PROPOSED RULEMAKING
Title 225—RULES
OF EVIDENCE
[ 225 PA. CODE ARTS. I—X ]
Proposed Rescission of Rules of Evidence 101—1008 and Comments and Promulgation of Restyled Rules of Evidence 101—1008 and Comments
[41 Pa.B. 2795]
[Saturday, May 28, 2011]The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania that the current Rules of Evidence be rescinded and replaced with restyled Rules of Evidence and Comments thereto, as more fully discussed in the accompanying Report. This proposal has not been submitted to the Supreme Court of Pennsylvania for review.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel:
Daniel A. Durst, Chief Counsel
Supreme Court of Pennsylvania
Committee on Rules of Evidence
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 6200
P. O. Box 62635
Harrisburg, PA 17106-2635
Fax: (717) 231-9536
Email: evidencerules@pacourts.usno later than August 1, 2011.
By the Committee on Rules of Evidence
BRIDGET E. MONTGOMERY, Esq.
Chair(Editor's Note: The Committee on Rules of Evidence is proposing to replace the existing rules in 225 Pa. Code Articles I—X with the following restyled rules. The existing rules appear in 225 Pa. Code, serial pages (316995), (316996), (341549)—(341552), (245741)—(245743), (317753)—(317758), (338879)—(338882), (276577), (276578), (245755), (331677)—(331679), (276579), (276580), (330287), (330288), (276583)—(276586), (245767), (245768), (254215), (254216), (265699)—(265702), (254221), (303515), (303516), (299643)—(299645), (308921)—(308923), (276587)—(276589), (285605)—(285608), (245789), (245790), (280387), (280388), (285609), (285610), (265707), (265708), (308925)—(308929), (245801), (245802), (285611), (285612), (302931)—(302933), (245807), (245808) and (276591)—(276594).)
Annex A
TITLE 225. RULES OF EVIDENCE Art.
I. GENERAL PROVISIONS II. JUDICIAL NOTICE III. PRESUMPTIONS IV. RELEVANCE AND ITS LIMITS V. PRIVILEGES VI. WITNESSES VII. OPINIONS AND EXPERT TESTIMONY VIII. HEARSAY IX. AUTHENTICATION AND IDENTIFICATION X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS
Preface to Comments The original Comments to the Pennsylvania Rules of Evidence were prepared by the Ad Hoc Committee on Evidence. The Comments accompanied the Pennsylvania Rules of Evidence that were adopted by the Pennsylvania Supreme Court on May 8, 1998. The Pennsylvania Rules of Evidence closely followed the format, language, and style of the Federal Rules of Evidence, but the guiding principle was to preserve the Pennsylvania law of evidence. The original Comments reflected this approach by identifying the Pennsylvania sources of the law. The original Comments also compared the Pennsylvania Rules to the Federal Rules for the convenience of the Bench and Bar.
The Federal Rules of Evidence were amended effective December 1, 2011. The goal of the Federal amendments was to make the rules more easily understood and to make the format and terminology more consistent, but to leave the substantive content unchanged. The Pennsylvania Rules of Evidence were rescinded and replaced on , and become effective on . They closely follow the format, language, and style of the amended Federal Rules of Evidence. The goal of the Pennsylvania Supreme Court's rescission and replacement of the Pennsylvania Rules of Evidence was likewise to make its rules more easily understood and to make the format and terminology more consistent, but to leave the substantive content unchanged. Once again, the guiding principle is to preserve the Pennsylvania law of evidence.
These Comments are prepared by the Pennsylvania Supreme Court's Committee on Rules of Evidence for the convenience of the Bench and Bar. The Comments have not been adopted by the Supreme Court and it is not intended that they have precedential significance.
ARTICLE I. GENERAL PROVISIONS Rule
101. Scope; Adoption and Citation. 102. Purpose. 103. Rulings on Evidence. 104. Preliminary Questions. 105. Limiting Evidence That is Not Admissible Against Other Parties or for Other Purposes. 106. Remainder of or Related Writings or Recorded Statements. Rule 101. Scope; Adoption and Citation.
(a) Scope. These rules of evidence govern proceedings in all courts of the Commonwealth of Pennsylvania's unified judicial system, except as otherwise provided by law.
(b) Adoption and Citation. These rules of evidence are adopted by the Supreme Court of Pennsylvania under the authority of Article V § 10(c) of the Constitution of Pennsylvania, adopted April 23, 1968. They shall be known as the Pennsylvania Rules of Evidence and shall be cited as ''Pa.R.E.''
Comment A principal goal of these rules is to construct a comprehensive code of evidence governing court proceedings in the Commonwealth of Pennsylvania. However, these rules cannot be all-inclusive. Some of our law of evidence is governed by the Constitutions of the United States and of Pennsylvania. Some is governed by statute. Some evidentiary rules are contained in the Rules of Civil and Criminal Procedure and the rules governing proceedings before courts of limited jurisdiction. Traditionally, our courts have not applied the law of evidence in its full rigor in proceedings such as preliminary hearings, bail hearings, grand jury proceedings, sentencing hearings, parole and probation hearings, extradition or rendition hearings, and others. Traditional rules of evidence have also been relaxed to some extent in custody matters, see, e.g., Pa.R.C.P. 1915.11(b) (court interrogation of a child), and other domestic relations matters, see, e.g., Pa.R.C.P. 1930.3 (testimony by electronic means).
Decisional law is applicable to some evidentiary issues not covered by these rules. This would include for example, the corpus delicti rule, see Commonwealth v. Fears, 575 Pa. 281, 836 A.2d 52 (2003); the collateral source rule, see Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A.2d 259 (1963); and the parol evidence rule, see Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425 (2004). The Pennsylvania Rules of Evidence are not intended to supersede these other provisions of law unless they do so expressly or by necessary implication.
