[28 Pa.B. 2369]
[Continued from previous Web Page] 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 Pa.R.E. 612 and F.R.E. 612 are substantively equivalent, but differ somewhat in language and structure:
1. Pa.R.E. 612 covers the same subject matter as F.R.E. 612, but does so in two sections rather than one lengthy paragraph. The organization of Pa.R.E. 612 is derived, in part, from the Uniform Rules of Evidence, Rule 612 (1974).
2. Pa.R.E. 612 explicitly sets forth the right to refresh memory, which is implicit in the Federal Rule.
3. Pa.R.E. 612 does not include the reference to 18 U.S.C. § 3500 (the Jencks Act) appearing in the Federal Rule, because it is inapposite.
4. Pa.R.E. 612 uses the phrase ''writing or other item'' where the Federal Rule uses the term ''writing.''
5. Pa.R.E. 612(a) includes the words ''trial or deposition'' after the word ''hearing'' primarily to make clear that the rule applies to depositions. The addition of ''trial'' is for completeness.
6. The last sentence of Pa.R.E. 612(b) uses the phrase ''prosecution does not'' instead of the phrase ''prosecution elects not to,'' which appears in the Federal Rule. Additionally, Pa.R.E. 612(b) adds ''contempt procedures'' to the sanctions usable in criminal cases listed in the Federal Rule.
Section (a) The right to refresh a witness' memory is well established in Pennsylvania. See Commonwealth v. Payne, 455 Pa. 503, 317 A.2d 208 (1974). Although usually the witness' memory is refreshed by a writing, most courts recognize that many other things, such as photographs, can spur the memory. 1 McCormick, Evidence § 9 (4th ed. 1992) (''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.'') The addition of the words ''or other item'' in section (a) takes this into account.
This is consistent with Pennsylvania law. See Dean Witter Reynolds, Inc. v. Genteel, 346 Pa. Super. 336, 499 A.2d 637 (1985); Commonwealth v. Fromal, 202 Pa. Super. 45, 195 A.2d 174 (1963). An item may be used to refresh memory even though it is inadmissible in evidence. See Commonwealth v. Weeden, 457 Pa. 436, 322 A.2d 343 (1974); 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).
Pa.R.E. 612(a) gives the adverse party access to the item used to refresh the witness' memory while the witness is testifying. This is consistent with Pennsylvania law. See Commonwealth v. Proctor, supra; see also Commonwealth v. Allen, 220 Pa. Super. 403, 289 A.2d 476 (1972). The rule protects against the risk that the item used to refresh memory may suggest testimony to the witness instead of refreshing present recollection. Production of the item to the adverse party is discretionary with the court, however, when it is used to refresh memory before testifying. See Commonwealth v. Samuels, 235 Pa. Super. 192, 340 A.2d 880 (1975); Commonwealth v. Fromal, 202 Pa. Super. 45, 195 A.2d 174 (1963).
Pa.R.E. 612(a), like F.R.E. 612(a), specifically provides that the adverse party may use the item in cross-examination and may introduce the item into evidence. There is no prior Pennsylvania authority on the issue of the item's admissibility. By admitting the item into evidence, the trier of fact can put the whole matter --what the witness was shown, how the witness testified on direct and cross examination--in proper context. The evidence is received for impeachment purposes only unless it comes within one of the exceptions to the hearsay rule in Pa.R.E. 803, 803.1 and 804(b).
Pa.R.E. 612(a) is not intended to change the rule that in a criminal case, written statements made by a witness to police prior to trial must be given to the defendant following the testimony of the witness on direct examination, even if the statements were not used to refresh memory. Commonwealth v. Kantos, 442 Pa. 343, 276 A.2d 830 (1971).
Pa.R.E. 612(a), unlike the Federal Rule, explicitly applies to deposition testimony. Most of the cases have applied the Federal Rule to depositions based upon Fed.R.Civ.P. 30(c), which states: ''Examination and cross-examination of witnesses [at a deposition] may proceed as permitted at trial under the provisions of the Federal Rules of Evidence.'' 28 Wright & Gold, Federal Practice and Procedure § 6183 (1993); see, e.g., Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985).
There are no Pennsylvania cases on this point and the Pennsylvania Rules of Civil Procedure do not have a provision similar to Fed.R.Civ.P. 30(c). In Pennsylvania, however, an adverse party's need for access to the item used to refresh memory is as great at a deposition as at trial because Pennsylvania statutes and procedural rules provide in certain circumstances for the introduction of deposition testimony at trial. Moreover, because the rule allows deposition testimony to be challenged, any suggestion arising from the refreshing can be exposed immediately and eliminated at the time of trial.
