THE COURTS
Title 225--RULES OF EVIDENCE
[225 PA. CODE ARTICLES I and VI]
Proposed Amendments to General Provisions; and Witnesses
[29 Pa.B. 2262] The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania approve the revision of the Comments to Rules of Evidence 103, 104, and 601. These Comment revisions are being proposed to alert the bench and bar to the per se rule created by the Supreme Court in Commonwealth v. Washington that child witness competency hearings are to be conducted outside the hearing of the jury. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.
The text of the proposed Comment revisions precedes the Report.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel: Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Committee on Rules of Evidence, 5035 Ritter Road, Mechanicsburg, PA 17055, no later than Tuesday, June 1, 1999.
THOMAS C. RAUP,
Chair
Annex A
TITLE 225. RULES OF EVIDENCE
ARTICLE I. GENERAL PROVISIONS Rule 103. Rulings on Evidence.
* * * * *
Comment * * * * * Paragraphs 103(b) and (c) are identical to F.R.E. 103(b) and (c) and are consistent with Pennsylvania practice.
Pa.R.E. 104(c) addresses hearings on preliminary questions outside the presence of the jury.
* * * * * Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised ______ , 1999, effective ______ , 1999.
* * * * * Committee Explanatory Reports:
Report explaining the proposed revision of the Comment adding a cross-reference to Pa.R.E. 104 published at 29 Pa.B. 2263 (May 1, 1999).
Rule 104. Preliminary Questions.
* * * * *
Comment * * * * * The second sentence of paragraph 104(c) is identical to the second sentence of F.R.E. 104(c). Paragraph 104(c) indicates that hearings on other preliminary matters, both criminal and civil, shall be conducted outside the jury's presence when required by the interests of justice. Certainly, the court should conduct the hearing outside the presence of the jury when the court believes that it is necessary to prevent the jury from hearing prejudicial information. See Commonwealth v. Washington, 722 A.2d 643 (Pa. 1998) (creating per se rule requiring the trial judge to conduct child witness competency hearings outside the presence of the jury). The right of an accused to have his or her testimony on a preliminary matter taken outside the presence of the jury does not appear to have been discussed in Pennsylvania law.
Paragraph 104(d) is identical to F.R.E. 104(d). In general, when a party offers himself or herself as a witness, the party may be questioned on all relevant matters in the case. See Agate v. Dunleavy, 398 Pa. 26, 156 A.2d 530 (1959). Under Pa.R.E. 104(d), however, when the accused in a criminal case testifies only with regard to a preliminary matter; he or she may not be cross-examined as to other matters. Although there is no Pennsylvania authority on this point, it appears that this rule is consistent with Pennsylvania practice. This approach is consistent with paragraph 104(c) in that it is designed to preserve the defendant's right not to testify generally in the case.
* * * * * Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised ______ , 1999, effective ______ , 1999.
Committee Explanatory Reports:
Report explaining the proposed revision of the Comment adding a citation to Commonwealth v. Washington, published at 29 Pa.B. 2263 (May 1, 1999).
ARTICLE VI. WITNESSES Rule 601. Competency.
Comment * * * * * Pa.R.E. 601(a) is consistent with Pennsylvania statutory law. 42 Pa.C.S. [A.] §§ 5911 and 5921 provide that all witnesses are competent except as otherwise provided. Pennsylvania statutory law provides several instances in which witnesses are incompetent. See, e.g., 42 Pa.C.S. [A.] § 5922 (persons convicted in a Pennsylvania court of perjury incompetent in civil cases); 42 Pa.C.S. [A.] § 5924 (spouses incompetent to testify against each other in civil cases with certain exceptions set out in 42 Pa.C.S. [A.] §§ 5925, 5926 and 5927); 42 Pa.C.S. [A.] §§ 5930--5933 and 20 Pa.C.S. [A.] § 2209 (''Dead Man's statutes'').
* * * * * See Pa.R.E. 104(c) which provides that certain hearings on preliminary questions, including com-petency, are to be conducted outside the presence of the jury.
Official Note: Adopted May 8, 1998, effective October 8, 1998; Comment revised ______ , 1999, effective ______ , 1999.
Committee Explanatory Reports:
Report explaining the proposed revision of the Comment adding a cross-reference to Pa.R.E. 104 published at 29 Pa.B. 2263 (May 1, 1999).
Report
Proposed Revision of the Comments to Pa.Rs.E. 103, 104, and 601
HEARINGS OUTSIDE THE PRESENCE OF JURY; COMPETENCY The Committee is proposing the revision of the Comments to Rules of Evidence 103 (Rulings on Evidence), 104 (Preliminary Questions), and 601 (Competency). These revisions highlight the necessity of conducting certain hearings on preliminary questions, in particular competency questions, outside the hearing of the jury.
Since the Rules of Evidence became effective in October 1998, the Committee has been monitoring the new rules in practice, and the continuing development of evidence law in Pennsylvania. One recent case that the Committee has considered is Commonwealth v. Washington, 722 A.2d 643 (Pa. 1998), a case addressing the competency of a child witness to testify. The Court created a per se rule requiring that competency hearings are to be conducted outside the presence of the jury.
After reviewing Washington, supra, and the rules, the Committee agreed that the per se rule created by the Court falls within the parameters of Rule 104(c), which requires hearings on preliminary matters to be conducted outside the hearing of the jury ''when the interests of justice require,'' and therefore a rule change is not necessary. The Committee majority also agreed that, as an aid to the bench and bar, this important procedural change in evidence law should be referenced in the Rule 104 Comment. We, therefore, are proposing to add the following provision to the sixth paragraph of the Rule 104 Comment:
See Commonwealth v. Washington, 722 A.2d 643 (Pa. 1998) (creating per se rule requiring the trial judge to conduct child witness competency hearings outside the presence of the jury).The Committee is also proposing correlative revisions of the Comments to Rules 103 and 601 that would include cross-references Rule 104(c) with regard to hearings on preliminary matters, and whether the hearing should be held in the presence of the jury. The Rule 103 Comment would be revised by adding the following language as the fourth paragraph;
Paragraph (c) of Pa.R.E. 104 addresses hearings on preliminary questions outside the presence of the jury.Similarly, the Rule 601 Comment would be revised by adding the following language as the last paragraph;
See Pa.R.E. 104(c) which provides that certain hearings on preliminary questions, including competency, are to be conducted outside the presence of the jury.
[Pa.B. Doc. No. 99-690. Filed for public inspection April 30, 1999, 9:00 a.m.]
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