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)