These rules are applicable in the courts of the Commonwealth of Pennsylvania's unified judicial system. In some respects, these rules are applicable in administrative proceedings. See, e.g., Gibson v. W.C.A.B., 580 Pa. 470, 861 A.2d 938 (2004) (evidentiary rules 602, 701 and 702 applicable in agency proceedings in general, including Workers' Compensation proceedings). These rules are also applicable in compulsory arbitration hearings, with specific exceptions relating to the admissibility of certain written evidence and official documents. See Pa.R.C.P. 1305.
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised December 30, 2005, effective February 1, 2006; rescinded and replaced , 2011 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the December 30, 2005 revision of the Comment published with the Court's Order at 36 Pa.B. 384 (January 28, 2008).
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 102. Purpose.
These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.
Comment This rule is identical to F.R.E. 102.
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 103. Rulings on Evidence.
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or motion in limine; and
(B) states the specific ground, unless it was apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(c) Court's Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
Comment Pa.R.E. 103(a) differs from F.R.E. 103(a). The Federal Rule says, ''A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party. . . .'' In Pennsylvania criminal cases, the accused is entitled to relief for an erroneous ruling unless the court finds beyond a reasonable doubt that the error is harmless. See Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). Civil cases are governed by Pa.R.C.P. 126 which permits the court to disregard an erroneous ruling ''which does not affect the substantial rights of the parties.'' Pa.R.E. 103(a) is consistent with Pennsylvania law.
Pa.R.E. 103(a)(1) specifically refers to motions in limine. These motions are not mentioned in the Federal rule. Motions in limine permit the trial court to make rulings on evidence prior to trial or at trial but before the evidence is offered. Such motions can expedite the trial and assist in producing just determinations.
Pa.R.E. 103(b), (c) and (d) are identical to F.R.E. 103(b), (c) and (d).
F.R.E. 103(e) permits a court to ''take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.'' This paragraph has not been adopted because it is inconsistent with Pa.R.E. 103(a) and Pennsylvania law. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).
Official Note: Adopted May 8, 1998, effective October 1, 1998; amended November 2, 2001, effective January 1, 2002; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the November 2, 2001 amendments to paragraph (a) published with the Court's Order at 31 Pa.B. 6384 (November 24, 2001).
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 104. Preliminary Questions.
(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
(c) Conducting a Hearing So That the Jury Cannot Hear it. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
(1) the hearing involves evidence alleged to have been obtained in violation of the defendant's rights;
(2) a defendant in a criminal case is a witness and so requests; or
(3) justice so requires.
(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.
(e) Weight and Credibility. Even though the court rules that evidence is admissible, this does not preclude a party from offering other evidence relevant to the weight or credibility of that evidence.
Comment Pa.R.E. 104(a) is identical to F.R.E. 104(a).
The second sentence of Pa.R.E. 104(a) is based on the premise that, by and large, the law of evidence is a ''child of the jury system'' and that the rules of evidence need not be applied when the judge is the fact finder. The theory is that the judge should be empowered to hear any relevant evidence to resolve questions of admissibility. This approach is consistent with Pennsylvania law. See Commonwealth v. Raab, 594 Pa. 18, 934 A.2d 695 (2007).
Pa.R.E. 104(a) does not resolve whether the allegedly inadmissible evidence alone is sufficient to establish its own admissibility. Some other rules specifically address this issue. For example, Pa.R.E. 902 provides that some evidence is self-authenticating. But under Pa.R.E. 803(25), the allegedly inadmissible evidence alone is not sufficient to establish some of the preliminary facts necessary for admissibility. In other cases the question must be resolved by the trial court on a case-by-case basis.
Pa.R.E. 104(b) is identical to F.R.E. 104(b).
Pa.R.E. 104(c)(1) differs from F.R.E. 104(c)(1) in that the Federal Rule says ''the hearing involves the admissibility of a confession;'' Pa.R.E. 104(c)(1) is consistent with Pa.R.Crim.P. 581(F), which requires hearings outside the presence of the jury in all cases in which it is alleged that the evidence was obtained in violation of the defendant's rights.
Pa.R.E. 104(c)(2) and (3) are identical to F.R.E. 104(c)(2) and (3). Paragraph(c)(3) is consistent with Commonwealth v. Washington, 554 Pa. 559, 722 A.2d 643 (1998), a case involving child witnesses, in which the Supreme Court created a per se rule requiring competency hearings to be conducted outside the presence of the jury. In Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27 (2003), the Supreme Court held that a competency hearing is the appropriate way to explore an allegation that the memory of a child has been so corrupted or ''tainted'' by unduly suggestive or coercive interview techniques as to render the child incompetent to testify.
Pa.R.E. 104(d) is identical to F.R.E. 104(d). In general, when a party offers himself or herself as a witness, the party may be questioned on all relevant matters in the case. See Agate v. Dunleavy, 398 Pa. 26, 156 A.2d 530 (1959). Under Pa.R.E. 104(d), however, when the accused in a criminal case testifies with regard to a preliminary question only, he or she may not be cross-examined as to other matters. This is consistent with Pa.R.E. 104(c)(2) in that it is designed to preserve the defendant's right not to testify in the case in chief.
Pa.R.E. 104(e) differs from F.R.E. 104(e) to clarify the meaning of this paragraph.
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 29, 2001, effective April 1, 2001; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the March 29, 2001 revision of the Comment published with the Court's Order at 31 Pa.B. 1995 (April 14, 2001).
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 105. Limiting Evidence That is Not Admissible Against Other Parties or for Other Purposes.
If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly. The court may also do so on its own initiative.
Comment The first sentence of Pa.R.E. 105 is identical to F.R.E. 105. The second sentence was added to conform to Pennsylvania practice. There are other ways to deal with evidence that is admissible against one party but not another, or for one purpose but not another. For example, the evidence may be redacted. See Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977). In some cases, severance may be appropriate. See Commonwealth v. Young, 263 Pa. Super. 333, 397 A.2d 1234 (1979). Where the danger of unfair prejudice outweighs probative value the evidence may be excluded. See Pa.R.E. 403.
