THE COURTS
Title 225--RULES
OF EVIDENCE
[225 PA. CODE ART. VIII]
Proposed Amendment of Rule 803.1 and Revision of Comment
[37 Pa.B. 669]
[Saturday, February 10, 2007]The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania approve the Amendment of Pa.R.E. 803.1 and Revision of Comment. The changes are being proposed to provide for the admissibility of certain statements made at or near the time of the acts, events or conditions at issue.
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 changes precede 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 17055no later than February 21, 2007.
By the Committee on Rules of Evidence
SANDRA D. JORDAN,
Chair
Annex A
TITLE 225. RULES OF EVIDENCE
ARTICLE VIII. HEARSAY Rule 803.1. Hearsay Exceptions; Testimony of Declarant Necessary.
The following statements, as hereinafter defined, are not excluded by the hearsay rule if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement:
* * * * * (2) Written, Adopted, or Electronically Recorded Statement. A statement made at or near the time of the reported acts, events, or conditions, that was written by the declarant, adopted in writing by the declarant, or electronically recorded, provided that the statement is disclosed in a timely manner.
Comment Pa.R.E. 803.1(2) has no exact counterpart in the Federal Rules of Evidence, or in prior Pennsylvania law.
A declarant's written, adopted or recorded statement made at or near the time of the reported acts, events, or conditions is a valuable source of evidence in determining the facts in issue. The hearsay dangers under this exception are minimal in that the declarant is subject to questioning under oath by the parties at trial. The requirement that the statement must be written, adopted in writing, or electronically recorded minimizes the danger that the statement will be inaccurately reported.
The rule recognizes the evidentiary value of a statement obtained while the facts are fresh in the mind of the declarant. The rule is not intended to encourage the creation of statements as a substitute or supplement for the declarant's testimony at trial. For these reasons, a statement prepared weeks or more after the reported acts, events, or conditions should not generally be treated as ''made at or near the time of the reported acts, events, or conditions.''
The requirement of timely disclosure is intended to operate in concert with the discovery provisions of Pa.R.Civ.P. 4003.4 and Pa.R.Crim.P. 573 to eliminate unfair surprise, and to permit investigation of the authenticity and accuracy of the statement.
[(2)] (3) Statement of Identification. A statement by a witness of identification of a person or thing, made after perceiving the person or thing, provided that the witness testifies to the making of the prior identification.
* * * * * [(3)] (4) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory, providing that the witness testifies that the record correctly reflects that knowledge. If admitted, the memorandum or record may be read into evidence and received as an exhibit, but may be shown to the jury only in exceptional circumstances or when offered by an adverse party.
* * * * *
REPORT
Proposed Amendment of Rule 803.1 and Revision of Comment Hearsay Exceptions; Testimony of Declarant Necessary
Changes The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania approve the amendment of Rule 803.1 and Revision of Comment.
The Committee has considered different versions of this proposal over several meetings. Members of the committee have generally been favorable to the basic premise of the proposal, but some concerns have been voiced.
One concern has been that the rule will encourage the preparation of statements by the parties on the eve of trial that will be offered in evidence or read by the witness as a substitute or supplement for testimony presented in the traditional question and answer form. I have been persuaded that this is a valid concern, but I still think that a statement made at or near the time of the reported acts, events, or conditions is a valuable piece of evidence. Therefore, the proposed rule restricts the use of recorded statements to statements made at or near the time of the acts, events, or conditions. This language is derived from F.R.E. 803(6), Pa.R.E. 803(6) and the Uniform Business Records as Evidence Act 42 Pa.C.S. 6108.
Some members of the Committee have noted that statements like those covered by the proposed rule might be admissible under other rules, for example as a prior inconsistent statement--Pa.R.E. 803.1(1); recorded recollection--Pa.R.E. 803.1(3); for impeachment--Pa.R.E. 613(b); or for rehabilitation--Pa.R.E. 613(c). In fact, statements like those covered by the proposed rule might be admissible under these rules and others, but the proposed rule is intended to simplify the process for admission of a particularly valuable kind of evidence, that poses minimal hearsay risks. The trial court will not have to decide whether the statement is inconsistent, as required by 803.1(1), or whether the witness has insufficient recollection, as required by 803.1(3). The trial court will not be obligated to give limiting instructions, as required under 613(b) and (c).
The proposed rule may be of particular value in dealing with what appears to be a growing problem in criminal cases. A witness, often the victim, will give a statement to the police at the time of the incident, but because of intimidation the witness, at trial, will testify, ''I don't remember.'' If there is a recorded statement conforming to the proposed rule, the statement will not be excluded by the hearsay rule and the impact of the intimidation will be reduced.
Prior to the recent case of Crawford v. Washington, 541 U. S. 36 (2004), there might have been some concern about whether the proposed rule complied with a criminal defendant's 6th amendment right to confront the witnesses against him. The Supreme Court has now eliminated that concern. It has said:
(W)hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements . . . . The Clause does not does not bar the admission of a statement so long as the declarant is present at trial to defend or explain it. Crawford v. Washington, at fn. 9.
[Pa.B. Doc. No. 07-198. Filed for public inspection February 9, 2007, 9:00 a.m.]
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