Pa.R.E. 612(a), like F.R.E. 612, applies to the use of a writing or other item to refresh memory ''for the purpose of testifying.'' In the Federal Rule, the phrase was intended ''to safeguard against using the rule as a pretext for wholesale exploration of an opposing party's files and to insure that access is limited only to those writings which may fairly be said in fact to have an impact upon the testimony of the witness.'' F.R.E. 612 advisory committee notes; see, e.g., Sporck v. Peil, supra (deposition witness examined large number of documents, selected by counsel, in preparation for testifying at deposition).
Section (b)--Except for the changes concerning sanctions in criminal cases when the prosecution fails to comply with an order to produce, Pa.R.E. 612(b) is the same as the last three sentences of F.R.E. 612. An adverse party has rights only to those parts of any materials used to refresh memory that bear upon the witness' testimony. When the party who did the refreshing contends that some part of what the witness was shown goes beyond the scope of the testimony, Pa.R.E. 609(b) requires the court to make an in camera inspection and to remove any extraneous matter. Of course, what is excised must be preserved in the event that the redaction is challenged on appeal. This is a well recognized technique.
The last sentence of Pa.R.E. 612(b) targets what will likely be the rare case of a failure to comply with an order to produce. In a civil case, the court is given broad discretion. The problem is akin to the failure of a party to comply with discovery orders, for which Pa.R.Civ.P. 4019 provides a wide range of sanctions. Similarly, under Pa.R.E. 609(b), the court may employ a sanction best calculated to remedy the harm caused by the failure to produce.
Rule 613. Prior Statements of Witnesses.
(a) Examining Witness Concerning Prior Statement. A witness may be examined concerning a prior statement made by the witness, whether written or not, and the statement need not be shown or its contents disclosed to the witness at that time, but on request the statement or contents shall be shown or disclosed to opposing counsel.
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Unless the interests of justice otherwise require, extrinsic evidence of a prior inconsistent statement by a witness is admissible only if, during the examination of the witness,
(1) the statement, if written, is shown to, or if not written, its contents are disclosed to, the witness;
(2) the witness is given an opportunity to explain or deny the making of the statement; and
(3) the opposite party is given an opportunity to question the witness.
This section does not apply to admissions of a party-opponent as defined in Rule 803(25) (relating to admissions by a party opponent).
(c) Evidence of Prior Consistent Statement of Witness. Evidence of a prior consistent statement by a witness is admissible for rehabilitation purposes if the opposing party is given an opportunity to cross-examine the witness about the statement, and the statement is offered to rebut an express or implied charge of:
(1) fabrication, bias, improper influence or motive or faulty memory and the statement was made before that which has been charged existed or arose; or
(2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness' denial or explanation.
Comment Pa.R.E. 613 differs from F.R.E. 613 both in organization and substance. Both Pa.R.E. 613 and F.R.E. 613 cover impeachment by prior inconsistent statements, but only Pa.R.E. 613 deals with rehabilitation by prior consistent statements.
Section (a).--This section of the Rule is identical to F.R.E. 613(a). By dispensing with the need to show the prior statement or disclose its contents to the witness before proceeding with examination about it, section (a) repudiates the decision in the Queen's Case, 129 Eng. Rep. 9761 (1820). Pa.R.E. 613(a) resolves the ambiguity in the scant Pennsylvania authority on this point. Compare Kann v. Bennett, 223 Pa. 36, 72 A. 342 (1909) (before witness may be cross-examined about prior inconsistent statement, witness must be shown the statement and asked if he wrote it) with Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974) (overlooking Kann case, court stated it had never considered question of showing statement to witness, and found no need to resolve question under facts of case).
Section (b).--The first sentence of section (b) of Pa.R.E. 613 differs from F.R.E. 613(b). Like the Federal Rule, Pa.R.E. 613(b) permits introduction of extrinsic evidence of a prior inconsistent statement only if the witness was confronted with or informed of the statement, thus providing the witness with a chance to deny or explain the statement. Pa.R.E. 613(b), however, requires that the witness be confronted or informed during the examination; the Federal Rule sets no particular time or sequence. F.R.E. 613 advisory committee notes.
Pa.R.E. 613(b) follows the traditional common law approach. It establishes that the witness must be shown or made of aware of the prior inconsistent statement before extrinsic evidence of the statement may be introduced, unless relaxation of the rule would serve the interests of justice. This is a departure from Pennsylvania authority, which gives the trial court discretion whether to require showing or disclosure of the statement. See, e.g., Commonwealth v. Manning, 495 Pa. 652, 435 A.2d 1207 (1981); Commonwealth v. Dennison, 441 Pa. 334, 272 A.2d 180 (1971).