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 10, 2000, effective immediately; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the March 10, 2000 revision of the Comment deleting ''as amended'' from the second sentence published with the Court's Order at 30 Pa.B. 1641 (March 25, 2000).
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 106. Remainder of or Related Writings or Recorded Statements.
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.
Comment This rule is identical to F.R.E. 106. A similar principle is expressed in Pa.R.C.P. 4020(a)(4), which states: ''If only part of a deposition is offered in evidence by a party, any other party may require the offering party to introduce all of it which is relevant to the part introduced, and any party may introduce any other parts.''
The purpose of Pa.R.E. 106 is to give the adverse party an opportunity to correct a misleading impression that may be created by the use of a part of a writing or recorded statement that may be taken out of context. This rule gives the adverse party the opportunity to correct the misleading impression at the time that the evidence is introduced. The trial court has discretion to decide whether other parts, or other writings or recorded statements, ought in fairness to be considered contemporaneously with the proffered part.
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
ARTICLE II. JUDICIAL NOTICE Rule
201. Judicial Notice of Adjudicative Facts. Rule 201. Judicial Notice of Adjudicative Facts.
(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court's territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.
(d) Timing. The court may take judicial notice at any stage of the proceeding.
(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.
(f) Instructing the Jury. The court must instruct the jury that it may, but is not required to, accept as conclusive, any fact judicially noticed.
Comment This rule is identical to F.R.E. 201, except for paragraph (f).
Pa.R.E. 201(a) limits the application of this rule to adjudicative facts. This rule is not applicable to judicial notice of law. Adjudicative facts are facts about the events, persons and places relevant to the matter before the court. See 2 McCormick, Evidence § 328 (6th ed. 2006).
In determining the law applicable to a matter, the judge is sometimes said to take judicial notice of law. In Pennsylvania, judicial notice of law has been regulated by decisional law and statute. See In re Annual Controller's Reports for Years 1932, 1933, 1934, 1935 and 1936, 333 Pa. 489, 5 A.2d 201 (1939) (judicial notice of public laws); 42 Pa.C.S. § 6107 (judicial notice of municipal ordinances); 42 Pa.C.S. § 5327 (judicial notice of laws of any jurisdiction outside the Commonwealth); 45 Pa.C.S. § 506 (judicial notice of the contents of the Pennsylvania Code and the Pennsylvania Bulletin). These rules are not intended to change existing provisions of law.
Pa.R.E. 201(f) differs from F.R.E. 201(f). Under the Federal Rule the court is required to instruct the jury to accept as conclusive any fact judicially noticed in a civil case. In a criminal case, the judicially noticed fact is not treated as conclusive. Under Pennsylvania law, the judicially noticed fact has not been treated as conclusive in either civil or criminal cases, and the opposing party may submit evidence to the jury to disprove the noticed fact. See Appeal of Albert, 372 Pa. 13, 92 A.2d 663 (1952); Commonwealth v. Brown, 428 Pa. Super. 587, 631 A.2d 1014 (1993).
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
ARTICLE III. PRESUMPTIONS Rule
301. Presumptions. Rule 301. Presumptions.
Presumptions as they now exist or may be modified by law shall be unaffected by the adoption of these rules.
Comment Pa.R.E. 301 is similar to F.R.E. 301 in that it does not modify existing law. Pa.R.E. 301 differs from F.R.E. 301 in that this rule does not establish the effect of a presumption on the burden of proof.
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
ARTICLE IV. RELEVANCE AND ITS LIMITS Rule
401. Test for Relevant Evidence. 402. General Admissibility of Relevant Evidence. 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons. 404. Character Evidence; Crimes or Other Acts. 405. Methods of Proving Character. 406. Habit; Routine Practice. 407. Subsequent Remedial Measures. 408. Compromise Offers and Negotiations. 409. Offers to Pay Medical and Similar Expenses. 410. Pleas, Plea Discussions, and Related Statements. 411. Liability Insurance. 412. Sex Offense Cases: The Victim's Sexual Behavior or Predisposition (Not Adopted). Rule 401. Test for Relevant Evidence.
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Comment This rule is identical to F.R.E. 401.
Whether evidence has a tendency to make a given fact more or less probable is to be determined by the court in the light of reason, experience, scientific principles and the other testimony offered in the case.
The relevance of proposed evidence may be dependent on evidence not yet of record. Under Pa.R.E. 104(b), the court may admit the proposed evidence on the condition that the evidence supporting its relevance be introduced later.
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 402. General Admissibility of Relevant Evidence.
All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible.
Comment Pa.R.E. 402 differs from F.R.E. 402. The Federal Rule specifically enumerates the various sources of federal rule-making power. Pa.R.E. 402 substitutes the phrase ''by law''.
Pa.R.E. 402 states a fundamental concept of the law of evidence. Relevant evidence is admissible; evidence that is not relevant is not admissible. This concept is modified by the exceptions clause of the rule, which states another fundamental principle of evidentiary law—relevant evidence may be excluded by operation of constitutional law, by statute, by these rules, by other rules promulgated by the Supreme Court or by rules of evidence created by case law.
Examples of decisionally created rules of exclusion that are not abrogated by the adoption of these rules include: the corpus delicti rule, Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974); the collateral source rule, see Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A.2d 259 (1963); the parol evidence rule, see Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 854 A.2d 425 (2004); and the rule excluding certain evidence to rebut the presumption of legitimacy, see John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990).
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons.
The court may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Comment Pa.R.E. 403 differs from F.R.E. 403. The Federal Rule provides that relevant evidence may be excluded if its probative value is ''substantially outweighed.'' Pa.R.E. 403 eliminates the word ''substantially'' to conform the text of the rule more closely to Pennsylvania law. See Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982).
''Unfair prejudice'' means a tendency to suggest decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially.
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 404. Character Evidence; Crimes or Other Acts.
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
(A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to limitations imposed by statute a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant's same trait; and
(C) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.
(3) Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609.
