THE COURTS

ARTICLE VIII. HEARSAY

[225 PA. CODE ART. VIII]

Proposed Revision of the Introductory Comment to Article VIII, Hearsay

[34 Pa.B. 4021]

   The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania approve the revision of the Introductory Comment to Article VIII, Hearsay. 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

Introductory Comment

   The Federal Rules of Evidence list 24 exceptions [to] from the hearsay rule in which the availability of the declarant is immaterial, five exceptions in which the declarant must be unavailable, and four exceptions [to] from the definition of hearsay (which are, in reality, exceptions [to] from the hearsay rule), for a total of 33.

   The Pennsylvania Rules of Evidence, while following the federal numbering system as far as possible, recognize fewer exceptions, and arrange them more logically. Article VIII of the Pennsylvania Rules of Evidence lists 16 exceptions [to] from the hearsay rule in which the availability of the declarant is immaterial, five exceptions in which the declarant must be unavailable, and three exceptions in which the testimony of the declarant is necessary, for a total of 24.

Defendant's Constitutional Right of Confrontation in Criminal Cases

   The hearsay rule is applicable both in civil and criminal cases. In a criminal case, however, hearsay that is offered against a defendant under an exception [to] from the hearsay rule may sometimes be excluded because its admission would violate the defendant's right ''to be confronted with the witnesses against him'' under the Sixth Amendment [to] of the United States Constitution, or ''to be confronted with the witnesses against him'' under Article I, § 9 of the Pennsylvania Constitution.

*      *      *      *      *

   In Crawford v. Washington, ____ U. S.____ (2004), the Supreme Court, overruling its prior opinion in Ohio v. Roberts, 446 U. S. 56 (1980), interpreted 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, regardless of its exception from the hearsay rule, except, perhaps, if the hearsay qualifies as a dying declaration (Pa.R.E. 804(b)(2)).

   In short, when hearsay is offered against a defendant in a criminal case, the defendant may interpose three separate objections: (1) admission of the evidence would violate the hearsay rule, (2) admission of the evidence would violate defendant's right to confront the witnesses against him under the Sixth Amendment [to] of the United States Constitution, and (3) admission of the evidence would violate defendant's right [of confrontation] ''to be confronted with the witnesses against him'' under Article I, § 9 of the Pennsylvania Constitution.

REPORT

Proposed Revision of the Introductory Comment Article VIII, Hearsay

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 change 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)).

   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. 04-1390. Filed for public inspection July 30, 2004, 9:00 a.m.]

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