[43 Pa.B. 620]
[Saturday, February 2, 2013]

[Continued from previous Web Page]

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.

 On January 17, 2013, the Rules of Evidence were rescinded and replaced. See Pa.R.E. 101, Comment. Within Article VII, the term ''inference'' has been eliminated when used in conjunction with ''opinion.'' The term ''inference'' is subsumed by the broader term ''opinion'' and Pennsylvania case law has not made a substantive decision on the basis of any distinction between an opinion and an inference. No change in the current practice was intended with the elimination of this term.

 Official Note: Adopted May 8, 1998, effective October 1, 1998; amended November 2, 2001, effective January 2, 2002; rescinded and replaced January 17, 2013, effective March 18, 2013.

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 January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

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 is beyond that possessed by the average layperson;

 (b) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and

 (c) the expert's methodology is generally accepted in the relevant field.

Comment

 Pa.R.E. 702(a) and (b) differ from F.R.E. 702 in that Pa.R.E. 702(a) and (b) impose the requirement that the expert's scientific, technical, or other specialized knowledge is admissible only if it is beyond that possessed by the average layperson. This is consistent with prior Pennsylvania law. See Commonwealth v. O'Searo, 466 Pa. 224, 229, 352 A.2d 30, 32 (1976).

 Pa.R.E. 702(c) differs from F.R.E. 702 in that it reflects Pennsylvania's adoption of the standard in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The rule applies the ''general acceptance'' test for the admissibility of scientific, technical, or other specialized knowledge testimony. This is consistent with prior Pennsylvania law. See Grady v. Frito-Lay, Inc., 576 Pa. 546, 839 A.2d 1038 (2003). The rule rejects the federal test derived from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

 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 January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

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. No. 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 January 17, 2013, effective March 18, 2013.

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 January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

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. Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976).

 Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

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 January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

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 January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

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 January 17, 2013, effective March 18, 2013.

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 January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

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. No. 4020, or a video deposition of an expert witness may be admitted pursuant to Pa.R.C.P. No. 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 January 17, 2013, effective March 18, 2013.

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 January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

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, pain, or sensations, or the inception or general character of the cause or external source thereof, 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'', which term includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted 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. 305 (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 January 17, 2013, effective March 18, 2013.

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 January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

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.

Rule 803.1(3). Recorded Recollection.

 (3) Recorded Recollection of Declarant-Witness. A memorandum or record made or adopted by a declarant-witness that:

 (A) is on a matter the declarant-witness once knew about but now cannot recall well enough to testify fully and accurately;

 (B) was made or adopted by the declarant-witness when the matter was fresh in his or her memory; and

 (C) the declarant-witness testifies accurately reflects his or her knowledge at the time when made.

 If admitted, the memorandum or record may be read into evidence and received as an exhibit, but may be shown to the jury only in exceptional circumstances or when offered by an adverse party.

Comment

 Pa.R.E. 803.1(3) is similar to F.R.E. 803(5), but differs in the following ways:

 1. Pennsylvania treats a statement meeting the requirements of Pa.R.E. 803.1(3) as an exception to the hearsay rule in which the testimony of the declarant is necessary. F.R.E. 803(5) treats this as an exception regardless of the availability of the declarant. This differing organization is consistent with Pennsylvania law.

 2. Pa.R.E. 803.1(3)(C) makes clear that, to qualify a recorded recollection as an exception to the hearsay rule, the witness must testify that the memorandum or record correctly reflects the knowledge that the witness once had. In other words, the witness must vouch for the reliability of the record. The Federal Rule is ambiguous on this point and the applicable federal cases are conflicting.

 3. Pa.R.E. 803.1(3) allows the memorandum or record to be received as an exhibit, and grants the trial judge discretion to show it to the jury in exceptional circumstances, even when not offered by an adverse party.

 Pa.R.E. 803.1(3) is consistent with Pennsylvania law. See Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982).

 Official Note: Adopted May 8, 1998, effective October 1, 1998; amended March 10, 2000, effective July 1, 2000; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the amendment to subsection (1) and the updates to the Comment to subsection (1) published with the Court's Order at 30 Pa.B. 1646 (March 25, 2000).

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

Rule 804. Exceptions to the Rule Against Hearsay—When the Declarant is Unavailable as a Witness.

 (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant:

 (1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies;

 (2) refuses to testify about the subject matter despite a court order to do so;

 (3) testifies to not remembering the subject matter;

 (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or

 (5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means, to procure:

 (A) the declarant's attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

 (B) the declarant's attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

 But this subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant from attending or testifying.

Comment

 This rule is identical to F.R.E. 804(a).

Rule 804(b). The Exceptions.

 (b) The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness:

 (1) Former Testimony. Testimony that:

 (A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

 (B) is now offered against a party who had—or, in a civil case, whose predecessor in interest had—an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Comment

 Pa.R.E. 804(b)(1) is identical to F.R.E. 804(b)(1).

