THE COURTS
Title 225—RULES OF EVIDENCE
[ 225 PA. CODE ART. I ]
Proposed Amendment of the Comment to Pa.R.E. 104
[49 Pa.B. 3873]
[Saturday, July 27, 2019]The Committee on Rules of Evidence is considering proposing to the Supreme Court of Pennsylvania the amendment of the Comment to Pennsylvania Rule of Evidence 104 suggesting procedural guidance for analyzing claims involving the right against testimonial self-incrimination 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 and underlined; 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
PO Box 62635
Harrisburg, PA 17106-2635
FAX: 717.231.9536
evidencerules@pacourts.usAll communications in reference to the proposal should be received by September 10, 2019. 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 EvidenceJOHN P. KRILL, Jr.,
Chair
Annex A
TITLE 225. RULES OF EVIDENCE
ARTICLE I. GENERAL PROVISIONS Rule 104. Preliminary Questions.
(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
(b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
(c) Conducting a Hearing So That the Jury Cannot Hear it. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
(1) the hearing involves evidence alleged to have been obtained in violation of the defendant's rights;
(2) a defendant in a criminal case is a witness and so requests; or
(3) justice so requires.
(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.
(e) Weight and Credibility. Even though the court rules that evidence is admissible, this does not preclude a party from offering other evidence relevant to the weight or credibility of that evidence.
Comment Pa.R.E. 104(a) is identical to F.R.E. 104(a).
The second sentence of Pa.R.E. 104(a) is based on the premise that, by and large, the law of evidence is a ''child of the jury system'' and that the rules of evidence need not be applied when the judge is the fact finder. The theory is that the judge should be empowered to hear any relevant evidence to resolve questions of admissibility. This approach is consistent with Pennsylvania law. See Commonwealth v. Raab, [594 Pa. 18,] 934 A.2d 695 (Pa. 2007).
Pa.R.E. 104(a) does not resolve whether the allegedly inadmissible evidence alone is sufficient to establish its own admissibility. Some other rules specifically address this issue. For example, Pa.R.E. 902 provides that some evidence is self-authenticating. But under Pa.R.E. 803(25), the allegedly inadmissible evidence alone is not sufficient to establish some of the preliminary facts necessary for admissibility. In other cases the question must be resolved by the trial court on a case-by-case basis.
Pa.R.E. 104(b) is identical to F.R.E. 104(b).
Pa.R.E. 104(c)(1) differs from F.R.E. 104(c)(1) in that the Federal Rule says ''the hearing involves the admissibility of a confession;'' Pa.R.E. 104(c)(1) is consistent with Pa.R.Crim.P. 581(F), which requires hearings outside the presence of the jury in all cases in which it is alleged that the evidence was obtained in violation of the defendant's rights.
Pa.R.E. 104(c)(2) and (3) are identical to F.R.E. 104(c)(2) and (3). Paragraph (c)(3) is consistent with Commonwealth v. Washington, [554 Pa. 559,] 722 A.2d 643 (Pa. 1998), a case involving child witnesses, in which the Supreme Court created a per se rule requiring competency hearings to be conducted outside the presence of the jury. In Commonwealth v. Delbridge, [578 Pa. 641,] 855 A.2d 27 (Pa. 2003), the Supreme Court held that a competency hearing is the appropriate way to explore an allegation that the memory of a child has been so corrupted or ''tainted'' by unduly suggestive or coercive interview techniques as to render the child incompetent to testify.
Pa.R.E. 104(d) is identical to F.R.E. 104(d). In general, when a party offers himself or herself as a witness, the party may be questioned on all relevant matters in the case. See Agate v. Dunleavy, [398 Pa. 26,] 156 A.2d 530 (Pa. 1959). Under Pa.R.E. 104(d), however, when the accused in a criminal case testifies with regard to a preliminary question only, he or she may not be cross-examined as to other matters. This is consistent with Pa.R.E. 104(c)(2) in that it is designed to preserve the defendant's right not to testify in the case in chief.
Pa.R.E. 104(e) differs from F.R.E. 104(e) to clarify the meaning of this paragraph.
(Editor's Note: The following commentary is new and printed in regular type to enhance readability.)
Assessing Assertion of Right Against Self-Incrimination The basis for a right against self-incrimination can be found in constitution and statute. See U.S. Const. amend. V; Pa. Const. art 1, § 9; 42 Pa.C. § 5941. In terms of evidence, this right has been described as a ''privilege.'' See, e.g., 42 Pa.C.S. § 5947(b)(2) (''privilege against self-incrimination''); Commonwealth v. Swinehart, 664 A.2d 957 (Pa. 1995) (same). The assertion of privilege raises a preliminary question under Pa.R.E. 104(a).
