[27 Pa.B. 1282]
[Continued from previous Web Page] Pa.R.E. 407 makes clear in the first sentence that the rule of exclusion operates only in favor of a party who took the subsequent remedial measures. The federal version of Rule 407 is silent as to whether there is any restriction on the actor who must have taken the subsequent remedial measure for the rule to preclude admissibility of such evidence. The majority of federal courts have held that the rule does not apply when one other than the allegedly liable party takes the action because the reason for the rule (to encourage remedial measures) is not implicated. See, e.g., TLT-Babcock, Inc. v. Emerson Electric Co., 33 F.3d 397 (4th Cir. 1994) (collecting cases). The rule does not, however, address whether measures taken by another party are admissible against a party that did not take the measures. To be admissible, such evidence must satisfy the standards of Pa.R.E. 401, 402 and 403. E.g., Leaphart v. Whiting Corp., 387 Pa. Super. 253, 564 A.2d 165 (1989)(repairs to product made by plaintiff's employer not admissible in strict liability action against product seller/installer and component part manufacturers), allocatur denied, 525 Pa. 619, 620, 577 A.2d 890, 891 (1990); Moe v. Avions Marcel Dassault-Breguet Aviation, 727 F.2d 917 (10th Cir. 1984); O'Dell v. Hercules, Inc., 904 F.2d 1194 (8th Cir. 1990) (excluding evidence under Rule 403 as prejudicial and irrelevant).
The last sentence of Pa.R.E. has been altered from the federal rule to make clear that, when subsequent remedial measures are offered to prove issues such as ownership, control or feasibility of precautionary measures, those issues must be controverted. Pennsylvania recognizes the admissibility of subsequent remedial measures to prove controverted issues other than negligence or culpable conduct, such as the feasibility of precautions, and the rule incorporates this recognition. See, e.g., Incollingo v. Ewing, 444 Pa. 299, 282 A.2d 206 (1971); Haas v. Commonwealth of Pennsylvania Dept. of Transp., 113 Pa. Cmwlth. 218, 536 A.2d 865 (1988) (evidence of subsequent erection of warning sign not permitted to show feasibility of same where issue not controverted).
Option II Rule 407. Subsequent Remedial Measures.
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove that the party who took the measures was negligent or engaged in culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered to prove other controverted matters, such as ownership, control, feasibility of precautionary measures, or a defect in strict liability cases, or when offered for impeachment purposes.
Comment Pa.R.E. 407 is similar to its federal counterpart, but differs substantially in its formulation.
Pa.R.E. 407 is a limited exception to the general evidential precept set forth in Pa.R.E. 402 that all relevant evidence is admissible. Evidence of subsequent remedial measures, when not relevant, may be excluded under Pa.R.E. 402.
Pa.R.E. 407 applies both to civil and criminal cases, though its most common application, by far, is in civil cases for personal injuries, or other damages, resulting from an accident.
Pa.R.E. 407 is the result of a public policy decision that must choose between two evils. On balance, it is thought that the chances that finders of fact, usually juries, will reach wrong decisions in cases because they have been deprived of relevant evidence of subsequent remedial measures, are outweighed by the chances that parties being charged with fault for causing accidents, or other undesirable events, will not take timely remedial measures to prevent recurrences for fear that their actions will be used against them in litigation arising out of the initial event.
Pa.R.E. 407, unlike its federal counterpart, makes it clear that it may be used to exclude evidence of subsequent remedial measures only by the party who took them. For example, a defendant manufacturer of a machine involved in an accident to a plaintiff worker cannot use Pa.R.E. 407 to exclude relevant evidence that the worker's employer put a guard on the machine after the accident. (If the evidence is not relevant, the manufacturer can use Rule 402 to exclude it.) The federal rule is ambiguous, but after many years of litigation various circuits seem to have reached a consensus that it should be interpreted to preclude use by anyone other than a party who has taken the subsequent remedial measures. See TLT-Babcock, Inc. v. Emerson Electric Co., 33 F.3d 397 (4th Cir. 1994) (collecting cases).
Pa.R.E. 407 also differs from its federal counterpart in making clear that evidence of subsequent remedial measures may be admitted to prove a defect in a strict products liability case. Federal Rule of Evidence 407 is ambiguous on this point. More than 20 years after its enactment, federal court decisions still conflict with respect to its meaning.
Pennsylvania has long held that evidence of subsequent remedial measures may not be introduced to prove antecedent negligence. See Baran v. Reading Iron Co., 202 Pa. 274, 51 A. 979 (1902). However, Pennsylvania has been resolutely meticulous in holding that concepts of negligence and fault have no place in a suit for damages based on strict products liability. See Azzarello v. Black Bros. Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978); Lewis v. Coffing Hoist Div., 515 Pa. 334, 528 A.2d 590 (1987); Walton v. Avco Corp., 530 Pa. 568, 610 A.2d 454 (1992).
Therefore, when Pa.R.E. 407 says that evidence of subsequent remedial measures is not admissible to prove ''negligence or culpable conduct,'' it does not encompass claims based on strict liability, i.e., liability without fault. Pa.R.E. 407 is thus consistent with current Pennsylvania law as enunciated in Matsko v. Harley Davidson Motor Co., Inc., 325 Pa. Super. 452, 473 A.2d 155 (1984).
Pa.R.E. 407 also avoids another pitfall in the federal formulation. In listing examples of purposes for which evidence of subsequent remedial measures may be admitted, Federal Rule of Evidence 407 is worded ambiguously. It is not clear whether the words, ''if controverted,'' are intended to apply only to the immediately preceding example (feasibility of precautionary measures), or to all preceding examples. At any rate, Pa.R.E. 407 makes it clear that evidence of subsequent remedial measures may be admitted only to prove ''controverted matters.''
Rule 408. Compromise and Offers to Compromise.
