[27 Pa.B. 1282]
[Continued from previous Web Page] Pennsylvania cases have also recognized the exceptions set forth in the second sentence of section (b). Carter v. U. S. Steel Corp., 529 Pa. 409, 604 A.2d 1010 (1992), cert. denied, 506 U. S. 864 (1992) (proper to conduct post-trial hearing to determine whether newspaper article and television broadcast concerning matters involved in the case were brought to jury's attention during deliberations); Commonwealth v. Williams, supra, 514 Pa. at 75 81, 522 A.2d at 1065--1068 (jurors competent to testify, that during capital sentencing proceeding, they received information through an alternate juror that defendant had pending murder charges from another jurisdiction); Commonwealth v. Sero, 478 Pa. 440, 387 A.2d 63 (1978) (after verdict in a murder case, juror may testify that another juror told her that she had learned, through what was double hearsay, that defendant, although not a religious person, had begun studying the Bible after his wife's death); Welshire v. Bruaw, 331 Pa. 392, 200 A.2d 67 (1938) (jurors permitted to testify that a tipstaff told jury, which was engaged in extended deliberations, that trial judge would give them ''the devil'' if they did not reach a verdict promptly). Pittsburgh Nat'l. Bank v. The Mutual Life Ins. Co., 493 Pa. 96, 425 A.2d 383 (1981), stands against this array of decisions; it held that, after the verdict in an automobile accident case, the trial court correctly refused to take testimony concerning a juror's having examined a car similar to the one involved in the case. See also, Friedman v. Ralph Brothers, Inc., 314 Pa. 247, 171 A. 700 (1934). This result would be changed under the first exception of section (b). See cases cited in Wright & Gold, Federal Practice and Procedure: Evidence, § 6075, notes 18--19. In any event, the vitality of the decision is questionable after the Carter case, supra.
Note that when jurors are permitted to testify about facts not of record and outside influences, they may not be questioned about the effect upon them of what was improperly brought to their attention. Carter, 529 Pa. at 415--416, 604 A.2d at 1013--1014; see 3 Weinstein & Berger, Evidence, ¶ 606[5] at pp. 606-53--606-55. Moreover, after hearing juror testimony, a verdict may still be upheld on the grounds that there was no prejudice. See, e.g., Carter 529 Pa. at 420--424, 614 A.2d at 1016--1018; Sero, 478 Pa. at 448--449, 387 A.2d at 67.
Rule 607. Impeachment of Witness.
(a) Who May Impeach. The credibility of any witness may be attacked by any party, including the party calling the witness.
(b) Evidence to Impeach. The credibility of a witness may be impeached by any evidence relevant to that issue, except as otherwise provided by statute or these Rules.
Comment Section (a) of this Rule is the same as F.R.E. 607; but the Federal Rules have no provision similar to section (b).
Section (a).--The original common law view prohibited a party from impeaching a witness called by that party, and the prohibition applied to all forms of impeachment. The reasons advanced in support of this view were that the party calling the witness (1) was morally bound by the testimony given, (2) vouched for the witness' trustworthiness, and (3) could coerce desired testimony under an implied threat of attacking the character of the witness by impeachment. As the weakness of these reasons became apparent, many exceptions to the common law rule were developed. See generally, 3A Wigmore, Evidence, §§ 896--918 (Chadbourn rev. 1970); 1 McCormick, Evidence, § 38 (4th ed. 1992).
Pa. R.E. 607(a) abolishes the common law prohibition completely. Numerous Pennsylvania decisions have continued to enunciate a general rule of no impeachment; but many exceptions have been recognized. Thus, it has been said that there is a difference between impeaching one's own witness and contradicting that witness by presenting other evidence. Commonwealth v. Myrick, 468 Pa. 155, 360 A.2d 598 (1976); Commonwealth v. Mahoney, 460 Pa. 201, 331 A.2d 488 (1975). Note also that Pa.R.C.P. 4020(d) provides that ''any party may rebut any relevant evidence contained in a deposition whether introduced by him or any other party.'' It has also been held that the prosecution in a criminal case may examine its own witness as to matters bearing on the character, bias or interest of the witness in anticipation of an attack by the defense. Commonwealth v. Bricker, 525 Pa. 362, 581 A.2d 147 (1990) (existence and terms of a plea agreement with the witness; but written agreement itself could not be sent out with jury unless appropriately redacted); Commonwealth v. Garrison, 398 Pa. 47, 157 A.2d 75 (1959) (criminal past of the witness). Impeachment by a prior inconsistent statement (and this is what has been involved in most of the cases) has been allowed if the testimony of one's own witness is unexpected, contradicts the prior statement, harms the party calling the witness and the impeachment is limited in scope. Commonwealth v. Thomas, 459 Pa. 371, 329 A.2d 277 (1974). However, the need for surprise has been dispensed with ''when the interests of truth and justice seem to require it.'' Commonwealth v. Brady, 510 Pa. 123, 134--35, 507 A.2d 66, 72 (1986), Commonwealth v. Gee, 467 Pa. 123, 136--137, 354 A.2d 875, 881 (1976). Moreover, under a long-standing statute, a party in a civil case is permitted to call an adverse party or a person having an adverse interest as a witness ''under the rules of evidence applicable to cross-examination'' and ''shall not be concluded by [the witness'] testimony.'' 42 Pa.C.S.A. § 5935. The last quoted provision has been interpreted to mean that the witness' testimony may be rebutted or contradicted by other evidence, but if it is not, it is conclusively taken to be true. Kelly v. Oxgrove Development Corp., 456 Pa. 306, 319 A.2d 424 (1974); Rogan Estate. 404 Pa. 205, 171 A.2d 177 (1961).
If, then, there are any vestiges of the ''no impeachment'' prohibition remaining in Pennsylvania, Pa.R.E. 607(a) sweeps them away, and no longer will there be any need to resort to hair-splitting exceptions. The rule will allow impeachment by all of the methods provided for in Pa.R.E. 607(b), 608, 609 and 613. Under existing law, impeachment evidence will have no substantive effect unless it is an admission of a party opponent within Pa.R.E. 803(25), a prior inconsistent statement covered by Pa. R.E. 803.1(1), which reflects the holding in Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992), or a statement of identification under Pa.R.E. 803.1(2).
