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PA Bulletin, Doc. No. 05-1

THE COURTS

Title 225--RULES
OF EVIDENCE

[225 PA. CODE ART. VIII]

Order Amending Revision of Comment to Rule 804(b)(2); No. 346 Supreme Court Rules; Doc. No. 1

[35 Pa.B. 8]

Order

Per Curiam:

   Now, this 17th day of December, 2004, upon the recommendation of the Committee on Rules of Evidence, this proposal having been published before adoption at 34 Pa.B. 4020 (July 31, 2004) 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 the revision of comment is hereby amended in the following form.

   This Order shall be processed immediately in accordance with Pa.R.J.A. 103(b), and shall be effective January 31, 2005.

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

   Pa.R.E. 804(b)(2) is similar to F.R.E. 804(b)(2), except that the Pennsylvania rule applies in all cases, not just in homicide cases and civil actions. This is a departure from prior Pennsylvania law, which applied the exception only to statements made by the victim in a criminal prosecution for homicide.

   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, 541 U. S. 36, 124 S.Ct. 1354 (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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FINAL REPORT REVISING

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, 541 U. S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (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. 05-1. Filed for public inspection December 30, 2004, 9:00 a.m.]


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