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Comment This rule, which is substantially similar to F.R.E. 408, excludes the use of evidence of compromises in civil cases to prove either liability for a claim or validity of an amount in controversy. Contrary to its federal counterpart, Pa.R.E. 408 does not bar the use of all statements and conduct occurring during settlement negotiations. In this respect, the rule continues existing Pennsylvania law that distinct admissions of fact made during settlement discussions are admissible. Rochester Machine Corp. v. Mulach Steel Corp., 498 Pa. 545, 449 A.2d 1366 (1982)(plurality); Heyman v. Hanauer, 302 Pa. 56, 152 A. 910 (1930); Hammel v. Christian, 416 Pa. Super. 78, 610 A.2d 979 (1992), allocatur denied, 533 Pa. 652, 624 A.2d 111 (1993).
Like the federal rule, Pa.R.E. 408 permits evidence relating to compromises and offers to compromise to be admitted for purposes other than proving liability, such as showing bias or prejudice. See Heyman v. Hanauer, 302 Pa. 56, 152 A. 910 (1930) (if proposal was offer to settle, it could have been used to impeach witness).
In allowing compromises to be used for ''other purposes,'' Pa.R.E. reconciles partially conflicting authority in Pennsylvania on the admissibility of completed compromises. 42 Pa.C.S.A. § 6141 provides, in pertinent part, as follows:
§ 6141. Effect of certain settlements
(a) Personal injuries.--Settlement with or any payment made to an injured person or to others on behalf of such injured person with the permission of such injured person or to anyone entitled to recover damages on account of injury or death of such person shall not constitute an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary.
(b) Damages to property.--Settlement with or any payment made to a person or on his behalf to others for damages to or destruction of property shall not constitute an admission of liability by the person making the payment or on whose behalf the payment was made, unless the parties to such settlement or payment agree to the contrary.
(c) Admissibility in evidence.--Except in an action in which final settlement and release has been pleaded as a complete defense, any settlement or payment referred to in subsections (a) and (b) shall not be admissible in evidence on the trial of any matter.
Based on section 6141(c), a panel of the Superior Court in Wilkerson v. Allied Van Lines, Inc., 360 Pa. Super. 523, 521 A.2d 25 (1987), allocatur denied, 518 Pa. 61, 540 A.2d 268 (1980), cert. denied, 488 U. S. 827 (1988), held that a completed settlement could not be introduced to show bias, prejudice or interest. Recent cases from the Supreme Court of Pennsylvania indicate, however, that reasons such as public policy and the right to a fair cross-examination require that evidence of a settlement be admitted for purposes other than showing liability for a claim or the amount of a claim. See Hatfield v. Continental Imports, Inc., 530 Pa. 551, 610 A.2d 446 (1992)(permitting evidence of agreement akin to ''Mary Carter'' agreement to be used to show bias); Hammel v. Christian, 416 Pa. Super. 78, 610 A.2d 979 (1992), allocatur denied, 533 Pa. 652, 624 A.2d 111 (1993). Moreover, 42 Pa. Cons. Stat. Ann. §§ 6141(a) (c) can be interpreted to exclude evidence only when offered as a party's admission of liability.
Consistent with Pennsylvania law, Pa.R.E. 408 follows the federal rule that does not exclude evidence of offers to compromise or completed compromises when used to prove an effort to obstruct a criminal investigation or prosecution. This is consistent with Pennsylvania law. See Commonwealth v. Pettinato, 360 Pa. Super. 242, 520 A.2d 437 (1987). The rule would not permit, however, the use of evidence relating to good faith compromises or offers to compromise when made for the purpose of reaching an agreement such as those sanctioned by Pa.R.Crim.P. 314 (relating to dismissal of criminal charges not committed by force or violence upon payment of restitution) or Pa.R.Crim.P. 145 (relating to dismissal upon satisfaction or agreement). The court may need to conduct, out of the hearing of the jury, a preliminary inquiry into the circumstances surrounding compromises in criminal matters to determine whether to permit such evidence.
Rule 409. Payment of Medical and Similar Expenses.
Evidence of furnishing or offering or promising to pay medical, hospital or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
Comment This rule is identical to F.R.E. 409 and is consistent with Pennsylvania law. 42 Pa.C.S. § 6141(c)(payment of expenses not admissible); see also Burns v. Joseph Flaherty Co., 278 Pa. 579, 123 A. 496 (1924)(guarantee of medical expenses cannot be used as basis for liability). As with F.R.E. 409 (and as with Pa.R.E. 408), collateral factual admissions made in the course of offering to pay for medical expenses are not excluded by this rule.
Rule 410. Inadmissibility of Pleas, Plea Discussions and Related Statements.
(a) General rule. Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under Rules 59, 177, 179 or 319 of the Pennsylvania Rules of Criminal Procedure, Fed. R. Crim. P. 11, or any comparable rule or provision of law of another state regarding the pleas identified in subsections (1) and (2) of this rule; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which does not result in a plea of guilty or which results in a plea of guilty later withdrawn.
(b) Exception. A statement made in the course of a plea, proceedings or discussions identified in subsection (a) of this rule is admissible (1) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness to be considered contemporaneously with it, or (2) in a criminal proceeding for perjury, false swearing or unsworn falsification to authorities.
Comment This rule is functionally equivalent to F.R.E. 410. References to Rules 59, 177, 179 and 319 of the Pennsylvania Rules of Criminal Procedure and the comparable rules or other provisions of other states have been added. Unlike the federal rule, subsection (b) of the Pennsylvania rule is set forth separately to indicate that it creates an exception applicable to all of subsection (a). Subsection (b) also refers to the Pennsylvania analogues to false statement under federal law. Subsection (b) of the Pennsylvania rule also does not expressly include the federal requirement that statements need be made by the defendant under oath, on the record and in the presence of counsel because, for example, prosecutions for unsworn falsifications to authorities do not require a statement under oath. See 18 Pa.C.S.A. § 4904. The rule permits case law to decide whether any further limitations on the rule should be imposed. As modified, the rule reflects present Pennsylvania law. See Commonwealth v. Jones, 375 Pa. Super. 194, 544 A.2d 54 (1988); Commonwealth ex rel. Warner v. Warner, 156 Pa. Super. 465, 40 A.2d 886 (1945).
