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PA Bulletin, Doc. No. 07-2112


Title 225--RULES


[ 225 PA. CODE ART. VI ]

Order Approving Revision of Comment to Pennsylvania Rule of Evidence 601; No. 429; Supreme Court Rules; Doc. No. 1

[37 Pa.B. 6200]
[Saturday, November 24, 2007]


Per Curiam:

   Now, this 2nd day of November 2007, upon the recommendation of the Committee on Rules of Evidence,

   It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that the Comment to Pa.R.E. 601 is hereby revised in the attached form.

   This Order shall be processed immediately in accordance with Pa.R.J.A. 103(b), and shall be effective December 14, 2007.

Annex A



Rule 601. Competency.

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   Pa.R.E. 601[(a)] differs from F.R.E. 601 and is intended to preserve existing Pennsylvania law. abolishes all existing grounds of incompetency except for those specifically provided in later rules dealing with witnesses and in civil actions governed by state law. [Pa.R.E. 601(b) has no counterpart in the Federal Rules.]

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   [Pa.R.E. 601(a) does not recognize any decisional grounds for incompetency.] At one time Pennsylvania law provided that neither a husband nor a wife was competent to testify to non-access or absence of sexual relations if the effect of that testimony would illegitimatize a child born during the marriage. See Commonwealth ex rel. Leider v. Leider, 434 Pa. 293, 254 A.2d 306 (1969). [This] That rule was abandoned in Commonwealth ex rel. Savruk v. Derby, 235 Pa. Super. 560, 344 A.2d 624 (1975).

   Pa.R.E. 601(b) has no counterpart in the Federal Rules and is consistent with Pennsylvania law concerning the factors for determining competency of a person to testify, including persons with a mental defect and children of tender years. See Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976) (standards for determining competency generally); Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982) (mental capacity); Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959) (immaturity). In Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27 (2003), the Supreme Court reiterated concern for the susceptibility of children to suggestion and fantasy and held that a child witness can be rendered incompetent to testify where unduly suggestive or coercive interview techniques corrupt or ''taint'' the child's memory and ability to testify truthfully about that memory. See also Commonwealth v. Judd, 897 A.2d 1224 (2006).

   The application of the standards in Pa.R.E. 601(b) is a factual question to be resolved by the Court[.] as a preliminary question under Rule 104. The party challenging competency bears the burden of proving grounds of incompetency by clear and convincing evidence. Commonwealth v. Delbridge, 578 Pa. at 664, 855 A.2d at 40. In Commonwealth v. Washington, 554 Pa. 559, 722 A.2d 643 (1998), a case involving child witnesses, the Supreme Court announced a per se rule requiring trial courts to conduct competency hearings outside the presence of the jury. Expert testimony has been used when competency under these standards has been an issue. E.g., Commonwealth v. Baker, 466 Pa. 479, 353 A.2d 454 (1976); Commonwealth v. Gaerttner, 355 Pa. Super. 203, 484 A.2d 92 (1984). [Pa.R.E. 601(b) is intended to preserve existing law and not to expand it.]

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Rule 601: Competency

Revision of Comment

   As the Committee continues to scrutinize decisions that impact on Pa.R.E. 601, two decisions of the Supreme Court led the Committee to recommend revisions to the Comment to Pa.R.E. 601. Although not changing the text of the rule, these decisions are important interpretations of the rule. In Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27 (2003), the Supreme Court addressed the effect on a child's capacity to testify as a result of techniques that ''taint'' the child's memory and ability to testify truthfully. The issue of competency is decided outside the presence of the jury. Commonwealth v. Washington, 554 Pa. 559, 722 A.2d 643 (1998).

[Pa.B. Doc. No. 07-2112. Filed for public inspection November 21, 2007, 9:00 a.m.]

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