THE COURTS

[225 PA. CODE ART. VI]

Proposed Rule 601 Revision of Comment

[36 Pa.B. 3978]
[Saturday, July 29, 2006]

   The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania approve the Revision of Comment to Rule 601. The changes are being proposed to include recent case law on the issue of competency.

   This proposal has not been submitted for review by the Supreme Court of Pennsylvania.

   The following explanatory Report highlights the Committee's consideration in formulating this proposal. Please note that the Committee 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 precede the Report. Additions are bold, and deletions are bold and in 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 September 5, 2006

By the Committee on
Rules of Evidence

RICHARD A. LEWIS,   
Chair

Annex A

TITLE 225.  RULES OF EVIDENCE

ARTICLE VI.  WITNESSES

Rule 601.  Competency.

*      *      *      *      *

Comment--2006

   Pa.R.E. 601[(a)] differs from F.R.E. 601 and is intended to preserve existing Pennsylvania law. F.R.E. 601 abolishes all existing grounds of incompetency except for those specifically provided in later rules dealing with witnesses and in civil actions governed by state law. [Pa.R.E. 601(b) has no counterpart in the Federal Rules.] Pa.R.E. 601(a) is consistent with Pennsylvania statutory law. 42 Pa.C.S.A. §§ 5911 and 5921 provide that all witnesses are competent except as otherwise provided. Pennsylvania statutory law provides several instances in which witnesses are incompetent. See, e.g., 42 Pa.C.S.A. § 5922 (persons convicted in a Pennsylvania court of perjury incompetent in civil cases); 42 Pa.C.S.A. § 5924 (spouses incompetent to testify against each other in civil cases with certain exceptions set out in 42 Pa.C.S.A. §§ 5925, 5926, and 5927); 42 Pa.C.S.A. §§ 5930--5933 and 20 Pa.C.S.A. § 2209 (''Dead Man's statutes'').

   [Pa.R.E. 601(a) does not recognize any decisional grounds for incompetency.] At one time Pennsylvania law provided that neither a husband nor a wife was competent to testify to non-access or absence of sexual relations if the effect of that testimony would illegitimatize a child born during the marriage. See Commonwealth ex rel. Leider v. Leider, 434 Pa. 293, 254 A.2d 306 (1969). [This] That rule was abandoned in Commonwealth ex rel. Savruk v. Derby, 235 Pa. Super. 560, 344 A.2d 624 (1975).

   Pa.R.E. 601(b) has no counterpart in the Federal Rules and is consistent with Pennsylvania law concerning the factors for determining competency of a person to testify, including persons with a mental defect and children of tender years. See Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976) (standards for determining competency generally); Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982) (mental capacity); Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959) (immaturity). In Commonwealth v. Del-bridge, 578 Pa. 641, 855 A.2d 27 (Pa. 2003), the Supreme Court reiterated concern for the susceptibility of children to suggestion and fantasy and held that a child witness can be rendered incompetent to testify where unduly suggestive or coercive interview techniques corrupt or ''taint'' the child's memory and ability to testify truthfully about that memory. See also Commonwealth v. Judd, Pa. Super. 2006.

   The application of the standards in Pa.R.E. 601(b) is a factual question to be resolved by the Court as a preliminary question under Rule 104. The party challenging competency bears the burden of proving grounds of incompetency by clear and convincing evidence. Commonwealth v. Delbridge, 578 Pa. at 664; 855 A.2d at 40. In Commonwealth v. Washington, 554 Pa. 559, 722 A.2d 643 (1998), a case involving child witnesses, the Supreme Court announced a per se rule requiring trial courts to conduct competency hearings outside the presence of the jury. Expert testimony has been used when competency under these standards has been an issue. E.g., Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976); Commonwealth v. Gaerttner, 355 Pa. Super. 203, 484 A.2d 92 (1984). [Pa.R.E. 601(b) is intended to preserve existing law and not to expand it.]

*      *      *      *      *

REPORT

Proposed Revision of Comment Pa.R.E. 601

Changes

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

   The Revision of Comment proposed for Pa.R.E. 601 calls attention to cases concerning the factors for determining the competency of a person to testify. With respect to a child witness, the concept of ''taint'' is described in Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27 (Pa. 2003). Accordingly, the proposed revision calls attention to the per se rule in Commonwealth v. Washington, 554 Pa. 559, 722 A.2d 643 (Pa. 1998) requiring competency hearings to be held outside the presence of the jury.

[Pa.B. Doc. No. 06-1434. Filed for public inspection July 28, 2006, 9:00 a.m.]

---

No part of the information on this site may be reproduced for profit or sold for profit.

This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.

---