Section (b).--The methods that may be used to impeach credibility are tied to Pa.R.E. 401, which defines relevant evidence. In United States v. Abel, 469 U. S. 45 (1984), the United States Supreme Court held that the Federal Rules clearly contemplated that evidence of bias could be used to impeach credibility even though nothing in those Rules specifically covered the subject. The Court pointed to F.R.E. 401, defining relevancy, and F.R.E. 402, providing for the admissibility of all relevant evidence, in support of its holding. The Court commented that ''[a] successful showing of bias . . . would have a tendency to make the facts to which [the witness] testified less probable in the eyes of the jury than it would be without such testimony.'' Abel, 469 U. S. at 51.
Pa.R.E. 401 and 402 are similar to their Federal counterparts, and they, too, support the impeaching of credibility by any means having any tendency to cast doubt on the witness' testimony. However, the ''except as otherwise provided by statute or these Rule'' language of Rule 607(b) incorporates a number of provisions that circumscribe the breadth of the Rule. See, e.g., the Rape Shield Law, 18 Pa.C.S.A. § 3104. Rule 403 also comes into play, so that evidence relevant to credibility may be excluded if its probative value is outweighed by the danger of unfair prejudice, etc. Next Rule 501, which preserves all privileges ''as they now exist or may be modified by law,'' must be taken into account. This would exclude any evidence relevant to credibility that might be covered by existing or later developed privileges, including those created by case law. In addition, Rule 607(b) is limited and supplemented by Rule 608 (dealing with evidence of character and conduct of a witness), Rule 609 (relating to impeachment by evidence of conviction of crime), Rule 610 (covering religious beliefs or opinions) and Rule 613 (regarding prior statements of witnesses). However, the broad principle of relevance in Rule 607(b) is not curtailed by 42 Pa.C.S.A. § 5918, which provides that, with certain exceptions, a defendant who testifies in a criminal case may not be questioned to show that he or she has committed, been convicted of or charged with any other offense or to show bad character or reputation. In Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), this statute was interpreted to apply only to cross-examination. Hence it affects only the timing and method of impeachment of a defendant; it does not bar the impeachment entirely.
Since the credibility of any witness depends upon his or her powers of perception, capacity to remember, ability to communicate accurately and veracity or integrity, it may always be attacked by showing shortcomings in any of those areas. Commonwealth v. Gwaltney, 497 Pa. 505, 442 A.2d 236 (1982); Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977); 1 McCormick, Evidence, § 44 (4th ed. 1992). These attacks may be carried out in a number of ways.
A witness' credibility may be challenged by questions showing that he or she has a selective memory. Commonwealth v. Perdue, 387 Pa. Super. 473, 564 A.2d 489 (1982). Evidence of alcohol consumption by a witness may also be considered by a jury as affecting perception and memory. Hannon v. City of Philadelphia, 120 Pa. Cmwlth. 383, 548 A.2d 693 (1988). On the same theory, evidence of use of drugs by a witness is admissible. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978); Commonwealth v. Skibicki, 402 Pa. Super. 160, 586 A.2d 446 (1990); Commonwealth v. Duffy, 238 Pa. Super. 161, 353 A.2d 50 (1975). It should be noted that neither alcoholism nor drug addiction in and of themselves is sufficient to impeach; to be admissible, a witness' consumption of alcohol or use of drugs must have occurred at or near the time of the event that is the subject of the witness' testimony.
A mental defect or disability which affects a witness' perception, memory, ability to communicate or truth telling may also give rise to an assault on credibility. Commonwealth v. Butler, 232 Pa. Super. 283, 331 A.2d 678 (1974). In Commonwealth v. Dudley, 353 Pa. Super. 615, 510 A.2d 1235 (1986), appeal denied, 514 Pa. 634, 522 A.2d 1104 (1987), the Superior Court held that it was error to exclude evidence that a witness (a rape victim) had received psychiatric treatment one month after the event, had suffered a psychiatric episode two months after the incident and six months before trial, and had experienced hallucinations and mental instability. See also, Commonwealth v. Chuck, 227 Pa. Super. 612, 323 A.2d 123 (1974) (treatment in a mental hospital within seven months of the date of trial is enough to raise a jury question as to the effect of a mental disorder on credibility).
Cohen v. Albert Einstein Medical Center, 405 Pa. Super. 392, 592 A.2d 720 (1991), appeal denied 529 Pa. 644, 602 A.2d 855 (1992), was a medical malpractice case for an alleged arm injury resulting from an improper intramuscular injection. Plaintiff testified about the injection and the harm it produced. The Superior Court held that it was error to exclude expert testimony that plaintiff suffered from Munchausen Syndrome (the repeated fabrication of illness in order to assume the role of a sick person) because this bore directly upon plaintiff's ability to recount truthfully the event and symptoms of which he complained. 405 Pa. Super. at 401--406, 592 A.2d at 724--727.
A witness may also be impeached by impugning his or her honesty. This can be accomplished by showing bias (prejudice against or hostility toward a party), interest (some relation between the witness and the cause at issue) or corruption (a conscious false intent). 3A Wigmore, Evidence, § 945 (Chadbourne rev. 1970). In Commonwealth v. Collins, 519 Pa. 58, 64--65, 545 A.2d 882, 885--886 (1988), the Supreme Court stated that '' . . . any witness may be impeached by showing his bias or hostility or by proving facts which make such feelings probable . . . ''; see also United States v. Abel, supra.
In Commonwealth v. Dawson, 486 Pa. 321, 405 A.2d 1230 (1979), a detective testified about the defendant's confession, which defendant contended had been fabricated. It was held that it was reversible error not to allow the defendant to show that the detective was subject to disciplinary action growing out of certain events involved in the case. The Supreme Court said that ''the alleged misconduct and disciplining could have motivated [the detective] to fabricate the confession and otherwise give false testimony. Evidence thereon would have been relevant to his motivation and credibility.'' Id. at 324, 405 A.2d at 1231.
