[41 Pa.B. 2795]
[Saturday, May 28, 2011]
[Continued from previous Web Page] Rule 609. Impeachment by Evidence of a Criminal Conviction.
(a) In General. For the purpose of attacking the credibility of any witness, evidence that the witness has been convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, must be admitted if it involved dishonesty or false statement.
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
(c) Effect of Pardon or Other Equivalent Procedure. Evidence of a conviction is not admissible under this rule if the conviction has been the subject of one of the following:
(1) a pardon or other equivalent procedure based on a specific finding of innocence; or
(2) a pardon or other equivalent procedure based on a specific finding of rehabilitation of the person convicted, and that person has not been convicted of any subsequent crime.
(d) Juvenile Adjudications. In a criminal case only, evidence of the adjudication of delinquency for an offense under the Juvenile Act, 42 Pa.C.S. §§ 6301 et seq., may be used to impeach the credibility of a witness if conviction of the offense would be admissible to attack the credibility of an adult.
(e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
Comment Pa.R.E. 609(a) differs from F.R.E. 609(a). It is designed to be consistent with Pennsylvania case law. See Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973). In addition, Pa.R.E. 609(a), unlike F.R.E. 609(a)(2), specifically provides that a conviction based upon a plea of nolo contendere may be used to attack the credibility of a witness; this, too, is consistent with prior Pennsylvania case law. See Commonwealth v. Snyder, 408 Pa. 253, 182 A.2d 495 (1962).
As a general rule, evidence of a jury verdict of guilty or a plea of guilty or nolo contendere may not be used to attack the credibility of a witness before the court has pronounced sentence. See Commonwealth v. Zapata, 455 Pa. 205, 314 A.2d 299 (1974). In addition, evidence of admission to an Accelerated Rehabilitative Disposition program under Pa.R.Crim.P. 310-320 may not be used to attack credibility. See Commonwealth v. Krall, 290 Pa. Super. 1, 434 A.2d 99 (1981).
42 Pa.C.S. § 5918 provides (with certain exceptions) that when a defendant in a criminal case has been called to testify in his or her own behalf he or she cannot be cross-examined about prior convictions. However, evidence of a prior conviction or convictions of a crime or crimes admissible under paragraph (a) may be introduced in rebuttal after the defendant has testified. See Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973).
Pa.R.E. 609(b) differs slightly from F.R.E. 609(b) in that the phrase ''supported by specific facts and circumstances,'' used in F.R.E. 609(b)(1) with respect to the balancing of probative value and prejudicial effect, has been eliminated. Pa.R.E. 609(b) basically tracks what was said in Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987). Where the date of conviction or last date of confinement is within ten years of the trial, evidence of the conviction of a crimen falsi is per se admissible. If more than ten years have elapsed, the evidence may be used only after written notice and the trial judge's determination that its probative value substantially outweighs its prejudicial effect. The relevant factors for making this determination are set forth in Bighum, supra, and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978). For the computation of the ten-year period, where there has been a reincarceration because of a parole violation, see Commonwealth v. Jackson, 526 Pa. 294, 585 A.2d 1001 (1991).
Pa.R.E. 609(c) differs from F.R.E. 609(c) because the Federal Rule includes procedures that are not provided by Pennsylvania law.
Pa.R.E. 609(d) differs from F.R.E. 609(d). Under the latter, evidence of juvenile adjudications is generally inadmissible to impeach credibility, except in criminal cases against a witness other than the accused where the court finds that the evidence is necessary for a fair determination of guilt or innocence. Pa.R.E. 609(d), to be consistent with 42 Pa.C.S. § 6354(b)(4), permits a broader use; a juvenile adjudication of an offense may be used to impeach in a criminal case if conviction of the offense would be admissible if committed by an adult. Juvenile adjudications may also be admissible for other purposes. See 42 Pa.C.S. § 6354(b)(1), (2), and (3).
Pa.R.E. 609(e) is identical to F.R.E. 609(e).
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 610. Religious Beliefs or Opinions.
Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.
Comment This rule is identical to F.R.E. 610. It is consistent with 42 Pa.C.S. § 5902, which provides that religious beliefs and opinions shall not affect a person's ''capacity'' to testify, that no witness shall be questioned about those beliefs or opinions, and that no evidence shall be heard on those subjects for the purpose of affecting ''competency or credibility.''
Pa.R.E. 610 bars evidence of a witness's religious beliefs or opinions only when offered to show that the beliefs or opinions affect the witness's truthfulness. Pa.R.E. 610 does not bar such evidence introduced for other purposes. See McKim v. Philadelphia Transp. Co., 364 Pa. 237, 72 A.2d 122 (1950); Commonwealth v. Riggins, 374 Pa. Super. 243, 542 A.2d 1004 (1988).
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 611. Mode and Order of Examining Witnesses and Presenting Evidence.
(a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
(1) make those procedures effective for determining the truth;
(2) avoid wasting time; and
(3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination of a witness other than a party in a civil case should be limited to the subject matter of the direct examination and matters affecting credibility, however, the court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. A party witness in a civil case may be cross-examined by an adverse party on any matter relevant to any issue in the case, including credibility, unless the court, in the interests of justice, limits the cross-examination with respect to matters not testified to on direct examination.
(c) Leading Questions. Leading questions should not be used on direct or redirect examination except as necessary to develop the witness's testimony. Ordinarily, the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
Comment Pa.R.E. 611(a) is identical to F.R.E. 611(a).
Pa.R.E. 611(b) differs from F.R.E. 611(b). F.R.E. 611(b) limits the scope of cross-examination of all witnesses to matters testified to on direct and matters bearing on credibility, unless the court in its discretion allows inquiry into additional matters as if on direct examination. This has been the traditional view in the Federal courts and many State courts. The cross-examiner does not lose the opportunity to develop the evidence because, unless the witness is the accused in a criminal case, the cross-examiner may call the witness as his or her own. Therefore, the introduction of the evidence is merely deferred.
Pa.R.E. 611(b), which is based on Pennsylvania law, applies the traditional view in both civil and criminal cases to all witnesses except a party in a civil case. Under Pa.R.E. 611(b), a party in a civil case may be cross-examined on all relevant issues and matters affecting credibility. See Agate v. Dunleavy, 398 Pa. 26, 156 A.2d 530 (1959); Greenfield v. Philadelphia, 282 Pa. 344, 127 A. 768 (1925). However, in both of those cases, the Court stated that the broadened scope of cross-examination of a party in a civil case does not permit a defendant to put in a defense through cross-examination of the plaintiff. The qualifying clause in the last sentence of Pa.R.E. 611(b) is intended to give the trial judge discretion to follow this longstanding rule.