The conviction that results from a plea of nolo contendere, as distinct from the plea itself, may be used to impeach in a later proceeding (subject to Pa.R.E. 609), and to establish an element of a charge in a later administrative proceeding. See Commonwealth v. Snyder, 408 Pa. 253, 182 A.2d 495 (1962)(conviction based on nolo contendere plea could be used to impeach witness in later criminal proceeding), cert. denied, 371 U. S. 957 (1963); Eisenberg v. Commonwealth, Department of Public Welfare, 512 Pa. 181, 516 A.2d 333 (1986)(conviction based on nolo contendere plea permitted to establish element of charge in administrative proceeding).
In addition, Pennsylvania has a statute that governs the admissibility of pleas in summary proceedings involving motor vehicle matters. The statute, which appears at 42 Pa.C.S.A. § 6142, provides as follows:
§ 6142. Pleas in vehicle matters
(a) General Rule.--A plea of guilty or nolo contendere, or a payment of the fine and costs prescribed after any such plea, in any summary proceeding made by any person charged with a violation of Title 75 (relating to vehicles) shall not be admissible as evidence in any civil matter arising out of the same violation or under the same facts or circumstances.
(b) Exception.--The provisions of subsection (a) shall not be applicable to administrative or judicial proceedings involving the suspension of a motor vehicle or tractor operating privilege, learner's permit, or right to apply for a motor vehicle or tractor operating privilege, or the suspension of a certificate of appointment as an official inspection station, or the suspension of a motor vehicle, tractor, or trailer designation.
Rule 411. Liability Insurance.
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Comment This rule is identical to F.R.E. 411 and is a restatement of Pennsylvania law that evidence of insurance can be admitted notwithstanding some prejudicial effect if the evidence of insurance is itself relevant to prove an issue in the case. E.g., Beechwoods Flying Serv. v. Al Hamilton Contracting Corp., 504 Pa. 618, 476 A.2d 350 (1984); Price v. Yellow Cab Co. of Philadelphia, 443 Pa. 56, 278 A.2d 161 (1971) (plurality) (collecting cases); Fleischman v. Reading, 388 Pa. 183, 130 A.2d 429 (1957); Copozi v. Hearst Publishing Co., 371 Pa. 503, 92 A.2d 177 (1952); McGowan v. Devonshire Hall Apartments, 278 Pa. Super. 229, 420 A.2d 514 (1980); Jury v. New York Central R. Co., 167 Pa. Super. 244, 74 A.2d 531 (1950). The rule lists examples of issues on which evidence of insurance could be relevant. As with all evidence, evidence not excluded by this rule must satisfy the standard of Pa.R.E. 403.
Rule 412 [See Comment]
Comment Pennsylvania has not adopted a Rule of Evidence comparable to F.R.E. 412, ''Rape Cases; Relevance of Victim's Past Behavior.'' In Pennsylvania this subject is governed by 18 Pa.C.S. § 3104 (the ''Rape Shield Law'') and by decisional law which has redefined, on constitutional grounds, the statute's application.
18 Pa.C.S. § 3104 provides as follows:
§ 3104. Evidence of victim's sexual conduct
(a) General rule.--Evidence of specific instances of the alleged victim's past sexual conduct, opinion evidence of the alleged victim's past sexual conduct, and reputation evidence of the alleged victim's past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim's past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings.--A defendant who proposes to offer evidence of the alleged victim's past sexual conduct pursuant to subsection (a) shall file a written motion and offer of proof at the time of trial. If, at the time of trial, the court determines that the motion and offer of proof are sufficient on their faces, the court shall order an in camera hearing and shall make findings on the record as to the relevance and admissibility of the proposed evidence pursuant to the standards set forth in subsection (a).
The statute permits evidence of past sexual conduct to be introduced in only one instance: past sexual conduct with the defendant is admissible where relevant to the issue of consent. In response to a number of constitutional challenges, Pennsylvania courts have defined further exceptions to the statute's rule of exclusion, holding that evidence of prior sexual conduct is not barred in the following circumstances: (1) where the evidence is constitutionally required to permit a jury to make a fair determination of the defendant's guilt or innocence, Commonwealth v. Spiewak, 533 Pa. 1, 617 A.2d 696, 701--702 (1992); (2) where the evidence is relevant to explain the presence of semen, injury or other objective signs of intercourse, Commonwealth v. Marjorana, 503 Pa. 602, 470 A.2d 80, 81 (1983); and (3) where the evidence may demonstrate the complainant's bias, interest, prejudice, or motive. See, Commonwealth v. Eck, 413 Pa. Super. 538, 605 A.2d 1248 (1992); Commonwealth v. Wall, 413 Pa. Super. 599, 606 A.2d 449, appeal denied, 532 Pa. 645, 614 A.2d 1142 (1992); Commonwealth v. Poindexter, 372 Pa. Super. 566, 539 A.2d 1341, appeal denied, 520 Pa. 573, 549 A.2d 134 (1988); see also, Davis v. Alaska, 415 U. S. 308 (1974). The exceptions recognized in these cases are consistent with F.R.E. 412.
There is no correspondent legislative authority in Pennsylvania for excluding evidence of past sexual conduct in civil actions. If evidence of sexual character or conduct in a civil action is otherwise relevant and admissible under these rules, it is not excludable under 18 Pa.C.S. § 3104.
ARTICLE V. PRIVILEGES Rule
501. General Rule. Rule 501. General Rule.
Privileges as they now exist or may be modified by law shall be unaffected by the adoption of these rules.
Comment The Federal Rules of Evidence do not modify the existing law with regard to privileges. These rules take a similar approach.
