Pennsylvania Code
Pennsylvania Code & Bulletin
COMMONWEALTH OF PENNSYLVANIA

• No statutes or acts will be found at this website.

The Pennsylvania Bulletin website includes the following: Rulemakings by State agencies; Proposed Rulemakings by State agencies; State agency notices; the Governor’s Proclamations and Executive Orders; Actions by the General Assembly; and Statewide and local court rules.

PA Bulletin, Doc. No. 07-962

THE COURTS

Title 225--RULES
OF EVIDENCE

[225 PA. CODE ART. I]

Order Approving Revision of Comment to Rule 104; No. 416 Supreme Court Rules; Doc. No. 1

[37 Pa.B. 2492]
[Saturday, June 2, 2007]

Order

Per Curiam:

   Now, this 15th day of May, 2007, upon the recommendation of the Committee on Rules of Evidence, this proposal having been published before adoption at 36 Pa.B., No. 30, page 3977 (July 29, 2006) 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 approved in the following form.

   This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective June 15, 2007.

   Mr. Justice Fitzgerald did not participate in the consideration or decision of this matter.

Annex A

TITLE 225.  RULES OF EVIDENCE

ARTICLE I.  GENERAL PROVISIONS

Rule 104.  Preliminary Questions.

*      *      *      *      *

Comment

*      *      *      *      *

   In Commonwealth v. Washington, 554 Pa. 559, 722 A.2d 643 ([Pa.] 1998), a case involving child witnesses, the Supreme Court created a per se [error] rule requiring competency hearings to be conducted outside the presence of the jury. In Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27 ([Pa.] 2003), the Supreme Court held that a competency hearing is the appropriate way to explore an allegation that the [testimony] memory of a child has been [''impaired''] so corrupted or ''tainted'' by unduly suggestive or coercive interview techniques[, and that the burden is on a party alleging testimonial incompetency by reason of taint to prove it by clear and convincing evidence] as to render the child incompetent to testify.

*      *      *      *      *

FINAL REPORT

Pa. R.E. 104: Preliminary Questions

Revision of Comment

   In examining the effect of decisions of the Supreme Court on the Rules of Evidence, the Committee has proposed certain refinements in the Comment to Pa. R.E. 104. In reviewing Commonwealth v. Washington, 554 Pa. 539, 722 A.2d 643 (1998), we decided to delete the word ''error'' from the per se rule language requiring a competency hearing to be held outside of the presence of the jury.

   Turning to Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27 (2003), the effect of the opinion is that in the competency hearing it is whether the memory of the child, rather than the testimony of the child, has been ''tainted'' deleting the word ''impaired.'' Reference to burden of proof is deleted as surplussage because the burden is always on the party challenging competency.

[Pa.B. Doc. No. 07-962. Filed for public inspection June 1, 2007, 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.