When the accused in a criminal case is the witness, there is an interplay between the limited scope of cross-examination and the accused's privilege against self-incrimination. When the accused testifies generally as to facts tending to negate or raise doubts about the prosecution's evidence, he or she has waived the privilege and may not use it to prevent the prosecution from bringing out on cross-examination every circumstance related to those facts. See Commonwealth v. Green, 525 Pa. 424, 581 A.2d 544 (1990). However, when the accused's testimony is limited to a narrow topic, there is some authority that the scope of cross-examination may be limited as well. See Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971); Commonwealth v. Ulen, 414 Pa. Super. 502, 607 A.2d 779 (1992), rev'd on other grounds, 539 Pa. 51, 650 A.2d 416 (1994).
Pa.R.E. 611(c) differs from F.R.E. 611(c) in that the word ''redirect'' has been added to the first sentence. This is consistent with Pennsylvania law. See Commonwealth v. Reidenbaugh, 282 Pa. Super. 300, 422 A.2d 1126 (1980).
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 612. Writing or Other Item Used to Refresh a Witness's Memory.
(a) Right to Refresh Memory. A witness may use a writing or other item to refresh memory for the purpose of testifying while testifying, or before testifying.
(b) Rights of Adverse Party.
(1) If a witness uses a writing or other item to refresh memory while testifying, an adverse party is entitled to have it produced at the hearing, trial or deposition, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony.
(2) If a witness uses a writing or other item to refresh memory before testifying, and the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have it produced at the hearing, trial or deposition, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony.
(c) Rights of Producing Party. If the producing party claims that the writing or other item includes unrelated matter, the court must examine it in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.
(d) Failure to Produce or Deliver. If the writing or other item is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness's testimony or-if justice so requires-declare a mistrial, or the court may use contempt procedures.
Comment Pa.R.E. 612 differs from F.R.E. in several ways:
Pa.R.E. 612 applies to writings and other items. This would include such things as photographs, videos, and recordings. F.R.E 612 applies only to writings. The Pennsylvania rule is consistent with prior law. See Commonwealth v. Proctor, 253 Pa. Super. 369, 385 A.2d 383 (1978).
Pa.R.E. 612(a) states that a witness or a party has a right to refresh recollection. This is not expressly provided by F.R.E. 612.
Pa.R.E. 612(b) reorganizes the material that appears in F.R.E. 612(a) and the first sentence of F.R.E.612(b) for clarity, includes the word ''deposition'' to clarify that the rule is applicable both at hearings and depositions, and deletes reference to 18 U.S.C. § 3500.
Paragraph (c) differs from the second sentence of F.R.E. 612(b) in that it refers to other items as well as writings.
Paragraph (d) differs from F.R.E. 612(c) in that it adds the phrase ''or the court may use contempt procedures''.
Official Note: Adopted May 8, 1998, effective October 1, 1998; amended March 23, 1999, effective immediately; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the March 23, 1999 technical amendments to paragraph (a) published with the Court's Order at 29 Pa.B. 1714 (April 3, 1999).
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 613. Witness's Prior Inconsistent Statement to Impeach; Witness's Prior Consistent Statement to Rehabilitate.
(a) Witness's Prior Inconsistent Statement to Impeach. A witness may be examined concerning a prior inconsistent statement made by the witness to impeach the witness's credibility. The statement need not be shown or its contents disclosed to the witness at that time, but on request the statement or contents must be shown or disclosed to an adverse party's attorney.
(b) Extrinsic Evidence of a Witness's Prior Inconsistent Statement. Unless the interests of justice otherwise require, extrinsic evidence of a witness's prior inconsistent statement is admissible only if, during the examination of the witness,
(1) the statement, if written, is shown to, or if not written, its contents are disclosed to, the witness;
(2) the witness is given an opportunity to explain or deny the making of the statement; and
(3) an adverse party is given an opportunity to question the witness.
This paragraph does not apply to an opposing party's statement as defined in Rule 803(25).
(c) Witness's Prior Consistent Statement to Rehabilitate. Evidence of a witness's prior consistent statement is admissible to rehabilitate the witness's credibility if the opposing party is given an opportunity to cross-examine the witness about the statement and the statement is offered to rebut an express or implied charge of:
(1) fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose; or
(2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness's denial or explanation.
Comment Pa.R.E 613 differs from F.R.E. 613 to clarify its meaning and to conform to Pennsylvania law.
Pa.R.E. 613(a) and (b) are similar to F.R.E. 613(a) and (b), but the headings and the substance make it clear that the paragraphs are dealing with the use of an inconsistent statement to impeach. The disclosure requirement in paragraph (a) is intended to deter sham allegations of the existence of an inconsistent statement.
Pa.R.E. 613(b) differs from F.R.E. 613(b) in that extrinsic evidence of a prior inconsistent statement is not admissible unless the statement is shown or disclosed to the witness during the witness's examination. Paragraph (b) is intended to give the witness and the party a fair opportunity to explain or deny the allegation.
F.R.E. 613 does not contain a paragraph (c); it does not deal with rehabilitation of a witness with a prior consistent statement. Pa.R.E. 613(c) gives a party an opportunity to rehabilitate the witness with a prior consistent statement where there has been an attempt to impeach the witness. In most cases, a witness's prior statement is hearsay, but F.R.E. 801(d)(1)(B) treats some prior consistent statements offered to rebut impeachment as not hearsay. Pa.R.E. 613(c) is consistent with Pennsylvania law in that the prior consistent statement is admissible, but only to rehabilitate the witness. See Commonwealth v. Hutchinson, 521 Pa. 482, 556 A.2d 370 (1989) (to rebut charge of recent fabrication); Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988) (to counter alleged corrupt motive); Commonwealth v. Swinson, 426 Pa. Super. 167, 626 A.2d 627 (1993) (to negate charge of faulty memory); Commonwealth v. McEachin, 371 Pa. Super. 188, 537 A.2d 883 (1988) (to offset implication of improper influence).
Pa.R.E. 613(c)(2) is arguably an extension of Pennsylvania law, but is based on the premise that when an attempt has been made to impeach a witness with an alleged prior inconsistent statement, a statement consistent with the witness's testimony should be admissible to rehabilitate the witness if it supports the witness's denial or explanation of the alleged inconsistent statement.
Official Note: Adopted May 8, 1998, effective October 1, 1998; amended March 23, 1999, effective immediately; amended March 10, 2000, effective July 1, 2000; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the March 23, 1999 technical amendments to paragraph (b)(3) published with the Court's Order at 29 Pa.B. 1714 (April 3, 1999).
Final Report explaining the March 10, 2000 amendments adding ''inconsistent'' to section (a) published with the Court's Order at 30 Pa.B. 1645 (March 25, 2000).