The rationale for the last sentence of section (b), which exempts admissions of a party-opponent, is that ''parties have ample opportunities to testify and explain or deny statements attributed to them.'' 28 Wright & Gold, Federal Practice and Procedure § 6205 (1993). The exemption is in accord with Pennsylvania law. Commonwealth by Truscott v. Binenstock, 358 Pa. 644, 57 A.2d 884 (1948); Commonwealth v. Dilworth, 289 Pa. 498, 137 A. 683 (1927).
Finally, as noted in the Comment to Pa.R.E. 607(a), a prior inconsistent statement may be used only for impeachment purposes and not substantively unless it is an admission of a party opponent under Pa.R.E. 803(25), the statement of a witness other than a party opponent within the hearsay exception of Pa.R.E. 803.1(1), or a statement of prior identification under the hearsay exception of Pa.R.E. 803.1(2).
Section (c).--Pa.R.E. 613(c) does not appear in F.R.E. 613. F.R.E. 801(d)(1)(B) provides that the prior consistent statement of a testifying witness is not hearsay, and that the statement is admissible substantively if it is consistent with the witness' testimony and ''is offered to rebut an express or implied charge of recent fabrication, or improper influence or motive.'' Pa.R.E. 613(c) adds ''bias,'' ''faulty memory'' and ''prior inconsistent statement'' to the kind of charges that may be rebutted by a consistent statement. In addition, it specifically provides in subsection (c)(1) that the consistent statement must have been made before the fabrication, bias, etc. Although F.R.E. 801(d)(1)(B) is silent on this point, the Supreme Court held that it permits the introduction of consistent statements as substantive evidence only when they were made before the challenged fabrication, influence or motive. See Tome v. United States, 513 U.S. 150 (1995). Unlike the Federal Rule, under Pa.R.E. 613(c), a prior consistent statement is always received for rehabilitation purposes only and not as substantive evidence.
Pa.R.E. 613(c)(1) is in accord with Pennsylvania law. See Commonwealth v. Hutchinson, 521 Pa. 482, 556 A.2d 370 (1989) (to rebut charge of recent fabrication); Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988) (to counter alleged corrupt motive); Commonwealth v. Swinson, 426 Pa. Super. 167, 626 A.2d 627 (1993) (to negate charge of faulty memory); Commonwealth v. McEachin, 371 Pa. Super. 188, 537 A.2d 883 (1988), appeal denied, 520 Pa. 603, 553 A.2d 965 (1988) (to offset implication of improper influence). All of these cases require that the consistent statement must have been made before the fabrication, bias, etc.
Pa.R.E. 613(c)(2) is arguably an extension of Pennsylvania law, but is based on the premise that when an attempt has been made to impeach a witness with an alleged prior inconsistent statement, a statement consistent with the witness' testimony should be admissible to rehabilitate the witness if it supports the witness' denial or explanation of the alleged inconsistent statement. Where there has been a denial of the alleged inconsistent statement, the consistent statement should almost invariably be admitted, regardless of its timing. When the witness admits and explains the inconsistent statement, the use of the consistent statement will depend upon the nature of the explanation and all of the circumstances that prompted the making of the consistent statement; the timing of that statement, although not conclusive, is one of the factors to be considered. If the witness acknowledges making the inconsistent statement and offers no explanation, a consistent statement, whether made earlier or later, should not be admitted.
Usually, evidence of a prior consistent statement is rebuttal evidence that may not be introduced until after witness has testified on direct examination and an express or implied attack has been made on the witness' testimony in one of the ways set forth in Pa.R.E. 613(c). But in at least two situations, Pennsylvania Courts have upheld the admission of a prior consistent statement in anticipation of an attack on the witness. See Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246 (1988) (prior consistent statements by prosecution witness admitted on direct examination where defense counsel's opening statement suggested that the witness had motives to fabricate evidence against the defendant to obtain a lenient sentence for herself); Commonwealth v. Freeman, 295 Pa. Super. 467, 441 A.2d 1327 (1982) (evidence of prompt complaint of rape by alleged victim may be introduced in prosecution's case in chief because alleged victim's testimony is ''automatically vulnerable to attack by the defendant as recent fabrication in the absence of evidence of hue and cry on her part.'').
Rule 614. Calling and Interrogation of Witnesses by Court.