ARTICLE VI. WITNESSES Rule
601. Competency. 602. Lack of Personal Knowledge. 603. Oath or Affirmation. 604. Interpreters. 605. Competency of Judge as Witness. 606. Competency of Juror as Witness. 607. Impeachment of Witness. 608. Evidence of Character and Conduct of Witness. 609. Impeachment by Evidence of Conviction of Crime. 610. Religious Beliefs or Opinions. 611. Mode and Order of Interrogation and Presentation. 612. Writing or Other Item Used to Refresh Memory. 613. Prior Statements of Witnesses. 614. Calling and Interrogation of Witnesses by Court. 615. Sequestration of Witnesses. Rule 601. Competency.
(a) General Rule. Every person is competent to be a witness except as otherwise provided by statute or in these Rules.
(b) Disqualification for Specific Defects. A person is incompetent to testify if because of a mental condition or immaturity, the Court finds that he or she:
(1) is, or was, at any relevant time, incapable of perceiving accurately;
(2) is unable to express himself or herself so as to be understood either directly or through an interpreter;
(3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the truth.
Comment Section (a) of this Rule differs from F.R.E. 601, which abolishes all existing grounds of incompetency not specifically provided for in later rules dealing with witnesses, except in civil actions where state law supplies the rule of decision. Section (b) has no counterpart in the Federal Rules. Pa. R.E. 601 tracks current Pennsylvania statutory and decisional law, except to the extent that spousal incompetency to testify as to non-access may still persist.
Section (a).--Pennsylvania has several statutes relating to the competency of witnesses. Under 42 Pa.C.S.A. § 5911, all persons are fully competent as witnesses in any criminal proceeding except as ''otherwise provided in this subchapter.'' Similarly, 42 Pa.C.S.A. § 5921 states that in civil cases, a liability for costs, a right to compensation and any interest in the question on trial or any other interest or policy of law shall not make any person incompetent, with the same exception. What has been ''otherwise provided'' places a number of limits on these general rules.
Originally, 42 Pa.C.S.A. § 5912 made those convicted of perjury or subornation of perjury in a Pennsylvania court incompetent to testify in criminal cases, except in a proceeding to punish or prevent injury or violence to the convicted person's person or property. Under 42 Pa.C.S.A. § 5922, the same disqualification applies in civil cases. Later, 42 Pa.C.S.A. § 5912 was amended by the Act of April 22, 1993, P. L. 2, No. 2, so that those convicted of perjury or subornation of perjury are now fully competent to testify in criminal cases; the disqualification in civil cases persists.
The marital relationship has been the source of various statutes affecting competency. Initially, a husband and wife were not competent to testify against each other (with certain exceptions having to do generally with their conduct toward one another or their children) either in criminal proceedings, 42 Pa.C.S.A. § 5913, or civil matters, 42 Pa.C.S.A. § 5924. However, in both criminal and civil cases, in which a spouse is a party, when that spouse makes an attack upon the other's character or conduct, the latter becomes a competent witness in rebuttal. 42 Pa.C.S.A. §§ 5915, 5925 and 5926. Moreover, in an action by either a husband or wife against the other to recover or protect the separate property of either, both are fully competent witnesses. 42 Pa.C.S.A. § 5927.
This framework was changed when 42 Pa.C.S.A. § 5913 was amended by the Act of June 29, 1989, P. L. 69, No. 16, to convert spousal incompetency in criminal cases into a waivable privilege not to testify against a then lawful spouse and to make the privilege unavailable in certain types of cases. The amendment was in line with the holding in Trammel v. United States, 445 U. S. 40 (1980). No comparable change was made with respect to spousal incompetency in civil matters; in fact, the Act of Dec. 19, 1990, P. L. 1240, No. 206, § 4, confirmed this disqualification. In addition, the other provisions regarding spousal rebuttal testimony in both criminal and civil cases and full spousal competency in actions to recover or protect separate property have been left undisturbed.
At early common law, all parties to the litigation and all persons having a pecuniary or proprietary interest in its outcome were incompetent. When this all-encompassing disqualification was abolished in this country (this was accomplished in Pennsylvania by the enactments now embodied in 42 Pa.C.S.A. §§ 5911 and 5921, referred to above), one vestige of it was retained--the dead man's statutes. Pennsylvania's version is found in 42 Pa.C.S.A. §§ 5930 5933. Section 5930 provides generally that where any party ''to a thing or contract in action'' has died or ''been adjudged a lunatic'' and his right has passed ''to a party on the record who represents his interest in the subject in controversy'' neither any surviving party to such thing or contract nor ''any other person whose interest shall be adverse to such right of the deceased or lunatic party'' shall be competent to testify to any matter occurring before the death or adjudication of lunacy of said party. There are certain exceptions in § 5930 relating to remaining partners, joint promisors or promisees, persons claiming by devolution and ejectment actions against several joint defendants. In addition, under § 5932, one who would otherwise be incompetent may be called to testify against his or her own interest after which he or she becomes fully competent; the same section makes one fully competent upon the filing of record of a release of his or her interest. Finally, § 5933 allows one who would otherwise be incompetent to testify to any relevant matter if the matter occurred between him or her and another living person who testifies at the trial against the interest of the otherwise incompetent person. (Section 5931 is intended to make clear that ''the general language'' of § 5930 does not remove the incompetency created by certain other specified statutes.) There is a special application of the dead man's statute in 20 Pa.C.S.A. § 2209, which prohibits a surviving spouse from testifying to the creation of the marital status in matters dealing with claims for the elective share of a surviving spouse. For a discussion of these statutes, see Packel & Poulin, Pennsylvania Evidence § 601.5.
Section (b).--The tests for competency in this section come into play with respect to persons suffering from some mental defect and children of tender years. The Advisory Committee on the Federal Rules decided not to include in F.R.E. 601 any mental or moral qualifications for testifying. Notes of the Advisory Committee to Rule 601. Pennsylvania decisions have taken a different tack, and section (b) is derived from those decisions.