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 614. Court's Calling or Examining a Witness.
(a) Calling. Consistent with its function as an impartial arbiter, the court, with notice to the parties, may call a witness on its own or at a party's request. Each party is entitled to cross-examine the witness.
(b) Examining. Where the interest of justice so requires, the court may examine a witness regardless of who calls the witness.
(c) Objections. A party may object to the court's calling or examining a witness when given notice that the witness will be called or when the witness is examined. When requested to do so, the court must give the objecting party an opportunity to make objections out of the presence of the jury.
Comment Pa.R.E. 614(a) and (b) differ from F.R.E. 614(a) and (b) in several respects. The phrase relating to the court's ''function as an impartial arbiter'' has been added to Pa.R.E. 614(a), and the clause regarding ''interest of justice'' has been added in Pa.R.E. 614(b). These additions are consistent with Pennsylvania law. See Commonwealth v. Crews, 429 Pa. 16, 239 A.2d 350 (1968); Commonwealth v. DiPasquale, 424 Pa. 500, 230 A.2d 449 (1967); Commonwealth v. Myma, 278 Pa. 505, 123 A. 486 (1924).
Pa.R.E. 614(a) also differs from F.R.E. 614(a) in that the Pennsylvania Rule requires the court to give notice of its intent to call a witness.
Pa.R.E. 614(c), unlike F.R.E. 614(c), does not permit an objection to the court's calling or questioning a witness ''at the next available opportunity when the jury is not present.'' Pa.R.E. 614(c) is consistent with Pa.R.E. 103(a)(1)(A), which requires a ''timely objection.'' The requirement that the objecting party be given an opportunity make its objection out of the presence of the jury is consistent with 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 615. Sequestering Witnesses.
At a party's request the court may order witnesses sequestered so that they cannot learn of other witnesses' testimony. Or the court may do so on its own. But this rule does not authorize sequestering:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person (including the Commonwealth) after being designated as the party's representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party's claim or defense; or
(d) a person authorized by statute or rule to be present.
Comment Pa.R.E. 615 differs from F.R.E. 615 in that the word ''sequestering'' is used instead of the word ''excluding'', and the rule is discretionary not mandatory. Both of these are consistent with prior Pennsylvania law. See Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764 (1986). Pa.R.E. 615 uses the term ''learn of'' rather than the word ''hear.'' This indicates that the court's order may prohibit witnesses from using other means of learning of the testimony of other witnesses.
Pa.R.E. 615(b) adds the parenthetical (including the Commonwealth).
Pa.R.E 615(d) differs from the Federal Rule in that it adds the words ''or rule.'' This includes persons such as the guardian of a minor, see Pa.R.C.P. 2027, and the guardian of an incapacitated person, see Pa.R.C.P. 2053.
The trial court has discretion in choosing a remedy for violation of a sequestration order. See Commonwealth v. Smith, 464 Pa. 314, 346 A.2d 757 (1975). Remedies include ordering a mistrial, forbidding the testimony of the offending witness, or an instruction to the jury. Commonwealth v. Scott, 496 Pa. 78, 436 A.2d 161 (1981).
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 VII. OPINIONS AND EXPERT TESTIMONY Rule
701. Opinion Testimony by Lay Witnesses. 702. Testimony by Expert Witnesses. 703. Bases of an Expert's Opinion Testimony. 704. Opinion on an Ultimate Issue. 705. Disclosing the Facts or Data Underlying an Expert's Opinion. 706. Court-Appointed Expert Witnesses. Rule 701. Opinion Testimony by Lay Witnesses.
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Comment This rule is identical to F.R.E. 701.
Official Note: Adopted May 8, 1998, effective October 1, 1998; amended November 2, 2001, effective January 2, 2002; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the November 2, 2001, amendments 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 702. Testimony by Expert Witnesses.
A witness who is qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical or other specialized knowledge has gained general acceptance in its field;
(b) the subject of the expert's testimony is beyond the competence of a layperson; and
(c) the expert's testimony will help the trier of fact to understand the evidence or to determine a fact in issue.
Comment Pa.R.E. 702 differs from F.R.E 702. Pa.R.E. 702(a) applies the ''general acceptance'' test for the admissibility of scientific, technical, or other specialized knowledge. This test is consistent with Pennsylvania law. See Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038 (2003). This rule rejects the federal test derived from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Pa.R.E. 702(b) is consistent with Pennsylvania law. See Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992).
Pa.R.E. 702 does not change the Pennsylvania rule for qualifying a witness to testify as an expert. In Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 480-81, 664 A.2d 525, 528 (1995), the Supreme Court stated:
The test to be applied when qualifying a witness to testify as an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.Pa.R.E. 702 does not change the requirement that an expert's opinion must be expressed with reasonable certainty. See McMahon v. Young, 442 Pa. 484, 276 A.2d 534 (1971).
Pa.R.E. 702 states that an expert may testify in the form of an ''opinion or otherwise.'' Much of the literature assumes that experts testify only in the form of an opinion. The language ''or otherwise'' reflects the fact that experts frequently are called upon to educate the trier of fact about the scientific or technical principles relevant to the case.
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised April 1, 2004, effective May 10, 2004; 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 703. Bases of an Expert's Opinion Testimony.
An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.
Comment This rule is identical to the first two sentences of F.R.E. 703. It does not include the third sentence of the Federal Rule that provides that the facts and data that are the bases for the expert's opinion are not admissible unless their probative value substantially outweighs their prejudicial effect. This is inconsistent with Pennsylvania law which requires that facts and data that are the bases for the expert's opinion must be disclosed to the trier of fact. See Pa.R.E. 705.
Pa.R.E. 703 requires that the facts or data upon which an expert witness bases an opinion be ''of a type reasonably relied upon by experts in the particular field. . . .'' Whether the facts or data satisfy this requirement is a preliminary question to be determined by the trial court under Pa.R.E. 104(a). If an expert witness relies on novel scientific evidence, Pa.R.C.P. 207.1 sets forth the procedure for objecting, by pretrial motion, on the ground that the testimony is inadmissible under Pa.R.E. 702, or Pa.R.E. 703, or both.
When an expert testifies about the underlying facts and data that support the expert's opinion and the evidence would be otherwise inadmissible, the trial judge upon request must, or on the judge's own initiative may, instruct the jury to consider the facts and data only to explain the basis for the expert's opinion, and not as substantive evidence.
An expert witness cannot be a mere conduit for the opinion of another. An expert witness may not relate the opinion of a non-testifying expert unless the witness has reasonably relied upon it in forming the witness's own opinion. See, e.g., Foster v. McKeesport Hospital, 260 Pa. Super. 485, 394 A.2d 1031 (1978); Allen v. Kaplan, 439 Pa. Super. 263, 653 A.2d 1249 (1995).
