[28 Pa.B. 2369]
[Continued from previous Web Page] Rule 805. Hearsay Within Hearsay.
Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.
Comment Pa.R.E. 805 is identical to F.R.E. 805. It is consistent with Pennsylvania law. See Commonwealth v. Galloway, 302 Pa. Super. 145, 448 A.2d 568 (1982).
Rule 806. Attacking and Supporting Credibility of Declarant.
When a hearsay statement has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
Comment Pa.R.E. 806 is similar to F.R.E. 806, except that Pa.R.E. 806 makes no reference to Rule 801(d)(2). The subject matter of F.R.E. 801(d)(2) (admissions) is covered by Pa.R.E. 803(25). The change is not substantive. Pa.R.E. 806 is consistent with Pennsylvania law. See Commonwealth v. Davis, 363 Pa. Super. 562, 526 A.2d 1205 (1987), appeal denied 518 Pa. 624, 541 A.2d 1135 (1988).
The requirement that a witness be given an opportunity to explain or deny the making of an inconsistent statement provided by Pa.R.E. 613(b) is not applicable when the prior inconsistent statement is offered to impeach a statement admitted under an exception to the hearsay rule. In most cases, the declarant will not be on the stand at the time when the hearsay statement is offered and for that reason the requirement of Pa.R.E. 613(b) is not appropriate.
The last sentence of Pa.R.E. 806 allows the party against whom a hearsay statement has been admitted to call the declarant as a witness and cross-examine the declarant about the statement. This is consistent with Pennsylvania law. See Commonwealth v. Haber, 351 Pa. Super. 79, 505 A.2d 273 (1986).
Rule 807. Residual Exception [Not Adopted].
Comment Pennsylvania has not adopted F.R.E. 807.
ARTICLE IX. AUTHENTICATION AND IDENTIFICATION Rule
901. Requirement of Authentication or Identification. 902. Self-Authentication. 903. Subscribing Witness' Testimony Unnecessary. Rule 901. Requirement of Authentication or Identification.
(a) General Provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of Witness With Knowledge. Testimony that a matter is what it is claimed to be.
(2) Nonexpert Opinion on Handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(3) Comparison by Trier or Expert Witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.
(4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(5) Voice Identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
(6) Telephone Conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.
(7) Public Records or Reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.
(8) Ancient Documents or Data Compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 30 years or more at the time it is offered.
(9) Process or System. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.
(10) Methods Provided by Law. Any method of authentication or identification provided by statute or by other rules prescribed by the Supreme Court.
Comment Paragraph 901(a) is identical to F.R.E. 901(a) and consistent with Pennsylvania law. Although the authentication or identification requirement has not been authoritatively defined, Pennsylvania courts have imposed the requirement. It may be expressed as follows: When a party offers evidence contending either expressly or impliedly that the evidence is connected with a person, place, thing or event, the party must provide evidence sufficient to support a finding of the contended connection. See Commonwealth v. Pollock, 414 Pa. Super. 66, 606 A.2d 500 (1992); Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980).
In some cases, real evidence may not be relevant unless its condition at the time of trial is similar to its condition at the time of the incident in question. In such cases, the party offering the evidence must also introduce evidence sufficient to support a finding that the condition is similar. Pennsylvania law treats this requirement as an aspect of authentication. See Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980); Heller v. Equitable Gas Co., 333 Pa. 433, 3 A.2d 343 (1939).
Demonstrative evidence such as photographs, motion pictures, diagrams and models must be authenticated by evidence sufficient to support a finding that the demonstrative evidence fairly and accurately represents that which it purports to depict. See Nyce v. Muffley, 384 Pa. 107, 119 A.2d 530 (1956).
Paragraph 901(b) is identical to F.R.E. 901(b).
Paragraph 901(b)(1) is identical to F.R.E. 901(b)(1). It is consistent with Pennsylvania law in that the testimony of a witness with personal knowledge may be sufficient to authenticate or identify the evidence. See Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980); Heller v. Equitable Gas Co., 333 Pa. 433, 3 A.2d 343 (1939).
Paragraph 901(b)(2) is identical to F.R.E. 901(b)(2). It is consistent with 42 Pa.C.S.A. § 6111, which also deals with the admissibility of handwriting.
