THE COURTS

Title 225--RULES
OF EVIDENCE

[225 PA. CODE ART. I]

Rule 104 Comment Changes

[34 Pa.B. 2689]

   The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania approve the revision of the Comment to Rule of Evidence 104. This Comment Revision is being proposed to alert the bench and bar to changes in the conduct of child competency hearings.

   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 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 explanatory Report.

   The text of the proposed Comment changes precedes the Report. Additions are bold, and deletions are in bold and brackets.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel:

Richard L. Kearns
Staff Counsel
Supreme Court of Pennsylvania
Committee on Rules of Evidence
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055

no later than July 1, 2004

By the Committee on Rules of Evidence

CHARLES B. GIBBONS,   
Chair

Annex A

TITLE 225.  RULES OF EVIDENCE

ARTICLE I.  GENERAL PROVISIONS

Rule 104.  Preliminary Questions.

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Comment

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   The second sentence of paragraph 104(c) is identical to the second sentence of F.R.E. 104(c). Paragraph 104(c) [indicates] says 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] a hearing outside the presence of the jury when the court believes that it is necessary to prevent the jury from hearing prejudicial information. [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.]

   In Commonwealth v. Washington, 722 A.2d 643 (1998) a case involving child witnesses, the Supreme Court created a per se error rule requiring competency hearings to be conducted outside the presence of the jury. In Commonwealth v. Delbridge,  _____ Pa. _____ ,_____ A.2d _____ (2003), the Supreme Court held that a competency hearing is the appropriate way to explore an allegation that the testimony of a child has been ''impaired'' or ''tainted'' by suggestive interview techniques, and that the burden is on a party alleging testimonial incompetency by reason of taint to prove it by clear and convincing evidence.

   The right of an accused to have his or her testimony on a preliminary matter taken outside the presence of the jury, a right that the rule expressly recognizes, does not appear to have been discussed in prior Pennsylvania case law.

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REPORT

Proposed Revision of the Comment to Pa.R.E. 104

Comment Changes

   The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania approve the revision of the Comment to Pa.R.E. 104. This Comment revision is being proposed to alert the bench and bar to some significant changes in the conduct of child competency hearings.

   In Commonwealth v. Washington, 722 A.2d 643 (1998), the Supreme Court created a rule requiring that the competency hearing of a child witness be conducted outside the presence of the jury.

   In Commonwealth v. Delbridge, _____ A.2d (2003), the Supreme Court held that the testimony of a child witness may be so tainted or impaired by suggestive interview techniques as to render the child incompetent to testify. The Court also held that the burden is on the party alleging testimonial incompetence by reason of taint to prove it by clear and convincing evidence.

[Pa.B. Doc. No. 04-897. Filed for public inspection May 21, 2004, 9:00 a.m.]

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