THE COURTS
[225 PA. CODE ART. VI]
Order Adopting Amendments to Rule 613; No. 238, Supreme Court Rules; Doc. No. 1
[30 Pa.B. 1643] The Committee on Rules of Evidence has prepared a Final Report explaining the March 10, 2000 changes to Rule of Evidence 613, effective July 1, 2000. These changes add the term ''inconsistent'' to the title and the text of Rule 613(a) to make it clear that both sections (a) and (b) apply to attacks on credibility through prior inconsistencies. 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 proposal having been published before adoption at 29 Pa.B. 2265 (May 1, 1999) 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 Rule of Evidence 613 is hereby amended in the following form.
This Order shall be processed immediately in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 2000.
Annex A
TITLE 225. RULES OF EVIDENCE
ARTICLE VI. WITNESSES Rule 613. Prior Statements of Witnesses.
(a) Examining Witness Concerning Prior Inconsistent Statement. A witness may be examined concerning a prior inconsistent 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.
* * * * *
Comment * * * * * Section (a).--This section of the [Rule] rule is [identical to] basically the same as F.R.E. 613(a), except that the word ''inconsistent'' does not appear in the federal rule. Its inclusion makes clear that both sections (a) and (b) involve attacks on credibility through prior inconsistencies. It has been suggested that its omission from the federal rule was a ''drafting oversight.'' Charles A. Wright & Victor J. Gold, Federal Practice & Procedure § 6203, n. 13 (1993); J. Weinstein, 3 Weinstein's Evidence § 613.02[1], n. 1 (1991). 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 (1928). 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 (Pa. 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 (Pa. 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] federal [Rule] 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] federal [Rule] 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 (Pa. 1981); Commonwealth v. Dennison, [441 Pa. 334,] 272 A.2d 180 (Pa. 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 (Pa. 1948); Commonwealth v. Dilworth, [289 Pa. 498,] 137 A. 683 (Pa. 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] federal [Rule] 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 (Pa. 1989) (to rebut charge of recent fabrication); Commonwealth v. Smith, [518 Pa. 15,] 540 A.2d 246 (Pa. 1988) (to counter alleged corrupt motive); Commonwealth v. Swinson, [426 Pa. Super. 167,] 626 A.2d 627 (Pa. Super. 1993) (to negate charge of faulty memory); Commonwealth v. McEachin, [371 Pa. Super. 188,] 537 A.2d 883 (Pa. Super. 1988), appeal denied, [520 Pa. 603,] 553 A.2d 965 (Pa. 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.
* * * * * Usually, evidence of a prior consistent statement is rebuttal evidence that may not be introduced until after a 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 inconsistent statement in anticipation of an attack on the witness. See Commonwealth v. Smith, [518 Pa. 15,] 540 A.2d 246 (Pa. 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 (Pa. Super, 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.'').
* * * * * Committee Explanatory Reports:
* * * * * Final Report explaining the March 10, 2000 amendments adding ''inconsistent'' to section (a) published with the Court's Order at 30 Pa.B. 1645 (March 25, 2000).
FINAL REPORT1
Amendments to Pa.R.P. 613(a)
Prior Statements of Witnesses On March 10, 2000, upon the recommendation of the Committee on Rules of Evidence, the Supreme Court adopted an amendment to Pa. Rules of Evidence 613(a) effective July 1, 2000. This amendment adds the term ''inconsistent'' to the title and the text of Rule 613(a) to make it clear that both sections (a) and (b) apply to attacks on credibility through prior inconsistencies.
As part of its ongoing review of the Rules of Evidence, and in response to some correspondence, the Committee has reexamined Rule 613. We agreed with the correspondence that the use of ''prior statements'' in section (a) could lead to misconstruction about its application to both consistent and inconsistent statements. However, before recommending an amendment, we wanted to be sure that our construction was consistent with the construction of F.R.E. 613(a), which was the model for the Pennsylvania rule. We looked at the history of the federal rule, and found that authorities agree (1) the omission of the term ''inconsistent'' in F.R.E. 613(a) is inadvertent, and (2) F.R.E. 613(a) is intended to apply only to inconsistent statements. See Charles A. Wright & Victor J. Gold, Federal Practice & Procedure § 6203, n. 13 (1993) and J. Weinstein, 3 Weinstein & Berger, Weinstein's Evidence § 613[01], n. 1 (1991).
In view of this construction of the federal rule by the authorities, as an aid to members of the bench and bar, Pa.R.E. 613(a) has been amended to make it clear the section applies only to inconsistent statements by adding the term ''inconsistent'' to both the title of the section and the text of the section. Correlative revisions have been added to the Comment.
[Pa.B. Doc. No. 00-520. Filed for public inspection March 24, 2000, 9:00 a.m.] _______
1 The Committee's Final Report 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 Report.
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