(a) Calling by Court. Consistent with its function as an impartial arbiter, the court, with notice to the parties, may, on its own motion or at the suggestion of a party call witnesses, and all parties are entitled to cross-examine witnesses thus called.
(b) Interrogation by Court. Where the interest of justice so requires, the court may interrogate witnesses, whether called by itself or by a party.
(c) Objections. An objection to the calling of a witness by the court must be made at the time of the court's notice of an intention to call the witness. An objection to a question by the court must be made at the time the question is asked; when requested to do so, the court shall give the objecting party an opportunity to make objections out of the presence of the jury.
Comment Pa.R.E. 614(a) and (b) differ from F.R.E. 614(a) and (b) in several respects. The phrase relating to the court's ''function as an impartial arbiter'' and the provision for notice have been added in Pa.R.E. 614(a), and the clause regarding ''interest of justice'' has been added in Pa.R.E. 614 (b). The additions dealing with the court as an ''impartial arbiter'' and the ''interest of justice'' are consistent with Pennsylvania law. See Commonwealth v. Crews, 429 Pa. 16, 239 A.2d 350 (1968); Commonwealth v. DiPasquale, 424 Pa. 500, 230 A.2d 449 (1967); Commonwealth v. Myma, 278 Pa. 505, 123 A. 486 (1924).
The provision requiring notice of the court's intention to call a witness will give all parties an opportunity to be heard regarding the need for this, to object and to prepare for the cross-examination of the witness.
Unlike F.R.E. 614(c), Pa.R.E. 614(c) does not permit objection to the court's calling or interrogating witnesses ''at the next available opportunity when the jury is not present.'' The Federal Rule permits this to relieve counsel of ''the embarrassment'' which might arise by objecting to the judge's questions in the jury's presence. F.R.E. 614(c) advisory committee notes. This rationale is comparable to the rationale for the ''automatic'' objection when the judge is called as a witness in F.R.E. 605. Under the Pennsylvania rules, the appropriate time for objecting to the calling of a witness by the court is when the court gives notice of its intention as required by Pa.R.E. 614(a). The court's notice should always take place out of the presence of the jury. When the court's questions to a witness are thought to be objectionable, the issue must be raised when the questions are put. In this way, the jury will not hear the evidence sought if the objection is sustained.
Rule 615. Sequestration of Witnesses.
At the request of a party or on its own motion, the court may order witnesses sequestered so that they cannot learn of the testimony of other witnesses. This section does not authorize sequestration of the following:
(1) a party who is a natural person or the guardian of a party who is a minor or an incapacitated person;
(2) an officer or employee of a party which is not a natural person (including the Commonwealth) designated as its representative by its attorney; or
(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.
Comment Pa.R.E. 615 differs from F.R.E. 615. Pa.R.E. 615 uses the term ''sequestration'' instead of ''exclusion'' and substitutes ''learn of'' for ''hear'' in the first sentence. It also puts sequestration within the discretion of the court rather than making it mandatory upon motion of a party. Finally, Pa.R.E. 615 adds the guardian of a minor or incapacitated person to the first category of persons whom the court may not sequester.
Sequestration, i.e., barring a witness from the courtroom during the testimony of other witnesses and prohibiting direct and indirect communication both in and out of the courtroom is designed to discourage and expose fabrication, collusion, inaccuracies and inconsistencies. 1 McCormick, Evidence, § 50 (4th ed. 1992). Placing it within the discretion of the trial court is in conformity with Pennsylvania law. See Commonwealth v. Albrecht, 510 Pa. 603, 511 A.2d 764 (1986) (the decision of the trial court on whether or not to sequester a witness will not be reversed absent a clear abuse of discretion). Examples of abuse of discretion may be found in Commonwealth v. Fant, 480 Pa. 586, 391 A.2d 1040 (1978) and Commonwealth v. Turner, 371 Pa. 417, 88 A.2d 915 (1952) (refusal to sequester detectives who allegedly witnessed inculpatory statement).
The three categories of persons listed in Pa.R.E. 615 whom the court may not sequester are akin to those in the Federal Rule, with some slight differences. Clause (1) covers natural persons who are parties; their exclusion would raise constitutional problems of confrontation and due process. The inclusion of guardians of parties who are minors or incapacitated persons is consistent with Pa.R.Civ.P. 2027 (minors) and 2053 (incapacitated persons), which place the conduct of actions on behalf of those parties under the supervision and control of their guardians. Clause (2) applies to the designated representatives of a party that is not a natural person. The parenthetical phrase relating to the Commonwealth does not appear in F.R.E. 615(2); it is meant to make clear that in a criminal case, the prosecution has a right to have the law enforcement agent primarily responsible for investigating the case at the counsel table to assist in presenting the case, even though the agent will be a witness. See Notes of the Committee on the Judiciary, Senate Report No. 93-1274, and Advisory Committee Notes to F.R.E. 615(2). Clause (3) refers to persons such as the one who handled the transaction involved in the case or an expert relied upon by counsel for advice in managing the litigation.