 In criminal cases the Supreme Court has held that former testimony is admissible against the defendant only if the defendant had a ''full and fair'' opportunity to examine the witness. See Commonwealth v. Bazemore, 531 Pa. 582, 614 A.2d 684 (1992).

Depositions

 Depositions are the most common form of former testimony that is introduced at a modern trial. Their use is provided for not only by Pa.R.E. 804(b)(1), but also by statute and rules of procedure promulgated by the Pennsylvania Supreme Court.

 The Judicial Code provides for the use of depositions in criminal cases. 42 Pa.C.S. § 5919 provides:

Depositions in criminal matters. The testimony of witnesses taken in accordance with section 5325 (relating to when and how a deposition may be taken outside this Commonwealth) may be read in evidence upon the trial of any criminal matter unless it shall appear at the trial that the witness whose deposition has been taken is in attendance, or has been or can be served with a subpoena to testify, or his attendance otherwise procured, in which case the deposition shall not be admissible.

 42 Pa.C.S. § 5325 sets forth the procedure for taking depositions, by either prosecution or defendant, outside Pennsylvania.

 In civil cases, the introduction of depositions, or parts thereof, at trial is provided for by Pa.R.C.P. No. 4020(a)(3) and (5).

 A video deposition of a medical witness, or any expert witness, other than a party to the case, may be introduced in evidence at trial, regardless of the witness's availability, pursuant to Pa.R.C.P. No. 4017.1(g).

 42 Pa.C.S. § 5936 provides that the testimony of a licensed physician taken by deposition in accordance with the Pennsylvania Rules of Civil Procedure is admissible in a civil case. There is no requirement that the physician testify as an expert witness.

Rule 804(b)(2). Statement Under Belief of Imminent Death.

 (2) Statement Under Belief of Imminent Death. A statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstances.

Comment

 Pa.R.E. 804(b)(2) differs from F.R.E. 804(b)(2) in that the Federal Rule is applicable in criminal cases only if the defendant is charged with homicide. The Pennsylvania Rule is applicable in all civil and criminal cases, subject to the defendant's right to confrontation in criminal cases.

 In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court interpreted the Confrontation Cause in the Sixth Amendment of the United States Constitution 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. However, in footnote 6, the Supreme Court said that there may be an exception, sui generis, for those dying declarations that are testimonial.

Rule 804(b)(3). Statement Against Interest.

 (3) Statement Against Interest. A statement that:

 (A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability; and

 (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Comment

 This rule is identical to F.R.E. 804(b)(3).

Rule 804(b)(4). Statement of Personal or Family History.

 (4) Statement of Personal or Family History. A statement made before the controversy arose about:

 (A) the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or

 (B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person's family that the declarant's information is likely to be accurate.

Comment

 Pa.R.E. 804(b)(4) differs from F.R.E. 804(b)(4) by requiring that the statement be made before the controversy arose. See In re McClain's Estate, 481 Pa. 435, 392 A.2d 1371 (1978). This requirement is not imposed by the Federal Rule.

Rule 804(b)(5). Other exceptions (Not Adopted).

 (5) Other exceptions (Not Adopted)

Comment

 Pennsylvania has not adopted F.R.E. 804(b)(5) (now F.R.E. 807).

Rule 804(b)(6). Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability.

 (6) Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability. A statement offered against a party that wrongfully caused—or acquiesced in wrongfully causing—the declarant's unavailability as a witness, and did so intending that result.

Comment

 This rule is identical to F.R.E. 804(b)(6).

 Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 10, 2000, effective immediately; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the March 10, 2000 revision of the Comment to paragraph (b)(4) published with the Court's Order at 30 Pa.B. 1641 (March 25, 2000).

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

Rule 805. Hearsay Within Hearsay.

 Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.

Comment

 This rule is identical to F.R.E. 805.

 Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

Rule 806. Attacking and Supporting the Declarant's Credibility.

 When a hearsay statement has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

Comment

 Pa.R.E. 806 differs from F.R.E. 806 in that Pa.R.E. 806 makes no reference to Rule 801(d)(2). The subject matter of F.R.E. 801(d)(2) (an opposing party's statement) is covered by Pa.R.E. 803(25). The change is not substantive. Pa.R.E. 806 is consistent with Pennsylvania law. See Commonwealth v. Davis, 363 Pa. Super. 562, 526 A.2d 1205 (1987).

 The requirement that a witness be given an opportunity to explain or deny the making of an inconsistent statement provided by Pa.R.E. 613(b)(2) is not applicable when the prior inconsistent statement is offered to impeach a statement admitted under an exception to the hearsay rule. In most cases, the declarant will not be on the stand at the time when the hearsay statement is offered and for that reason the requirement of Pa.R.E. 613(b)(2) is not appropriate.

 Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 amendments published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

Rule 807. Residual Exception (Not Adopted).

Comment

 Pennsylvania has not adopted F.R.E. 807.

 Official Note: Comment rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 amendments published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

Rule

901.	Authenticating or Identifying Evidence.
902.	Evidence That is Self-Authenticating.
903.	Subscribing Witness's Testimony.

Rule 901. Authenticating or Identifying Evidence.

 (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

 (b) Examples. The following are examples only—not a complete list—of evidence that satisfies the requirement:

 (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

 (2) Nonexpert Opinion about Handwriting. A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

 (3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.

 (4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

 (5) Opinion About a Voice. An opinion identifying a person's voice—whether heard firsthand or through mechanical or electronic transmission or recording—based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

 (6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:

 (A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or

 (B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

 (7) Evidence About Public Records. Evidence that:

 (A) a document was recorded or filed in a public office as authorized by law; or

 (B) a purported public record or statement is from the office where items of this kind are kept.

 (8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:

 (A) is in a condition that creates no suspicion about its authenticity;

 (B) was in a place where, if authentic, it would likely be; and

 (C) is at least 30 years old when offered.

 (9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

 (10) Methods Provided by a Statute or a Rule. Any method of authentication or identification allowed by a statute or a rule prescribed by the Supreme Court.

Comment

 Pa.R.E. 901(a) is identical to F.R.E. 901(a) and consistent with Pennsylvania law. The authentication or identification requirement may be expressed as follows: When a party offers evidence contending either expressly or impliedly that the evidence is connected with a person, place, thing, or event, the party must provide evidence sufficient to support a finding of the contended connection. See Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980); Commonwealth v. Pollock, 414 Pa. Super. 66, 606 A.2d 500 (1992).

 In some cases, real evidence may not be relevant unless its condition at the time of trial is similar to its condition at the time of the incident in question. In such cases, the party offering the evidence must also introduce evidence sufficient to support a finding that the condition is similar. Pennsylvania law treats this requirement as an aspect of authentication. See Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980).

 Demonstrative evidence such as photographs, motion pictures, diagrams and models must be authenticated by evidence sufficient to support a finding that the demonstrative evidence fairly and accurately represents that which it purports to depict. See Nyce v. Muffley, 384 Pa. 107, 119 A.2d 530 (1956).

 Pa.R.E. 901(b) is identical to F.R.E. 901(b).

 Pa.R.E. 901(b)(1) is identical to F.R.E. 901(b)(1). It is consistent with Pennsylvania law in that the testimony of a witness with personal knowledge may be sufficient to authenticate or identify the evidence. See Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980).

 Pa.R.E. 901(b)(2) is identical to F.R.E. 901(b)(2). It is consistent with 42 Pa.C.S. § 6111, which also deals with the admissibility of handwriting.

 Pa.R.E. 901(b)(3) is identical to F.R.E. 901(b)(3). It is consistent with Pennsylvania law. When there is a question as to the authenticity of an exhibit, the trier of fact will have to resolve the issue. This may be done by comparing the exhibit to authenticated specimens. See Commonwealth v. Gipe, 169 Pa. Super. 623, 84 A.2d 366 (1951) (comparison of typewritten document with authenticated specimen). Under this rule, the court must decide whether the specimen used for comparison to the exhibit is authentic. If the court determines that there is sufficient evidence to support a finding that the specimen is authentic, the trier of fact is then permitted to compare the exhibit to the authenticated specimen. Under Pennsylvania law, lay or expert testimony is admissible to assist the jury in resolving the question. See, e.g., 42 Pa.C.S. § 6111.

 Pa.R.E. 901(b)(4) is identical to F.R.E. 901(b)(4). Pennsylvania law has permitted evidence to be authenticated by circumstantial evidence similar to that discussed in this illustration. The evidence may take a variety of forms including: evidence establishing chain of custody, see Commonwealth v. Melendez, 326 Pa. Super. 531, 474 A.2d 617 (1984); evidence that a letter is in reply to an earlier communication, see Roe v. Dwelling House Ins. Co. of Boston, 149 Pa. 94, 23 A. 718 (1892); testimony that an item of evidence was found in a place connected to a party, see Commonwealth v. Bassi, 284 Pa. 81, 130 A. 311 (1925); a phone call authenticated by evidence of party's conduct after the call, see Commonwealth v. Gold, 123 Pa. Super. 128, 186 A. 208 (1936); and the identity of a speaker established by the content and circumstances of a conversation, see Bonavitacola v. Cluver, 422 Pa. Super. 556, 619 A.2d 1363 (1993).

 Pa.R.E. 901(b)(5) is identical to F.R.E. 901(b)(5). Pennsylvania law has permitted the identification of a voice to be made by a person familiar with the alleged speaker's voice. See Commonwealth v. Carpenter, 472 Pa. 510, 372 A.2d 806 (1977).