Commonwealth v. Baxton, 242 Pa. Super. 98, 363 A.2d 1178 (1976), held that the defendant could cross-examine a prosecution witness, who had a juvenile record, to show that he testified in return for the continuation of his probationary status and an agreement that he would not be prosecuted for the incident out of which the charges against the defendant grew. Later, the same result was reached under somewhat similar circumstances in Commonwealth v. Gay, 369 Pa. Super. 340, 535 A.2d 189 (1988).
Hatfield v. Continental Imports, Inc., 530 Pa. 551, 610 A.2d 446 (1972), was a products liability case in which the original defendants joined the maker of the product as an additional defendant. The Supreme Court held that evidence of an agreement between the plaintiff and the original defendants was an admissible to establish that the latter would benefit if the plaintiffs prevailed and therefore had an interest in the plaintiff's success.
Rule 608. Evidence of Character and Conduct of Witness.
(a) Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of reputation as to character, but subject to the following limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness; and
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by reputation evidence or otherwise.
(3) A witness whose testimony is to be admitted under this Rule may not be called at trial under this Rule unless the party seeking to call the witness makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet the evidence, the proponent's intention in calling the witness, the particulars of the witness' expected testimony, and the name and address of the witness. The particulars of the witness' expected testimony should include the identity of any person the witness spoke to in the community in order to reach a conclusion about the person's reputation for truthfulness, the nature of the information provided by such person(s) in the community, and what relationship, if any, the person in the community has with the person whose reputation for truthfulness was called into question.
(b) Specific Instances of Conduct. Except as provided in Rule 609 (relating to evidence of conviction of crime),
(1) the character of a witness for truthfulness may not be attacked or supported by cross-examination or extrinsic evidence concerning specific instances of the witness' conduct; however,
(2) in the discretion of the court, the credibility of a witness who testifies as to the reputation of another witness for truthfulness or untruthfulness may be attacked by cross-examination concerning specific instances of conduct (not including arrests) of the other witness, if they are probative of truthfulness or untruthfulness; but extrinsic evidence thereof is not admissible.
Comment Section (a).--Pa.R.E. 608(a) differs from F.R.E. 608(a) in that it permits character for truthfulness or untruthfulness to be shown by evidence only in the form of reputation, whereas the Federal Rule allows evidence in the form of opinion as well, and there is no counterpart to subsection (3) in the Federal Rule. This Rule is one of the specific exceptions to the prohibition in Pa.R.E. 404(a) against the use of character to show action in conformity therewith. It is well established in Pennsylvania that evidence of a witness' reputation for truthfulness or untruthfulness may be used to support or attack credibility. Commonwealth v. Payne, 205 Pa. 101, 54 A. 489 (1903); In the Interest of Lawrence J., 310 Pa. Super. 351, 456 A.2d 647 (1983). This applies also to the accused in a criminal case when he or she takes the stand. Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967), vacated on other grounds, 392 U. S. 647 (1968). Note that reputation of a person's character is covered by the exception to the hearsay rule in Pa.R.E. 803(21). Pa.R.E. 608(a) is new. It is intended to eliminate surprise, and unfair disadvantage to the party whose witness' credibility is attacked by reputation evidence.
Section (a) of the Rule is also in accord with those Pennsylvania cases that have held that evidence is not admissible to bolster a witness' character for truthfulness until there has been an attack upon that character. See e.g., Commonwealth v. Fowler, 434 Pa. Super. 148, 642 A.2d 517 (1994); Commonwealth v. Smith, 389 Pa. Super. 626, 567 A.2d 1080 (1989); Commonwealth v. Lemanski, 365 Pa. Super. 332, 529 A.2d 1085 (1987). However, there is some intimation in Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981) that where the accused in a criminal case takes the stand, evidence of a good reputation for honesty is admissible even in the absence of an attack on character; and compare Pa.R.E. 404(a)(1) allowing the accused in a criminal case to offer ''evidence of a pertinent trait of character.'' In allowing character for truthfulness or untruthfulness to be proved only by reputation, section (a) is consistent with existing Pennsylvania law. Commonwealth v. Lopinson, supra, and Commonwealth v. Smith, supra.
Section (b).--Pa.R.E. 608(b) also differs from F.R.E. 608(b). Except for evidence of conviction of crime (Pa.R.E. 609 and F.R.E. 609), both ban all use of extrinsic evidence of specific instances of conduct for the purpose of attacking or supporting a witness' credibility, but they diverge in their treatment of cross-examination concerning specific instances of conduct.
Under the Federal Rule, in the discretion of the court, and if probative of truthfulness or untruthfulness, specific instances may be inquired into on cross-examination of a witness concerning the witness' own character or concerning the character of another witness as to which the witness being cross-examined has testified. In the latter case, it can be argued that not only do the specific instances undermine the credibility of the witness being examined (the ''character witness'') but that they also bear upon the truthfulness or untruthfulness of the other witness (the ''principal witness''). See Wright and Gold, Federal Practice and Procedure: Evidence, § 6120.
Subsection (b)(1) of Pa.R.E. 608 prohibits all use of specific instances of a witness' own conduct for the purpose of attacking his or her character for truthfulness. Subsection (b)(2), like the Federal Rule, permits a character witness to be cross-examined, in the discretion of the court, concerning specific instances of conduct of the principal witness. However, unlike the Federal Rule, subsection (b)(2) makes it clear that those specific instances affect the credibility of the character witness only, and in addition, it excludes the use of arrests.
Section (b) is in accord with Pennsylvania law. Beginning with Stout v. Rassel, 2 Yeates 334 (1798) and Elliot v. Boyles, 31 Pa. 65 (1857), the Courts, with two exceptions, have consistently stated that specific instances of a witness' own conduct, not resulting in a conviction, may not be used to impeach that witness' credibility. See, e.g., Commonwealth v. Katchmer, 453 Pa. 461, 464, 309 A.2d 591, 593 (1973) ''[w]e have long held that prior bad acts not resulting in conviction are not available to impeach a witness' credibility . . .''); Marshall v. Carr, 271 Pa. 271, 114 A. 500 (1922); Berliner v. Schoenberg, 117 Pa. Super. 254, 178 A.2d 330 (1935).