The cases have not created any hard and fast rules; the existence of a mental defect does not automatically disqualify (Commonwealth v. Ware, 459 Pa. 334, 329 A.2d 258 (1974)), and no minimum age has been established (compare Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307, 310 (1959), where there is a questionable intimation that a child of four was incompetent per se, with Commonwealth v. Stohr, 361 Pa. Super. 293, 522 A.2d 589 (1987), upholding trial court's determination that a child of four and one-half years was competent). Instead, the competency of the mentally defective and of young children has been determined by the standards set forth in section (b). Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982) (mental capacity); Commonwealth v. Mazzoccoli, 475 Pa. 408, 380 A.2d 786 (1977) (minor witness). As section (b) specifically provides, the application of the standards is a factual question, to be resolved by the court. The court's determination should seldom, if ever, be reversed. Packel & Poulin, Pennsylvania Evidence, §§ 601.6, 601.7. Expert testimony has been used when competency under these standards has been an issue. E.g., Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976); Commonwealth v. Gaerttner, 355 Pa. Super. 203, 484 A.2d 92 (1984). Pa.R.E. 601(b) is intended to preserve existing law and not to expand it.
Historically, the law in Pennsylvania was that neither a husband nor a wife was competent to testify as to non-access or absence of sexual relations if the effect would be to ''bastardize'' a child born during their marriage. Jane's Estate, 147 Pa. 527, 23 A. 892 (1892); Commonwealth v. DiMatteo, 124 Pa. Super. 277, 188 A. 425 (1936). However, in Commonwealth ex rel. Leider v. Leider, 434 Pa. 293, 254 A.2d 306 (1969), this holding was limited. There, a wife sought support from her second husband for a child conceived and born during her first marriage. Both the wife and her first husband testified as to non-access, and the wife testified that the second husband was the child's father. The Supreme Court decided that the testimony concerning non-access was competent, stating that it did not bastardize the child because the subsequent marriage to the putative father legitimized the child; hence the Court said it was not necessary to question the rule.
What the Supreme Court avoided in Leider, the Superior Court met head on in Commonwealth ex rel. Savruk v. Derby, 235 Pa. Super. 560, 344 A.2d 624 (1975), and held that it was time to abandon the rule. But later, in Commonwealth v. Ritchie, 324 Pa. Super. 557, 472 A.2d 220 (1984), remanded on another issue, 509 Pa. 357, 502 A.2d 148 (1985), modified, 480 U. S. 39 (1986), the Superior Court cited both Leider and Savruk in allowing a wife to testify to non-access. And in McKenzie v. Harris, 679 F.2d 8 (3d Cir. 1982), the Third Circuit held that under Pennsylvania law a husband and wife were incompetent to testify to non-access.
The stigma and disability that once attached to illegitimacy, the reasons said to support the rule, have been largely eliminated. Moreover, the actual parentage of a child may be shown by other evidence. See, e.g., 23 Pa.C.S.A. § 5104, the Uniform Act on Blood Tests to Determine Paternity. Hence, there does not appear to be any sound reason to continue to bar the spousal testimony, and under Pa.R.E. 601, it will now be admissible.
Finally, there is the matter of the use of testimony based upon hypnotically refreshed recollection. One of the issues concerning such testimony is whether it raises a question of competency or admissibility. The issue is analyzed in Wright & Gold, Federal Practice and Procedure: Evidence, § 6011, and the authors conclude that it is question of competency. However, as they point out, there are no federal decisions that have used F.R.E. 601 as a basis for decision and many state and Federal courts have relied upon admissibility rules concerning scientific evidence or the principles underlying F.R.E. 403 (Pa.R.E. 403 is an exact counterpart), providing for the exclusion of evidence when its probative value is outweighed by the danger of unfair prejudice, confusion or waste of time. It could be said that the section (b)(3) of Pa.R.E. 601, relating to impaired memory, applies (i.e., has the witness' otherwise impaired memory been cured by the hypnosis), and Pa.R.E. 602, requiring a finding that a witness has personal knowledge of that about which he or she proposes to testify, may be pertinent also (see the Comment to that Rule).
The leading case in Pennsylvania tackled the issue as one concerning scientific evidence. In Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), the Supreme Court rejected hypnotically refreshed testimony, where the witness had no prior independent recollection, because applying the test of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), for scientific testimony, it was not convinced that the process of hypnosis as a means of restoring forgotten or repressed memory had gained sufficient acceptance in its field. Nazarovitch has been applied in Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984) and Commonwealth v. Romanelli, 522 Pa. 222, 560 A.2d 1384 (1989), both of which held that when a witness has been hypnotized, he or she may testify concerning those matters recollected prior to hypnosis, but not about matters recalled only during or after hypnosis. Pa.R.E. 601 is not intended to change these results.
However, there is a constitutional limit on these decisions. In Rock v. Arkansas, 483 U. S. 44, (1987), the United States Supreme Court held that a defendant in a criminal case has a constitutional right to testify in his or her own behalf and that a per se rule that prohibited hypnotically refreshed testimony violated that right; the reliability of that testimony must be examined on a case-by-case basis. The Court stated that it was expressing no opinion concerning the testimony of witnesses other than a defendant in a criminal case. Id. at 58, n.15.
Rule 602. Lack of Personal Knowledge.
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This Rule is subject to the provisions of Rule 703 (relating to the basis of expert testimony).
Comment This Rule is identical to F.R.E. 602. Firsthand or personal knowledge is a universal requirement of the law of evidence. See Johnson v. Peoples Cab Co., 386 Pa. 513, 126 A.2d 720 (1956) (''The primary object of a trial in our American courts is to bring to the tribunal, which is passing on the dispute involved, those persons who know of their own knowledge the facts to which they testify . . . .''). The reference to Rule 703 makes it clear that there is no conflict between Rule 602 and that Rule, allowing an expert to base an opinion on facts not within the expert's personal knowledge.