 Pa.R.E. 901(b)(6) is identical to F.R.E. 901(b)(6). This paragraph appears to be consistent with Pennsylvania law. See Smithers v. Light, 305 Pa. 141, 157 A. 489 (1931); Wahl v. State Workmen's Ins. Fund, 139 Pa. Super. 53, 11 A.2d 496 (1940).

 Pa.R.E. 901(b)(7) is identical to F.R.E. 901(b)(7). This paragraph illustrates that public records and reports may be authenticated in the same manner as other writings. In addition, public records and reports may be self-authenticating as provided in Pa.R.E. 902. Public records and reports may also be authenticated as otherwise provided by statute. See Pa.R.E. 901(b)(10) and its Comment.

 Pa.R.E. 901(b)(8) differs from F.R.E. 901(b)(8), in that the Pennsylvania Rule requires thirty years, while the Federal Rule requires twenty years. This change makes the rule consistent with Pennsylvania law. See Commonwealth ex rel. Ferguson v. Ball, 277 Pa. 301, 121 A. 191 (1923).

 Pa.R.E. 901(b)(9) is identical to F.R.E. 901(b)(9). There is very little authority in Pennsylvania discussing authentication of evidence as provided in this illustration. The paragraph is consistent with the authority that exists. For example, in Commonwealth v. Visconto, 301 Pa. Super. 543, 448 A.2d 41 (1982), a computer print-out was held to be admissible. In Appeal of Chartiers Valley School District, 67 Pa. Cmwlth. 121, 447 A.2d 317 (1982), computer studies were not admitted as business records, in part, because it was not established that the mode of preparing the evidence was reliable. The court used a similar approach in Commonwealth v. Westwood, 324 Pa. 289, 188 A. 304 (1936) (test for gun powder residue) and in other cases to admit various kinds of scientific evidence. See Commonwealth v. Middleton, 379 Pa. Super. 502, 550 A.2d 561 (1988) (electrophoretic analysis of dried blood); Commonwealth v. Rodgers, 413 Pa. Super. 498, 605 A.2d 1228 (1992) (results of DNA/RFLP testing).

 Pa.R.E. 901(b)(10) differs from F.R.E. 901(b)(10) to eliminate the reference to Federal law and to make the paragraph conform to Pennsylvania law.

 There are a number of statutes that provide for authentication or identification of various types of evidence. See, e.g., 42 Pa.C.S. § 6103 (official records within the Commonwealth); 42 Pa.C.S. § 5328 (domestic records outside the Commonwealth and foreign records); 35 P. S. § 450.810 (vital statistics); 42 Pa.C.S. § 6106 (documents filed in a public office); 42 Pa.C.S. § 6110 (certain registers of marriages, births and burials records); 75 Pa.C.S. § 1547(c) (chemical tests for alcohol and controlled substances); 75 Pa.C.S. § 3368 (speed timing devices); 75 Pa.C.S. § 1106(c) (certificates of title); 42 Pa.C.S. § 6151 (certified copies of medical records); 23 Pa.C.S. § 5104 (blood tests to determine paternity); 23 Pa.C.S. § 4343 (genetic tests to determine paternity).

 Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

Rule 902. Evidence That is Self-Authenticating.

 The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:

 (1) Domestic Public Documents That Are Sealed and Signed. A document that bears:

 (A) a seal purporting to be that of the United States; any state, district, commonwealth, territory, or insular possession of the United States; the former Panama Canal Zone; the Trust Territory of the Pacific Islands; a political subdivision of any of these entities; or a department, agency, or officer of any entity named above; and

 (B) a signature purporting to be an execution or attestation.

 (2) Domestic Public Documents That Are Not Sealed But Are Signed and Certified. A document that bears no seal if:

 (A) it bears the signature of an officer or employee of an entity named in Rule 902(1)(A); and

 (B) another public officer who has a seal and official duties within that same entity certifies under seal—or its equivalent—that the signer has the official capacity and that the signature is genuine.

 (3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country's law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester—or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document's authenticity and accuracy, the court may for good cause, either:

 (A) order that it be treated as presumptively authentic without final certification; or

 (B) allow it to be evidenced by an attested summary with or without final certification.

 (4) Certified Copies of Public Records. A copy of an official record—or a copy of a document that was recorded or filed in a public office as authorized by law—if the copy is certified as correct by:

 (A) the custodian or another person authorized to make the certification; or

 (B) a certificate that complies with Rule 902(1), (2), or (3), a statute or a rule prescribed by the Supreme Court.

 (5) Official Publications. A book, pamphlet, or other publication purporting to be issued by a public authority.

 (6) Newspapers and Periodicals. Printed material purporting to be a newspaper or periodical.