But in Downey v. Weston, the Supreme Court stated, ''[i]t is true that evidence of . . . some past events throwing light on human character is admissible on cross-examination, but this is restricted to evidence which bears directly on the witness' 'character for truth'. . . .'' 451 Pa. 259, 264, 301 A.2d 635, 639 (1973) (emphasis in original.) The Court went on to hold that the connection between an alleged breach of medical ethics and the credibility of a physician witness was too tenuous. A similar pronouncement was made in Commonwealth v. Gaddy, 468 Pa. 303, 362 A.2d 217 (1976), and again the Supreme Court held that the act in question (drug use generally) was not sufficiently related to ''character for truth.''
Later, however, in Commonwealth v. Taylor, 475 Pa. 564, 381 A.2d 418 (1977), in holding that it was error to allow a witness to be cross-examined about his arrests, the Supreme Court commented (with no reference to Downey or Gaddy): ''We have also held that a witness may not be impeached by questions concerning criminal activity not resulting in arrest.'' 475 Pa. at 468, n. 4, 381 A.2d at 419, n.4. (citations omitted.) Later, in Commonwealth v. Cragle, 281 Pa. Super. 434, 435--441, 422 A.2d 547, 548--550 (1980), the Superior Court held that it was not error to preclude questioning of a prosecution witness concerning his having received stolen goods on several occasions. The Court considered the Downey case and after analysis of the decision, concluded that it was not meant to overrule the well established existing law banning resort to specific instances of conduct to impeach, and the Court pointed to the reiteration of that principle in Taylor, supra, as support for its position. Subsection (b)(1) follows Taylor, Cragle and the earlier line of cases; and see also Butler v. Flo-Ron Vending Co., 383 Pa. Super. 633, 642, 557 A. 2d 730, 734 (1989). Subsection (b)(1) is generally consistent with 42 Pa.C.S.A. § 5918, which provides that a defendant who testifies in a criminal case, may not be questioned to show that ''he has been of bad character or reputation unless'' the defendant has attempted to establish his or her own good character or reputation or has testified against a co-defendant. See Comment to Pa.R.E. 607 for a fuller description of this statute.
Subsection (b)(2) of the Rule deals with challenges to the credibility of a character witness who testifies concerning the character for truthfulness or untruthfulness of a principal witness. For this purpose, it provides that the court, in its discretion, may allow cross-examination of the character witness concerning specific instances of the principal witness' conduct (other than arrests), if they are probitive of truthfulness or untruthfulness.
Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986), was an appeal from a death sentence imposed following a conviction of first degree murder. Among other issues, defendant asserted the ineffectiveness of his trial counsel in not interviewing and presenting certain character witnesses. At a post-trial evidentiary hearing, counsel explained that he did not delve into character testimony because the prosecution had damaging evidence of defendant's bad character, consisting of facts gathered in an investigation of defendant for fraud and evidence that he had been discharged from the service for desertion and later reenlisted under a false name. The Supreme Court held that counsel had a reasonable basis for not pursuing the character testimony because the potential harm from cross-examination of the character witnesses concerning defendant's acts of misconduct outweighed any value from their testimony. The Court said ''. . . Although evidence of good character may not be rebutted by evidence of specific acts of misconduct,'' a witness who testifies as to an accused's good character may be cross-examined regarding the witness' knowledge of particular acts of misconduct by the accused ''to test the accuracy of [the witness'] testimony and the standard by which [the witness] measures reputation . . .'' 511 Pa. at 318, 513 A.2d at 382. (citations omitted.) See also, Commonwealth v. Adams, 426 Pa. Super. 332, 626 A.2d 1231 (1993), where the Superior Court held that a witness who had testified that the accused in a criminal case had an excellent reputation for being a peaceful, law abiding citizen could be asked on cross-examination if he remembered telling the police that he knew the accused sells bags of cocaine. The Court stated that the question tested whether the witness possessed a sound standard of what constitutes a good reputation. This theory would apply also where the character evidence concerned the accused's truthfulness and the specific instances were probative of that trait.
Under Peterkin, Adams, and subsection (b)(2), although the cross-examination concerns the specific acts of the principal witness, it is admitted not for its effect upon his or her credibility, but only for its effect on the credibility of the character witness. Because this type of inquiry is subject to abuse, the cross-examination is not automatic; its use is specifically placed in the discretion of the court, and like all other relevant evidence, it is subject to the balancing test of Pa.R.E. 403. Moreover, the court should take care that the cross-examiner has a reasonable basis for the questions asked. See Adams, 426 Pa. Super. at 337, 620 A.2d at 1234.
With the one exception (evidence of conviction of crime under Pa.R.E. 609)) referred to in the introductory clause to section (b), the use of specific acts of misconduct provided for in subsection (b)(2) is limited to what can be developed on cross-examination. If the character witness denies knowledge of the alleged acts, that's the end of the matter; other witnesses can not be called to prove the acts. This is in conformity with the usual practice. 1 McCormick, Evidence, § 41 (1992 ed.).
The exclusion of arrests in subsection (b)(2) is based upon Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981), where the Supreme Court, abrogating earlier case law, held that it was error to rule that a proposed witness, who would testify that an accused had a good reputation for honesty and peacefulness, could be cross-examined about the accused's prior arrests that did not result in convictions. The Court's reasoning was that an arrest alone is not inconsistent with innocence, yet it has a great potential to create undue prejudice. See also, Commonwealth v. Percell, 499 Pa. 589, 454 A.2d 542 (1982) and Commonwealth v. Jackson, 475 Pa. 604, 381 A.2d 438 (1977), applying the prohibition against the use of arrests not resulting in convictions to the cross-examination of a witness about the witness' own arrests. In the Peterkin case, supra, the Court distinguished the Scott decision on the ground that it ''was founded upon the 'undue prejudice' inherent in the knowledge of prior arrests,'' whereas none of the conduct in the matter then before the Court involved arrests. 511 Pa. at 319, n. 13, 513 A.2d at 383, n. 13.