The trial court has discretion in choosing a remedy for violation of a sequestration order. See Commonwealth v. Smith, 464 Pa. 314, 346 A.2d 757 (1975). Remedies include ordering a mistrial, forbidding the testimony of the offending witness, or an instruction to the jury. Commonwealth v. Scott, 496 Pa. 78, 436 A.2d 161 (1981).
The provisions of Pa.R.E. 615 are subject to the control of the trial court under Pa.R.E. 611(a).
ARTICLE VII. OPINIONS AND EXPERT TESTIMONY Rule
701. Opinion Testimony by Lay Witnesses. 702. Testimony by Experts. 703. Bases of Opinion Testimony by Experts. 704. Opinion on Ultimate Issue. 705. Disclosure of Facts or Data Underlying Expert Opinion. 706. Court Appointed Experts. Rule 701. Opinion Testimony by Lay Witnesses.
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are rationally based on the perception of the witness and helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
Comment This rule is identical to F.R.E. 701 except for the deletion of the (a) and (b) divisions within the text of the rule. No substantive changes result from this deletion.
Pa.R.E. 701 is consistent with Pennsylvania law. See Lewis v. Mellor, 259 Pa. Super. 509, 393 A.2d 941 (1978) (adopting F.R.E. 701). Under Lewis, lay opinion may embrace the ultimate issue. See Pa.R.E. 704. The trial judge may exclude the opinion if the trial judge decides that it would not be helpful, or would confuse, mislead, or prejudice the jury, or would waste time. Lewis, 259 Pa. Super. at 523-24, 393 A.2d at 949.
Rule 702. Testimony By Experts.
If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.
Comment Pa.R.E. 702 differs from F.R.E. 702 in that the words ''beyond that possessed by a lay person'' have been added to make the rule consistent with Pennsylvania law. See Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992).
Adoption of Pa.R.E. 702 does not alter Pennsylvania's adoption of the standard in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which requires scientific evidence to have ''general acceptance'' in the relevant scientific community. See Commonwealth v. Dunkle, supra; Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981); Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). In 1993, the United States Supreme Court held that Frye was superseded in the federal courts by the adoption of F.R.E. 702. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Pennsylvania courts have not yet decided whether the rationale in Daubert supersedes or modifies the Frye test in Pennsylvania. Commonwealth v. Crews, 536 Pa. 508, n.2, 640 A.2d 395 (1994).
Pa.R.E. 702 does not change the Pennsylvania rule for qualifying a witness to testify as an expert. In Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 480-81, 664 A.2d 525, 528 (1995), the Supreme Court stated:
The test to be applied when qualifying a witness to testify as an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.Pa.R.E. 702 does not change the requirement that an expert's opinion must be expressed with reasonable certainty. See McMahon v. Young, 442 Pa. 484, 276 A.2d 534 (1971).
Pa.R.E. 702 states that an expert may testify in the form of an ''opinion or otherwise.'' Much of the literature assumes that experts testify only in the form of an opinion. The language ''or otherwise'' reflects the fact that experts frequently are called upon to educate the trier of fact about the scientific or technical principles relevant to the case. See F.R.E. 702 advisory committee notes.
Rule 703. Bases of Opinion Testimony by Experts.
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
Comment Pa.R.E. 703 is identical to F.R.E. 703 and is consistent with Pennsylvania law.
Historically, Pennsylvania courts limited the facts or data upon which an expert could base an opinion to those obtained from firsthand knowledge or from the trial record. See Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968). Beginning in 1971 with Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971), Pennsylvania courts have endorsed and expanded the principle that experts may base their opinions on evidence which is otherwise inadmissible if the evidence is of a type reasonably relied upon by experts in the particular field. See Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Commonwealth v. Bowser, 425 Pa. Super. 24, 624 A.2d 125 (1993); In Re Glosser Bros., Inc., 382 Pa. Super. 177, 555 A.2d 129 (1989); Bolus v. United Penn Bank, 363 Pa. Super. 247, 525 A.2d 1215 (1987). If it be feared that enlargement of permissible data may tend to break down the rules of exclusion unduly, notice should be taken that the rule requires that the facts or data be ''of a type reasonably relied upon by experts in the particular field.'' See F.R.E. 702 advisory committee notes. Whether evidence is reasonably relied upon by the expert is a preliminary question for determination by the trial court under Pa.R.E. 104.