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised September 11, 2003, effective September 30, 2003; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the September 11, 2003 revision of the Comment published with the Court's Order at 33 Pa.B. 4784 (September 27, 2003).
Final Report explaining the , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 704. Opinion on an Ultimate Issue.
An opinion is not objectionable just because it embraces an ultimate issue.
Comment Pa.R.E. 704 is identical to F.R.E. 704(a).
F.R.E. 704(b) is not adopted. The Federal Rule prohibits an expert witness in a criminal case from stating an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or a defense. This is inconsistent with Pennsylvania law. See Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976).
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 705. Disclosing the Facts or Data Underlying an Expert's Opinion.
If an expert states an opinion the expert must state the facts or data on which the opinion is based.
Comment The text and substance of Pa.R.E. 705 differ significantly from F.R.E. 705. The Federal Rule generally does not require an expert witness to disclose the facts upon which an opinion is based prior to expressing the opinion. Instead, the cross-examiner bears the burden of probing the basis of the opinion. Pennsylvania does not follow the Federal Rule. See Kozak v. Struth, 515 Pa. 554, 560, 531 A.2d 420, 423 (1987) (declining to adopt F.R.E. 705, the Court reasoned that ''requiring the proponent of an expert opinion to clarify for the jury the assumptions upon which the opinion is based avoids planting in the juror's mind a general statement likely to remain with him in the jury room when the disputed details are lost.'') Relying on cross-examination to illuminate the underlying assumption, as F.R.E. 705 does, may further confuse jurors already struggling to follow complex testimony. Id.
Accordingly, Kozak requires disclosure of the facts used by the expert in forming an opinion. The disclosure can be accomplished in several ways. One way is to ask the expert to assume the truth of testimony the expert has heard or read. Kroeger Co. v. W.C.A.B., 101 Pa. Cmwlth. 629, 516 A.2d 1335 (1986); Tobash v. Jones, 419 Pa. 205, 213 A.2d 588 (1965). Another option is to pose a hypothetical question to the expert. Dietrich v. J.I. Case Co., 390 Pa. Super. 475, 568 A.2d 1272 (1990); Hussey v. May Department Stores, Inc., 238 Pa. Super. 431, 357 A.2d 635 (1976).
When an expert testifies about the underlying facts and data that support the expert's opinion and the evidence would be otherwise inadmissible, the trial judge upon request must, or on the judge's own initiative may, instruct the jury to consider the facts and data only to explain the basis for the expert's opinion, and not as substantive evidence.
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 706. Court-Appointed Expert Witnesses.
Where the court has appointed an expert witness, the witness appointed must advise the parties of the witness's findings, if any. The witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by any party, including a party calling the witness. In civil cases, the witness's deposition may be taken by any party.
Comment Pa.R.E. 706 differs from F.R.E. 706. Unlike the Federal Rule, Pa.R.E. 706 does not affect the scope of the trial court's power to appoint experts. Pa.R.E. 706 provides only the procedures for obtaining the testimony of experts after the court has appointed them.
In Commonwealth v. Correa, 437 Pa. Super. 1, 648 A.2d 1199 (1994), abrogated on other grounds by Commonwealth v. Weston, 561 Pa. 199, 749 A.2d 458 (2000), the Superior Court held that the trial court had inherent power to appoint an expert. 23 Pa.C.S. § 5104 provides for the appointment of experts to conduct blood tests in paternity proceedings.
See also Pa.R.E. 614 (Court's Calling or Examining a Witness).
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 VIII. HEARSAY Rule
801. Definitions That Apply to This Article. 802. The Rule Against Hearsay. 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness. 803(2). Excited Utterance. 803(3). Then-Existing Mental, Emotional, or Physical Condition. 803(4). Statement Made for Medical Diagnosis or Treatment. 803(5). Recorded Recollection (Not Adopted). 803(6). Records of a Regularly Conducted Activity. 803(7). Absence of a Record of a Regularly Conducted Activity (Not Adopted). 803(8). Public Records (Not Adopted). 803(9). Public Records of Vital Statistics (Not Adopted). 803(10). Absence of a Public Record (Not Adopted). 803(11). Records of Religious Organizations Concerning Personal or Family History. 803(12). Certificates of Marriage, Baptism, and Similar Ceremonies. 803(13). Family Records. 803(14). Records of Documents That Affect an Interest in Property. 803(15). Statements in Documents That Affect an Interest in Property. 803(16). Statements in Ancient Documents. 803(17). Market Reports and Similar Commercial Publications. 803(18). Statements in Learned Treatises, Periodicals, or Pamphlets (Not Adopted). 803(19). Reputation Concerning Personal or Family History. 803(20). Reputation Concerning Boundaries or General History. 803(21). Reputation Concerning Character. 803(22). Judgment of a Previous Conviction (Not Adopted). 803(23). Judgments Involving Personal, Family, or General History or a Boundary (Not Adopted). 803(24). Other Exceptions (Not Adopted). 803(25). An Opposing Party's Statement. 803.1. Exceptions to the Rule Against Hearsay—Testimony of Declarant Necessary. 803.1(2). Prior Statement of Identification. 803.1(3). Recorded Recollection. 804. Exceptions to the Rule Against Hearsay—When the Declarant is Unavailable as a Witness. 804(b). The Exceptions. 804(b)(2). Statement Under Belief of Imminent Death. 804(b)(3). Statement Against Interest. 804(b)(4). Statement of Personal or Family History. 804(b)(5). Other exceptions (Not Adopted). 804(b)(6). Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability. 805. Hearsay Within Hearsay. 806. Attacking and Supporting the Declarant's Credibility. 807. Residual Exception (Not Adopted). Rule 801. Definitions That Apply to This Article.
(a) Statement. ''Statement'' means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
(b) Declarant. ''Declarant'' means the person who made the statement.
(c) Hearsay. ''Hearsay'' means a statement that
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
Comment Pa.R.E. 801(a), (b) and (c) are identical to F.R.E. 801(a), (b) and (c). The matters set out in F.R.E. 801(d)(1) (A Declarant-Witness's Prior Statement) are covered in Pa.R.E. 803.1(1) and (2) and Pa.R.E. 613(c). The matters set out in F.R.E. 801(d)(2) (An Opposing Party's Statement) are covered in Pa.R.E. 803(25).
Communications that are not assertions are not hearsay. These would include questions, greetings, expressions of gratitude, exclamations, offers, instructions, warnings, etc.