 (7) Trade Inscriptions and the Like. An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.

 (8) Acknowledged Documents. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.

 (9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

 (10) Presumptions Authorized by Statute. A signature, document, or anything else that a statute declares to be presumptively or prima facie genuine or authentic.

 (11) Certified Domestic Records of a Regularly Conducted Activity. The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)—(C), as shown by a certification of the custodian or another qualified person that complies with Pa.R.C.P. No. 76. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record—and must make the record and certification available for inspection—so that the party has a fair opportunity to challenge them.

 (12) Certified Foreign Records of a Regularly Conducted Activity. In a civil case, the original or a copy of a foreign record that meets the requirements of Rule 902(11), modified as follows: the certification rather than complying with a statute or Supreme Court rule, must be signed in a manner that, if falsely made, would subject the maker to a criminal penalty in the country where the certification is signed. The proponent must also meet the notice requirements of Rule 902(11).

Comment

 This rule permits some evidence to be authenticated without extrinsic evidence of authentication or identification. In other words, the requirement that a proponent must present authentication or identification evidence as a condition precedent to admissibility, as provided by Pa.R.E. 901(a), is inapplicable to the evidence discussed in Pa.R.E. 902. The rationale for the rule is that, for the types of evidence covered by Pa.R.E. 902, the risk of forgery or deception is so small, and the likelihood of discovery of forgery or deception is so great, that the cost of presenting extrinsic evidence and the waste of court time is not justified. Of course, this rule does not preclude the opposing party from contesting the authenticity of the evidence. In that situation, authenticity is to be resolved by the finder of fact.

 Pa.R.E. 902(1), (2), (3) and (4) deal with self-authentication of various kinds of public documents and records. They are identical to F.R.E. 902(1), (2), (3) and (4), except that Pa.R.E. 901(4) eliminates the reference to Federal law. These paragraphs are consistent with Pennsylvania statutory law. See, e.g. 42 Pa.C.S. § 6103 (official records within the Commonwealth); 42 Pa.C.S. § 5328 (domestic records outside the Commonwealth and foreign records); 35 P. S. § 450.810 (vital statistics); 42 Pa.C.S. § 6106 (documents filed in a public office).

 Pa.R.E. 902(5), (6) and (7) are identical to F.R.E. 902(5), (6) and (7). There are no corresponding statutory provisions in Pennsylvania; however, 45 Pa.C.S. § 506 (judicial notice of the contents of the Pennsylvania Code and the Pennsylvania Bulletin) is similar to Pa.R.E. 902(5).

 Pa.R.E. 902(8) is identical to F.R.E. 902(8). It is consistent with Pennsylvania law. See Sheaffer v. Baeringer, 346 Pa. 32, 29 A.2d 697 (1943); Williamson v. Barrett, 147 Pa. Super. 460, 24 A.2d 546 (1942); 21 P. S. §§ 291.1-291.13 (Uniform Acknowledgement Act); 57 P. S. §§ 147-169 (Notary Public Law). An acknowledged document is a type of official record and the treatment of acknowledged documents is consistent with Pa.R.E. 902(1), (2), (3), and (4).

 Pa.R.E. 902(9) is identical to F.R.E. 902(9). Pennsylvania law treats various kinds of commercial paper and documents as self-authenticating. See, e.g., 13 Pa.C.S. § 3505 (evidence of dishonor of negotiable instruments).

 Pa.R.E. 902(10) differs from F.R.E. 902(10) to eliminate the reference to Federal law and to make the paragraph conform to Pennsylvania law. In some Pennsylvania statutes, the self-authenticating nature of a document is expressed by language creating a ''presumption'' of authenticity. See, e.g., 13 Pa.C.S. § 3505.

 Pa.R.E. 902(11) and (12) permit the authentication of domestic and foreign records of regularly conducted activity by verification or certification. Pa.R.E. 902(11) is similar to F.R.E. 902(11). The language of Pa.R.E. 902(11) differs from F.R.E. 902(11) in that it refers to Pa.R.C.P. No. 76 rather than to Federal law. Pa.R.E. 902(12) differs from F.R.E. 902(12) in that it requires compliance with a Pennsylvania statute rather than a Federal statute.

 Official Note: Adopted May 8, 1998, effective October 1, 1998; amended November 2, 2001, effective January 1, 2002; amended February 23, 2004, effective May 1, 2004; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the November 2, 2001 amendments adding paragraphs (11) and (12) published with Court's Order at 31 Pa.B. 6384 (November 24, 2001).

 Final Report explaining the February 23, 2004 amendment of paragraph (12) published with Court's Order at 34 Pa.B. 1429 (March 13, 2004).

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

Rule 903. Subscribing Witness's Testimony.

 A subscribing witness's testimony is necessary to authenticate a writing only if required by the law of the jurisdiction that governs its validity.