(4) Exception in a Civil Action for Assault and Battery. In a civil action for assault and battery, evidence of the plaintiff's character trait for violence may be admitted when offered by the defendant to rebut evidence that the defendant was the first aggressor.
(b) Crimes, Wrongs or Other Acts
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.
(3) Notice in a Criminal Case. In a criminal case the prosecutor must provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence the prosecutor intends to introduce at trial.
Comment Pa.R.E. 404(a) differs from F.R.E. 404(a). There are two differences. First, F.R.E. 404(a)(2)(B) gives the defendant the right to introduce evidence of a pertinent trait of character of the alleged victim of the crime subject to the limitations in F.R.E 412. The Pennsylvania Rule differs in that Pennsylvania has not adopted Rule 412. Instead, Pennsylvania recognizes statutory limitations on this right. In particular, 18 Pa. C.S. § 3104 (the Rape Shield Law) often prohibits the defendant from introducing evidence of the alleged victim's past sexual conduct, including reputation evidence. See Comment to Pa.R.E. 412 (Not Adopted), infra. Second, Pa.R.E 404(a)(4), which applies only to a civil action for assault and battery, is not part of the federal rule. It is based on Bell v. Philadelphia, 341 Pa. Super. 534, 491 A.2d 1386 (1985).
Pa.R.E 404(a)(1) prohibits the use of evidence of a person's character or trait of character to prove conduct in conformity therewith on a particular occasion. The rationale is that the relevance of such evidence is usually outweighed by its tendency to create unfair prejudice, particularly with a jury. This does not prohibit the introduction of evidence of a person's character, or trait of character, to prove something other than conduct in conformity therewith. For example, a party must sometimes prove a person's character or trait of character because it is an element of the party's claim or defense. See Pa.R.E. 405(b) and its Comment.
A person's trait of character is not the same as a person's habit. The distinction is discussed in the Comment to Rule 406, infra. If a person's trait of character leads to habitual behavior, evidence of the latter is admissible to prove conduct in conformity therewith on a particular occasion, pursuant to Rule 406.
Pa.R.E. 404(a)(2)(A) which deals with the character of a defendant in a criminal case, is identical to F.R.E. 404(a)(2)(A). It allows the defendant to ''put his character in issue,'' usually by calling character witnesses to testify to his good reputation for a law-abiding disposition, or other pertinent trait of character. If the defendant does so, the Commonwealth may (1) cross-examine such witnesses, subject to the limitations imposed by Rule 405(a), and (2) offer rebuttal evidence.
If a defendant in a criminal case chooses to offer evidence of a pertinent trait of character of an alleged victim under subsection (a)(2)(B), then subsection (a)(2)(B)(ii) allows the Commonwealth to offer evidence that the defendant has the same trait of character. For example, in an assault and battery case, if the defendant introduces evidence that the alleged victim was a violent and belligerent person, the Commonwealth may counter by offering evidence that the defendant was also a violent and belligerent person. Thus, the jury will receive a balanced picture of the two participants to help it decide who was the first aggressor.
Pa.R.E. 404(b)(1) is identical to F.R.E. 404(b)(1). It prohibits the use of evidence of other crimes wrongs or acts to prove a person's character.
Pa.R.E. 404(b)(2), like F.R.E. 404(b)(2), contains a non-exhaustive list of purposes, other than proving character, for which a person's other crimes wrongs or acts may be admissible. But it differs in several aspects. First, Pa.R.E. 404(b)(2) requires that the probative value of the evidence must outweigh its potential for prejudice. When weighing the potential for prejudice of evidence of other crimes, wrongs, or acts, the trial court may consider whether and how much such potential for prejudice can be reduced by cautionary instructions. See Commonwealth v. LaCava, 542 Pa. 160, 666 A.2d 221 (1995). When evidence is admitted for this purpose, the party against whom it is offered is entitled, upon request, to a limiting instruction. See Commonwealth v. Hutchinson, 571 Pa. 45, 811 A.2d 556 (2002). Second, the federal rule requires the defendant in a criminal case to make a request for notice of the prosecutor's intent to offer evidence of other crimes, wrongs or acts. This issue is covered in Pa.R.E. 404(b)(3) which is consistent with prior Pennsylvania practice in that the requirement that the prosecutor give notice is not dependent upon a request by the defendant.
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised November 2, 2001; effective January 1, 2002; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the November 2, 2001 revision of Subsection (a) of the Comment published with the Court's Order at 31 Pa.B. 6384 (November 24, 2001).
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 405. Methods of Proving Character.
(a) By Reputation. When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation. Testimony about the witness's opinion as to the character or character trait of the person is not admissible.
(1) On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct probative of the character trait in question.
(2) In a criminal case, on cross-examination of a character witness, inquiry into allegations of other criminal conduct by the defendant, not resulting in conviction, is not permissible.
(b) By Specific Instances of Conduct. Specific instances of conduct are not admissible to prove character or a trait of character, except:
(1) In a civil case, when a person's character or a character trait is an essential element of a claim or defense, character may be proved by specific instances of conduct.
(2) In a criminal case, when character or a character trait of an alleged victim is admissible under Pa.R.E. 404(a)(2)(B) the defendant may prove the character or character trait by specific instances of conduct.
Comment Pa.R.E. 405(a) differs from F.R.E. 405(a). The first sentence of Pa.R.E 405(a) permits proof of character or a character trait by reputation testimony, as does F.R.E. 405(a). But the second sentence specifically prohibits opinion testimony about character or a trait of character. This prohibition is consistent with prior Pennsylvania law. See Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967), vacated on other grounds, 392 U.S. 647 (1968).