The last paragraph of F.R.E. 608(b), which provides that the giving of testimony by an accused or any other witness is not a waiver of the privilege against self-incrimination when they are examined about matters relating only to credibility, is not included in Pa.R.E. 608. Since subsection (b)(1) of the Rule bars cross-examination of any witness concerning specific acts of the witness' own conduct, the provision is not needed.
Rule 609. Impeachment by Evidence of Conviction of Crime.
(a) General Rule. For the purpose of attacking the credibility of any witness, evidence that the witness has been convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, shall be admitted if it involved dishonesty or false statement.
(b) Time Limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest its use.
(c) Effect of Pardon or Other Equivalent Procedure or Successful Completion of Rehabilitation Program. Evidence of a conviction is not admissible under this rule if the conviction has been the subject of one of the following:
(1) a pardon or other equivalent procedure based on a specific finding of innocence; or
(2) a pardon or other equivalent procedure based on a specific finding of rehabilitation of the person convicted, and that person has not been convicted of any subsequent crime.
(d) Juvenile Adjudications. In a criminal case only, evidence of the adjudication of delinquency for an offense under the Juvenile Act, 42 Pa.C.S.A. §§ 6301 et seq., may be used to impeach the credibility of a witness if conviction of the offense would be admissible to attack the credibility of an adult.
(e) Pendency of Appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.
Comment Section (a).--Subject to the time limitation set forth in section (b), section (a) of this Rule and F.R.E. 609(a)(2) both permit the impeachment of any witness by evidence of conviction of a crime involving dishonesty or false statement whatever the punishment for that crime may be. However, this Rule rejects the use of evidence of conviction of a crime punishable by death or imprisonment of more than one year, which is allowed under F.R.E. 609(a)(1) subject to certain balancing tests. This limitation on the type of crime is in accord with Pennsylvania law. Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973).
Section (a) of this Rule, unlike F.R.E. 609(a)(2), specifically provides that a conviction based upon a plea of nolo contendere may be used to impeach; this, too, is consistent with Pennsylvania law. Commonwealth v. Snyder, 408 Pa. 253, 182 A.2d 495 (1962), cert. denied, 371 U. S. 957 (1963). See also, Eisenberg v. Commonwealth Dept. of Public Welfare, 512 Pa. 181, 516 A.2d 333 (1986), an administrative proceeding to terminate a health provider's participation in Pennsylvania's medical assistance program on the grounds that the provider had been ''convicted'' of a Medicaid related criminal offense within the meaning of 55 Pa. Code § 1101.77(a)(6). The Supreme Court held that the imposition of sentence upon the provider's nolo plea to a charge of Medicaid mail fraud was a ''conviction'' under the applicable regulation. The Court quoted with approval from Sokoloff v. Saxbe, 501 F.2d 571, 574 (2 Cir. 1974) as follows: ''Where . . . a statute (or judicial rule) attaches legal consequences to the fact of a conviction, the majority of courts have held that there is no valid distinction between a conviction upon a plea of nolo contendere and a conviction after a guilty plea or trial.'' Eisenberg, 512 Pa. at 187, 516 A.2d at 336.
As a general rule, before sentence has been pronounced, evidence of a jury verdict of guilty or a plea of guilty or nolo contendere may not be used to impeach, Commonwealth v. Zapata, 455 Pa. 205, 314 A.2d 299 (1974), unless that evidence would support a claim of bias or improper motive. Commonwealth v. Williams, 524 Pa. 218, 570 A.2d 75 (1990); Commonwealth v. Hill, 523 Pa. 270, 566 A.2d 252 (1989), reargument denied, 525 Pa. 505, 582 A.2d 587 (1990). Evidence of admission to an Accelerated Rehabilitative Disposition program under Pa.R.Crim.P. 176--186 may not be used to impeach credibility. Admission to the program places the criminal proceedings in abeyance subject to reactivation under certain conditions; hence, there has been no conviction. Commonwealth v. Krall, 290 Pa. Super. 1, 434 A.2d 99 (1981). The result should be the same for a drug dependent offender admitted to the rehabilitation and treatment programs provided for in The Controlled Substance, Drug, Device and Cosmetic Act, 35 Pa.C.S.A. §§ 708--117 and 708--118, where there is also no immediate adjudication and trial on the charges is deferred pending further developments.
Where it is the accused in a criminal case whose credibility is sought to be impeached, 42 Pa.C.S.A. § 5918, which is referred to in the Comments to Pa.R.E. 607 and 608, again comes into play. It was pointed out in the former Comment that its prohibition against questioning a defendant who testifies about conviction ''of any offense other than the one for which he is on trial'' has been interpreted literally to apply only to cross-examination. Hence, evidence of conviction of a crime may be introduced in rebuttal after the defendant has testified. Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973).
Section (b).--Pa.R.E. 609(b) is the same as F.R.E. 609(b) and basically tracks what was said in Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987). Where the date of conviction or last date of confinement is within ten years of the trial date, evidence of the conviction of a crime involving dishonesty or false statement is per se admissible. If a period greater than ten years has elapsed, the evidence may be used only after advance written notice and the trial judge's determination that its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect. In Randall, the Supreme Court stated that the factors enumerated in Bighum, and Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978) would be relevant in determining whether convictions more than ten years old should be admitted.
Section (c).--Although its language differs, section (c) of this Rule is substantively similar to F.R.E. 609(c). There are no Pennsylvania cases dealing squarely with the matters covered by section (c). Where a pardon is based upon a finding that a defendant was in fact innocent, the conviction is a nullity and has no probative value whatsoever; accordingly, there is no basis to permit its use. A pardon based upon a finding of rehabilitation is an indication that the character flaw which gave rise to the inference of untruthfulness has been overcome and so should no longer be taken into account. A subsequent conviction of any crime, whether or not it involves dishonesty or false statement, casts substantial doubt on the finding of rehabilitation and justifies disregarding the finding. In the case of both types of pardon, the instrument embodying the pardon must itself set forth the finding of innocence or rehabilitation. A pardon granted to restore civil rights or to reward good behavior does not fall within section (c) of this Rule. However, Commonwealth v. Quaranta, 295 Pa. 264, 145 A.2d 89 (1926), held that where there is such a pardon, if the underlying conviction is used to impeach, the pardon is admissible in rebuttal.