When an expert testifies about the underlying facts and data that support the expert's opinion and the testimony would be otherwise inadmissible, the trial court should instruct the jury to consider the testimony only to explain the basis for the expert's opinion, and not as substantive evidence. Compare Pa.R.E. 105.
An expert's testimony is inadmissible if the opinion is not the opinion of the expert testifying, but rather a recitation or reaction to an opinion given by an expert who does not testify. See Primavera v. Celotex Corp., 415 Pa. Super. 41, 608 A.2d 515 (1992).
Rule 704. Opinion on Ultimate Issue.
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
Comment Pa.R.E. 704 is substantively the same as F.R.E. 704(a) and is consistent with Pennsylvania law. F.R.E. 704(b) has not been adopted.
Under Pennsylvania law, the trial judge has discretion to allow lay opinion on the ultimate issue. The judge must balance the helpfulness of the testimony against its potential to cause confusion or prejudice. See Lewis v. Mellor, 259 Pa. Super. 509, 393 A.2d 941 (1978); Pa.R.E. 701 and its comment.
Pennsylvania law allows expert opinion testimony on the ultimate issue. See Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Cooper v. Metropolitan Life Ins. Co., 323 Pa. 295, 186 A. 125 (1936). As with lay opinions, the trial judge has discretion to admit or exclude expert opinions on the ultimate issue depending on the helpfulness of the testimony versus its potential to cause confusion or prejudice. See Kozak v. Struth, 515 Pa. 554, 531 A.2d 420 (1987); Commonwealth v. Brown, 408 Pa. Super. 246, 596 A.2d 840 (1991).
Pa.R.E. 704 omits F.R.E. 704(b) which prohibits an expert from testifying with respect to whether the defendant in a criminal case did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. When the Superior Court in Lewis v. Mellor, adopted F.R.E. 704 in 1978, it only contained part (a). F.R.E. 704(b) was added in 1984. The Pennsylvania Supreme Court has consistently held that expert psychiatric testimony is admissible to negate the specific intent to kill which is essential to first degree murder. See Commonwealth v. Terry, 513 Pa. 381, 521 A.2d 398 (1987); Commonwealth v. Garcia, 505 Pa. 304, 479 A.2d 473 (1984); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976).
Rule 705. Disclosure of Facts or Data Underlying Expert Opinion.
The expert may testify in terms of opinion or inference and give reasons therefor; however, the expert must testify as to the facts or data on which the opinion or inference is based.
Comment The text and substance of Pa.R.E. 705 differ significantly from F.R.E. 705. The Federal Rule generally does not require an expert witness to disclose the facts upon which an opinion is based prior to expressing the opinion. Instead, the cross-examiner bears the burden of probing the basis of the opinion. Pennsylvania does not follow the Federal Rule. See Kozak v. Struth, 515 Pa. 554, 560, 531 A.2d 420, 423 (1987) (declining to adopt F.R.E. 705, the Court reasoned that ''requiring the proponent of an expert opinion to clarify for the jury the assumptions upon which the opinion is based avoids planting in the juror's mind a general statement likely to remain with him in a jury room when the disputed details are lost.'') Relying on cross examination to illuminate the underlying assumption, as F.R.E. 705 does, may further confuse jurors already struggling to follow complex testimony. Id.
Accordingly, Kozak requires disclosure of the facts used by the expert in forming an opinion. The disclosure can be accomplished in several ways. One way is to ask the expert to assume the truth of testimony the expert has heard or read. The Kroeger Co. v. W.C.A.B., 101 Pa. Cmwlth. 629, 516 A.2d 1335 (1986); Tobash v. Jones, 419 Pa. 205, 213 A.2d 588 (1965). Another option is to pose a hypothetical question to the expert. Dietrich v. J.I. Case Co., 390 Pa. Super. 475, 568 A.2d 1272 (1990); Hussy v. May Department Stores, Inc., 238 Pa. Super. 431, 357 A.2d 635 (1976).
The salient facts relied upon as the basis of the expert opinion must be in the record so that the jury may evaluate the opinion. See Commonwealth v. Rounds, 518 Pa. 204, 542 A.2d 997 (1988). The expert's testimony regarding the facts or data on which the opinion is based is subject to Pa.R.E. 703.