Pa.R.E. 405(a) also differs from F.R.E. 405(a) in that there are two subparagraphs, Pa.R.E. 405(a)(1) and Pa.R.E. 405(a)(2), dealing with cross-examination of a character witness. Pa.R.E. 405(a)(2) prohibits cross-examination of a criminal defendant's character witnesses regarding criminal conduct of the defendant not resulting in conviction. This is consistent with prior Pennsylvania law. See Commonwealth v. Morgan, 559 Pa. 248, 739 A.2d 1033 (1999). When a reputation witness is cross-examined regarding specific instances of conduct, the court should take care that the cross-examiner has a reasonable basis for the questions asked. See Commonwealth v. Adams, 426 Pa. Super. 332, 626 A.2d 1231 (1993).
Pa.R.E. 405(b) differs from F.R.E. 405(b). Unlike F.R.E. 405(b), Pa.R.E. 405(b) distinguishes between civil and criminal cases in permitting the use of specific instances of conduct to prove character.
With regard to civil cases, Pa.R.E. 405(b)(1) is similar to the Federal Rule in permitting proof of character by specific instances of conduct where character is an essential element of the claim or defense. This is consistent with prior Pennsylvania law. See Matusak v. Kulczewski, 295 Pa. 208, 145 A. 94 (1928); Dempsey v. Walso Bureau, Inc., 431 Pa. 562, 246 A.2d 418 (1968). With regard to criminal cases, under Pa.R.E. 404(a)(2)(B), the accused may offer evidence of a pertinent trait of character of the alleged crime victim. Under Pa.R.E. 405(b)(2) the trait may be proven by specific instances of conduct without regard to whether the trait is an essential element of the charge, or defense. This is consistent with prior Pennsylvania law. See Commonwealth v. Dillon, 528 Pa. 417, 598 A.2d 963 (1991).
Official Note: Adopted May 8, 1998, effective October 1, 1998; amended July 20, 2000; effective October 1, 2000; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the July 20, 2000 amendment of paragraph (a) concerning allegations of other criminal misconduct published with the Court's Order at 30 Pa.B. 3920 (August 5, 2000).
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 406. Habit; Routine Practice.
Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or there was an eyewitness.
Comment This rule is identical to F.R.E. 406. The concepts of ''habit'' and ''routine practice'' denote conduct that occurs with fixed regularity in repeated specific situations. Like the Federal Rule, Pa.R.E. 406 does not set forth the ways in which habit or routine practice may be proven, but leaves this for case-by-case determination. See, e.g., Commonwealth v. Rivers, 537 Pa. 394, 644 A.2d 710 (1994) (allowing testimony based on familiarity with another's conduct); Baldridge v. Matthews, 378 Pa. 566, 570; 106 A.2d 809, 811 (1954) (testimony of uniform practice apparently permitted without examples of specific instances).
Evidence of habit must be distinguished from evidence of character. Character applies to a generalized propensity to act in a certain way without reference to specific conduct, and frequently contains a normative, or value-laden, component (e.g., a character for truthfulness). Habit connotes one's conduct in a precise factual context, and frequently involves mundane matters (e.g., recording the purpose for checks drawn).
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 407. Subsequent Remedial Measures.
When measures are taken by a party that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible against that party to prove:
• negligence;
• culpable conduct;
• a defect in a product or its design; or
• a need for a warning or instruction.
But the court may admit this evidence for another purpose such as impeachment or—if disputed—proving ownership, control, or the feasibility of precautionary measures.
Comment Pa.R.E. 407 differs from F.R.E. 407. The rule has been modified to clarify that the rule only protects the party that took the measures. Though F.R.E. 407 is silent on the point, the courts have generally held that the federal rule does not apply when one other than the alleged tortfeasor takes the action because the reason for the rule (to encourage remedial measures) is not then implicated. See, e.g., TLT-Babcock, Inc. v. Emerson Electric Co., 33 F.3d 397, 400 (4th Cir. 1994) (collecting cases).
Official Note: Adopted May 8, 1998, effective October 1, 1998; amended June 12, 2003, effective July 1, 2003; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the June 12, 2003 amendments published with the Court's Order at 33 Pa.B. 2973 (June 28, 2003).
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 408. Compromise Offers and Negotiations.
(a) Prohibited Uses. Evidence of the following is not admissible—on behalf of any party—either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering—or accepting, promising to accept, or offering to accept—a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Comment Pa.R.E. 408(a) differs from F.R.E. 408(a) in that the federal rule in paragraph (a)(2) contains language that seems to permit the use in criminal cases of statements made to government investigators, regulators, or enforcement authority in negotiations in civil cases. That language has not been adopted because the use of such statements might conflict with the policies underlying Pa.R.Crim.P. 586 (relating to dismissal of criminal charges not committed by force or violence upon payment of restitution) or Pa.R.Crim.P. 546 (relating to dismissal upon satisfaction or agreement).
This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.
Pa.R.E. 408(b) is identical to F.R.E. 408(b).
Admissibility of conduct and statements in mediations pursuant to the Mediation Act of 1996, 42 Pa.C.S. § 5949, is governed by that statute.
Pa.R.E. 408 is consistent with 42 Pa.C.S. § 6141 which provides, in pertinent part, as follows:
§ 6141. Effect of certain settlements(a) Personal Injuries. Settlement with or any payment made to an injured person or to others on behalf of such injured person with the permission of such injured person or to anyone entitled to recover damages on account of injury or death of such person shall not constitute an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary.(b) Damages to Property. Settlement with or any payment made to a person or on his behalf to others for damages to or destruction of property shall not constitute an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary.(c) Admissibility in Evidence. Except in an action in which final settlement and release has been pleaded as a complete defense, any settlement or payment referred to in subsections (a) and (b) shall not be admissible in evidence on the trial of any matter.Official Note: Adopted May 8, 1998, effective October 1, 1998; amended March 10, 2000; effective July 1, 2000; Comment revised March 29, 2001, effective April 1, 2001; amended September 18, 2008, effective October 30, 2008; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the March 10, 2000 amendments concerning the inadmissibility of evidence of conduct or statements made in compromise negotiations published at 30 Pa.B. 1643 (March 25, 2000).
Final Report explaining the March 29, 2001 revision of the Comment published with the Court's Order at 31 Pa.B. 1995 (April 14, 2001).