It is implicit in this Rule that the party calling the witness has the burden of proving personal knowledge. This is consistent with Pennsylvania law. Carney v. Pennsylvania R.R. Co., 428 Pa. 489, 240 A.2d 71 (1968). As the Advisory Committee's Notes to F.R.E. 602 put it, ''the rule is a specialized application of the provisions of Rule 104(b) on conditional relevancy.'' This supports the conclusion that the issue of personal knowledge is a question to be decided by the jury, and the judge may do no more than determine if the evidence is sufficient to support a finding of such knowledge. Wright & Gold, Federal Practice and Procedure: Evidence, § 6027. Although it is not altogether clear, this appears to be consistent with Pennsylvania law. See Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978).
A witness having firsthand knowledge of a hearsay statement, who testifies to the making of the statement, satisfies Pa. R.E. 602; but the witness may not testify to the truth of the statement if the witness has no personal knowledge of that. Whether the hearsay statement is admissible is governed by Pa.R.E. 801 through 805. Generally speaking, the firsthand knowledge requirement of Rule 602 is applicable to the declarant of a hearsay statement. See, e.g., Commonwealth v. Pronkoskie, supra, and Carney v. Pennsylvania R.R. Co., supra. However, in the case of admissions of a party opponent, covered by Pa.R.E. 803(25), personal knowledge is not required. Salvitti v. Throppe, 343 Pa. 642, 23 A.2d 445 (1942); Carswell v. SEPTA, 259 Pa. Super. 167, 393 A.2d 770 (1978). Moreover, Pa.R.E. 804(b)(4) explicitly dispenses with the need for personal knowledge with respect to statements of personal or family history, and Pa.R.E. 803(19), (20) and (21), dealing with statements of reputation concerning personal or family history, boundaries or general history and a person's character, respectively, impliedly do away with the requirement.
This Rule has a bearing on the question of the admissibility of testimony given after the witness has been hypnotized. When the testimony concerns facts developed entirely through the hypnotic process, can it be said that the witness ''has personal knowledge''? The answer depends upon whether hypnosis is accepted as a scientifically valid means of restoring the witness' forgotten or repressed memory of what was actually perceived. If it is not, then there can be no finding that the witness ''has personal knowledge'' as the rule requires. The law developed by the Pennsylvania cases is that the testimony of a witness who has been hypnotized, which is based on prior recollection, is admissible, but testimony arising completely from the hypnosis is not. Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981); Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984); Commonwealth v. Romanelli, 522 Pa. 222, 560 A.2d 1384 (1989). These cases, and the constitutional limits imposed upon them in criminal prosecutions by Rock v. Arkansas, 483 U. S. 44, 107 S.Ct. 2704 (1987), are discussed more fully in the Comment to Pa.R.E. 601.
Rule 603. Oath or Affirmation.
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.
Comment This is the same as F.R.E. 603, which was designed to be flexible enough to deal with all manner of religious beliefs or lack thereof, mental defectives and children. Notes of the Advisory Committee to Rule 603. An understanding of the obligation to tell the truth has been required of both the mentally impaired and children. Commonwealth v. Kosh, 305 Pa. 146, 157 A. 479 (1931) and Commonwealth v. Mazzoccoli, 475 Pa. 408, 380 A.2d 786 (1977). The Rule does not conflict with 42 Pa.C.S.A. § 5901 which provides that every witness ''shall take an oath in the usual or common form by laying the hand upon an open copy of the Holy Bible or by lifting up the right hand and pronouncing or assenting to'' a specific incantation set forth in the statute. That statute also permits affirmation by a witness who desires to do so. See also, 42 Pa.C.S.A. § 5902, which provides that a person's capacity to testify ''shall not be affected by his opinions on matters of religion'' and that no witness shall be questioned ''concerning his religious beliefs.'' Religious belief as a ground for impeachment is treated in Pa. R.E. 610. In Dunsmore v. Dunsmore, 309 Pa. Super. 503, 455 A.2d 723 (1983) and Commonwealth ex rel. Freeman v. Superintendent, 212 Pa. Super. 422, 431--432, 242 A.2d 903, 908 (1968), it was held to be error to allow a witness to testify without oath or affirmation.
Rule 604. Interpreters.
An interpreter is subject to the provisions of Rule 702 (relating to qualification as an expert) and Rule 603 (relating to the administration of an oath or affirmation).
Comment This Rule adopts the substance of F.R.E. 604, but explicitly refers to Pa.R.E. 702 and 603 rather than the general reference in the Federal Rule to ''the provisions of these rules.''
The need for an interpreter whenever a witness' natural mode of expression or the language of a document is not intelligible to the trier of fact is well settled. 3 Wigmore, Evidence, § 911 (Chadbourn rev. 1970). Under this Rule, an interpreter is treated as an expert witness who must have the necessary skill to translate correctly and who must promise to do so by oath or affirmation.
There are statutes in Pennsylvania providing for the appointment of interpreters for a deaf party throughout the proceeding in a civil case (42 Pa.C.S.A. § 7103), and in a hearing before a Commonwealth agency (2 Pa.C.S.A. 505.1) and for a deaf defendant throughout the proceeding in a criminal case (42 Pa.C.S.A. § 8701). (The application of the latter statute was considered at length in Commonwealth v. Wallace, 433 Pa. Super. 518, 641 A.2d 321 (1994).) Under each of these statutes, an interpreter must be ''qualified and trained to translate for an communicate with deaf persons'' and must ''swear or affirm that he will make a true interpretation to the deaf person and that he will repeat the statements of the deaf person to the best of his ability.'' Obviously, Pa.R.E. 604 is consistent with these statutes. Pa.R.Crim.P. 264(b) authorizes the presence of an interpreter while an investigating grand jury is in session if the supervising judge determines this is necessary for the presentation of the evidence. Finally, the Pennsylvania Code of Military Justice provides (51 Pa.C.S.A. § 5507) that under regulations prescribed by the governor, the convening authority of a military court may appoint interpreters.
