THE COURTS

Title 225--RULES OF EVIDENCE

[225 PA. CODE ART. VIII]

Proposed Revision of the Comment to Pa.R.E. 804(b)(2)

[34 Pa.B. 4020]

   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. 804(b)(2). This Comment Revision is being proposed to alert the bench and bar to a change in the law of hearsay as a result of the decision of the United States Supreme Court in Crawford v. Washington, ____ U. S. ____ , 124 S.Ct. 1354 ____ L.Ed.2d ____ (2004).

   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, 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 700
Mechanicsburg, PA 17055

   no later than August 31, 2004.

By the Committee on Rules of Evidence

CHARLES B. GIBBONS,   
Chair

Annex A

TITLE 225. RULES OF EVIDENCE

ARTICLE VIII. HEARSAY

Rule 804. Hearsay Exceptions; Declarant Unavailable.

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   (b)  Hearsay Exceptions. The following statements, as hereinafter defined, are not excluded by the hearsay rule if the declarant is unavailable as a witness:

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   (2)  Statement Under Belief of Impending Death. A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

Comment

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   The rationale for this exception [to] from the hearsay rule was set forth in Commonwealth v. Smith, 454 Pa. 515, 314 A.2d 224, 225 (Pa. 1973):

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   The common law [has] traditionally, but illogically, excepted a dying declaration [to] from the hearsay rule in a criminal prosecution for homicide, but not in a criminal prosecution for another crime, or in a civil case. Prior Pennsylvania case law followed the common law. See Commonwealth v. Antonini, 69 A.2d 436 (Pa. Super. 1949).

   Reasoned analysis [dictates] dictated a change. If a dying declaration is trustworthy enough to be introduced against a defendant charged with murder, it [should be] is trustworthy enough to be introduced against a defendant charged with attempted murder, robbery, or rape. It [should] is also [be] trustworthy enough to be introduced against a party in a civil case.

   In Crawford v. Washington, ____ U. S. ____ (2004), the Supreme Court interpreted the Confrontation Cause in the Sixth Amendment of the United States Constitution to prohibit the introduction of ''testimonial'' hearsay from an unavailable witness against a defendant in a criminal case unless the defendant had an opportunity to confront and cross-examine the declarant, regardless of its exception from the hearsay rule. However, in footnote 6, the Supreme Court said that there may be an exception, sui generis, for those dying declarations that are testimonial.

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REPORT

Proposed Revision of the Comment Pa.R.E. 804(b)(2)

Comment Changes

   The Introductory Comment to Article VIII, Hearsay calls attention to the role of the Sixth Amendment to the United States Constitution in determining the admissibility of hearsay evidence against a defendant in a criminal case.

   The proposed revision of Comment to Pa.R.E. 804(b)(2) comes about as a result of the decision of the United States Supreme Court in Crawford v. Washington, ____ U. S. ____ , 124 S.Ct. 1354 ____ L.Ed.2d ____ (2004) interpreting the confrontation clause to prohibit the introduction of ''testimonial'' hearsay from an unavailable witness against a defendant in a criminal case unless the defendant had an opportunity to confront and cross-examine the declarant. One possible exception would be a dying declaration (Pa.R.E. 804(b)(2)). The proposed change cites Crawford v. Washington as confirming this exception.

   Heretofore this issue was governed by the earlier United States Supreme Court in Ohio v. Roberts, 446 U. S. 56 (1980), now overruled by the Crawford opinion.

[Pa.B. Doc. No. 04-1389. Filed for public inspection July 30, 2004, 9:00 a.m.]

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