THE COURTS

Title 225—RULES OF EVIDENCE

[ 225 PA. CODE ARTS. VIII AND IX ]

Proposed Amendment of Pa.R.E. 803(6), (8), (10) with Revision of the Comment to Pa.R.E. 803(7) and New Pa.R.E. 902(13)

[45 Pa.B. 6472]
[Saturday, November 7, 2015]

 Proposed amendment of Pa.R.E. 803(6), (8), (10) with revision of the Comment to Pa.R.E. 803(7) and new-Pa.R.E. 902(13) governing exceptions to the rule against hearsay are being published for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being published in the Pennsylvania Bulletin for comments, suggestions, or objections prior to submission to the Supreme Court.

 Any reports, notes, or comments in the proposal have been inserted by the Committee for the convenience of those using the rules. They neither will constitute a part of the rules nor will be officially adopted by the Supreme Court.

 Additions to the text of the proposal are bolded; deletions to the text are bolded and bracketed.

 The Committee invites all interested persons to submit comments, suggestions, or objections in writing to:

 Daniel A. Durst, Counsel
Committee on Rules of Evidence
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
P. O. Box 62635
Harrisburg, PA 17106-2635
FAX: 717.231.9536
evidencerules@pacourts.us

 All communications in reference to the proposal should be received by January 8, 2016. E-mail is the preferred method for submitting comments, suggestions, or objections; any e-mailed submission need not be reproduced and resubmitted via mail. The Committee will acknowledge receipt of all submissions.

By the Committee on
Rules of Evidence

THOMAS W. DOLGENOS, Esq., 
Chair

Annex A

TITLE 225. RULES OF EVIDENCE

ARTICLE VIII. HEARSAY

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 opponent does not show that the source of information [nor] or 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 (Pa. 1987); Commonwealth v. DiGiacomo, [463 Pa. 449,] 345 A.2d 605 (Pa. 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] or other circumstances indicate lack of trustworthiness.'' The Federal Rule allows the court to do so only if [neither] either ''the source of information [nor] or 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], see Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); however, forensic laboratory reports may be admissible in lieu of testimony by the person who performed the analysis or examination that is the subject of the report, see Pa.R.Crim.P. 574.

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)] [F.R.E. 803(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 opponent does not show that the possible source of the information [nor] or 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 (Pa. 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 (Pa. Super. 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).]

 (8) Public Records. A record of a public office if:

 (A) the record describes the facts of the action taken or matter observed;

 (B) the recording of this action or matter observed was an official public duty; and

 (C) the opponent does not show that the source of the information or other circumstances indicate a lack of trustworthiness.

Comment

 Pa.R.E. 803(8) differs from F.R.E. 803(8) insofar as it reflects the hearsay exception for public records provided in 42 Pa.C.S. § 6104. See Rules 901(b)(7), 902(1)—(4) and 42 Pa.C.S. §§ 5328, 6103, and 6106 for authentication of public records.

Rule 803(10). [Absence] Non-Existence 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.]

 (10) Non-Existence of a Public Record. Testimony—or a certification—that a diligent search failed to disclose a public record if:

 (A) the testimony or certification is admitted to prove that

 (i) the record does not exist; or

 (ii) a matter did not occur or exist, if a public office regularly kept a record for a matter of that kind.

 (B) in a criminal case:

 (i) the attorney for the Commonwealth who intends to offer a certification files and serves written notice of that intent upon the defendant's attorney or, if unrepresented, the defendant, at least 20 days before trial; and

 (ii) defendant's attorney or, if unrepresented, the defendant, does not file and serve a written demand for testimony in lieu of the certification within 10 days of service of the notice.

Comment

 Pa.R.E. 803(10)(A) differs from F.R.E. 803(10)(A) insofar as it does not include ''statements.'' This rule is consistent with Pennsylvania law. See 42 Pa.C.S. §§ 5328(d) and 6103(b). See also Pa.R.E. 902(13) (authentication of certificate).

 Pa.R.E. 803(10)(B) differs from F.R.E. 803(10)(B) insofar as it is made consistent with aspects of Pa.R.Crim.P. 574. Like the federal rule, this rule is intended to provide a mechanism for a defendant to exercise the constitutional right to confront the witnesses against him or her. See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). Nothing in this evidentiary rule is intended to supersede procedural requirements within the Pennsylvania Rules of Criminal Procedure, see, e.g., Pa.R.Crim.P. 576 (Filing and Service by Parties), or limit the ability of the court to extend the time periods contain herein.

 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; amended   , effective   .

 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).

 Final Report explaining the   , 2015 amendments to paragraph 6, 8, 10, and revision of the Comment for paragraph 7 published with the Court's Order at   Pa.B.   (   , 2015).

ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

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:

*  *  *  *  *

 (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).

 (13) Certificate of Non-Existence of a Public Record—A certificate that a document was not recorded or filed in a public office as authorized by law if certified by the custodian or another person authorized to make the certificate.

Comment

*  *  *  *  *

 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.

