THE COURTS
[ 225 PA. CODE ART. VIII ]
Proposed Amendment of Pa.R.E. 803.1 and Pa.R.E. 804
[45 Pa.B. 6476]
[Saturday, November 7, 2015]The proposed amendment of Pa.R.E. 803.1 governing the exclusion from the rule against hearsay of a prior statement by declarant-witness claiming an inability to remember the subject matter of the statement, together with correlative amendment of Pa.R.E. 804, is being republished for the reasons set forth in the accompanying explanatory report. Pursuant to Pa.R.J.A. No. 103(a)(1), the proposal is being republished 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.usAll 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 EvidenceTHOMAS W. DOLGENOS, Esq.,
Chair
Annex A
TITLE 225. RULES OF EVIDENCE
ARTICLE VIII. HEARSAY 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:
Comment A witness must be subject to cross-examination regarding the prior statement. See Commonwealth v. Romero, 722 A.2d 1014, 1017-1018 (Pa. 1999) (witness was not available for cross-examination when witness refused to answer questions about prior statement); see also In re N.C., 105 A.3d 1199 (Pa. 2014) (unresponsive witness not available for effective cross-examination as required by the Confrontation Clause); U.S. v. Owens, 484 U.S. 554, 562 (1988) (''Ordinarily a witness is 'subject to cross-examination' when he is placed on the stand, under oath, and responds willingly to questions.'').
(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 (Pa. 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 (Pa. 1992). In Commonwealth v. Wilson, [550 Pa. 518,] 707 A.2d 1114 (Pa. 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.
(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, 599 A.2d 613 (Pa. 1991). The Pennsylvania rule includes identification of a thing, in addition to a person.
(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, 444 A.2d 639 (Pa. 1982).
(4) Prior Statement by a Declarant-Witness Who Claims an Inability to Remember the Subject Matter of the Statement. A prior statement by a declarant-witness who testifies to an inability to remember the subject matter of the statement, if the court finds the claimed inability to remember is unsubstantiated and the statement:
(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, audiotaped, or videotaped recording of an oral statement.
Comment Pa.R.E. 803.1(4) has no counterpart in the Federal Rules of Evidence. It is intend to permit the admission of a prior statement given under demonstrably reliable and trustworthy circumstances, see, e.g., Commonwealth v. Hanible, 30 A.3d 426, 445 n. 15 (Pa. 2011), when the declarant-witness feigns memory loss about the subject matter of the statement. The purpose of this hearsay exception is to protect against the ''turncoat witness'' who once provided a statement, but now seeks to deprive the use of this evidence at trial.
A prior statement made by a declarant-witness having genuine memory loss about the subject matter of the statement, but able to testify that the statement accurately reflects his or her knowledge at the time it was made, may be admissible under Pa.R.E. 803.1(3). Otherwise, when a declarant-witness has a genuine or unsubstantiated memory loss about the subject matter of the statement, see Pa.R.E. 804(a)(3).
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; amended , effective .
Committee Explanatory Reports:
Final Report explaining the amendment to paragraph (1) and the updates to the Comment to paragraph (1) published with the Court's Order at 30 Pa.B. 1645 (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).
Final Report explaining the revision of the Comment and addition of paragraph (4) published with the Court's Order at Pa.B. ( , 2015).
Rule 803.1(2). [Prior Statement of Identification] (Reserved).
[(2) Prior Statement of Identification by Declar- ant-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] (Reserved).
[(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, except as provided in Rule 803.1(4);
(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] paragraph (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).] Pa.R.E. 804(a)(3) differs from F.R.E. 804(a)(3) in that it excepts from this rule instances where a declarant-witness's claim of an inability to remember the subject matter of a prior statement is unsubstantiated, provided the statement meets the requirements found in Pa.R.E. 803.1(4). This rule is otherwise identical to F.R.E. 804(a). A declarant-witness with genuine or substantiated memory loss about the subject matter of a prior statement may be subject to this rule.
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 (Pa. 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 (Pa. 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; amended , effective .
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).
Final Report explaining the amendment of paragraph (a)(3) published with the Court's Order at Pa.B. ( , 2015).
