offers some evidence that the child's memory may have been impaired or tainted in this way, the trial court must explore this question in the competency hearing. Commonwealth v. Delbridge, supra. The party challenging the competency of the child witness must establish that the child is incompetent by clear and convincing evidence. Commonwealth v. Delbridge, supra.

   Pa.R.E. 601(b) does not address the admissibility of hypnotically refreshed recollection. In Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), the Supreme Court rejected hypnotically refreshed testimony, where the witness had no prior independent recollection. Applying the test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) for scientific testimony, the Court was not convinced that the process of hypnosis as a means of restoring forgotten or repressed memory had gained sufficient acceptance in its field. Commonwealth v. Nazarovitch, supra; see also Commonwealth v. Romanelli, 522 Pa. 222, 560 A.2d 1384 (1989) (when witness has been hypnotized, he or she may testify concerning matters recollected prior to hypnosis, but not about matters recalled only during or after hypnosis); Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984) (same). Pa.R.E. 601(b) is not intended to change these results. For the constitutional implications when a defendant in a criminal case, whose memory has been hypnotically refreshed, seeks to testify, see Rock v. Arkansas, 483 U.S. 44 (1987).

REPORT

Proposed Revision of the Comment to Pa.R. E. 601

Comment Changes

   The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania approve the revision of the Comment to Pa.R.E. 601.

   This Comment revision is being proposed to alert the bench and bar to the introduction of a new concept in Pennsylvania for determining the competency of a child witness. Heretofore, evidence that the child's testimony had been influenced by improper suggestive techniques was admissible on the issue of credibility only. In Commonwealth v. Delbridge, ____ A.2d ____ (2003), the Supreme Court recognized that suggestive techniques could ''taint'' the child's testimony to such a degree as to render the child incompetent to testify.

[Pa.B. Doc. No. 04-997. Filed for public inspection June 11, 2004, 9:00 a.m.]

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