Final Report explaining the September 18, 2008 amendments published with the Court's Order at 38 Pa.B. 5423 (October 4, 2008).
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 409. Offers to Pay Medical and Similar Expenses.
Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
Comment This rule is identical to F.R.E. 409.
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised December 30, 2005, effective February 1, 2006; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the December 30, 2005 revision of the Comment published with the Court's Order at 36 Pa.B. 384 (January 28, 2006).
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 410. Pleas, Plea Discussions, and Related Statements.
(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:
(1) a guilty plea that was later withdrawn;
(2) a nolo contendere plea;
(3) a statement made in the course of any proceedings under Rules 311, 313, 409, 414, 424, 550 or 590 of the Pennsylvania Rules of Criminal Procedure, Rule 11 of the Federal Rules of Criminal Procedure, or a comparable rule or procedure of another state; or
(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later withdrawn guilty plea.
(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or
(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.
Comment Pa.R.E. 410(a)(3) differs from F.R.E. 410(a)(3) in that it refers to the Pennsylvania proceedings to which the paragraph applies rather than the federal proceedings.
Pa.R.E. 410 does not prohibit the use of a conviction that results from a plea of nolo contendere, as distinct from the plea itself, to impeach in a later proceeding (subject to Pa.R.E. 609) or to establish an element of a charge in a later administrative proceeding. See Commonwealth v. Snyder, 408 Pa. 253, 182 A.2d 495 (1962) (conviction based on nolo contendere plea could be used to impeach witness in later criminal proceeding); Eisenberg v. Commonwealth, Dep't. of Public Welfare, 512 Pa. 181, 516 A.2d 333 (Pa. 1986) (conviction based on nolo contendere plea permitted to establish element of charge in administrative proceeding).
There is also a statute governing the admissibility of guilty pleas and pleas of nolo contendere in cases charging summary motor vehicle violations when offered in civil cases arising out of the same facts. See 42 Pa.C.S. § 6142 which provides:
(a) General Rule. A plea of guilty or nolo contendere, or a payment of the fine and costs prescribed after any such plea, in any summary proceeding made by any person charged with a violation of Title 75 (relating to vehicles) shall not be admissible as evidence in any civil matter arising out of the same violation or under the same facts or circumstances.(b) Exception. The provisions of subsection (a) shall not be applicable to administrative or judicial proceedings involving the suspension of a motor vehicle or tractor operating privilege, learner's permit, or right to apply for a motor vehicle or tractor operating privilege, or the suspension of a certificate of appointment as an official inspection station, or the suspension of a motor vehicle, tractor, or trailer registration.Pa.R.E. 410(b) is identical to F.R.E. 410(b).
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 23, 1999, effective immediately; amended March 10, 2000, effective immediately; amended March 29, 2001, effective April 1, 2001; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the March 23, 1999 technical revisions of the Comment published with the Court's Order at 29 Pa.B. 1714 (April 3, 1999).
Final Report explaining the March 10, 2000 technical amendments updating the rule published with the Court's Order at 30 Pa.B. 1641 (March 25, 2000).
Final Report explaining the March 29, 2001 amendments published with the Court's Order at 31 Pa.B. 1995 (April 14, 2001).
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 411. Liability Insurance.
Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness's bias or prejudice or proving agency, ownership, or control.
Comment This rule is identical to F.R.E. 411.
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 412. Sex Offense Cases: The Victim's Sexual Behavior or Predisposition (Not Adopted).
Comment Pennsylvania has not adopted a Rule of Evidence comparable to F.R.E. 412. In Pennsylvania this subject is governed by 18 Pa.C.S. § 3104 (the ''Rape Shield Law'').
18 Pa.C.S. § 3104 provides:
§ 3104. Evidence of victim's sexual conduct(a) General rule.—Evidence of specific instances of the alleged victim's past sexual conduct, opinion evidence of the alleged victim's past sexual conduct, and reputation evidence of the alleged victim's past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim's past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.(b) Evidentiary proceedings.—A defendant who proposes to offer evidence of the alleged victim's past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).Official Note: Comment adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
ARTICLE V. PRIVILEGES Rule
501. Privileges. 502. Attorney-Client Privilege and Work Product; Limitations on Waiver (Not Adopted). Rule 501. Privileges.
Privileges as they now exist or may be modified by law shall be unaffected by the adoption of these rules.
Comment Pa.R.E. 501 is similar to F.R.E. 501 in that this rule does not modify existing law.
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver (Not Adopted).
ARTICLE VI. WITNESSES Rule
601. Competency. 602. Need for Personal Knowledge. 603. Oath or Affirmation to Testify Truthfully. 604. Interpreter. 605. Judge's Competency as a Witness. 606. Juror's Competency as a Witness. 607. Who May Impeach a Witness, Evidence to Impeach a Witness. 608. A Witness's Character for Truthfulness or Untruthfulness. 609. Impeachment by Evidence of a Criminal Conviction. 610. Religious Beliefs or Opinions. 611. Mode and Order of Examining Witnesses and Presenting Evidence. 612. Writing or Other Item Used to Refresh a Witness's Memory. 613. Witness's Prior Inconsistent Statement to Impeach; Witness's Prior Consistent Statement to Rehabilitate. 614. Court's Calling or Examining a Witness. 615. Sequestering Witnesses. Rule 601. Competency.
(a) General Rule. Every person is competent to be a witness except as otherwise provided by statute or in these rules.
(b) Disqualification for Specific Defects. A person is incompetent to testify if the court finds that because of a mental condition or immaturity the person:
(1) is, or was, at any relevant time, incapable of perceiving accurately;
(2) is unable to express himself or herself so as to be understood either directly or through an interpreter;
(3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the truth.