Paragraph 901(b)(3) is identical to F.R.E. 901(b)(3). It is consistent with Pennsylvania law. When there is a question as to the authenticity of an exhibit, the trier of fact will have to resolve the issue. This may be done by comparing the exhibit to authenticated specimens. See Commonwealth v. Gipe, 169 Pa. Super. 623, 84 A.2d 366 (1951) (comparison of typewritten document with authenticated specimen). Under this rule, the court must decide whether the specimen used for comparison to the exhibit is authentic. If the court determines that there is sufficient evidence to support a finding that the specimen is authentic, the trier of fact is then permitted to compare the exhibit to the authenticated specimen. Under Pennsylvania law, lay or expert testimony is admissible to assist the jury in resolving the question. See, e.g., 42 Pa.C.S.A. § 6111.
Paragraph 901(b)(4) is identical to F.R.E. 901(b)(4). Pennsylvania law has permitted evidence to be authenticated by circumstantial evidence similar to that discussed in this illustration. The evidence may take a variety of forms including: evidence establishing chain of custody, see Commonwealth v. Melendez, 326 Pa. Super. 531, 474 A.2d 617 (1984); evidence that a letter is in reply to an earlier communication, see Roe v. Dwelling House Ins. Co. of Boston, 149 Pa. 94, 23 A. 718 (1892); testimony that an item of evidence was found in a place connected to a party, see Commonwealth v. Bassi, 284 Pa. 81, 130 A. 311 (1925); a phone call authenticated by evidence of party's conduct after the call, see Commonwealth v. Gold, 123 Pa. Super. 128, 186 A. 208 (1936); and the identity of a speaker established by the content and circumstances of a conversation, see Bonavitacola v. Cluver, 422 Pa. Super. 556, 619 A.2d 1363 (1993).
Paragraph 901(b)(5) is identical to F.R.E. 901(b)(5). Pennsylvania law has permitted the identification of a voice to be made by a person familiar with the alleged speaker's voice. See Commonwealth v. Carpenter, 472 Pa. 510, 372 A.2d 806 (1977).
Paragraph 901(b)(6) is identical to F.R.E. 901(b)(6). This paragraph appears to be consistent with Pennsylvania law. See Smithers v. Light, 305 Pa. 141, 157 A. 489 (1931); Wahl v. State Workmen's Ins. Fund, 139 Pa. Super. 53, 11 A.2d 496 (1940); see also 2 McCormick, Evidence § 226 (4th ed. 1992).
Paragraph 901(b)(7) is identical to F.R.E. 901(b)(7). This paragraph illustrates that public records and reports may be authenticated in the same manner as other writings. In addition, public records and reports may be self-authenticating as provided in Pa.R.E. 902. Public records and reports may also be authenticated as otherwise provided by statute. See paragraph 901(b)(10) and its Comment.
Paragraph 901(b)(8) is identical to F.R.E. 901(b)(8), except that the Pennsylvania rule requires thirty years, while the Federal Rule requires twenty years. This change makes the rule consistent with Pennsylvania law. See Commonwealth ex rel. Ferguson v. Ball, 277 Pa. 301, 121 A. 191 (1923); Jones v. Scranton Coal Co., 274 Pa. 312, 118 A. 219 (1922).
Paragraph 901(b)(9) is identical to F.R.E. 901(b)(9). There is very little authority in Pennsylvania discussing authentication of evidence as provided in this illustration. The paragraph is consistent with the authority that exists. For example, in Commonwealth v. Visconto, 301 Pa. Super. 543, 448 A.2d 41 (1982), a computer print-out was held to be admissible. In Appeal of Chartier Valley School District, 67 Pa. Cmwlth. 121, 447 A.2d 317 (1982), computer studies were not admitted as business records, in part, because it was not established that the mode of preparing the evidence was reliable. The court used a similar approach in Commonwealth v. Westwood, 324 Pa. 289, 188 A. 304 (1936) (test for gun powder residue) and in other cases to admit various kinds of scientific evidence. See Commonwealth v. Middleton, 379 Pa. Super. 502, 550 A.2d 561 (1988) (electrophoretic analysis of dried blood); Commonwealth v. Rodgers, 413 Pa. Super. 498, 605 A.2d 1228 (1992) (results of DNA/RFLP testing).
Paragraph 901(b)(10) differs from F.R.E. 901(b)(10) to eliminate the reference to Federal law and to make the paragraph conform to Pennsylvania law.
