THE COURTS

[225 PA. CODE ART. VIII]

Order Amending Revision of the Introductory Comment to Article VIII, Hearsay; No. 347 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. 4021 (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

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, 541 U. S. 36, 124 S.Ct. 1354 (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.

FINAL REPORT REVISING

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, 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)).

   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. 05-2. Filed for public inspection December 30, 2004, 9:00 a.m.]

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