Pa.R.E. 801(c), which defines hearsay, is consistent with Pennsylvania law, although the Pennsylvania cases have usually defined hearsay as an ''out-of-court statement offered to prove the truth of the matter asserted'' instead of the definition used Pa.R.E. 801(c). See Heddings v. Steele, 514 Pa. 569, 526 A.2d 349 (1987). The adoption of the language of the Federal Rule is not intended to change existing law.
A statement is hearsay only if it is offered to prove the truth of the matter asserted in the statement. There are many situations in which evidence of a statement is offered for a purpose other than to prove the truth of the matter asserted.
Sometimes a statement has direct legal significance, whether or not it is true. For example, one or more statements may constitute an offer, an acceptance, a promise, a guarantee, a notice, a representation, a misrepresentation, defamation, perjury, compliance with a contractual or statutory obligation, etc.
More often, a statement, whether or not it is true, constitutes circumstantial evidence from which the trier of fact may infer, alone or in combination with other evidence, the existence or non-existence of a fact in issue. For example, a declarant's statement may imply his or her particular state of mind, or it may imply that a particular state of mind ensued in the recipient. Evidence of a statement, particularly if it is proven untrue by other evidence, may imply the existence of a conspiracy, or fraud. Evidence of a statement made by a witness, if inconsistent with the witness's testimony, may imply that the witness is an unreliable historian. Conversely, evidence of a statement made by a witness that is consistent with the witness's testimony may imply the opposite. See Pa.R.E. 613(c).
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 802. The Rule Against Hearsay.
Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Pennsylvania Supreme Court, or by statute.
Comment Pa.R.E. 802 differs from F.R.E. 802 in that it refers to other rules prescribed by the Pennsylvania Supreme Court, and to statutes in general, rather than federal statutes.
Often, hearsay will be admissible under an exception provided by these rules. The organization of the Pennsylvania Rules of Evidence generally follows the organization of the Federal Rules of Evidence, but the Pennsylvania Rules' organization of the exceptions to the hearsay rule is somewhat different than the federal organization. There are three rules which contain the exceptions: Pa.R.E. 803 Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant is Available as a Witness, Pa.R.E. 803.1 Exceptions to the Rule Against Hearsay—Testimony of Declarant Necessary, and Pa.R.E. 804 Exceptions to the Rule Against Hearsay—When the Declarant is Unavailable as a Witness.
On occasion, hearsay may be admitted pursuant to another rule promulgated by the Pennsylvania Supreme Court. For example, in civil cases, all or part of a deposition may be admitted pursuant to Pa.R.C.P. 4020, or a video deposition of an expert witness may be admitted pursuant to Pa.R.C.P. 4017.1(g). In preliminary hearings in criminal cases, the court may consider hearsay evidence pursuant to Pa.R.Crim.P. 542(E) and 1003(E).
Also, hearsay may be admitted pursuant to a state statute. Examples include:
1. A public record may be admitted pursuant to 42 Pa.C.S. § 6104. See Comment to Pa.R.E. 803(8) (Not Adopted).
2. A record of vital statistics may be admitted pursuant to 35 P. S. § 450.810. See Comment to Pa.R.E. 803(9) (Not Adopted).
3. In a civil case, a deposition of a licensed physician may be admitted pursuant to 42 Pa.C.S. § 5936.
4. In a criminal case, a deposition of a witness may be admitted pursuant to 42 Pa.C.S. § 5919.
5. In a criminal or civil case, an out-of-court statement of a witness 12 years of age or younger, describing certain kinds of sexual abuse, may be admitted pursuant to 42 Pa.C.S. § 5985.1.
6. In a dependency hearing, an out-of-court statement of a witness under 16 years of age, describing certain types of sexual abuse, may be admitted pursuant to 42 Pa.C.S. § 5986.
7. In a prosecution for speeding under the Pennsylvania Vehicle Code, a certificate of accuracy of an electronic speed timing device (radar) from a calibration and testing station appointed by the Pennsylvania Department of Motor Vehicles may be admitted pursuant to 75 Pa.C.S. § 3368(d).
On rare occasion, hearsay may be admitted pursuant to a federal statute. For example, when a person brings a civil action, in either federal or state court, against a common carrier to enforce an order of the Interstate Commerce Commission requiring the payment of damages, the findings and order of the Commission may be introduced as evidence of the facts stated in them. 49 U.S.C. § 11704(d)(1).
Hearsay Exceptions and the Right of Confrontation of a Defendant in a Criminal Case The exceptions to the hearsay rule in Rules 803, 803.1, and 804 and the exceptions provided by other rules or by statute are applicable both in civil and criminal cases. In a criminal case, however, hearsay that is offered against a defendant under an exception from the hearsay rule provided by these rules or by another rule or statute 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 of the United States Constitution, or ''to be confronted with the witnesses against him'' under Article I, § 9 of the Pennsylvania Constitution.
The relationship between the hearsay rule and the Confrontation Clause in the Sixth Amendment was explained by the United States Supreme Court in California v. Green, 399 U.S. 149, 155-56 (1970):
While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception . . . .Given the similarity of the values protected, however, the modification of a State's hearsay rules to create new exceptions for the admission of evidence against a defendant, will often raise questions of compatibility with the defendant's constitutional right to confrontation.In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court, overruling its prior opinion in Ohio v. Roberts, 448 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 of the United States Constitution, and (3) admission of the evidence would violate defendant's right ''to be confronted with the witnesses against him'' under Article I, § 9 of the Pennsylvania Constitution.
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 23, 1999, effective immediately; Comment revised March 10, 2000, effective immediately; Comment revised 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 to the Comment published with the Court's Order at 29 Pa.B. 1714 (April 3, 1999).
Final Report explaining the March 10, 2000 changes updating the seventh paragraph of the Comment published with the Court's Order at 30 Pa.B. 1641 (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 , 2011 rescission and replacement published with the Court's Order at Pa.B. ( , 2011).
Rule 803. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness.
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
Comment This rule is identical to F.R.E. 803(1).
For this exception to apply, declarant need not be excited or otherwise emotionally affected by the event or condition perceived. The trustworthiness of the statement arises from its timing. The requirement of contemporaneousness, or near contemporaneousness, reduces the chance of premeditated prevarication or loss of memory.
Rule 803(2). Excited Utterance.
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
Comment This rule is identical to F.R.E. 803(2).
This exception has a more narrow base than the exception for a present sense impression, because it requires an event or condition that is startling. However, it is broader in scope because an excited utterance (1) need not describe or explain the startling event or condition; it need only relate to it, and (2) need not be made contemporaneously with, or immediately after, the startling event. It is sufficient if the stress of excitement created by the startling event or condition persists as a substantial factor in provoking the utterance.