 Pa.R.E. 902(13) has no counterpart in the Federal Rules. This rule provides for the self-authentication of a certificate of the non-existence of a public record, as provided in Pa.R.E. 803(10).

 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; amended   , effective   .

 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).

 Final Report explaining the   , 2015 addition of paragraph 13 published with the Court's Order at   Pa.B.   (   , 2015).

REPORT

Proposed Amendment of Pa.R.E. 803(6), (8), (10) with Revision of the Comment to Pa.R.E. 803(7) and New-Pa.R.E. 902(13)

 In 1998, the Court adopted the Pennsylvania Rules of Evidence. These rules incorporated the structure, format, and language of the Federal Rules of Evidence where identical or similar. Where the law of evidence differed, the rules were modified to reflect Pennsylvania evidentiary law. Within Article VIII, there were eight provisions of the Federal Rules that were not incorporated into the Pennsylvania Rules, including F.R.E. 803(6)—(8), and (10). Instead, these provisions were ''reserved'' to maintain parallel numbering between the two bodies of rules. Additionally, some of the Comments to these ''reserved'' or ''unadopted'' provisions provided reference to case law or statute on the topic.

 Effective December 1, 2014, F.R.E. 803(6)—(8) were amended:

[T]o clarify that if the proponent has established the stated requirements of the exception—regular business with regularly kept record, source with personal knowledge, record made timely, and foundation testimony or certification—then the burden is on the opponent to show a lack of trustworthiness. While most courts have imposed that burden on the opponent, some have not. It is appropriate to impose the burden of proving untrustworthiness on the opponent, as the basic admissibility requirements are sufficient to establish a presumption that the record is reliable.

The opponent, in meeting its burden, is not necessarily required to introduce affirmative evidence of untrustworthiness. For example, the opponent might argue that a record was prepared in anticipation of litigation and is favorable to the preparing party without needing to introduce evidence on the point. A determination of untrustworthiness necessarily depends on the circumstances.

 28 U.S.C. app. F.R.E. Committee Notes on Rules—2014 Amendment.

 Effective December 1, 2013, F.R.E. 803(10) was amended:

in response to Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The Melendez-Diaz Court declared that a testimonial certificate could be admitted if the accused is given advance notice and does not timely demand the presence of the official who prepared the certificate. The amendment incorporate[d], with minor variations, a ''notice-and-demand'' procedure that was approved by the Melendez-Diaz Court. See Tex. 36 Code Crim. P. Ann., art. 38.41.

 28 U.S.C. app. F.R.E. Committee Notes on Rules—2013 Amendment.

 These amendments prompted the Committee on Rules of Evidence to undertake an evaluation of the ''reserved'' Pennsylvania Rules of Evidence to identify whether any changes were warranted. As a result of this review, the Committee proposes amendment to Pa.R.E. 803(6), (8), and (10) with a revision to the Comment to Pa.R.E. 803(7) and new-Pa.R.E. 902(13).

Pennsylvania Rule of Evidence 803(6)

 Prior to the restyling of the rules, 43 Pa.B. 620 (February 2, 2013), the Comment to Pa.R.E. 803(6) stated:

Pa.R.E. 803(6) places the burden on an opposing party to show that the sources of information or other circumstances indicate that a business record is untrustworthy, and thus does not qualify for exception to the hearsay rule. The statute places the burden on the proponent of the evidence to show circumstantial trustworthiness.

 The restyled rule did not carry over the above-Comment because it was not clear that the rule text placed the burden on the proponent. Moreover, 42 Pa.C.S. § 6108 did not specifically assign the burden of proving untrustworthiness on the opponent—that was inferred from the burden of proving trustworthiness on the proponent.¹

 General Rule.—A record of an act, condition or even shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.
 
42 Pa.C.S. § 6108(b).

In Folger v. Dugan, 876 A.2d 1049, 1056 (Pa. Super. 2005), the Superior Court cited the Comment to Rule 803(6) when it stated: ''Appellants bear the burden of demonstrating lack of trustworthiness.'' However citing a case in the Comment that cited the Comment to establish the burden shift was believed to be tautological. Therefore, the restyled rule remained silent on the burden of proving untrustworthiness.

 Notwithstanding the lack of authority on the subject, the Committee renews its previously held belief that the proponent has the burden of proving Pa.R.E. 803(6)(A)—(D), which establish circumstantial evidence that a record is trustworthy given the manner in which it is created and maintained. Once this burden has been satisfied, the burden shifts to the opponent to show a lack of trustworthiness. Apportioning the burden eliminates a possible construction where the proponent would be required to prove both trustworthiness and the lack of untrustworthiness.

 Given that this represents a definitive burden shift between the parties, the Committee recommends it be codified in the rule text rather than be re-inserted as interpretative guidance in the form of a Comment. Additionally, this amendment would be consistent with the recent amendment of F.R.E. 803(6). The Committee also favors expansion of the Comment to provide reference to Pa.R.Crim.P. 574.