Section (d).--Pa.R.E. 609(d) is different from F.R.E. 609(d). Under the latter, evidence of juvenile adjudications is generally inadmissible; however, the court may allow such evidence in a criminal case against a witness other than the accused to the same extent as it could be used to attack the credibility of an adult, if satisfied that this is necessary for a fair determination of the issue of guilt or innocence. Section (d) of Pa.R.E. 609 permits a broader use of juvenile adjudications; it is dictated by 42 Pa.C.S.A. § 6354, as amended by Act No. 13 of May 12, 1995, effective July 11, 1995, which changed the law of Pennsylvania.
Prior to Act No. 13, juvenile adjudications could not be used to impeach the credibility of any witness. Commonwealth v. Katchmer, 453 Pa. 461, 308 A.2d 591 (1973). As a result of Act No. 13, in criminal cases, impeachment with evidence of juvenile adjudications of delinquency for an offense is put on the same basis as evidence of conviction of a crime under Pa.R.E. 609(a), i.e., it may be used to impeach any witness, including the accused, if the offense involves dishonesty or false statement. Juvenile adjudications continue to be inadmissible in civil cases for impeachment purposes. However, both before and after the passage of Act No. 13, a juvenile adjudication could be used in civil cases where the juvenile put his or her reputation or character in issue. 42 Pa.C.S.A. § 6354(b)(3). According to the 1976 Official Comment on this provision, it ''is intended to remove the shield from a plaintiff in a civil proceeding where he places his reputation or character in issue, e.g., libel actions.''
Finally, it should be noted that in a criminal case the accused has a right under the confrontation clause of the U. S. Constitution to use the juvenile record of a witness, regardless of the type of offense involved, to show the witness' possible bias, e.g., that the witness is on probation under a juvenile adjudication. Davis v. Alaska, 415 U. S. 309 (1974); Commonwealth v. Simmons, 521 Pa. 218, 555 A.2d 860 (1989), and see cases referred to in Comment to Pa.R.E. 607(b).
Section (e).--This part of this Rule is the same as F.R.E. 609(e). According to the Notes of the Advisory Committee, the provision that a pending appeal does not preclude impeachment by evidence of a prior conviction is based upon the ''presumption of correctness that ought to attend judicial proceedings.'' This is the predominant view. 1 McCormick, Evidence, § 42 (4th ed. 1992). The second sentence of section (e) allows evidence of the appeal to be offered to permit the jury to mitigate the impeachment. United States v. Klayer, 707 F.2d 892 (6th Cir. 1983), cert. denied, 464 U. S. 858 (1983).
Rule 610. Religious Beliefs or Opinions.
Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.
Comment This Rule is identical to F.R.E. 610. It is consistent with 42 Pa.C.S.A. § 5902, which provides that religious beliefs and opinions shall not affect a person's ''capacity'' to testify and that no witness shall be questioned about those beliefs or opinions, and no evidence shall be heard on those subjects for the purpose of affecting ''competency or credibility.'' Pennsylvania decisional law is the same. Commonwealth v. Greenwood, 488 Pa. 618, 413 A.2d 655 (1980); Commonwealth v. Mimms, 477 Pa. 553, 358 A.2d 334 (1978).
The Rule bars evidence of religious beliefs or opinions of a witness only when it is offered for the purpose of showing that, because of their nature, the witness' truthfulness is affected. Evidence introduced for other purposes is not prohibited. McKim v. Phila. Transp. Co., 364 Pa. 237, 72 A.2d 122 (1950) (where plaintiffs alleged loss of earnings from their occupations as religious ministers, questions concerning religious affiliation could be asked to explore impairment of earning power); Commonwealth v. Riggins, 373 Pa. Super. 243, 542 A.2d 1004 (1988) (where murder victim, in a dying declaration, said that one of his assailants was a Muslim, prosecution could elicit testimony that defendant was a Black Muslim for purposes of identification); see generally, Commonwealth v. Cottam, 420 Pa. Super. 311, 616 A.2d 988 (1992), appeal denied, 535 Pa. 673, 636 A.2d 632 (1993).
Rule 611. Mode and Order of Interrogation and Presentation.
(a) Control by Court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time and (3) protect witnesses from harassment or undue embarrassment.
(b) Scope of Cross-Examination. Cross-examination of a witness other than a party in a civil case should be limited to the subject matter of the direct examination and matters affecting credibility; however, the court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. A party witness in a civil case may be cross-examined by an adverse party on any matter relevant to any issue in the case, including credibility, unless the court, in the interests of justice, limits the cross-examination with respect to matters not testified to on direct examination.
(c) Leading Questions. Leading questions should not be used on the direct or redirect examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party or a witness identified with an adverse party, interrogation may be by leading questions; a witness so examined should usually be interrogated by all other parties as to whom the witness is not hostile or adverse as if under redirect examination.
Comment Section (a) of Pa.R.E. 611 is the same as F.R.E. 611(a). However, sections (b) and (c) of the Rule differ from those sections of the Federal Rule.
Section (a).--This section places responsibility for how the trial should be conducted squarely within the discretion of the trial judge and spells out guidelines for the exercise of that discretion. It follows Pennsylvania law. Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988); see also Pa.R.C.P. 223 (relating to the conduct of civil jury trials) and Pa.R.C.P. 224 (relating to the order of proof in civil cases).
Section (b).--F.R.E. 611(b) limits the scope of cross-examination to matters testified to on direct, and matters bearing on credibility, unless the court in its discretion allows inquiry into additional matters as if on direct examination. This has been the traditional view in the Federal courts and many State courts. Except when the accused in a criminal case is the witness, when cross-examination is thus limited, the evidence sought to be developed is not lost; its introduction is merely deferred. The cross-examiner may present the evidence by calling the witness as his or her own.