There is no set time interval following a startling event or condition after which an utterance relating to it will be ineligible for exception to the hearsay rule as an excited utterance. In Commonwealth v. Gore, 262 Pa. Super. 540, 547, 396 A.2d 1302, 1305 (1978), the court explained:
The declaration need not be strictly contemporaneous with the existing cause, nor is there a definite and fixed time limit . . . . Rather, each case must be judged on its own facts, and a lapse of time of several hours has not negated the characterization of a statement as an ''excited utterance.'' . . . The crucial question, regardless of the time lapse, is whether, at the time the statement is made, the nervous excitement continues to dominate while the reflective processes remain in abeyance.Rule 803(3). Then-Existing Mental, Emotional, or Physical Condition.
(3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then-existing state of mind (such as motive, intent or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will.
Comment This rule is identical to F.R.E. 803(3).
Rule 803(4). Statement Made for Medical Diagnosis or Treatment.
(4) Statement Made for Medical Diagnosis or Treatment. A statement that:
(A) is made for—and is reasonably pertinent to-medical treatment or diagnosis in contemplation of treatment; and
(B) describes medical history; past or present symptoms or sensations; their inception or general cause, insofar as reasonably pertinent to treatment, or diagnosis in contemplation of treatment.
Comment Pa.R.E. 803(4) differs from F.R.E. 803(4) in that it permits admission of statements made for purposes of medical diagnosis only if they are made in contemplation of treatment. Statements made to persons retained solely for the purpose of litigation are not admissible under this rule. The rationale for admitting statements for purposes of treatment is that the declarant has a very strong motivation to speak truthfully. This rationale is not applicable to statements made for purposes of litigation. Pa.R.E. 803(4) is consistent with Pennsylvania law. See Commonwealth v. Smith, 545 Pa. 487, 681 A.2d 1288 (1996).
An expert medical witness may base an opinion on the declarant's statements of the kind discussed in this rule, even though the statements were not made for purposes of treatment, if the statements comply with Pa.R.E. 703. Such statements may be disclosed as provided in Pa.R.E. 705, but are not substantive evidence.
This rule is not limited to statements made to physicians. Statements to a nurse have been held to be admissible. See Smith, supra. Statements as to causation may be admissible, but statements as to fault or identification of the person inflicting harm have been held to be inadmissible. See Smith, supra.
Rule 803(5). Recorded Recollection (Not Adopted).
(5) Recorded Recollection (Not Adopted)
Comment Recorded recollection is dealt with in Pa.R.E. 803.1(3). It is an exception to the hearsay rule in which the testimony of the declarant is necessary.
Rule 803(6). Records of a Regularly Conducted Activity.
(6) Records of a Regularly Conducted Activity. A record (which includes a memorandum, report, or data compilation in any form) of an act, event or condition if,
(A) the record was made at or near the time by—or from information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor other circumstances indicate a lack of trustworthiness.
Comment Pa.R.E. 803(6) differs from F.R.E. 803(6). One difference is that Pa.R.E. 803(6) defines the term ''record.'' In the Federal Rules this definition appears at F.R.E. 101(b). Another difference is that Pa.R.E. 803(6) applies to records of an act, event or condition, but does not include opinions and diagnoses. This is consistent with prior Pennsylvania case law. See Williams v. McClain, 513 Pa. 300, 520 A.2d 1374 (1987); Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975). A third difference is that Pa.R.E. 803(6) allows the court to exclude business records that would otherwise qualify for exception to the hearsay rule if neither the ''source of information nor other circumstances indicate lack of trustworthiness.'' The Federal Rule allows the court to do so only if neither ''the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.''
If offered against a defendant in a criminal case, an entry in a record may be excluded if its admission would violate the defendant's constitutional right to confront the witnesses against him or her. See. Melendez-Diaz v. Massachusetts, 557 U.S., 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009)
Rule 803(7). Absence of a Record of a Regularly Conducted Activity (Not Adopted).
(7) Absence of a Record of a Regularly Conducted Activity (Not Adopted)
Comment Pennsylvania has not adopted F.R.E. 803(7) which provides:
Evidence that a matter is not included in a record described in paragraph (6) if:
(A) the evidence is admitted to prove that the matter did not occur or exist; and
(B) a record was regularly kept for a matter of that kind; and
(C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.
Principles of logic and internal consistency have led Pennsylvania to reject this rule. The absence of an entry in a record is not hearsay, as defined in Pa.R.E. 801(c). Hence, it appears irrational to except it to the hearsay rule.
On analysis, absence of an entry in a business record is circumstantial evidence—it tends to prove something by implication, not assertion. Its admissibility is governed by principles of relevance, not hearsay. See Pa.R.E. 401, et seq.
Pennsylvania law is in accord with the object of F.R.E. 803(7), i.e., to allow evidence of the absence of a record of an act, event, or condition to be introduced to prove the nonoccurrence or nonexistence thereof, if the matter was one which would ordinarily be recorded. See Klein v. F.W. Woolworth Co., 309 Pa. 320, 163 A. 532 (1932) (absence of person's name in personnel records admissible to prove that he was not an employee). See also Stack v. Wapner, 244 Pa. Super. 278, 368 A.2d 292 (1976).
Rule 803(8). Public Records (Not Adopted).
(8) Public Records (Not Adopted)
Comment Pennsylvania has not adopted F.R.E. 803(8). An exception to the hearsay rule for public records is provided by 42 Pa.C.S. § 6104 which provides:
(a) General rule.—A copy of a record of governmental action or inaction authenticated as provided in section 6103 (relating to proof of official records) shall be admissible as evidence that the governmental action or inaction disclosed therein was in fact taken or omitted.(b) Existence of facts.—A copy of a record authenticated as provided in section 6103 disclosing the existence or nonexistence of facts which have been recorded pursuant to official duty or would have been so recorded had the facts existed shall be admissible as evidence of the existence or nonexistence of such facts, unless the sources of information or other circumstances indicate lack of trustworthiness.Subsection (b) of the statute is limited to ''facts.'' It does not include opinions or diagnoses. This is consistent with Pa.R.E. 803(6), and Pennsylvania case law. See Comment to Pa.R.E. 803(6).
Rule 803(9). Public Records of Vital Statistics (Not Adopted).
(9) Public Records of Vital Statistics (Not Adopted)
Comment Pennsylvania has not adopted F.R.E. 803(9). Records of vital statistics are also records of a regularly conducted activity and may be excepted to the hearsay rule by Pa.R.E. 803(6). Records of vital statistics are public records and they may be excepted to the hearsay rule by 42 Pa.C.S. § 6104 (text quoted in Comment to Pa.R.E. 803(8)).