All of the foregoing deal with the use of interpreters in special situations. Although there has been no general statute or rule covering the appointment of interpreters to translate testimony or documents since the repeal of 17 P. S. § 1875 and 28 P. S. §§ 441--444 by the Judiciary Repealer Act of 1978, the use of interpreters is well established in practice. Packel & Poulin, Pennsylvania Evidence, § 604. Under Pennsylvania law, the decision to use an interpreter is within the sound discretion of the trial judge. Commonwealth v. Pana, 469 Pa. 43, 364 A.2d 895 (1976); Commonwealth v. Carrillo, 319 Pa. Super. 115, 465 A.2d 1256 (1983). Since this Rule makes an interpreter subject to Pa.R.E. 702, under which the trial judge will have to decide if an interpreter is needed to ''assist the trier of fact to understand the evidence,'' it will not cause any disruption of the Pennsylvania practice.
The most common use of an interpreter is to translate witness testimony or documents primarily for the trier of fact, and it is to this situation that the rule is basically directed. However, when a party in a civil case or a defendant in a criminal case has difficulty speaking or understanding English, it is that person, rather than the trier of fact, who needs the interpreter. The statutes dealing with interpreters for deaf parties and defendants recognize this; they require the interpreter to be present throughout the proceedings to translate both what the deaf person might say for the benefit of the trier of fact and what others participating in the proceeding (witnesses, attorneys, the judge) might say for the benefit of the deaf person. In a criminal case, a defendant's need for an interpreter in the circumstances posited, raises serious constitutional questions, because without an interpreter, the defendant's rights to consult with counsel, to confront witnesses against him or her, to be ''present'' at the trial and to testify in his or her own behalf are placed in jeopardy. These concerns were taken into account in Commonwealth v. Pana, supra, where the court held that when a defendant obviously has difficulties understanding and expressing himself in English, even though he has some familiarity with the language, the failure to appoint an interpreter so that the defendant can testify in Spanish is an abuse of discretion requiring a new trial. See also, United States ex rel. Negron v. New York, 434 F.2d 386 (2d Cir. 1970); and cf. United States v. Carron, 488 F.2d 12 (1st Cir. 1973), cert. denied, 416 U. S. 907, 94 S.Ct. 1613 (1974).
Rule 605. Competency of Judge as Witness.
The judge presiding at the trial may not testify as a witness in that trial.
Comment This Rule differs from F.R.E. 605; the phrase ''in that trial,'' which follows the word ''testify'' in the first sentence in the Federal Rule, has been moved to the end of the sentence and the final sentence of the Federal Rule, which dispenses with the need for an objection, has been eliminated. Pa.R.E. 605 makes a judge absolutely incompetent to be a witness on any matter in any trial at which the judge presides; it is one of the exceptions contemplated by Pa.R.E. 601.
Canon 3C of the Pennsylvania Code of Judicial Conduct requires a judge ''to disqualify himself in a proceeding in which his impartiality might reasonably be questioned,'' including where ''he has . . . personal knowledge of disputed evidentiary facts . . . [or knows that he is] likely to be a material witness in the proceeding.'' (There are similar provisions in 28 U.S.C. § 455.) From the phrases ''knowledge of disputed evidentiary facts'' and ''likely to be a material witness,'' it can be argued that the Canon does not require disqualification if the judge is to testify only as to immaterial formal matters that are not in dispute. This is the position taken in 6 Wigmore, Evidence, § 1909 (Chadbourn rev. 1976) and in the Model Code of Evidence, Rule 302. Canon 3C was relied upon in Municipal Publications, Inc. v. Court of Common Pleas, 507 Pa. 194, 489 A.2d 1286 (1985), which held that at a hearing on a motion to recuse a judge, the judge himself may not testify concerning the issues raised in the motion and continue to preside at the hearing. Since the judge's testimony obviously went to the heart of the motion to recuse, the decision sheds no light on the scope of the Canon. But Pa.R.E. 605, like its Federal counterpart, leaves no room for argument; it bars all testimony by a presiding judge.
What is the meaning of ''testify as a witness''? There is no Pennsylvania authority on the matter. However, based upon the legislative history of F.R.E. 605, it has been suggested that a judge may be said to ''testify'' even if he has not been called to the witness stand, and the rule has been so applied. See Wright & Gold, Federal Practice and Procedure: Evidence, § 6063, (citing United States v. Lillie, 953 F.2d 1188 (10th Cir. 1992) (judge in a bench trial taking a view without the knowledge or presence of counsel and the parties)); Jones v. Beneficial Trust Life Ins. Co., 800 F.2d 1397 (5th Cir. 1986) (introduction at trial of the judge's pretrial ruling); and United States v. Pritchett, 699 F.2d 317 (6th Cir. 1983) (judge's comments from the bench).
The final sentence of the Federal Rule provides, in effect, an ''automatic'' objection to testimony by the presiding judge. The stated purpose for this is that the opponent of the testimony would otherwise have to choose between waiver of a challenge to it or the risk of offending the judge by making an objection. Notes of the Advisory Committee to F.R.E. 605. This puts undue emphasis on the sensibilities of trial judges. Moreover, since the Rule has been applied to situations where the trial judge has not been called to the stand, as pointed out above, requiring an objection will often be the means by which the judge may be ''brought up short'' and provided with an opportunity to take corrective action before it is too late. For these reasons, Pa.R.E. 605 takes the opposite approach--an objection must be made to preserve the issue of violation of the Rule. This is consistent with the provisions of Pa.R.E. 103 that error may not be predicated on a ruling admitting evidence in the absence of a timely objection, motion to strike or motion in limine. Of course, the court should provide an opportunity for the making of the objection out of the presence of the jury.
Rule 606. Competency of Juror as Witness.
(a) At Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.
(b) Inquiry into Validity of Verdict. Upon an inquiry into the validity of a verdict, including a sentencing verdict pursuant to 42 Pa.C.S.A. § 9711 (relating to capital sentencing proceedings), a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions in reaching a decision upon the verdict or concerning the juror's mental processes in connection therewith, and a juror's affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.