Pa.R.E. 611(b), which is based on Pennsylvania law, applies the traditional view to all witnesses, other than a party in a civil case, but allows the cross-examination of the latter on all relevant issues, plus matters affecting credibility. Agate v. Dunleavy, 398 Pa. 26, 156 A.2d 530 (1959); Greenfield v. Philadelphia, 282 Pa. 344, 127 A. 768 (1925). Note, however, that both of these decisions state that the broadened scope of cross-examination of a party in a civil case does not alter the long-standing rule that a defendant may not put in his or her defense under cover of cross-examination of the plaintiff; the qualifying clause in the last sentence of section (b) will give the trial judge discretion to follow this rule.
In applying the rule of limited cross-examination in a civil case to a non-party witness, the Supreme Court said in Conley v. Mervis, 324 Pa. 577, 582, 188 A. 350, 353 (1936) that, ''cross-examination may embrace any matter germane to the direct examination, qualifying or destroying it, or tending to develop facts which have been improperly suppressed or ignored by the [witness].''
The use of the limited cross-examination rule to preclude a defendant in a criminal case from cross-examining a prosecution witness about matters beyond the scope of the direct examination has been upheld in Commonwealth v. Cessna, 371 Pa. Super. 89, 537 A.2d 834 (1988) and Commonwealth v. Lobel, 294 Pa. Super. 550, 440 A.2d 602 (1982). The Superior Court pointed out that the defendant may present the evidence sought on cross-examination by calling the witness as a defense witness. The defendant did this in the Lobell case, but failed to exercise this prerogative in the Cessna case.
Under the first sentence of Pa.R.E. 611(b), the limited cross-examination rule is applicable to witnesses in a criminal case. When the accused is the witness, there is an interplay between any rule of evidence regarding scope of cross-examination and the accused's privilege against self-incrimination.
When the accused testifies generally as to facts tending to negate or raise doubts about the prosecution's evidence, he or she has waived the privilege, and may not use it to prevent the prosecution from bringing out on cross-examination every circumstance relating to those facts, and the prosecution may examine the accused on any matters tending to refute all inferences or deductions arising from the direct examination. Commonwealth v. Green, 525 Pa. 424, 581 A.2d 544 (1990). However, the outcome is different when the accused's testimony is more selective, e.g., in a trial on an information charging two offenses, the accused chooses to testify about only one of the charges, or in a case involving a confession, the accused's testimony is confined to the issue of voluntariness of the confession.
The latter situation occurred in Commonwealth v. Camm, 443 Pa. 253, 277 A.2d 325 (1971), cert. denied, 405 U. S. 1046 (1972). There the defendant was convicted of murder in the second degree. The primary evidence against him was his written confession. At the trial, the defendant took the stand for the express purpose of challenging the voluntariness of the confession, and testified only about the treatment accorded him and the course of events leading up to his signing of the confession. In his closing argument, the prosecutor made adverse references to the defendant's failure to deny the killing when he was on the stand. The Supreme Court held that since the defendant had testified only about the voluntariness of his confession, ''the waiver of his privilege was co-extensive with the permissible scope of cross-examination relative to that subject; it was not a general waiver . . . . '' 443 Pa. at 264, 277 A.2d at 331. Accordingly, the prosecutor's comment, inviting the jury to draw an adverse inference from the defendant's failure to testify as to his innocence, violated his rights under the Fifth Amendment of the U. S. Constitution. 443 Pa. at 268, 277 A.2d at 332--333. However, the Court went on to hold that the error was harmless beyond a reasonable doubt.
The waiver issue arose also in Commonwealth v. Ulen, 414 Pa. Super. 502, 607 A.2d 779 (1992), rev'd. on other grounds, 539 Pa. 51, 650 A.2d 416 (1994), a prosecution for the possession of and attempt to deliver a controlled substance. The defendant presented only one witness, the tenor of whose testimony was that the drugs belonged to another person. In rebuttal the prosecution called a witness who testified that the defendant's witness and the defendant had tried to suborn her to give false testimony about ownership of the drugs. Defendant then took the stand and testified only to contradict the prosecution's rebuttal evidence. In his closing argument, the prosecutor alluded to the limited scope of the defendant's testimony and his failure to controvert any of the evidence relating to the events leading to his arrest. The Superior Court, following the decision in the Camm case, held that the prosecutor's remarks were improper because the defendant ''did not waive entirely his Fifth Amendment privilege by taking the stand to refute the Commonwealth's rebuttal evidence. The waiver occurred only with respect to the area of inquiry opened by his surrebuttal testimony.'' 414 Pa. Super. at 526--27, 607 A.2d at 791--92. Here again, the Court held that the error was harmless.
Section (c).--Pa.R.E. 611(c) makes two changes in the comparable section of the Federal Rule. First of all, the words ''or redirect'' do not appear in the first sentence of the latter; they are intended to remove any doubt that the rule on leading questions applies to redirect as well as direct examination. Commonwealth v. Reidenbaugh, 282 Pa. Super. 300, 422 A.2d 1126 (1980). Secondly, a clause has been added to the last sentence of section (c) to provide that the permission to use leading questions given to a party who calls a hostile witness, an adverse party or one identified with an adverse party, usually should not be extended to other parties if the witness is not hostile or adverse to them.
Section (c) is generally in accord with Pennsylvania law. A leading question has been defined as one which indicates or suggests the answer desired by the examiner. Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 (1991), cert. denied, 504 U. S. 946 (1992); Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981). As set forth in section (c), leading questions should not be used on direct examination, but may be employed on cross. Rogan Estate, 404 Pa. 205, 171 A.2d 177 (1961). The right to lead a witness on cross-examination is qualified in section (c), as it is in the Federal Rule, by the word ''ordinarily.'' This qualification is meant to be a basis for denying the use of leading questions when the cross-examination is in form only rather than in fact, e.g., the questioning of a party by his or her own attorney after having been called by an opponent, or the cross-examination of an insured defendant who is friendly to the plaintiff. See Notes of the Advisory Committee to F.R.E. 611.