Comment

 This rule is identical to F.R.E. 903. There are no laws in Pennsylvania requiring the testimony of a subscribing witness to authenticate a writing.

 Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS

Rule

1001.	Definitions That Apply to This Article.
1002.	Requirement of the Original.
1003.	Admissibility of Duplicates.
1004.	Admissibility of Other Evidence of Content.
1005.	Copies of Public Records to Prove Content.
1006.	Summaries to Prove Content.
1007.	Testimony or Statement of a Party to Prove Content.
1008.	Functions of the Court and Jury.

Rule 1001. Definitions That Apply to This Article.

 In this article:

 (a) A ''writing'' consists of letters, words, numbers, or their equivalent set down in any form.

 (b) A ''recording'' consists of letters, words, numbers, or their equivalent recorded in any manner.

 (c) A ''photograph'' means a photographic image or its equivalent stored in any form.

 (d) An ''original'' of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, ''original'' means any printout—or other output readable by sight—if it accurately reflects the information. An ''original'' of a photograph includes the negative or a print from it.

 (e) A ''duplicate'' means a copy produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

Comment

 This rule is identical to F.R.E. 1001, except that the word ''copy'' in Pa.R.E 1001(e) replaces the word ''counterpart'' used in F.R.E. 1001(e).

 Paragraph 1001(e) defines the term duplicate. This term is important because of the admissibility of duplicates under Pa.R.E. 1003. This rule differs from the Federal Rule in that the word ''counterpart'' has been replaced by the word ''copy.'' The word ''counterpart'' is used in paragraph 1001(d) to refer to a copy intended to have the same effect as the writing or recording itself. The word ''copy'' is used in paragraph 1003(e) to mean a copy that was not intended to have the same effect as the original.

 Pennsylvania law has permitted the use of duplicates produced by the same impression as the original, as is the case with carbon copies. See Brenner v. Lesher, 332 Pa. 522, 2 A.2d 731 (1938); Commonwealth v. Johnson, 373 Pa. Super. 312, 541 A.2d 332 (1988); Pennsylvania Liquor Control Bd. v. Evolo, 204 Pa. Super. 225, 203 A.2d 332 (1964). Pennsylvania has not treated other duplicates as admissible unless the original was shown to be unavailable through no fault of the proponent. For this reason, the definition of duplicates, other than those produced by the same impression as the original, is new to Pennsylvania law. The justification for adopting the new definition is discussed in the Comment to Pa.R.E. 1003.

 Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

Rule 1002. Requirement of the Original.

 An original writing, recording, or photograph is required in order to prove its content unless these rules, other rules prescribed by the Supreme Court, or a statute provides otherwise.

Comment

 Pa.R.E. 1002 differs from F.R.E. 1002 to eliminate the reference to Federal law.

 This rule corresponds to the common law ''best evidence rule.'' See Hera v. McCormick, 425 Pa. Super. 432, 625 A.2d 682 (1993). The rationale for the rule was not expressed in Pennsylvania cases, but commentators have mentioned four reasons justifying the rule.

 (1) The exact words of many documents, especially operative or dispositive documents, such as deeds, wills or contracts, are so important in determining a party's rights accruing under those documents.

 (2) Secondary evidence of the contents of documents, whether copies or testimony, is susceptible to inaccuracy.

 (3) The rule inhibits fraud because it allows the parties to examine the original documents to detect alterations and erroneous testimony about the contents of the document.

 (4) The appearance of the original may furnish information as to its authenticity.

 5 Weinstein & Berger, Weinstein's Evidence § 1002(2) (Sandra D. Katz rev. 1994).

 The common law formulation of the rule provided that the rule was applicable when the terms of the document were ''material.'' The materiality requirement has not been eliminated, but is now dealt with in Pa.R.E. 1004(d). That rule provides that the original is not required when the writing, recording or photograph is not closely related to a controlling issue.

 The case law has not been entirely clear as to when a party is trying ''to prove the content of a writing, recording, or photograph.'' However, writings that are viewed as operative or dispositive have usually been considered to be subject to the operation of the rule. On the other hand, writings are not usually treated as subject to the rule if they are only evidence of the transaction, thing or event. See Hamill-Quinlan, Inc. v. Fisher, 404 Pa. Super. 482, 591 A.2d 309 (1991); Noble C. Quandel Co. v. Slough Flooring, Inc., 384 Pa. Super. 236, 558 A.2d 99 (1989). Thus, testimony as to a person's age may be offered; it is not necessary to produce a birth certificate. See Commonwealth ex rel. Park v. Joyce, 316 Pa. 434, 175 A. 422 (1934). Or, a party's earnings may be proven by testimony; it is not necessary to offer business records. See Noble C. Quandel Co., supra.