A witness may refuse to testify unless it is ''perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer cannot possibly have such tendency'' to incriminate. Hoffman v. United States, 341 U.S. 479, 488 (1951) (emphasis in original); see also Commonwealth v. Allen, 462 A.2d 624, 627 (Pa. 1983). ''The privilege afforded not only extends to answers that would in themselves support a conviction. . .but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute.'' Ullmann v. United States, 350 U.S. 422, 429 (1956); see also Commonwealth v. Carrera, 227 A.2d 627, 629 (Pa. 1967), superseded by statute on other grounds, Commonwealth v. Swinehart, 664 A.2d 957 (Pa. 1995). ''The central standard for the privilege's application has been whether the claimant is confronted by substantial and 'real,' and not merely trifling or imaginary, hazards of incrimination.'' Marchetti v. U.S., 390 U.S. 39, 53 (1968).
By way of example for the benefit of the bench and bar, the following procedural guidance is offered to assess whether there is a risk of self-incrimination. When a question requires a patently incriminating response, a judicial determination may be made without further inquiry. However, when a response may result in an incriminatory ''link in the chain of evidence,'' then the judge may require more information than presently before the court. See generally 1 McCormick on Evidence § 132 (7th ed.); 98 C.J.S. Witnesses § 613.
When further judicial inquiry is necessary, the questioning party should provide the judge with the questions to be asked of the witness and the witness should be appointed counsel if not already represented. Next, the trial judge should consider the claim of privilege in camera in the presence of the witness and the witness's counsel, and outside the presence of the parties. The scope of judicial inquiry is not focused on the merits of the case; rather, it is focused on the whether the witness's response to the proposed questions is at risk of self-incrimination.
Thereafter, in the presence of the parties and on the record, the witness's counsel should offer a sufficient proffer for the judge to determine the claim. Upon hearing the parties' arguments, if any, the judge should state on the record whether there are any areas of potential testimony for which a claim of privilege had been substantiated and the reasons therefor. See also Commonwealth v. Kirwan, 847 A.2d 61, 65 (Pa. Super. 2004) (A witness may ordinarily only assert the privilege to avoid responding to a particular question; a blanket privilege generally is not permitted.).
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; Comment revised , 2019, effective , 2019.
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).
Final Report explaining the , 2019 revision of the Comment published with the Court's Order at 49 Pa.B. ( , 2019).
REPORT
Proposed Amendment of the Comment to
Pa.R.E. 104The Committee on Rules of Evidence is considering proposing the amendment of the Comment to Pennsylvania Rule of Evidence 104 to suggest procedural guidance for determining claims involving the right against testimonial self-incrimination. The Pennsylvania Rules of Evidence and the various bodies of procedural rules are silent on the topic. The Pennsylvania case law provides little guidance with the practice of addressing these claims:
[T]here is no formula for determining when and how the Fifth Amendment privilege can be asserted (nor do we think one should be created). Commonwealth v. Kirwan, 847 A.2d 61, 65 (Pa. Super. 2004). We are confident that trial courts can draw on their wealth of experience and fashion procedures appropriate to the practicalities of the case and that will allow the judge to make a sufficiently informed decision. We are likewise confident that lower courts will create a record sufficient to demonstrate the propriety of permitting or denying the privilege at the same time as preserving any Fifth Amendment right.Commonwealth v. Treat, 848 A.2d 147, 148 (Pa. Super. 2004) (internal quotations omitted).
The timing of these claims can be particularly problematic in proceedings where pre-trial discovery is limited, including criminal, juvenile, and custody proceedings. In the absence of thorough pre-trial discovery, proponents and opponents of testimony can be surprised at trial with assertions of privilege. As indicated to the Committee, these claims are ''trial stoppers,'' and the need for the trial judge to resolve expeditiously the claims is hindered by the lack of procedural guidance.
To address this need, the Committee has prepared a Comment to Pa.R.E. 104 suggesting a procedure for resolving these claims. The Committee elected to place this procedure in a Comment intending for it to be suggestive rather than placement in the rule text as a requirement.
As background, the basis for a right against self-incrimination can be found in constitution and statute. See U.S. Const. amend. V; Pa. Const. art 1, § 9; 42 Pa.C. § 5941. In terms of evidence, this right has been described as a ''privilege.'' See, e.g., 42 Pa.C.S. § 5947(b)(2) (''privilege against self-incrimination''); Commonwealth v. Swinehart, 664 A.2d 957 (Pa. 1995) (same). The assertion of privilege raises a preliminary question under Pa.R.E. 104(a). As Pennsylvania precedent has not firmly established a process to analyze these claims, the Committee focused largely on federal practice.
A witness may refuse to testify unless it is ''perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer cannot possibly have such tendency'' to incriminate. Hoffman v. U.S., 341 U.S. 479, 488 (1951) (emphasis in original); see also Commonwealth v. Allen, 462 A.2d 624, 627 (Pa. 1983). ''The privilege afforded not only extends to answers that would in themselves support a conviction. . .but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute.'' Ullmann v. U.S., 350 U.S. 422, 429 (1956); see also Commonwealth v. Carrera, 227 A.2d 627, 629 (Pa. 1967), superseded by statute on other grounds, Commonwealth v. Swinehart, 664 A.2d 957 (Pa. 1995). ''The central standard for the privilege's application has been whether the claimant is confronted by substantial and 'real,' and not merely trifling or imaginary, hazards of incrimination.'' Marchetti v. U.S., 390 U.S. 39, 53 (1968).