REPORT
Proposed Amendment of Pa.R.E. 803.1 and Pa.R.E. 804 By notice of proposed rulemaking at 42 Pa.B. 6781 (November 3, 2012), the Committee on Rules of Evidence sought to recommend amendment of Pa.R.E. 803.1(1) to except from the rule against hearsay a prior statement by a witness when the witness is unable to recall the prior statement. The Committee received comments expressing concern that the proposal did not discern between feigned and genuine memory loss. The proposal raised an additional concern as to whether the admission of prior statements by a declarant-witness having a genuine memory loss might implicate a defendant's right of confrontation in a criminal trial.
In light of these concerns, the Committee proposes amendment of Pa.R.E. 803.1 to add new paragraph (4). This amendment is intended to protect against the ''turncoat witness'' who once provided a statement, but now seeks to deprive the use of this evidence at trial by feigning memory loss. ''[T]he unwilling witness often takes refuge in a failure to remember.'' 3A J. Wigmore, Evidence § 1043, at 1061.
New paragraph (4) would exempt from the hearsay rule certain prior statements when the declarant-witness claims an inability to remember the substance of the statement and the claim is unsubstantiated. Whether the witness's claimed inability to remember is substantiated is a preliminary question to be resolved by the court pursuant to Pa.R.E. 104(a). It is anticipated that claims of memory loss can often be evaluated based upon the witness's demeanor and explanation for the memory loss. Factors in evaluating the genuineness of claimed memory loss may involve:
• The apparent mental acuity of the witness at the time of testimony.
• The extent or selectivity to which memory loss is claimed.
• The existence of an interceding illness, injury, or condition that may affect the witness's ability to recall past matters.
• The length of time between the matter witnessed and the testimony.
• Whether the matter witnessed was commonplace or extraordinary.
• The significance of the matter later impressed upon the witness.
• The existence of any motive for the witness to feign memory loss.
Additionally, new paragraph (4) would require the prior statement to be given under circumstances identical to paragraph (1). The Court has previously held that hearsay declarations under circumstances such as Rule 803.1(1)(a), (b), and (c) ''are demonstrably reliable and trustworthy.'' Commonwealth v. Lively, 610 A.2d 7, 10 (Pa. 1992); see also Commonwealth v. Chmiel, 738 A.2d 406, 419 (Pa. 1999) (describing Lively as holding that a prior inconsistent statement of a non-party witness may be used as substantive evidence only if it was given under highly reliable circumstances); Commonwealth v. Hanible, 30 A.3d 426, 445 n. 15 (Pa. 2011) (describing Rule 803.1(1) as mirroring Lively).
Notwithstanding a witness's claimed memory loss about the subject matter of the prior statement, the witness must still be subject to cross-examination about the statement pursuant to Pa.R.E. 803.1. This requirement is not solely rule-based; it is also a principle recognized in case law and constitutional analysis. Therefore, the Committee proposes a Comment to Pa.R.E. 803.1 referencing cases wherein witnesses have been found to be unavailable for cross-examination.
''Ordinarily a witness is regarded as 'subject to cross-examination' when he is placed on the stand, under oath, and responds willingly to questions.'' U.S. v. Owens, 484 U.S. 554, 561 (1988) (discussing F.R.E. 801(d)(1)(C)). This Committee wishes to illuminate that the required scope for which the witness must be available for cross-examination under Pa.R.E. 803.1 is the prior statement, not the subject matter at issue. Cf. Pa.R.E. 804(a)(3) (witness does remember the subject matter). Cross-examination of the witness may include the circumstances in which the statement was given, the witness's state of mind, and other matters that may have bearing on the weight and credibility of the prior statement.
The Committee also proposes to amend Pa.R.E. 804(a)(3), which considers a declarant unavailable to testify as a witness if the declarant testifies to not remembering the subject matter at issue. By reference to Pa.R.E. 803.1(4), the amendment would create an exception to this criteria when the witness's claim to not remember the subject matter of a prior statement is unsubstantiated. A witness with a genuine or substantiated inability to remember the subject matter at issue would remain subject to Pa.R.E. 804(a)(3).
The Committee invites all comments, objections, and suggestions concerning this proposal.
[Pa.B. Doc. No. 15-1957. Filed for public inspection November 6, 2015, 9:00 a.m.]
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