 Traditionally, the best evidence rule applied only to writings, but Pa.R.E. 1002 may be applicable to recordings or photographs. However, recordings and photographs are usually only evidence of the transaction, thing or event. It is rare that a recording or photograph would be operative or dispositive, but in cases involving matters such as infringement of copyright, defamation, pornography and invasion of privacy, the requirement for the production of the original should be applicable. There is support for this approach in Pennsylvania law. See Commonwealth v. Lewis, 424 Pa. Super. 531, 623 A.2d 355 (1993) (video tape); Anderson v. Commonwealth, 121 Pa. Cmwlth. 521, 550 A.2d 1049 (1988) (film).

 Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

Rule 1003. Admissibility of Duplicates.

 A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.

Comment

 This rule is identical to F.R.E. 1003.

 Under the traditional best evidence rule, copies of documents were not routinely admissible. This view dated back to the time when copies were made by hand copying and were therefore subject to inaccuracy. On the other hand, Pennsylvania courts have admitted copies made by techniques that are more likely to produce accurate copies. For example, when a writing is produced in duplicate or multiplicate each of the copies is treated as admissible for purposes of the best evidence rule. See Brenner v. Lesher, 332 Pa. 522, 2 A.2d 731 (1938); Pennsylvania Liquor Control Bd. v. Evolo, 204 Pa. Super. 225, 203 A.2d 332 (1964).

 In addition, various Pennsylvania statutes have treated some accurate copies as admissible. See 42 Pa.C.S. § 6104 (governmental records in the Commonwealth); 42 Pa.C.S. § 5328 (domestic records outside the Commonwealth and foreign records); 42 Pa.C.S. § 6106 (documents recorded or filed in a public office); 42 Pa.C.S. § 6109 (photographic copies of business and public records); 42 Pa.C.S. §§ 6151—59 (certified copies of medical records).

 The extension of similar treatment to all accurate copies seems justified in light of modern practice. Pleading and discovery rules such as Pa.R.C.P. No. 4009.1 (requiring production of originals of documents and photographs etc.) and Pa.R.Crim.P. 573(B)(1)(f) and (g) (requiring disclosure of originals of documents, photographs and recordings of electronic surveillance) will usually provide an adequate opportunity to discover fraudulent copies. As a result, Pa.R.E. 1003 should tend to eliminate purely technical objections and unnecessary delay. In those cases where the opposing party raises a genuine question as to authenticity or the fairness of using a duplicate, the trial court may require the production of the original under this rule.

 Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 29, 2001, effective April 1, 2001; rescinded and replaced January 17, 2013, effective March 18, 2013.

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 January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

Rule 1004. Admissibility of Other Evidence of Content.

 An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

 (a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;

 (b) an original cannot be obtained by any available judicial process;

 (c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or

 (d) the writing, recording, or photograph is not closely related to a controlling issue.

Comment

 This rule is identical to F.R.E. 1004.

 When the proponent of the evidence alleges that it is lost, there should be evidence that a sufficient search was made. See Hera v. McCormick, 425 Pa. Super. 432, 625 A.2d 682 (1993).

 Under Pa.R.E. 1004, when production of the original is not required, the proffering party need not offer a duplicate even if that is available; the proffering party may present any evidence including oral testimony. The normal motivation of a party to produce the most convincing evidence together with the availability of discovery to uncover fraud seems adequate to control abuse.

 Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

Rule 1005. Copies of Public Records to Prove Content.

 The proponent may use a copy to prove the content of an official record—or of a document that was recorded or filed in a public office as authorized by law—if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.

Comment

 This rule is identical to F.R.E. 1005.

 Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

Rule 1006. Summaries to Prove Content.

 The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Comment

 This rule is identical to F.R.E. 1006.

 Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

Rule 1007. Testimony or Statement of a Party to Prove Content.

 The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.

Comment

 This rule is identical to F.R.E. 1007. There is no precise equivalent to Pa.R.E. 1007 under Pennsylvania law, but the rule is consistent with Pennsylvania practice. For example, Pa.R.C.P. No. 1019(h) requires a party to attach a copy of a writing to a pleading if any claim or defense is based on the writing. A responsive pleading admitting the accuracy of the writing would preclude an objection based on Rule 1002.

 Similarly, Pa.R.C.P. No. 4014(a) permits a party to serve any other party with a request for admission as to the genuineness, authenticity, correctness, execution, signing, delivery, mailing or receipt of any document described in the request. Pa.R.C.P. No. 4014(d) provides that any matter admitted is conclusively established.

 Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

Rule 1008. Functions of the Court and Jury.

 Ordinarily, the court determines whether the proponent has fulfilled the factual conditions for admitting other evidence of the content of a writing, recording, or photograph under Rule 1004 or 1005. But in a jury trial, the jury determines—in accordance with Rule 104(b)—any issue about whether:

 (a) an asserted writing, recording, or photograph ever existed;

 (b) another one produced at the trial or hearing is the original; or

 (c) other evidence of content accurately reflects the content.

