In Re: Order Amending Rules 803.1 and 804, and Approving the Revision of the Comment to Rule 613 of the Pennsylvania of Pennsylvania Rules of Evidence
In Re: Order Amending Rules 803.1 and 804, and Approving the Revision of the Comment to Rule 613 of the Pennsylvania of Pennsylvania Rules of Evidence, No. 730 Supreme Court Rules Docket
| Pa. | Mar 1, 2017Background
- Pennsylvania Rules of Evidence provisions governing prior inconsistent and prior consistent statements, recorded recollections, and hearsay exceptions are restated and clarified (Pa.R.E. 613, 803.1, 804).
- Pa.R.E. 613 permits impeachment by prior inconsistent statement, requires disclosure to adverse counsel on request, and tightly limits extrinsic evidence unless the witness is shown/disclosed the statement during examination and given chance to explain.
- Pa.R.E. 613(c) allows prior consistent statements to rehabilitate a witness when offered to rebut charges (fabrication, bias, improper influence, faulty memory) or to support a witness’s denial/explanation of a prior inconsistent statement.
- Pa.R.E. 803.1 creates hearsay exceptions (when declarant testifies and is subject to cross-examination) for: (1) prior inconsistent statements given under oath, signed writings, or verbatim contemporaneous recordings; (2) prior identifications; (3) recorded recollections that the witness vouches for; and (4) prior statements when the witness claims inability to remember the subject matter (subject to credibility and reliability limits).
- Pa.R.E. 804 defines "unavailability" and lists exceptions admissible when declarant is unavailable (former testimony, dying declarations, statements against interest, personal/family history made before controversy, and statements where a party caused unavailability); Pennsylvania declines to adopt the federal residual exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior inconsistent statements for impeachment | Prior inconsistent statements may be used to impeach without satisfying hearsay-formalities | Extrinsic prior statements should be limited unless shown to witness during examination | Pa.R.E. 613 permits impeachment by inconsistent statement; extrinsic evidence admissible only if shown/disclosed to witness during examination and parties given opportunity to question/explain |
| Use of prior consistent statements to rehabilitate witness | Prior consistent statements should be admissible to rebut charges of fabrication, bias, influence, or faulty memory | Prior consistent statements are often hearsay and should be excluded except in narrow circumstances | Pa.R.E. 613(c) admits prior consistent statements to rehabilitate when offered to rebut specific charges or to support denial/explanation of alleged inconsistent statement |
| When prior statements may be received as substantive evidence (not just impeachment) | Certain prior statements (oath, signed writing, verbatim recordings) should be admissible substantively if declarant testifies and is cross-examinable | Federal approach treats some as non-hearsay; Pennsylvania retains these as hearsay exceptions requiring declarant testimony | Pa.R.E. 803.1(1)-(3) treat such prior statements as exceptions to hearsay when declarant testifies and is subject to cross-examination; verbatim contemporaneous recordings required for oral statements |
| Addressing witness who claims inability to remember prior statement | Prior statements made under reliable circumstances should be admissible when witness claims memory loss to prevent feigned amnesia | Admission should be restricted and evaluated for credibility and reliability | Pa.R.E. 803.1(4) permits prior statements when witness testifies to inability to remember (unless claim is not credible) if statement meets criteria (oath, signed writing, verbatim recording); Pa.R.E. 804(a)(3) cross-references this exception |
Key Cases Cited
- Commonwealth v. Brady, 507 A.2d 66 (Pa. 1986) (admitted recorded inconsistent statement of witness as substantive evidence)
- Commonwealth v. Lively, 610 A.2d 7 (Pa. 1992) (supports treatment of certain prior statements as substantive exceptions)
- Commonwealth v. Wilson, 707 A.2d 1114 (Pa. 1998) (verbatim contemporaneous recording required for oral prior statement to qualify)
- Commonwealth v. Romero, 722 A.2d 1014 (Pa. 1999) (witness must be subject to cross-examination about prior statement)
- Commonwealth v. Hutchinson, 556 A.2d 370 (Pa. 1989) (prior consistent statement admissible to rebut recent fabrication charge)
- Commonwealth v. Smith, 540 A.2d 246 (Pa. 1988) (prior statement admissible to counter alleged corrupt motive)
- Commonwealth v. Cargo, 444 A.2d 639 (Pa. 1982) (recorded recollection doctrine and witness vouching for accuracy)
- Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992) (former testimony admissible only when party had full and fair opportunity to examine)