There are a number of statutes that provide for authentication or identification of various types of evidence. See, e.g., 42 Pa.C.S.A. § 6103 (official records within the Commonwealth); 42 Pa.C.S.A. § 5328 (domestic records outside the Commonwealth and foreign records); 35 P. S. § 450.810 (vital statistics); 42 Pa.C.S.A. § 6106 (documents filed in a public office); 42 Pa.C.S.A. § 6110 (certain registers of marriages, births and burials records); 75 Pa.C.S.A. § 1547(c) (chemical tests for alcohol and controlled substances); 75 Pa.C.S.A. § 3368 (speed timing devices); 75 Pa.C.S.A. § 1106(c) (certificates of title); 42 Pa.C.S.A. § 6151 (certified copies of medical records); 23 Pa.C.S.A. § 5104 (blood tests to determine paternity); 23 Pa.C.S.A. § 4343 (genetic tests to determine paternity).
In general, evidence may be authenticated or identified in any manner provided by statute, these rules or decisional law. In some situations, decisional law has required strict compliance with a statute providing for authentication or identification of evidence. See Commonwealth v. Townsend, 418 Pa. Super. 48, 613 A.2d 564 (1992); Commonwealth v. Martorano, 387 Pa. Super. 151, 563 A.2d 1229 (1989).
Rule 902. Self-Authentication.
Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
(1) Domestic Public Documents Under Seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.
(2) Domestic Public Documents Not Under Seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.
(3) Foreign Public Documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.
(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any statute or rule prescribed by the Supreme Court.
(5) Official Publications. Books, pamphlets, or other publications purporting to be issued by public authority.
(6) Newspapers and Periodicals. Printed materials purporting to be newspapers or periodicals.
(7) Trade Inscriptions and the Like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.
(8) Acknowledged Documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.
(9) Commercial Paper and Related Documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.
(10) Presumptions Authorized by Statute. Any signature, document or other matter declared by statute to be presumptively or prima facie genuine or authentic.
Comment This rule permits some evidence to be authenticated without extrinsic evidence of authentication or identification. In other words, the requirement that a proponent must present authentication or identification evidence as a condition precedent to admissibility, as provided by Pa.R.E. 901(a), is inapplicable to the evidence discussed in Pa.R.E. 902. The rationale for the rule is that, for the types of evidence covered by Pa.R.E. 902, the risk of forgery or deception is so small, and the likelihood of discovery of forgery or deception is so great, that the cost of presenting extrinsic evidence and the waste of court time is not justified. Of course, this rule does not preclude the opposing party from contesting the authenticity of the evidence. In that situation, authenticity is to be resolved by the finder of fact.
Paragraphs 902(1), (2), (3) and (4) deal with self-authentication of various kinds of public documents and records. They are identical to F.R.E. 902(1), (2), (3) and (4), except that Pa.R.E. 901(4) eliminates the reference to Federal law. These paragraphs are consistent with Pennsylvania statutory law. See 42 Pa.C.S.A. § 6103 (official records within the Commonwealth); 42 Pa.C.S.A. § 5328 (domestic records outside the Commonwealth and foreign records); 35 P. S. § 450.810 (vital statistics); 42 Pa.C.S.A. § 6106 (documents filed in a public office).
Paragraphs 902(5), (6) and (7) are identical to F.R.E. 902(5), (6) and (7). There are no corresponding statutory provisions in Pennsylvania; however, 45 Pa.C.S.A. § 506 (judicial notice of the contents of the Pennsylvania Code and the Pennsylvania Bulletin) is similar to Pa.R.E. 902(5). Although these paragraphs are new to Pennsylvania, their adoption is amply supported by the rationale for Pa.R.E. 902.
Paragraph 902(8) is identical to F.R.E. 902(8). It is consistent with Pennsylvania law. See Sheaffer v. Baeringer, 346 Pa. 32, 29 A.2d 697 (1943); Williamson v. Barrett, 147 Pa. Super. 460, 24 A.2d 546 (1942); 21 P. S. § 291.1-291.13 (Uniform Acknowledgement Act); 57 P. S. §§ 147-169 (Notary Public Law). An acknowledged document is a type of official record and the treatment of acknowledged documents is consistent with Paragraphs 902(1), (2), (3) and (4).
Paragraph 902(9) is identical to F.R.E. 902(9). Pennsylvania law treats various kinds of commercial paper and documents as self-authenticating. See, e.g., 13 Pa.C.S.A. § 1202 (documents authorized or required by contract to be issued by a third party); 13 Pa.C.S.A. § 3505 (evidence of dishonor of negotiable instruments).