The Vital Statistics Law of 1953, 35 P. S. § 450.101 et seq., provides for registration of births, deaths, fetal deaths, and marriages, with the State Department of Health. The records of the Department, and duly certified copies thereof, are excepted to the hearsay rule by 35 P. S. § 450.810 which provides:
Any record or duly certified copy of a record or part thereof which is (1) filed with the department in accordance with the provisions of this act and the regulations of the Advisory Health Board and which (2) is not a ''delayed'' record filed under section seven hundred two of this act or a record ''corrected'' under section seven hundred three of this act shall constitute prima facie evidence of its contents, except that in any proceeding in which paternity is controverted and which affects the interests of an alleged father or his successors in interest no record or part thereof shall constitute prima facie evidence of paternity unless the alleged father is the husband of the mother of the child.
Rule 803(10). Absence of a Public Record (Not Adopted).
(10) Absence of a Public Record (Not Adopted)
Comment Pennsylvania has not adopted F.R.E. 803(10) for the same reasons that it did not adopt F.R.E. 803(7). See Comment to Pa.R.E. 803(7).
42 Pa.C.S. § 6104(b), provides for admissibility of evidence of the absence of an entry in a public record to prove the nonexistence of a fact:
(b) Existence of facts.—A copy of a record authenticated as provided in section 6103 disclosing the . . . nonexistence of facts which . . . would have been . . . recorded had the facts existed shall be admissible as evidence of the . . . nonexistence of such facts, unless the sources of information or other circumstances indicate lack of trustworthiness.Pennsylvania also has a complementary statute, 42 Pa.C.S. § 5328, entitled ''Proof of Official Records,'' which provides, in pertinent part:
(d) Lack of record.—A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in this section in the case of a domestic record, or complying with the requirements of this section for a summary in the case of a record in a foreign country, is admissible as evidence that the records contain no such record or entry.Rule 803(11). Records of Religious Organizations Concerning Personal or Family History.
(11) Records of Religious Organizations Concerning Personal or Family History. A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.
Comment This rule is identical to F.R.E. 803(11).
Rule 803(12). Certificates of Marriage, Baptism, and Similar Ceremonies.
(12) Certificates of Marriage, Baptism, and Similar Ceremonies. A statement of fact contained in a certificate:
(A) made by a person who is authorized by a religious organization or by law to perform the act certified;
(B) attesting that the person performed a marriage or similar ceremony or administered a sacrament; and
(C) purporting to have been issued at the time of the act or within a reasonable time after it.
Comment This rule is identical to F.R.E. 803(12).
Rule 803(13). Family Records.
(13) Family Records. A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.
Comment This rule is identical to F.R.E. 803(13).
Rule 803(14). Records of Documents That Affect an Interest in Property.
(14) Records of Documents That Affect an Interest in Property. The record of a document that purports to establish or affect an interest in property if:
(A) the record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it;
(B) the record is kept in a public office; and
(C) a statute authorizes recording documents of that kind in that office.
Comment This rule is identical to F.R.E. 803(14).
Rule 803(15). Statements in Documents That Affect an Interest in Property.
(15) Statements in Documents That Affect an Interest in Property. A statement contained in a document, other than a will, that purports to establish or affect an interest in property if the matter stated was relevant to the document's purpose—unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document.
Comment Pa.R.E. 803(15) differs from F.R.E. 803(15) in that Pennsylvania does not include a statement made in a will.
Pennsylvania's variation from the federal rule with respect to wills is consistent with case law. See In Re Estate of Kostik, 514 Pa. 591, 526 A.2d 746 (1987).
Rule 803(16). Statements in Ancient Documents.
(16) Statements in Ancient Documents. A statement in a document that is at least 30 years old and whose authenticity is established.
Comment
Pa.R.E. 803(16) differs from F.R.E. 803(16) in that Pennsylvania adheres to the common law view that a document must be at least 30 years old to qualify as an ancient document. The Federal Rule reduces the age to 20 years.
Pa.R.E. 803(16) is consistent with Pennsylvania law. See Louden v. Apollo Gas Co., 273 Pa. Super. 549, 417 A.2d 1185 (1980); Commonwealth ex rel. Ferguson v. Ball, 277 Pa. 301, 121 A.191 (1923).
Rule 803(17). Market Reports and Similar Commercial Publications.
(17) Market Reports and Similar Commercial Publications. Market quotations, lists, directories, or other compilations that are generally relied on by the public or by persons in particular occupations.
Comment This rule is identical to F.R.E. 803(17).
Rule 803(18). Statements in Learned Treatises, Periodicals, or Pamphlets (Not Adopted).
(18) Statements in Learned Treatises, Periodicals, or Pamphlets (Not Adopted)
Comment Pennsylvania has not adopted F.R.E. 803(18). Pennsylvania does not recognize an exception to the hearsay rule for learned treatises. See Majdic v. Cincinnati Machine Co., 370 Pa. Super. 611, 537 A.2d 334 (1988).
Regarding the permissible uses of learned treatises under Pennsylvania law, see Aldridge v. Edmunds, 561 Pa. 323, 750 A.2d 292 (Pa. 2000).
Rule 803(19). Reputation Concerning Personal or Family History.
(19) Reputation Concerning Personal or Family History. A reputation among a person's family by blood, adoption, or marriage—or among a person's associates or in the community—concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.
Comment This rule is identical to F.R.E. 803(19). It changed prior Pennsylvania case law by expanding the sources from which the reputation may be drawn to include (1) a person's associates; and (2) the community. Prior Pennsylvania case law, none of which is recent, limited the source to the person's family. See Picken's Estate, 163 Pa. 14, 29 A. 875 (1894); American Life Ins. and Trust Co. v. Rosenagle, 77 Pa. 507 (1875).
Rule 803(20). Reputation Concerning Boundaries or General History.
(20) Reputation Concerning Boundaries or General History. A reputation in a community—arising before the controversy—concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state or nation.
Comment This rule is identical to F.R.E. 803(20).
Rule 803(21). Reputation Concerning Character.
(21) Reputation Concerning Character. A reputation among a person's associates or in the community concerning the person's character.
Comment This rule is identical to F.R.E. 803(21).
Rule 803(22). Judgment of a Previous Conviction (Not Adopted).
(22) Judgment of a Previous Conviction (Not Adopted)
Comment Pennsylvania has not adopted F.R.E. 803(22).
With respect to facts essential to sustain a judgment of criminal conviction, there are four basic approaches that a court can take:
1. The judgment of conviction is conclusive, i.e., estops the party convicted from contesting any fact essential to sustain the conviction.
2. The judgment of conviction is admissible as evidence of any fact essential to sustain the conviction, only if offered against the party convicted.