Comment Pa.R.E. 601(a) differs from F.R.E. 601(a). It is consistent, instead, with Pennsylvania statutory law. 42 Pa.C.S. §§ 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. § 5922 (persons convicted in a Pennsylvania court of perjury incompetent in civil cases); 42 Pa.C.S. § 5924 (spouses incompetent to testify against each other in civil cases with certain exceptions set out in 42 Pa.C.S. §§ 5925, 5926, and 5927); 42 Pa.C.S. §§ 5930—5933 and 20 Pa.C.S. § 2209 (''Dead Man's statutes'').
Pa.R.E. 601(b) has no counterpart in the Federal Rules. It 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).
Pennsylvania case law recognizes two other grounds for incompetency, a child's ''tainted'' testimony, and hypnotically refreshed testimony. In Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27 (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, 897 A.2d 1224 (Pa. Super. 2006).
In Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), the Supreme Court rejected hypnotically refreshed testimony, where the witness had no prior independent recollection. Applying the test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) for scientific testimony, the Court was not convinced that the process of hypnosis as a means of restoring forgotten or repressed memory had gained sufficient acceptance in its field. Commonwealth v. Nazarovitch, supra; see also Commonwealth v. Romanelli, 522 Pa. 222, 560 A.2d 1384 (1989) (when witness has been hypnotized, he or she may testify concerning matters recollected prior to hypnosis, but not about matters recalled only during or after hypnosis); Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984) (same). Pa.R.E 601(b) is not intended to change these results. For the constitutional implications when a defendant in a criminal case, whose memory has been hypnotically refreshed, seeks to testify, see Rock v. Arkansas, 483 U.S. 44 (1987).
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. See e.g., Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976); Commonwealth v. Gaerttner, 335 Pa. Super. 203, 484 A.2d 92 (1984).
Official Note: Adopted May 8, 1998, effective October 1, 1998; amended November 2, 2007, effective December 14, 2007; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 602. Need for Personal Knowledge.
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule 703.
Comment This rule is identical to F.R.E. 602.
Personal or firsthand knowledge is a universal requirement of the law of evidence. See Johnson v. Peoples Cab Co., 386 Pa. 513, 514-15, 126 A.2d 720, 721 (1956) (''The primary object of a trial in our American courts is to bring to the tribunal, which is passing on the dispute involved, those persons who know of their own knowledge the facts to which they testify.''). Pa.R.E. 602 refers to Pa.R.E. 703 to make clear that there is no conflict with Rule 703, which permits an expert to base an opinion on facts not within the expert's personal knowledge.
It is implicit in Pa.R.E. 602 that the party calling the witness has the burden of proving personal knowledge. This is consistent with Pennsylvania law. Carney v. Pennsylvania R.R. Co., 428 Pa. 489, 240 A.2d 71 (1968).
Generally speaking, the personal knowledge requirement of Rule 602 is applicable to the declarant of a hearsay statement. See, e.g., Commonwealth v. Pron-koskie, 477 Pa. 132, 383 A.2d 858 (1978) and Carney v. Pennsylvania R.R. Co., 428 Pa. 489, 240 A.2d 71 (1968). However, personal knowledge is not required for an opposing party's statement under Pa.R.E. 803(25). See Salvitti v. Throppe, 343 Pa. 642, 23 A.2d 445 (1942); Carswell v. SEPTA, 259 Pa. Super. 167, 393 A.2d 770 (1978). In addition, Pa.R.E. 804(b)(4) explicitly dispenses with the need for personal knowledge for statements of personal or family history, and Pa.R.E. 803(19), (20) and (21) impliedly do away with the personal knowledge requirement by permitting testimony as to reputation to prove personal or family history, boundaries or general history, and a person's character.
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 603. Oath or Affirmation to Testify Truthfully.
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience.
Comment This rule is identical to F.R.E. 603.
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 604. Interpreter.
An interpreter must be qualified and must give an oath or affirmation to make a true translation.
Comment In 2006, legislation was enacted pertaining to the certification, appointment, and use of interpreters in judicial and administrative proceedings for persons having limited proficiency with the English language and persons who are deaf. See 42 Pa.C.S. §§ 4401—4438; 2 Pa.C.S. §§ 561—588. Pursuant to this legislation, the Administrative Office of the Pennsylvania Courts (''AOPC'') has implemented an interpreter program for judicial proceedings. See 204 Pa. Code §§ 221.101—.407. Information on the court interpreter program and a roster of court interpreters may be obtained from the AOPC web site at www.pacourts.us/t/aopc/courtinterpreterprog.
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 29, 2001, effective April 1, 2001; amended , 2011, effective , 2011; rescinded and replaced , 2011, effective ,2011.
Committee Explanatory Reports:
Final Report explaining the March 29, 2001 revision of the Comment published with the Court's Order at 31 Pa.B. 1995 (April 14, 2001).
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 605. Judge's Competency as a Witness.
The presiding judge may not testify as a witness at the trial.
Comment This rule is identical to the first sentence of F.R.E. 605.
The second sentence of F.R.E. 605 which provides, ''A party need not object to preserve the issue,'' is not adopted. This is consistent with Pa.R.E. 103(a) which provides that error may not be predicated on a ruling admitting evidence in the absence of a timely objection, motion to strike, or motion in limine. Of course, the court should permit the making of the objection out of the presence of the jury. See Pa.R.E. 103(d).
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 606. Juror's Competency as a Witness.
(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury's presence.
(b) During an Inquiry into the Validity of a Verdict or Indictment
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) prejudicial information not of record and beyond common knowledge and experience was improperly brought to the jury's attention; or
(B) an outside influence was improperly brought to bear on any juror.
Comment Pa.R.E. 606(a) is identical to F.R.E. 606(a). Note that this paragraph bars a juror from testifying ''before the other jurors at the trial.'' That phrase indicates that a juror may testify outside the presence of the rest of the jury on matters occurring during the course of the trial. See, e.g., Commonwealth v. Santiago, 456 Pa. 265, 318 A.2d 737 (1974) (jurors permitted to testify at hearing in chambers during trial on question of whether they received improper prejudicial information).