Paragraph 902(10) differs from F.R.E. 902(10) to eliminate the reference to Federal law and to make the paragraph conform to Pennsylvania law. In some Pennsylvania statutes, the self-authenticating nature of a document is expressed by language creating a ''presumption'' of authenticity. See 13 Pa.C.S.A. § 3505. In other Pennsylvania statutes, the self-authenticating nature of a document is expressed by language that the document is ''prima facie'' authentic or genuine. See 13 Pa.C.S.A. § 1202. This paragraph recognizes the continuing vitality of such statutes.
Rule 903. Subscribing Witness' Testimony Unnecessary.
The testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.
Comment This rule is identical to F.R.E. 903. The rule is consistent with Pennsylvania law in that there are no laws in Pennsylvania requiring the testimony of a subscribing witness to authenticate a writing.
ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS Rule
1001. Definitions. 1002. Requirement of Original. 1003. Admissibility of Duplicates. 1004. Admissibility of Other Evidence of Contents. 1005. Public Records. 1006. Summaries. 1007. Testimony or Written Admission of Party. 1008. Functions of Court and Jury. Rule 1001. Definitions.
For purposes of this article the following definitions are applicable:
(1) Writings and Recordings. ''Writings'' and ''recordings'' consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.
(2) Photographs. ''Photographs'' include still photographs, X-ray films, video tapes, and motion pictures.
(3) Original. An ''original'' of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An ''original'' of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ''original.''
(4) Duplicate. A ''duplicate'' is a copy produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.
Comment This rule is identical to F.R.E. 1001, except that the word ''copy'' in Pa.R.E. 1001(4) replaces the word ''counterpart'' used in F.R.E. 1001(4).
Paragraphs 1001(1) and (2) have no precise equivalent in Pennsylvania law, but the definitions of the terms writings, recordings and photographs are consistent with lay and legal usage in Pennsylvania.
The definition of an original writing, recording or photograph contained in paragraph 1001(3) appears to be consistent with Pennsylvania practice.
The definition of an original of data stored in a computer or similar device in paragraph 1001(3) is consistent with Pa.R.E. 901(b)(9) (authentication of evidence produced by a process or system).
Paragraph 1001(4) defines the term duplicate. This term is important because of the admissibility of duplicates under Pa.R.E. 1003. This Rule differs from the Federal Rule in that the word ''counterpart'' has been replaced by the word ''copy.'' The word ''counterpart'' is used in paragraph 1001(3) to refer to a copy intended to have the same effect as the writing or recording itself. The word ''copy'' is used to mean a copy that was not intended to have the same effect as the original. Pennsylvania law has permitted the use of duplicates produced by the same impression as the original, as is the case with carbon copies. See Brenner v. Lesher, 332 Pa. 522, 2 A.2d 731 (1938); Commonwealth v. Johnson, 373 Pa. Super. 312, 541 A.2d 332 (1988); Pennsylvania Liquor Control Bd. v. Evolo, 204 Pa. Super. 225, 203 A.2d 332 (1964). Pennsylvania has not treated other duplicates as admissible unless the original was shown to be unavailable through no fault of the proponent. See Hera v. McCormick, 425 Pa. Super. 432, 625 A.2d 682 (1993); Warren v. Mosites Constr. Co., 253 Pa. Super. 395, 385 A.2d 397 (1978). For this reason, the definition of duplicates, other than those produced by the same impression as the original, is new to Pennsylvania law. The justification for adopting the new definition is discussed in the Comment to Pa.R.E. 1003.
Rule 1002. Requirement of Original.
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules, by other rules prescribed by the Supreme Court, or by statute.
Comment Pa.R.E. 1002 differs from F.R.E. 1002 to eliminate the reference to Federal law and to make the Rule conform to Pennsylvania law. Pa.R.E. 1002 is consistent with Pennsylvania law.
This rule corresponds to the common law ''best evidence rule.'' See Warren v. Mosites Constr. Co., 253 Pa. Super. 395, 385 A.2d 397 (1978). The rationale for the rule was not expressed in Pennsylvania cases, but commentators have mentioned four reasons justifying the rule.
