THE COURTS
Title 225--RULES
OF EVIDENCE
[225 PA. CODE ARTS. I, IV AND VIII]
Order Adopting Amendments to Rule 410, and Approving the Revision of the Comments to Rules 105 and 802--804; No. 237, Supreme Court Rules; Doc. No. 1
[30 Pa.B. 1639] The Committee on Rules of Evidence has prepared a Final Report explaining the March 10, 2000 amendments to Rule of Evidence 410 and approved the revision of the Comments to Rules 105, 802, 803, and 804, effective immediately. These changes correct various technical or editorial errors in the text of or Comments to the rules, and update the rules consistent with changes in rules or statutes that have been included in the Comments. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this tenth day of March, 2000, upon the recommendation of the Committee on Rules of Evidence, this Recommendation for editorial and technical changes having been submitted without publication pursuant to Pa.R.J.A. 103(a)(3) and a Final Report to be published with this Order:
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that:
(1) Rule of Evidence 410 is hereby amended; and
(2) the revision of the Comments to Rules of Evidence 105, 802, 803, and 804 are approved, as follows.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective immediately.
Annex A
TITLE 225. RULES OF EVIDENCE
ARTICLE I. GENERAL PROVISIONS Rule 105. Limited Admissibility.
Comment This rule differs from F.R.E. 105 in that the language ''or on its own initiative may'' has been added. This rule [, as amended,] is consistent with Pennsylvania law. In addition to the approach taken by Pa.R.E. 105, there are other ways to deal with evidence that is admissible as to one party or for one purpose, but not admissible as to another party or for another purpose. For example, the evidence may be redacted. See Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977). Or, a severance may be an appropriate remedy. See Commonwealth v. Young, 263 Pa. Super. 333, 397 A.2d 1234 (1979). Where the danger of unfair prejudice outweighs probative value, the evidence may be excluded. See Pa.R.E. 403; McShain v. Indemnity Ins. Co. of North America, 338 Pa. 113, 12 A.2d 59 (1940).
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 10, 2000, effective immediately.
Committee Explanatory Reports:
Final Report explaining the March 10, 2000 revision of the Comment deleting ''as amended'' from the second sentence published with the Court's Order at 30 Pa.B. 1641 (March 25, 2000).
ARTICLE IV. RELEVANCY AND ITS LIMITS Rule 410. Inadmissibility of Pleas, Plea Discussions and Related Statements.
(a) General rule. Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
* * * * * (3) any statement made in the course of any proceedings under Rules 59, 64, 69, 177, 179, or 319 of the Pennsylvania Rules of Criminal Procedure, Fed.R.Crim.P. 11, or any comparable rule or provision of law [of another state] of Pennsylvania or any other jurisdiction regarding the pleas identified in subsections (1) and (2) of this rule; or
* * * * *
Comment This rule is similar to F.R.E. 410. References to Rules 59, 64, 69, 177, 179, and 319 of the Pennsylvania Rules of Criminal Procedure and the comparable rules or other provisions [of other states] of Pennsylvania or other jurisdictions have been added. Unlike the federal rule, subsection (b) of the Pennsylvania rule is set forth separately to indicate that it creates an exception applicable to all of subsection (a).
Pa.R.E. 410 reflects present Pennsylvania law. See Commonwealth v. Jones, [375 Pa. Super. 194,] 544 A.2d 54 (Pa. Super. 1988); Commonwealth ex rel. Warner v. Warner, [156 Pa. Super. 465,] 40 A.2d 886 (Pa. Super. 1945); Pa.R.Crim.P. 177(b), 179(b).
Pa.R.E. 410 does not prohibit the use of a conviction that results from a plea of nolo contendere, as distinct from the plea itself, to impeach in a later proceeding (subject to Pa.R.E. 609) or to establish an element of a charge in a later administrative proceeding. See Commonwealth v. Snyder, [408 Pa. 253,] 182 A.2d 495 (Pa. 1962) (conviction based on nolo contendere plea could be used to impeach witness in later criminal proceeding); Eisenberg v. Commonwealth, Dep't. of Public Welfare, [512 Pa. 181,] 516 A.2d 333 (Pa. 1986) (conviction based on nolo contendere plea permitted to establish element of charge in administrative proceeding).
* * * * * Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 23, 1999, effective immediately; amended March 10, 2000, effective immediately.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 10, 2000 technical amendments updating the rule published with the Court's Order at 30 Pa.B. 1641 (March 25, 2000).
ARTICLE VIII. HEARSAY Rule 802. Hearsay Rule.
* * * * *
Comment * * * * * Often, hearsay will be admissible under an exception provided by these rules. See, e.g., Pa. Rs.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:
* * * * * 7. In a dependency hearing, an out-of-court statement of a witness under [14] 16 years of age, describing certain types of sexual abuse, may be admitted pursuant to 42 Pa.C.S. § 5986.
* * * * * Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 23, 1999, effective immediately; Comment revised March 10, 2000, effective immediately.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 10, 2000 changes updating the seventh paragraph of the Comment published with the Court's Order at 30 Pa.B. 1641 (March 25, 2000).
Rule 803. Hearsay Exceptions; Availability of Declarant Immaterial.
The following statements, as hereinafter defined, are not excluded by the hearsay rule, even though the declarant is available as a witness:
(25) Admission by Party-Opponent. The statement is offered against a party and is (A) the party's own statement in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement may be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).
Comment * * * * * The second sentence of Pa.R.E. 803(25) [, as amended,] is consistent with Pennsylvania law. See Commonwealth v. Smith, [523 Pa. 577,] 568 A.2d 600 (Pa. 1989); Commonwealth v. Dreibelbis, [493 Pa. 466,] 426 A.2d 1111 (Pa. 1981).
The personal knowledge rule (Pa.R.E. 602) is not applicable to admissions. See Salvitti v. Throppe, [343 Pa. 642,] 23 A.2d 445 (Pa. 1942).
* * * * * B. Adoptive Admission. Pa.R.E. 803(25)(B) is consistent with Pennsylvania law. See Commonwealth v. Cheeks, [429 Pa. 89,] 239 A.2d 793 (Pa. 1968) (party expressly adopted statement); Commonwealth v. Coccioletti, [493 Pa. 103,] 425 A.2d 387 (Pa. 1981) (party impliedly adopted statement by failing to deny the truth of a statement that party would be expected to deny under the circumstances).
C. Statement by Authorized Agent. Admitting, as an exception to the hearsay rule, the statement of a person authorized to speak for the party against the party is consistent with Pennsylvania law. See McGarity v. New York Life Ins. Co., [359 Pa. 308,] 59 A.2d 47 (Pa. 1948).
* * * * * E. Statement by a Co-conspirator. The admissibility of a statement by a co-conspirator as provided by this rule is consistent with Pennsylvania law. See Commonwealth v. Mayhue, [536 Pa. 271,] 639 A.2d 421 (Pa. 1994); Commonwealth v. Dreibelbis, [493 Pa. 466,] 426 A.2d 1111 (Pa. 1981).
Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 23, 1999, effective immediately; Comment revised March 10, 2000, effective immediately.
Committee Explanatory Reports:
* * * * * Final Report explaining the March 10, 2000 revision of the Comment for paragraph 25 published with the Court's Order at 30 Pa.B. 1641 (March 25, 2000).
Rule 804. Hearsay Exceptions; Declarant Unavailable.
* * * * * (b) Hearsay Exceptions. The following statements, as hereinafter defined, are not excluded by the hearsay rule if the declarant is unavailable as a witness:
* * * * * (1) Former Testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an adequate opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Comment * * * * * These two statutes, which are limited in scope, have less significance than they might otherwise have because the Pennsylvania Supreme Court has recognized a broader exception to the hearsay rule for former testimony as a matter of its developing common law. See, e.g., Commonwealth v. Graves, [484 Pa. 29,] 398 A.2d 644 (Pa. 1979); Commonwealth v. Rodgers, [472 Pa. 435,] 372 A.2d 771 (Pa. 1977). The addition of an ''adequate'' opportunity to cross-examine is consistent with Pennsylvania law. See Commonwealth v. Bazemore, [531 Pa. 582,] 614 A.2d 684 (Pa. 1992) (requiring a ''full and fair'' opportunity to cross-examine).
Depositions * * * * * The Judicial Code provides for the use of depositions in criminal cases. 42 Pa.C.S. [A.] § 5919 provides:
Depositions in criminal matters * * * * * 42 Pa.C.S. [A.] § 5325 sets forth the procedure for taking depositions, by either prosecution or defendant, outside Pennsylvania.
Again, the Pennsylvania Supreme Court, as a matter of common law development, has recognized an exception to the hearsay rule for depositions that is broader than the statute. See Commonwealth v. Stasko, [471 Pa. 373,] 370 A.2d 350 (Pa. 1977).
* * * * * (2) Statement Under Belief of Impending Death. A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
Comment * * * * * The rationale for this exception to the hearsay rule was set forth in Commonwealth v. Smith, [454 Pa. 515, 517--18,] 314 A.2d 224, 225 (Pa. 1973):
* * * * * The common law has traditionally, but illogically, excepted a dying declaration to the hearsay rule in a criminal prosecution for homicide, but not in a criminal prosecution for another crime, or in a civil case. Prior Pennsylvania case law followed the common law. See Commonwealth v. Antonini, [165 Pa. Super. 501,] 69 A.2d 436 (Pa. Super. 1949).