Rule 706. Court Appointed Experts.
Where the court has appointed an expert witness, the witness appointed shall advise the parties of the witness' findings, if any. The witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. In civil cases, the witness' deposition may be taken by any party.
Comment Pa.R.E. 706 differs from F.R.E. 706. Unlike the Federal Rule, Pa.R.E. 706 does not affect the scope of the trial court's power to appoint experts. Pa.R.E. 706 provides only the procedures for obtaining the testimony of experts after the court has appointed them.
Pennsylvania law provides for the appointment of experts in some instances. See 23 Pa.C.S.A. § 5104 (disputed paternity proceeding); Pa.R.C.P. 1515 & 1530(e) (in equity proceedings, court may appoint accountants and auditors as experts). In Commonwealth v. Correa, 437 Pa. Super. 1, 648 A.2d 1199 (1994), the Superior Court held that the trial court had inherent power to appoint an expert.
See also Pa.R.E. 614 (Calling and Interrogation of Witnesses By Court).
ARTICLE VIII. HEARSAY Rule
801. Definitions. 802. Hearsay Rule. 803. Hearsay Exceptions; Availability of Declarant Immaterial. 803.1. Hearsay Exceptions; Testimony of Declarant Necessary. 804. Hearsay Exceptions; Declarant Unavailable. 805. Hearsay Within Hearsay. 806. Attacking and Supporting Credibility of Declarant. 807. Residual Exception [Not Adopted].
Introductory Comment The Federal Rules of Evidence list 24 exceptions to the hearsay rule in which the availability of the declarant is immaterial, five exceptions in which the declarant must be unavailable, and four exceptions to the definition of hearsay (which are, in reality, exceptions to the hearsay rule), for a total of 33.
The Pennsylvania Rules of Evidence, while following the federal numbering system as far as possible, recognize fewer exceptions, and arrange them more logically. Article VIII of the Pennsylvania Rules of Evidence lists 16 exceptions to the hearsay rule in which the availability of the declarant is immaterial, five exceptions in which the declarant must be unavailable, and three exceptions in which the testimony of the declarant is necessary, for a total of 24.
Defendant's Constitutional Right of Confrontation in Criminal Cases The hearsay rule is applicable both in civil and criminal cases. In a criminal case, however, hearsay that is offered against a defendant under an exception to the hearsay rule may sometimes be excluded because its admission would violate defendant's right ''to be confronted with the witnesses against him'' under the Sixth Amendment to the United States Constitution, or Article I, § 9 of the Pennsylvania Constitution.
The relationship between the hearsay rule and the Confrontation Clause in the Sixth Amendment was explained by the Supreme Court in California v. Green, 399 U.S. 149, 155-56 (1970):
While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. . . .Given the similarity of the values protected, however, the modification of a State's hearsay rules to create new exceptions for the admission of evidence against a defendant, will often raise questions of compatibility with the defendant's constitutional right to confrontation.In short, when hearsay is offered against a defendant in a criminal case, the defendant may interpose three separate objections: (1) admission of the evidence would violate the hearsay rule, (2) admission of the evidence would violate defendant's right to confront the witnesses against him under the Sixth Amendment to the United States Constitution, and (3) admission of the evidence would violate defendant's right of confrontation under Article I, § 9 of the Pennsylvania Constitution.
Rule 801. Definitions.
The following definitions apply under this article:
(a) Statement. A ''statement'' is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.
(b) Declarant. A ''declarant'' is a person who makes a statement.
(c) Hearsay. ''Hearsay'' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
Comment Pa.R.E. 801 is identical to subsections (a), (b) and (c) of F.R.E. 801. It is consistent with Pennsylvania law. F.R.E. 801(d) is not adopted. The subjects of F.R.E. 801(d), admissions and prior statements of witnesses, are covered in Pa.R.E. 803(25), Pa.R.E. 803.1., and Pa.R.E. 613(c).
a. Statement. The definition of ''statement'' is consistent with Pennsylvania law. See, e.g., Rafter v. Raymark Indus., Inc., 429 Pa. Super. 360, 632 A.2d 897 (1993) (oral or written assertion); Commonwealth v. Rush, 529 Pa. 498, 605 A.2d 792 (1992) (non-verbal conduct intended as an assertion). Communications that are not assertions are not hearsay. These would include questions, greetings, expressions of gratitude, exclamations, offers, instructions, warnings, etc.
b. Declarant. Subsection (b) is consistent with Pennsylvania law. For hearsay purposes, the ''declarant'' is the person who makes an out-of-court statement, not the person who repeats it on the witness stand.
c. Definition of Hearsay. Subsection (c), which defines hearsay, is consistent with Pennsylvania law, although the Pennsylvania cases have usually used the phrase ''out-of-court statement,'' in place of the phrase ''other than one made by the declarant while testifying at the trial or hearing.'' See Heddings v. Steele, 514 Pa. 569, 526 A.2d 349 (1987). The adoption of the language of the Federal Rule is not intended to change existing law.