(1) The exact words of many documents, especially operative or dispositive documents, such as deeds, wills or contracts, are so important in determining a party's rights accruing under those documents.(2) Secondary evidence of the contents of documents, whether copies or testimony, is susceptible to inaccuracy.(3) The rule inhibits fraud because it allows the parties to examine the original documents to detect alterations and erroneous testimony about the contents of the document.(4) The appearance of the original may furnish information as to its authenticity.5 Weinstein & Berger, Weinstein's Evidence § 1002(2) (Sandra D. Katz rev. 1994).The common law formulation of the rule provided that the rule was applicable when the terms of the document were ''material.'' The materiality requirement has not been eliminated, but is now dealt with in Pa.R.E. 1004(4). That rule provides that the original is not required when the writing, recording or photograph is not closely related to a controlling issue.
The case law has not been entirely clear as to when a party is trying ''to prove the content of a writing, recording, or photograph.'' However, writings that are viewed as operative or dispositive have usually been considered to be subject to the operation of the rule. Such writings include deeds, see Gallagher v. London Assurance Corp., 149 Pa. 25, 24 A. 115 (1892), contracts, see In re Reuss' Estate, 422 Pa. 58, 220 A.2d 822 (1966), and attachments, see L.C.S. Colliery, Inc. v. Globe Coal Co., 369 Pa. 1, 84 A.2d 776 (1951). On the other hand, writings are not usually treated as subject to the rule if they are only evidence of the transaction, thing or event. See Hamill-Quinlan, Inc. v. Fisher, 404 Pa. Super. 482, 591 A.2d 309 (1991); Noble C. Quandel Co. v. Slough Flooring, Inc., 384 Pa. Super. 236, 558 A.2d 99 (1989). Thus, testimony as to a person's age may be offered; it is not necessary to produce a birth certificate. See Commonwealth ex rel. Park v. Joyce, 316 Pa. 434, 175 A. 422 (1934). Or, a party's earnings may be proven by testimony; it is not necessary to offer business records. See Noble C. Quandel Co. v. Slough Flooring, Inc., 384 Pa. Super. 236, 558 A.2d 99 (1989).
Traditionally, the best evidence rule applied only to writings. Photographs, which under the definition established by Pa.R.E. 1001(2) include x-ray films, videotapes, and motion pictures, are usually only evidence of the transaction, thing or event. It is rare that a photograph would be operative or dispositive, but in cases involving matters such as infringement of copyright, defamation, pornography and invasion of privacy, the requirement for the production of the original should be applicable. There is support for this approach in Pennsylvania law. See Commonwealth v. Lewis, 424 Pa. Super. 531, 623 A.2d 355 (1993) (video tape); Anderson v. Commonwealth, 121 Pa. Cmwlth. 521, 550 A.2d 1049 (1988) (film).
Rule 1003. Admissibility of Duplicates.
A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.
Comment This rule is identical to F.R.E. 1003 and is a modest extension of Pennsylvania law.
Under the traditional best evidence rule, copies of documents were not routinely admissible. This view dated back to the time when copies were made by hand copying and were therefore subject to inaccuracy. On the other hand, Pennsylvania courts have admitted copies made by techniques that are more likely to produce accurate copies. For example, when a writing is produced in duplicate or multiplicate each of the copies is treated as admissible for purposes of the best evidence rule. See Brenner v. Lesher, 332 Pa. 522, 2 A.2d 731 (1938); Pennsylvania Liquor Control Bd. v. Evolo, 204 Pa. Super. 225, 203 A.2d 332 (1964).
In addition, various Pennsylvania statutes have treated some accurate copies as admissible. See 42 Pa.C.S.A. § 6104 (governmental records in the Commonwealth); 42 Pa.C.S.A. § 5328 (domestic records outside the Commonwealth and foreign records); 42 Pa.C.S.A. § 6106 (documents recorded or filed in a public office); 42 Pa.C.S.A. § 6109 (photographic copies of business and public records); 42 Pa.C.S.A. § 6151-59 (certified copies of medical records).
The extension of similar treatment to all accurate copies seems justified in light of modern practice. Pleading and discovery rules such as Pa.R.C.P. 4009.1 (requiring production of originals of documents and photographs etc.) and Pa.R.Crim.P. 305(B)(1)(f) and (g) (requiring disclosure of originals of documents, photographs and recordings of electronic surveillance) will usually provide an adequate opportunity to discover fraudulent copies. As a result, Pa.R.E. 1003 should tend to eliminate purely technical objections and unnecessary delay. In those cases where the opposing party raises a genuine question as to authenticity or the fairness of using a duplicate, the trial court may require the production of the original under this rule.
Rule 1004. Admissibility of Other Evidence of Contents.