Pa.R.E. 606(b) differs from F.R.E. 606(b). First, the words, ''extraneous prejudicial information'' in F.R.E. 606(b)(2)(A) have been replaced by the phrase ''prejudicial information not of record and beyond common knowledge and experience.'' This makes clear that the exception is directed at evidence brought before the jury which was not presented during the trial, and which was not tested by the processes of the adversary system and subjected to judicial screening for a determination of admissibility. The qualification of ''common knowledge and experience'' is a recognition that all jurors bring with them some common facts of life.
Second, Pa.R.E. 606(b)(2) does not contain the third exception to juror incompetency that appears in F.R.E. 606(b)(2)(C)—permitting juror testimony about whether there was a mistake in entering the verdict onto the verdict form. Pennsylvania law deals with possible mistakes in the verdict form by permitting the polling of the jury prior to the recording of the verdict. If there is no concurrence, the jury is directed to retire for further deliberations. See Pa.R.Crim.P. 648(G); City of Pittsburgh v. Dinardo, 410 Pa. 376, 189 A. 2d 886 (1963); Barefoot v. Penn Central Transportation Co., 226 Pa. Super. 558, 323 A.2d 271 (1974).
Pa.R.E. 606(b) does not purport to set forth the substantive grounds for setting aside verdicts because of an irregularity.
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised September 17, 2007, October 17, 2007; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the September 17, 2007 revision of the Comment published with the Court's Order at 37 Pa.B. 5247 (September 29, 2007).
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 607. Who May Impeach a Witness, Evidence to Impeach a Witness.
(a) Who May Impeach a Witness. Any party, including the party that called the witness, may attack the witness's credibility.
(b) Evidence to Impeach a Witness. The credibility of a witness may be impeached by any evidence relevant to that issue, except as otherwise provided by statute or these rules.
Comment Pa.R.E. 607(a) is identical to F.R.E. 607. It abolishes the common law rule that prohibited a party from impeaching a witness called by that party.
The Federal Rules have no provision similar to Pa.R.E. 607(b). Pa.R.E. 607(b) applies the test for relevant evidence of Pa.R.E. 401 to evidence offered to impeach the credibility of a witness. As is the case under Pa.R.E. 402, there are limits on the admissibility of evidence relevant to the credibility of a witness imposed by these rules. For example, Pa.R.E. 403 excludes relevant evidence if its probative value is outweighed by danger of unfair prejudice, etc., and there are specific limitations on impeachment imposed by Rules 608,609 and 610. There are statutory limitations such as 18 Pa.C.S. § 3104 (Rape Shield Law).
Pa.R.E. 607(b), however, is not curtailed by 42 Pa.C.S. § 5918, which prohibits, with certain exceptions, the questioning of a defendant who testifies in a criminal case for the purpose of showing that the defendant has committed, been convicted of or charged with another offense or that the defendant has a bad character or reputation. In Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), this statute was interpreted to apply only to cross-examination. Hence, it affects only the timing and method of impeachment of a defendant; it does not bar the impeachment entirely.
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 608. A Witness's Character for Truthfulness or Untruthfulness.
(a) Reputation Evidence. A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked. Opinion testimony about the witness's character for truthfulness or untruthfulness is not admissible.
(b) Specific Instances of Conduct. Except as provided in Rule 609 (relating to evidence of conviction of crime),
(1) the character of a witness for truthfulness may not be attacked or supported by cross-examination or extrinsic evidence concerning specific instances of the witness' conduct; however,
(2) in the discretion of the court, the credibility of a witness who testifies as to the reputation of another witness for truthfulness or untruthfulness may be attacked by cross-examination concerning specific instances of conduct (not including arrests) of the other witness, if they are probative of truthfulness or untruthfulness; but extrinsic evidence thereof is not admissible.
Comment Pa.R.E. 608(a) differs from F.R.E. 608(a) in that the Federal Rule permits character for truthfulness or untruthfulness to be attacked or supported by testimony about the witness's reputation or by opinion testimony. Under Pa.R.E. 608(a), opinion testimony is not admissible. This approach is consistent with Pennsylvania law. See Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967), vacated on other grounds, 392 U.S. 647 (1968). Compare Pa.R.E. 405(a).
Pa.R.E. 608(b)(1) differs from F.R.E.608(b). Pa.R.E. 608(b)(1) prohibits the use of evidence of specific instances of conduct to support or attack credibility. This is consistent with Pennsylvania law. See Commonwealth v. Cragle, 281 Pa. Super. 434, 422 A.2d 547 (1980). F.R.E. 608(b)(1) prohibits the use of extrinsic evidence for this purpose, but permits cross-examination of a witness about specific instances of conduct reflecting on the witness's credibility within the court's discretion. Both the Pennsylvania and the Federal Rule refer the issue of attacking a witness's credibility with evidence of prior convictions to Rule 609.
Pa.R.E. 608(b)(2) is similar to F.R.E. 608(b); it permits a witness who has testified to another witness's character for truthfulness to be cross-examined, about specific instances of conduct of the principal witness, in the discretion of the court. Pa.R.E. 608(b)(2) makes it clear that although the cross-examination concerns the specific acts of the principal witness, that evidence affects the credibility of the character witness only. This is in accord with Pennsylvania law. See Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986); Commonwealth v. Adams, 426 Pa. Super. 332, 626 A.2d 1231 (1993). In addition, Pa.R.E. 608(b)(2) excludes the use of arrests; this, too, is consistent with Pennsylvania law. See Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981). Because cross-examination concerning specific instances of conduct is subject to abuse, the cross-examination is not automatic; rather, its use is specifically placed in the discretion of the court, and like all other relevant evidence, it is subject to the balancing test of Pa.R.E. 403. Moreover, the court should take care that the cross-examiner has a reasonable basis for the questions asked. See Adams, supra.
Finally, the last paragraph of F.R.E. 608(b), which provides that the giving of testimony by an accused or any other witness is not a waiver of the privilege against self-incrimination when the examination concerns matters relating only to credibility, is not adopted.
Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
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