Leading questions may be put to a hostile witness, Commonwealth v. Settles, 442 Pa. 159, 275 A.2d 61 (1971), and to an adverse party. Agate 398 Pa. at 29, 156 A.2d at 531. Section (c) is consistent also with 42 Pa.C.S.A. § 5935. That statute authorizes the calling and cross-examination of an adverse party or a person having an adverse interest; this, of course, embraces the use of leading questions.
The reason a party who calls a hostile witness or adverse party or one identified with the latter may use leading questions is that such persons are ''unfriendly'' to the party calling them, and there is little risk that they will be susceptible to any suggestions inherent in the questions. But that risk is present when any of those witnesses is interrogated by a party as to whom the witness is not hostile, an adverse party or one identified with the latter. The last clause of section (c) restricts the use of leading questions in those circumstances; however, the word ''usually'' is meant to qualify the restriction so that it may be set aside in an appropriate case; e.g., a witness called and examined as a hostile witness by one party, whose testimony substantially harms the interest of another party with whom the witness is neither friendly nor unfriendly.
Rule 612 Writing or Other Item Used to Refresh Memory.
(a) Right to Refresh Memory and Production of Refreshing Materials. A witness may use a writing or other item to refresh memory for the purpose of testifying. If the witness does so, either
(1) while testifying, or
(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,
an adverse party is entitled to have the writing or other item produced at the hearing, trial or deposition, to inspect it, to cross-examine the witness on it and to introduce in evidence those portions which relate to the testimony of the witness.
(b) Redaction of Writing or Other Item and Sanctions. If it is claimed that the writing or other item contains matters not related to the subject matter of the testimony, the court shall examine it in camera, excise any portion not so related and order delivery of the remainder to the party entitled to it. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing or other item is not produced or delivered pursuant to an order under this section, the court shall make any order justice requires, except that in criminal cases when the prosecution does not comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial, or the court may use contempt procedures.
Comment This Rule differs from F.R.E. 612 in the following respects:
1. The subject matter of Pa.R.E. 612 and F.R.E. 612 is the same but the former covers it in two sections whereas the latter deals with it in one lengthy paragraph. The organization of Pa.R.E. 612 is derived, in part, from the Uniform Rules of Evidence, Rule 612 (1974).
2. The right to refresh memory which is implicit in the Federal Rule is set forth explicitly at the beginning of Pa.R.E. 612.
3. The reference to 18 U.S.C. § 3500 (the Jencks Act) which appears in the Federal Rule has been eliminated because it is inapposite.
4. In Pa.R.E. 612 the words ''or other item'' have been added after the word ''writing'' wherever it appears.
5. The words ''trial or deposition'' have been added in Pa.R.E. 612(a) after the word ''hearing'' primarily to dispel any doubt about the applicability of the rule to depositions. The addition of ''trial'' is for the sake of completeness.
6. In the last sentence of Pa.R.E. 612(b), the words ''elects not to'' which appear after the word ''prosecution'' have been replaced by the words ''does not'' and ''contempt procedures'' have been added to the sanctions which may be employed in criminal cases.
Despite these changes, Pa.R.E. 612 and its Federal counterpart are substantively equivalent.
Section (a).--The right of a witness to refresh his or her memory provided for in section (a), is well established in Pennsylvania. Commonwealth v. Payne, 455 Pa. 503, 317 A.2d 208 (1974). Although in most cases, it is a writing that is used for this purpose, it is recognized that many other things can spur one's memory (e.g., photographs). Most courts ''adhere to the view that any memorandum or other object may be used as a stimulus to present memory, without restriction by rule as to authorship, guarantee of correctness or time of making.'' 1 McCormick, Evidence, § 9 (4th ed. 1992). The addition of the words ''or other item'' in section (a) takes this into account.
This is consistent with Pennsylvania law. Dean Witter Reynolds, Inc. v. Genteel, 346 Pa. Super. 336, 499 A.2d 637 (1985) (well settled that a witness ''may use any writing or other aid to refresh or revive his or her present recollection of past events . . . ''); Commonwealth v. Fromal, 202 Pa. Super. 45, 195 A.2d 174 (1963) (means of refreshing memory are almost unlimited). An item may be used to refresh memory even though it is inadmissible in evidence. Commonwealth v. Weeden, 457 Pa. 436, 322 A.2d 343 (1974), cert. denied, 420 U. S. 937 (1974) (dictum); Panik v. Didra, 370 Pa. 488, 88 A.2d 730 (1952); Dean Witter, 346 Pa. Super. at 344, 494 A.2d at 641.
The procedures for refreshing a witness' memory are reviewed in Commonwealth v. Proctor, 253 Pa. Super. 369, 385 A.2d 383 (1978). The Superior Court stated that it must be shown that the witness' present memory is inadequate, that a writing or other object could refresh the witness' memory and that reference to the writing or other object does actually refresh the witness' memory. 253 Pa. Super. at 373, 385 A.2d at 385. This was followed in Solomon v. Baum, 126 Pa. Cmwlth. 646, 560 A.2d 878 (1989), holding that an accident investigation report could not be shown to a police officer who testified that he had an independent present recollection of the accident.
The theory of the memory refreshing process is that the recollection of the hazy witness will be jogged by bringing a writing or other item to the witness' attention so that he or she will then have a present recall of the past events. It follows, therefore, that the witness must testify from present memory and not from the writing or other item, and having served its purpose, the writing or other item may not be introduced into evidence by the proponent of the testimony. Commonwealth v. Canales, 454 Pa. 422, 311 A.2d 572 (1973). This process differs from the exception to the hearsay rule for recorded recollection, where a prior memorandum or other record, made by a witness who has insufficient present memory to testify accurately, is itself admitted into evidence if it meets the requirements of Pa.R.E. 803.1(3).
When a witness is shown something for the purpose of refreshing memory, there is a danger that what the witness looks at will be unduly suggestive of what his or her testimony should be, and that what is then put forth as rekindled present recollection is in fact not that at all. Giving the adverse party access to what was shown to the witness to use in cross-examination and to introduce into evidence is a way of protecting against this risk.
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