Pennsylvania Rule of Evidence 803(7)

 The amendment of F.R.E. 803(7) prompted the Committee to reevaluate the Comment to Pa.R.E. 803(7), which contains the original rationale for not adopting a rule concerning the absence of a business record. First, unlike a public record, it should be recognized that neither Pennsylvania rule, common law, nor statute provide for the use of a certificate as conclusive proof of the absence of a business record. Second, as indicated in the Comment, documentary evidence to show the non-existence of a fact is merely circumstantial. For example, a proponent might have once used the absence of an entry in a telephone book as circumstantial evidence to prove that a person did not have a telephone. Of course, testimonial evidence from a custodian or other qualified witness about their personal knowledge of a compendium of business records and whether a particular record existed is not hearsay and not subject to Article VIII.

 For these reasons, the Committee does not favor proposing a rule similar to F.R.E. 803(7). The Committee does favor making a correlative revision to the Comment to reflect the amendment of F.R.E. 803(7). Readers should note that the proposed bracketed citation to F.R.E. 803(6) is intend to indicate an alteration from the original text rather than a proposed deletion.

Pennsylvania Rule of Evidence 803(8)

 When the Pennsylvania Rules of Evidence were first prepared in 1998, rules pertaining to the exclusion of public records from the hearsay rule were not adopted. Rather, the Comments to ''reserved'' Pa.R.E. 803(8) and Pa.R.E. 803(10) block quoted statutory provisions.

 The Committee believes that the bench and bar would benefit from having the provisions of the statutes incorporated and organized into the rule text. However, in doing so, the Committee does not intend to make any substantive change from the statutory provisions. Therefore, the Committee is not recommending verbatim adoption of F.R.E. 803(8). Further, the Comment to the rule would be revised to eliminate the block quotations and add references to authentication provisions. Finally, the Committee believes that codification within Pa.R.E. 803(8) would be preferred given the proposed changes to Pa.R.E. 803(10).

Pennsylvania Rule of Evidence 803(10)

 Under the F.R.E. 803(10), the absence of a public record can be proven by a certificate of non-existence of record (CNR). A CNR is an exception to the hearsay rule in so much as it does not require the testimony of a witness who conducted the record search. ''A substantial majority of courts have held since Melendez-Diaz that clerk certifications attesting to the nonexistence of a public record are testimonial statements subject to confrontation.'' State v. Jasper, 271 P.3d 876, 886 (Wash. 2012). In reaction to a growing body of case law, F.R.E. 803(10) was amended December 1, 2013 to provide for a simple notice-and-demand procedure for the admission of CNRs.

 In 1998, Pennsylvania did not adopt a corresponding Pa.R.E. 803(10); instead, the Comment to ''reserved'' Pa.R.E. 803(10) referred to existing statutes admitting such evidence. The stated rationale for not adopting a rule like F.R.E. 803(10) was the same reason that Pa.R.E. 803(7) was not adopted—this type of evidence was not considered hearsay.

 Preliminarily, the proof of the absence of a public record can be distinguished from the proof of the absence of a business record. The former can be conclusively proven by documentary evidence (i.e., certification) while the later cannot. Next, the Committee is not persuaded that a written certification that there is no record is anything but an assertion—it is a statement for the truth of the matter asserted (i.e., there is no record). Therefore, these certifications of the non-existence of public records are hearsay.

 Given this conclusion, the Committee does not believe that the rationale in the Comment to Pa.R.E. 803(7) should continue to be incorporated into the Comment to Pa.R.E. 803(10). Consequently, the Committee favors removal of this statement from the Comment. Further, the Committee favors adoption of the language from F.R.E. 803(10)(A) because it is consistent with the statutory provisions concerning the absence of a public record.

 The Committee also recommends inclusion of the concept set forth in F.R.E. 803(10)(B) concerning ''notice and demand'' in criminal proceedings into the rule text. However, the structure and language were modified to maintain consistency with Pa.R.Crim.P. 574 (Forensic Laboratory Report; Certification In Lieu of Expert Testimony). The Committee believes such a provision is necessary otherwise the rule may be unconstitutional in cases where a defendant had a right of confrontation.

Pennsylvania Rule of Evidence 902(13)

 F.R.E. 803(10) includes ''a certification under Rule 902.'' Upon review of Pa.R.E. 902, the Committee cannot discern a provision clearly applicable to the self-authentication of a certificate that a public record does not exist. Rules 902(1)—(4) all apply to public documents that exist, but the Committee does not favor a strained interpretation of these provisions to extend to non-existent public records. Therefore, the Committee proposes new-Pa.R.E. 902(13) to specifically provide for self-authentication of these certificates.

 The Committee invites all comments, objections, and suggestions concerning this proposal.

[Pa.B. Doc. No. 15-1956. Filed for public inspection November 6, 2015, 9:00 a.m.]

_______

¹  The operative aspect of this statute states:
 

General Rule.—A record of an act, condition or even shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

42 Pa.C.S. § 6108(b).

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