Comment

 This rule is identical to F.R.E. 1008.

 Official Note: Adopted May 8, 1998, effective October 1, 1998; rescinded and replaced January 17, 2013, effective March 18, 2013.

Committee Explanatory Reports:

 Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 651 (February 2, 2013).

FINAL REPORT¹

Restyled Rules of Evidence

 On January 17, 2013, effective March 18, 2013, upon the recommendation of the Committee on Rules of Evidence, the Court rescinded the Pennsylvania Rules of Evidence, together with Comments, and adopted restyled Pennsylvania Rules of Evidence, together with relevant Comments.

Background

 In 1995, the Supreme Court of Pennsylvania authorized the Ad Hoc Committee on Evidence to draft Rules of Evidence for the Court's consideration. The proposed Rules were drafted to codify Pennsylvania's common law of evidence and closely followed the format and numbering of the Federal Rules of Evidence. The Comments to the Rules were designed to identify the common law sources of Pennsylvania's Rules of Evidence, compare them to the Federal Rules of Evidence, and to explain any differences between the two bodies of rules. Additionally, some Comments were augmented with information thought to be helpful to the bench and bar in the application of the Rules. On May 8, 1998, the Court adopted the proposed Rules, effective October 1, 1998.

 On September 8, 1998, the Court established the Committee on Rules of Evidence to, inter alia, ''assist and advise the Supreme Court of Pennsylvania in the preparation, adoption, promulgation and revision of the rules of evidence governing proceedings in the courts of the Commonwealth.''

Restyled Federal Rules of Evidence

 In 2007, the Advisory Committee on the Federal Rules of Evidence voted to begin a project to restyle the Federal Rules of Evidence. The style revisions were intended to make the Rules clearer and easier to read, without altering substantive meaning. This project would be similar to prior restyling projects for the Federal Rules of Appellate Procedure, Federal Rules of Criminal Procedure, and the Federal Rules of Civil Procedure.

 On April 26, 2011, the Supreme Court of the United States transmitted the restyled Federal Rules of Evidence to Congress for consideration pursuant to the Rules Enabling Act, 28 U.S.C. § 2074(a), which, absent Congressional action, became effective on December 1, 2011.

Restyled Pennsylvania Rules of Evidence

 The Committee monitored the progression of the Federal Rules' project and reviewed the proposed changes given that the Pennsylvania Rules of Evidence so closely mirrored significant portions of the Federal Rules of Evidence. The Committee concurred with the conclusion that the restyled Federal Rules were clearer and easier to read. The Committee also believed that maintaining consistency with the language and format of the Federal Rules, where such consistency exists, benefits the bench and bar.

 Additionally, dissimilarities between the wordings of the restyled Federal Rules and the current Pennsylvania Rules may have led to confusion with the more than 60 references throughout certain Comments to the Pennsylvania Rules as being ''identical'' to the Federal Rule, when in fact the language would no longer be identical with the restyled Federal Rules. Further, the value of purely historical references to Pennsylvania common law of evidence in the Comments has significantly diminished since the adoption of the Rules.

 Accordingly, the Committee recommended rescission of the current Pennsylvania Rules and replacement with the restyled Pennsylvania Rules to incorporate stylistic changes from the Federal Rules and to eliminate surplusage in the Comments. The Committee wishes to offer the following observations concerning the recommendation:

 • None of the stylistic changes to the Rules was intended to change the substantive meaning of the Rules.

 • Many prior Comments contained discussion and citation of Pennsylvania's common law of evidence. The Committee recognized the value of such references when the Pennsylvania Rules of Evidence were adopted in 1998, especially where the Federal Rules and Pennsylvania Rules differ. However, the Rules have been in existence now for more than fourteen years and have been incorporated into judicial proceedings and practice. Consequently, many references contained in the prior Comments became historical. Accordingly, the Committee proposed deletion of discussion and citation of Pennsylvania's common law of evidence in the Comments where the common law of evidence was consistent to the Pennsylvania Rule. Where a Pennsylvania Rule and the Federal Rule remained dissimilar, the Committee recommended that references to Pennsylvania's common law of evidence be retained in the Comment.

 • The reader is reminded that the Comments are prepared by the Committee for the convenience of the bench and bar. The Comments were not adopted by the Court and have no precedential import.

 • The ''Official Notes'' and citations to the ''Committee Explanatory Reports'' have been updated, corrected, and/or added to the Comments for all Rules.

 • Additional, non-substantive changes were made to the Comments to correct errors in grammar, citations, spacing, and alignment.

[Pa.B. Doc. No. 13-171. Filed for public inspection February 1, 2013, 9:00 a.m.]

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¹  The Committee's Final Report should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the Committee's explanatory Final Reports.

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