Comment Section (a) of this Rule is the same as F.R.E. 606(a). It is another of the incompetency exceptions to Pa.R.E. 601. Section (a) is contrary to the traditional common law rule (see 6 Wigmore, Evidence, § 1910 (Chadbourn rev. 1976) and 1 McCormick, Evidence, § 68 (4th ed. 1992)), with which the law of Pennsylvania is in accord. Howser v. Commonwealth, 51 Pa. 332 (1866) (jurors are competent witnesses in both civil and criminal cases); Commonwealth v. Sutton, 171 Pa. Super. 105, 90 A.2d 264 (1952). Since the adoption of the Federal Rules, most states have enacted or promulgated provisions consistent with the substance of section (a). Wright & Gold, Federal Practice and Procedure: Evidence, § 6071, notes 59--73. Of course, the calling of a juror as a witness will be a rarity; a juror's knowledge of facts relevant to a case will generally be exposed on voir dire with the resultant disqualification of the juror for cause.
Note that section (a) bars a jury member from testifying ''before that jury in the trial of the case in which the juror is sitting.'' The phrase ''before that jury'' did not appear in the preliminary draft of F.R.E. 606(a); its addition leads to the conclusion that a juror may testify outside the presence of the rest of the jury on matters occurring during the course of the trial. 3 Weinstein & Berger, Evidence, ¶ 606[02], at p. 606--18. United States v. Robinson, 645 F.2d 616 (8th Cir. 1981), cert. denied, 454 U. S. 875 (1981), held that on a motion for a mistrial, the Federal Rule did not bar a juror from testifying, out of the presence of the other jurors, concerning his observation of the accused being escorted from the court house under guard. In United States v. Day, 830 F.2d 1099 (10th Cir. 1987), the court, in a dictum, stated that a juror, who was not called, could have been called to testify at a hearing during the course of trial on the question of whether bias arose from brief remarks passing between the juror and the investigating F.B.I. agent. Current Pennsylvania law is in accord; see Commonwealth v. Santiago, 456 Pa. 265, 318 A.2d 737 (1974), where jurors were permitted to testify at a hearing in chambers during the trial on the question of whether they received improper prejudicial information.
Section (b) of this Rule is based upon F.R.E. 606(b) with certain language and organizational changes that do not alter substance. This section, too, is an incompetency exception to Pa. R.E. 601; but note that the incompetency is limited to the three areas set forth in the first sentence of the redrafted section. These areas are broadly stated to embody all of the elements relevant to a jury's deliberations and decisions of which a juror would have personal knowledge.
The reference to sentencing verdicts in capital cases does not appear in the Federal Rule. It reflects existing Pennsylvania law. Commonwealth v. Williams, 514 Pa. 62, 522 A.2d 1058 (1987). The indicting grand jury has now been abolished in all counties of Pennsylvania pursuant to Article I, § 10 of the Pennsylvania Constitution and 42 Pa.C.S.A. 8931(b) and criminal proceedings are now initiated statewide by information. Accordingly, the word ''indictment'' which is in the Federal Rule, has been removed throughout Pa.R.E. 601(b).
In the interest of simplification and the elimination of redundancy, the language ''as influencing the juror to assent to or dissent from,'' used in connection with effects upon a juror's mind or emotions, has been deleted in favor of the phrase ''in reaching a decision upon.'' No substantive change is intended.
The sentence structure of the Federal Rule has been changed. The exceptions to juror incompetency appear as the second sentence of section (b) and the provision concerning juror affidavits and evidence of juror statements, with minor language differences, has been moved from the end of the section and placed at the end of the first sentence since it is to the subjects thereof that it is relevant. These structural changes should facilitate the reading and understanding of the section.
Finally, the words ''extraneous prejudicial information'' in the first exception of the Federal Rule have been replaced by ''prejudicial facts not of record and beyond common knowledge and experience.'' This should make clear that the exception is directed at evidence brought before the jury, which was not presented during the trial, and which was not tested by the processes of the adversary system and subjected to judicial scrutiny for a determination of admissibility. The qualification of ''common knowledge and experience'' is a recognition that all jurors bring with them some common facts of life. See generally, Wright & Gold, Federal Practice and Procedure: Evidence, § 6075. A juror who brings facts not of record to the jury's attention is, in effect, testifying in violation of section (a).
Section (b), like its Federal counterpart, is designed to protect all ''components of a jury's deliberations, including arguments, statements, discussions, mental and emotional reactions, votes and any other feature of the process,'' while allowing juror testimony concerning extraneous matters that have the effect of subverting those deliberations. Notes of the Advisory Committee to F.R.E. 606(b). The section is more detailed and expansive than the rule articulated in the Pennsylvania cases. See Pittsburgh Nat'l. Bank v. The Mutual Ins. Co., 493 Pa. 96, 101, 425 A.2d 383, 386 (1981), and cases cited therein (Pennsylvania rule is a ''canon of 'no impeachment' with a narrow exception of 'allowing post-trial testimony of extraneous influences which might have . . . [prejudiced] the jury during deliberations' ''). Nevertheless, the results of the cases are generally in accord with the section. The decisions have consistently protected the elements of the jury's deliberations in the circumstances covered by the first sentence of section (b). Commonwealth v. Pierce, 453 Pa. 319, 309 A.2d 371 (1973) (jurors not competent to testify that two members of the jury took notes during trial and brought them into jury room); Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469 (1970) (after verdict, testimony could not be received that a juror was afraid to return a verdict of not guilty by reason of insanity because of fear that defendant might be released later); Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295 (1965) (trial court correctly refused to consider juror's post-trial affidavit alleging coercion by other jurors); Commonwealth v. Filer, 249 Pa. 171, 94 A. 822 (1915) (on motion for new trial, court may not consider affidavits of four jurors explaining what influenced them in reaching a conclusion).
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