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PA Bulletin, Doc. No. 09-107

THE COURTS

Title 225--RULES
OF EVIDENCE

ARTICLE I. GENERAL PROVISIONS

[225 PA. CODE ART. I]

Order Approving Revision of Comment to Pennsylvania Rule of Evidence 104; No. 456; Supreme Court Rules; Doc. No. 1

[39 Pa.B. 410]
[Saturday, January 24, 2009]

Order

Per Curiam:

   Now, this 9th day of January 2009, upon the recommendation of the Committee on Rules of Evidence, and pursuant to Pa.R.J.A. No. 103(a) 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 the revision of Comment is hereby approved as follows.

   This Order shall be processed immediately in accordance with Pa.R.J.A. No. 103(b), and shall be effective immediately.

Annex A

TITLE 225.  RULES OF EVIDENCE

ARTICLE I. GENERAL PROVISIONS

Rule 104. Preliminary Questions.

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Comment

   Paragraph 104(a) is identical to F.R.E. 104(a). The first sentence is consistent with prior Pennsylvania case law. See Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991).

   The second sentence of paragraph 104(a) is based on the premise that, by and large, the law of evidence is a ''child of the jury system'' and that the rules of evidence [should] need not be applied when the judge is the fact finder. The theory is that the judge should be empowered to hear any relevant evidence to resolve questions of admissibility. [Under the Federal Rule, the court may consider even the allegedly inadmissible evidence in deciding whether to admit the evidence. See Bourjaily v. United States, 483 U.S. 171 (1987). There is no express authority in Pennsylvania on whether the court is bound by the rules of evidence in making its determinations on preliminary questions. In view of this, the approach of the Federal Rule has been adopted.] This approach is consistent with Pennsylvania law. See Commonwealth v. Raab, 594 Pa. 18, 934 A.2d 695 (2007).

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FINAL REPORT

Pa.R.E. 104 Comment Revision

   In view of Commonwealth v. Raab, 594 Pa. 18, 934 A.2d 695 (2007), the language in the second paragraph of the Comment to Pa.R.E. 104(a) is misleading. The Committee on Rules of Evidence therefore recommended the changes noted to clarify that there now is express authority in Pennsylvania that the judge may consider hearsay evidence in preliminary hearing under Pa.R.E. 104.

[Pa.B. Doc. No. 09-107. Filed for public inspection January 23, 2009, 9:00 a.m.]


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