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if--
(1) Originals Lost or Destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
(2) Original Not Obtainable. No original can be obtained by any available judicial process or procedure; or
(3) Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or
(4) Collateral Matters. The writing, recording, or photograph is not closely related to a controlling issue.
Comment This rule is identical to F.R.E. 1004.
Paragraph 1004(1) is consistent with Pennsylvania law. See Olson & French, Inc. v. Commonwealth, 399 Pa. 266, 160 A.2d 401 (1960); Brenner v. Lesher, 332 Pa. 522, 2 A.2d 731 (1938). When the proponent of the evidence alleges that it is lost, there should be evidence that a sufficient search was made. See Brenner v. Lesher, 332 Pa. 522, 2 A.2d 731 (1938); Hera v. McCormick, 425 Pa. Super. 432, 625 A.2d 682 (1993).
Paragraphs 1004(2), 1004(3) and 1004(4) are consistent with Pennsylvania law. See Otto v. Trump, 115 Pa. 425, 8 A. 786 (1887) (consistent with Pa.R.E. 1004(2)); Abercrombie v. Bailey, 326 Pa. 65, 190 A. 725 (1937) (consistent with Pa.R.E. 1004(3)); Durkin v. Equine Clinics, Inc., 313 Pa. Super. 75, 459 A.2d 417 (1983) (consistent with Pa.R.E. 1004(4)); McCullough v. Holland Furnace Co., 293 Pa. 45, 141 A. 631 (1928) (consistent with Pa.R.E. 1004(4)); see also Comment to Pa.R.E. 1002.
Under F.R.E. 1004, when production of the original is not required, the proffering party need not offer a duplicate even if that is available; the proffering party may present any evidence including oral testimony. See F.R.E. 1004 advisory committee's note. There is no hierarchy of secondary evidence. There is some authority in Pennsylvania that seems to require the next best evidence when presentation of the original is not required. See Otto v. Trump, 115 Pa. 425, 8 A. 786 (1887); Stevenson, Bowen & Nesmith v. Hoy, 43 Pa. 191 (1862). This approach adds an unnecessary level of complexity. The normal motivation of a party to produce the most convincing evidence together with the availability of discovery to uncover fraud seems adequate to control abuse. Thus, Pa.R.E. 1004 follows the approach of F.R.E. 1004.
Rule 1005. Public Records.
The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by a copy as provided by Pa.R.E. 901 or 902, by statute, or by testimony of a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.
Comment The language of the first sentence of this rule differs somewhat from F.R.E. 1005 to conform more closely to Pa.R.E. 901 and 902. The changes are not intended to be substantive. This rule is consistent with Pennsylvania law. There are several statutes that provide that copies of various kinds of public documents and records are admissible. See Comments to Pa.R.E. 901 and 902.
Rule 1006. Summaries.
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.
Comment This rule is identical to F.R.E. 1006 and is consistent with Pennsylvania law. See Scaife Co. v. Rockwell-Standard Corp., 446 Pa. 280, 285 A.2d 451 (1971); Royal Pioneer Paper Box Mfg. Co. v. Louis Dejonge & Co., 179 Pa. Super. 155, 115 A.2d 837 (1955); Keller v. Porta, 172 Pa. Super. 651, 94 A.2d 140 (1953).
Rule 1007. Testimony or Written Admission of Party.
Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party's written admission, without accounting for the nonproduction of the original.
Comment This rule is identical to F.R.E. 1007. There is no precise equivalent to Pa.R.E. 1007 under Pennsylvania law, but the rule is consistent with Pennsylvania practice. Pa.R.C.P. 1019(h) requires a party to attach a copy of a writing to a pleading if any claim or defense is based on the writing. A responsive pleading admitting the accuracy of the writing would preclude an objection based on the original writings rule. Similarly, Pa.R.C.P. 4014(a) permits a party to serve any other party with a request for admission as to the genuineness, authenticity, correctness, execution, signing, delivery, mailing or receipt of any document described in the request. Pa.R.C.P. 4014(d) provides that any matter admitted is conclusively established.
Rule 1008. Functions of Court and Jury.
When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of Pa.R.E. 104. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.
Comment This rule is identical to F.R.E. 1008 except for the reference to ''Pa.R.E.'' instead of ''rule.'' There is no equivalent to this rule under Pennsylvania law, but this approach is consistent with Pennsylvania practice.
[Pa.B. Doc. No. 98-798. Filed for public inspection May 22, 1998, 9:00 a.m.]
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