* * * * * (3) Statement Against Interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. In a criminal case, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
Comment * * * * * Pa.R.E. 804(b)(3) is consistent with prior Pennsylvania decisional law. See Rudisill v. Cordes, [333 Pa. 544,] 5 A.2d 217 (Pa. 1939) (civil case); Commonwealth v. Williams, [537 Pa. 1, n.8,] 640 A.2d 1251, 1263 n.8 (Pa. 1994) (criminal case).
(4) Statement of Personal or Family History. A statement, made before the controversy arose:
* * * * *
Comment Pa.R.E. 804(b)(4) differs from F.R.E. 804(b)(4) by requiring the statement of pedigree to be made before the controversy arose, i.e., ante litem [motem] motam.
Pa.R.E. 804(b)(4) expands prior Pennsylvania decisional law in two respects:
1. The exception applies if the declarant is unavailable, as ''unavailability'' is defined in Pa.R.E. 804(a). Formerly, it was required that the declarant be dead. See In re McClain's Estate, [481 Pa. 435,] 392 A.2d 1371 (Pa. 1978). The need for the evidence is the same, whether the declarant is dead or unavailable to testify for one of the other reasons delineated in Pa.R.E. 804(a).
2. Under Pa.R.E. 804(b)(4)(B), the declarant need not be related to the person of whom he or she spoke. It is sufficient that the declarant be so closely associated with the person's family as to have accurate information. Formerly, a familial relationship was required. See In re Garrett's Estate, [371 Pa. 284,] 89 A.2d 531 (Pa. 1952). A statement of this type by a person closely associated with the person or family of which he or she spoke is likely to be sufficiently reliable to justify an exception to the hearsay rule.
Pennsylvania retains the requirement that the statement must be made before the controversy arose. See In re McClain's Estate, supra; In re Garrett's Estate, supra.
* * * * * Official Note: Adopted May 8, 1998, effective October 1, 1998; Comment revised March 10, 2000, effective immediately.
Committee Explanatory Reports:
Final Report explaining the March 10, 2000 revision of the Comment to paragraph (b)(4) published with the Court's Order at 30 Pa.B. 1641 (March 25, 2000).
FINAL REPORT1
Amendments to Pa.R.E. 410 and revision of the
Comments to Pa.Rs.E. 105, 802, 803, and 804.
Editorial and Technical Corrections On March 10, 2000, effective immediately, upon the recommendation of the Committee on Rules of Evidence, the Supreme Court adopted amendments to Rule of Evidence 410, and approved the revision of the Comments to Rules 105, 802, 803, and 804. These rule changes correct various technical or editorial errors in the text of or Comments to the rules, and update the rules consistent with changes in rules or statutes that have been included in the Comments.
I. BACKGROUND
The Committee has continued to monitor and review the Rules of Evidence. As part of this ongoing process, we identified a few additional rules that contain typographical and editorial errors that should be corrected,2 and other stylistic or editorial corrections that will make the rules consistent with the Court's other rules. In addition, we noted that since the Ad Hoc Committee's work was completed, there have been some substantive changes in statutes and cases that are cited in the Comments to the rules that require correlative updates that, although not substantive in nature, are necessary to reduce the likelihood of confusion concerning the interpretation of the rules.
II. DISCUSSION OF CHANGES
The rule changes that are the subject of this Order are as follows:
(1) Rule 410(a)(3) has been amended by adding Criminal Rules 64 and 69 (rules that also address plea procedures) to the list of Criminal Rules already referenced in that paragraph. In addition, to make the scope of the provision clearer, the last phrase in the paragraph has been amended by the deletion ''of another state'' and the addition of ''of Pennsylvania or any other jurisdiction'' before ''regarding.''
(2) The second sentence of the first paragraph of the Rule 105 Comment and the first sentence of the third paragraph of the Rule 803(25) Comment have been revised by deleting ''as amended.'' The Committee agreed that, although the reference was intended to highlight that these new Pennsylvania rules were different from their Federal rule counterpart, the reference could be confusing, and, therefore should be deleted.
(3) The seventh paragraph of the Rule 802 Comment has been revised by changing the referenced age from 14 years to 16 years. This change conforms the Comment with 42 Pa.C.S. § 5986 that was amended after the Ad Hoc Committee had completed its work on Rule 802.
(4) The Comment to Rule 804(b)(4) has been revised by correcting the spelling of ''ante litem motam'' in the last line of the first paragraph.
[Pa.B. Doc. No. 00-518. Filed for public inspection March 24, 2000, 9:00 a.m.] _______
1 The Committee's Final 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 Committee's explanatory Final Reports.
2 On March 23, 1999, the Court adopted the first ''clean up'' of the rules making technical and editorial corrections. See 29 Pa.B. 1712 (April 3, 1999).
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