When a question requires an incriminating response, such as ''did you bribe John Doe?,'' the judicial determination can be made without further inquiry. However, when a facially innocent inquiry, such as ''do you know John Doe?,'' may result in an incriminatory ''link in the chain of evidence,'' then the judge may require more information than presently before the court. See generally 1 McCormick on Evidence § 132 (7th ed.); 98 C.J.S. Witnesses § 613. A judge's inquiry will be directed at potentially sensitive information, which assuming the privilege applies, the parties are not entitled to hear.
A witness asserting a privilege against self-incrimination should be appointed counsel if not already represented. The Committee believed it was important that an unrepresented claimant be appointed counsel to explain the privilege being asserted and whether the claim has merit. See 42 Pa.C.S. § 4549(c) (Investigating Grand Jury Act providing counsel for witnesses to guard against self-incrimination); Commonwealth v. Schultz, 133 A.3d 294, 309 (Pa. Super. 2016) (''In affording the right to counsel inside the grand jury room, our legislature sought to offer greater protections to individuals' constitutional right against self-incrimination when appearing in the grand jury setting.'').
The federal courts have approved the use of an in camera inquiry when a claim of privilege is made and the information available to the judge does not, in the judge's estimation, afford adequate verification of the witness's assertion of the privilege. See United States v. Goodwin, 625 F.2d 693, 702 (5th Cir. 1980); In re Brogna, 589 F.2d 24, 28 & n. 5 (1st Cir. 1978); see also Commonwealth v. Martin, 668 N.E.2d 825 (Mass. 1996). In these circumstances, a judge has the authority to conduct an in camera review with a witness who has asserted his privilege.
The questioning party should provide the judge with the questions to be asked of the witness. The permissible scope of inquiry open to a judge is narrow. ''A proper use for an in camera hearing is to allow a witness to impart sufficient facts in confidence to the judge to verify the privilege claim . . . the judge is simply providing the most favorable setting possible for the witness to 'open the door a crack' where there is no other way for the witness to verify his claim.'' In re Brogna, supra at 28 n. 5.
The Committee deliberated at length whether the witness should be required to testify as to the facts that may be potentially incriminating. Members did not believe that requiring a witness to provide potentially incriminating testimony was consonant with the purpose of the privilege. Rather, the information should be presented to the judge by the witness's counsel in the form of an offer of proof, i.e., proffer.
The in camera review is limited to the witness, his or her counsel, and the judge. See United States v. Fricke, 684 F.2d 1126, 1131 (5th Cir. 1982). The exclusion of parties' counsel at this stage is a point for consideration:
Subjecting a witness to an examination by a partisan party might effectively destroy the privilege. Nevertheless, we do not hold that it is always proper to exclude defense counsel from these in camera hearings. Even if his participation is primarily passive, counsel's presence can be important in preserving, or preventing, an error by the court. However, a reciprocity problem is present. The value of an in camera inquiry is that it allows the court to probe the witness' fifth amendment claim more deeply than it could in open court. A witness' rights are threatened if this is done in the presence of the government's attorney. Yet, if the court allows defense counsel to remain present, fairness suggests that the government's interest be represented as well.Fricke, 684 F.2d at 1131. In the criminal context, ''[a] defendant's sixth amendment rights do not override the fifth amendment rights of others.'' Id. at 1130.
In Commonwealth v. Miller, 518 A.2d 1187 (Pa. 1986), the Court considered the propriety of an in camera examination of the police officer to test the credibility of statements contained in an affidavit of probable cause. The Superior Court directed that the defendant and defendant's counsel should be excluded from the examination. The Supreme Court rejected this approach, stating:
The concept of an in-camera hearing during which the defendant and his counsel are both excluded from an inquiry which may impact upon the ultimate finding of guilt or innocence is antithetical to the concept of due process as it has evolved in this Commonwealth under our Constitution. The defendant should not be forced to accept the judge as his advocate during that segment of the proceeding, nor is it proper to remove the judge from the role of an impartial arbiter. Our adjudicative process is an adversary one and the defendant is entitled to counsel at every critical stage. If this was a competent area of inquiry the defendant would have an absolute right to have counsel's participation in that inquiry.Id. at 1195. While Miller did not involve the right to remain silent, it does signal an approach favoring the presence of the parties.
To address this concern, the Committee proposes procedural guidance whereby the witness's counsel makes a further proffer on the record before the parties at which time the judge can receive argument from the parties and make a determination whether the testimony is at risk of self-incrimination. Thereafter, further proceedings become a procedural matter outside the purview of Pa.R.E. 104.
All comments, concerns, and suggestions concerning this proposal are welcome.
[Pa.B. Doc. No. 19-1132. Filed for public inspection July 26, 2019, 9:00 a.m.]
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