3. The judgment of conviction is admissible as evidence of any fact essential to sustain the conviction when offered against any party (this is the federal rule for felonies, except that the Government cannot offer someone else's conviction against the defendant in a criminal case, other than for purposes of impeachment).
4. The judgment of conviction is neither conclusive nor admissible as evidence to prove a fact essential to sustain the conviction (common law rule).
For felonies and other major crimes, Pennsylvania takes approach number one. In subsequent litigation, the convicted party is estopped from denying or contesting any fact essential to sustain the conviction. Once a party is estopped from contesting a fact, no evidence need be introduced by an adverse party to prove it. See Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965); In re Estate of Bartolovich, 420 Pa. Super. 419, 616 A.2d 1043 (1992) (judgment of conviction conclusive under Slayer's Act, 20 Pa.C.S. §§ 8801—8815).
For minor offenses, Pennsylvania takes approach number four; it applies the common law rule. Evidence of a conviction is inadmissible to prove a fact necessary to sustain the conviction. See Loughner v. Schmelzer, 421 Pa. 283, 218 A.2d 768 (1966).
A plea of guilty to a crime is excepted to the hearsay rule as an admission of all facts essential to sustain a conviction, but only when offered against the pleader by a party-opponent. See Pa.R.E. 803(25); see also Pa.R.E. 410. A plea of guilty may also qualify as an exception to the hearsay rule as a statement against interest, if the declarant is unavailable to testify at trial. See Pa.R.E. 804(b)(3).
Rule 803(23). Judgments Involving Personal, Family, or General History or a Boundary (Not Adopted).
(23) Judgments Involving Personal, Family, or General History or a Boundary (Not Adopted)
Comment Pennsylvania has not adopted F.R.E. 803(23).
Rule 803(24). Other Exceptions (Not Adopted).
(24) Other Exceptions (Not Adopted)
Comment Pennsylvania has not adopted F.R.E. 803(24) (now F.R.E. 807).
Rule 803(25). An Opposing Party's Statement.
(25) An Opposing Party's Statement. The statement is offered against an opposing party and:
(A) was made by the party in an individual or representative capacity;
(B) is one the party manifested that it adopted or believed to be true;
(C) was made by a person whom the party authorized to make a statement on the subject;
(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or
(E) was made by the party's coconspirator during and in furtherance of the conspiracy.
The statement may be considered but does not by itself establish the declarant's authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).
Comment Pa.R.E. 803(25) differs from F.R.E. 801(d)(2), in that the word ''must'' in the last paragraph has been replaced with the word ''may.''
The Federal Rules treat these statements as ''not hearsay'' and places them in F.R.E 801(d)(2). The traditional view was that these statements were hearsay, but admissible as exceptions to the hearsay rule. The Pennsylvania Rules of Evidence follow the traditional view and place these statements in Pa.R.E. 803(25), as exceptions to the hearsay rule—regardless of the availability of the declarant. This differing placement is not intended to have substantive effect.
The statements in this exception were traditionally, and in prior versions of both the Federal Rules of Evidence and the Pennsylvania Rules of Evidence, called admissions, although in many cases the statements were not admissions as that term is employed in common usage. The new phrase used in the federal rules—an opposing party's statement—more accurately describes these statements and is adopted here.
The personal knowledge rule (Pa.R.E. 602) is not applicable to an opposing party's statement. See Salvitti v. Throppe, 343 Pa. 642, 23 A.2d 445 (1942).
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 23, 1999, effective immediately; Comment revised March 10, 2000, effective immediately; Comment revised May 16, 2001, effective July 1, 2001; amended November 2, 2001, effective January 1, 2002; rescinded and replaced , 2011, effective , 2011.
Committee Explanatory Reports:
Final Report explaining the March 23, 1999 technical revisions to the Comment for paragraph 25 published with the Court's Order at 29 Pa.B. 1714 (April 3, 1999).
Final Report explaining the March 10, 2000 revision of the Comment for paragraph 25 published with the Court's Order at 30 Pa.B. 1641 (March 25, 2000).
Final Report explaining the May 16, 2001 revision of the Comment for paragraph 18 published with the Court's Order at 31 Pa.B. 2789 (June 2, 2001).
Final Report explaining the November 2, 2001, amendments to paragraph 6 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 803.1. Exceptions to the Rule Against Hearsay—Testimony of Declarant Necessary.
The following statements are not excluded by the rule against hearsay if the declarant testifies and is subject to cross-examination about the prior statement:
(1) Prior Inconsistent Statement of Declarant-Witness. A prior statement by a declarant-witness that is inconsistent with the declarant-witness's testimony and:
(A) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition;
(B) is a writing signed and adopted by the declarant; or
(C) is a verbatim contemporaneous electronic, audio- taped, or videotaped recording of an oral statement.
Comment The Federal Rules treat statements corresponding to Pa.R.E. 803.1(1) and (2) as ''not hearsay'' and places them in F.R.E. 801(d)(1)(A) and (C). Pennsylvania follows the traditional approach that treats these statements as exceptions to the hearsay rule if the declarant testifies at the trial.
Pa.R.E. 803.1(1) is consistent with prior Pennsylvania case law. See Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986) (seminal case that overruled close to two centuries of decisional law in Pennsylvania and held that the recorded statement of a witness to a murder, inconsistent with her testimony at trial, was properly admitted as substantive evidence, excepted to the hearsay rule); Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992). In Commonwealth v. Wilson, 550 Pa. 518, 707 A.2d 1114 (1998), the Supreme Court held that to be admissible under this rule an oral statement must be a verbatim contemporaneous recording in electronic, audiotaped, or videotaped form.
An inconsistent statement of a witness that does not qualify as an exception to the hearsay rule may still be introduced to impeach the credibility of the witness. See Pa.R.E. 613.
Rule 803.1(2). Prior Statement of Identification.
(2) Prior Statement of Identification by Declarant-Witness. A prior statement by a declarant-witness identifying a person or thing, made after perceiving the person or thing, provided that the declarant-witness testifies to the making of the prior statement.
Comment Pennsylvania treats a statement meeting the requirements of Pa.R.E. 803.1(2) as an exception to the hearsay rule. F.R.E. 801(d)(1)(C) provides that such a statement is not hearsay. This differing organization is consistent with Pennsylvania law.
Pa.R.E. 803.1(2) differs from F.R.E. 801(d)(1)(C) in several respects. It requires the witness to testify to making the identification. This is consistent with Pennsylvania law. See Commonwealth v. Ly, 528 Pa. 523, 599 A.2d 613 (1991). The Pennsylvania rule includes identification of a thing, in addition to a person.
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