A statement, other than one made by the declarant while testifying at the trial or hearing (an out-of-court statement), is hearsay only if it is offered to prove the truth of the matter asserted. There are many situations in which evidence of an out-of-court statement is offered for a purpose other than to prove the truth of the matter asserted.
Sometimes an out-of-court statement has direct legal significance, whether or not it is true. For example, one or more out-of-court statements may constitute an offer, an acceptance, a promise, a guarantee, a notice, a representation, a misrepresentation, defamation, perjury, compliance with a contractual or statutory obligation, etc.
More often, an out-of-court statement, whether or not it is true, constitutes circumstantial evidence from which the trier of fact may infer, alone or in combination with other evidence, the existence or non-existence of a fact in issue. For example, a declarant's out-of-court statement may imply his or her particular state of mind, or it may imply that a particular state of mind ensued in the recipient. Evidence of an out-of-court statement, particularly if it is proven untrue by other evidence, may imply the existence of a conspiracy, or fraud. Evidence of an out-of-court statement made by a witness, if inconsistent with the witness' testimony, may imply that the witness is an unreliable historian. Conversely, evidence of an out-of-court statement made by a witness that is consistent with the witness' testimony may imply the opposite. See Pa.R.E. 613.
Rule 802. Hearsay Rule.
Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Pennsylvania Supreme Court, or by statute.
Comment Pa.R.E. 802 is similar to F.R.E. 802. It differs by referring to other rules prescribed by the Pennsylvania Supreme Court, rather than the United States Supreme Court, and by referring to statutes in general, rather than Acts of Congress. This rule is consistent with Pennsylvania law.
Often, hearsay will be admissible under an exception provided by these rules. See, e.g., Pa.R.E. 803, 803.1 and 804. On occasion, hearsay may be admitted pursuant to another rule promulgated by the Pennsylvania Supreme Court. For example, in civil cases, all or part of a deposition may be admitted pursuant to Pa.R.C.P. 4020, or a videotape deposition of an expert witness may be admitted pursuant to Pa.R.C.P. 4017.1(g).
Also, hearsay may be admitted pursuant to a state statute. Examples include:
1. A public record may be admitted pursuant to 42 Pa.C.S.A. § 6104. See Comment located at Pa.R.E. 803(8) [Not Adopted].2. A record of vital statistics may be admitted pursuant to 35 Pa.C.S.A. § 450.810. See Comment located at Pa.R.E. 803(9) [Not Adopted].3. In an action arising out of a contract under the Uniform Commercial Code, a document in due form purporting to be a bill of lading, policy or certificate of insurance, official weigher's or inspector's certificate, consular invoice, or any other document authorized or required by the contract to be issued by a third party, may be introduced as prima facie evidence of the document's own authenticity and of the facts stated therein by the third party, pursuant to 13 Pa.C.S.A. § 1202.4. In a civil case, a deposition of a licensed physician may be admitted pursuant to 42 Pa.C.S.A. § 5936.5. In a criminal case, a deposition of a witness may be admitted pursuant to 42 Pa.C.S.A. § 5919.6. In a criminal case, an out-of-court statement of a witness under 13 years of age, describing certain kinds of sexual abuse, may be admitted pursuant to 42 Pa.C.S.A. § 5985.1.7. In a dependency hearing, an out-of-court statement of a witness under 14 years of age, describing certain types of sexual abuse, may be admitted pursuant to 42 Pa.C.S.A. § 5986.8. In a prosecution for speeding under the Pennsylvania Vehicle Code, a certificate of accuracy of an electronic speed timing device (radar) from a calibration and testing station appointed by the Pennsylvania Department of Motor Vehicles may be admitted pursuant to 75 Pa.C.S.A. § 3368(d).On rare occasion, hearsay may be admitted pursuant to a federal statute. For example, when a person brings a civil action, in either federal or state court, against a common carrier to enforce an order of the Interstate Commerce Commission requiring the payment of damages, the findings and order of the Commission may be introduced as evidence of the facts stated in them. 49 U.S.C. § 11704(d)(1).
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