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In re Order Amending Rules 803.1 and 804 and Approving Revision of Comment to Rule 613 of Pennsylvania Rules of Evidence

Supreme Court of Pennsylvania

March 1, 2017

IN RE:ORDER AMENDING RULES 803.1 AND 804, AND APPROVING THE REVISION OF THE COMMENT TO RULE 613 OF PENNSYLVANIA RULES OF EVIDENCE

          ORDER

          PER CURIAM.

         AND NOW, this 1st day of March, 2017, upon the recommendation of the Committee on Rules of Evidence; the proposal having been published for public comment at 45 Pa.B. 6476 (November 7, 2015):

         IT IS ORDERED pursuant to Article V, Section 10 of the Constitution of Pennsylvania that:

         1) Pennsylvania Rules of Evidence 803.1 and 804 are amended; and

         2) The Comment to Pennsylvania Rule of Evidence 613 is revised; in the attached form.

         This ORDER shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective April 1, 2017.

         Additions to the rule are shown in bold and are underlined.

         Deletions to the rule are shown in bold and in brackets.

         Rule 613. Witness's Prior Inconsistent Statement to Impeach; Witness's Prior Consistent Statement to Rehabilitate

         (a) Witness's Prior Inconsistent Statement to Impeach. A witness may be examined concerning a prior inconsistent statement made by the witness to impeach the witness's credibility. The statement need not be shown or its contents disclosed to the witness at that time, but on request, the statement or contents must be shown or disclosed to an adverse party's attorney.

         (b) Extrinsic Evidence of a Witness's Prior Inconsistent Statement. Unless the interests of justice otherwise require, extrinsic evidence of a witness's prior inconsistent statement is admissible only if, during the examination of the witness,

(1) the statement, if written, is shown to, or if not written, its contents are disclosed to, the witness;
(2) the witness is given an opportunity to explain or deny the making of the statement; and
(3) an adverse party is given an opportunity to question the witness.

         This paragraph does not apply to an opposing party's statement as defined in Rule 803(25).

         (c) Witness's Prior Consistent Statement to Rehabilitate. Evidence of a witness's prior consistent statement is admissible to rehabilitate the witness's credibility if the opposing party is given an opportunity to cross-examine the witness about the statement and the statement is offered to rebut an express or implied charge of:

(1) fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose; or
(2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness's denial or explanation.

         Comment

         Pa.R.E 613 differs from F.R.E. 613 to clarify its meaning and to conform to Pennsylvania law.

         Pa.R.E. 613(a) and (b) are similar to F.R.E. 613(a) and (b), but the headings and the substance make it clear that the paragraphs are dealing with the use of an inconsistent statement to impeach. The disclosure requirement in paragraph (a) is intended to deter sham allegations of the existence of an inconsistent statement.

         Pa.R.E. 613(b) differs from F.R.E. 613(b) in that extrinsic evidence of a prior inconsistent statement is not admissible unless the statement is shown or disclosed to the witness during the witness's examination. Paragraph (b) is intended to give the witness and the party a fair opportunity to explain or deny the allegation.

         To be used for impeachment purposes, an inconsistent statement need not satisfy the requirements of Pa.R.E. 803.1(1)(A)-(C).

         F.R.E. 613 does not contain a paragraph (c); it does not deal with rehabilitation of a witness with a prior consistent statement. Pa.R.E. 613(c) gives a party an opportunity to rehabilitate the witness with a prior consistent statement where there has been an attempt to impeach the witness. In most cases, a witness's prior statement is hearsay, but F.R.E. 801(d)(1)(B) treats some prior consistent statements offered to rebut impeachment as not hearsay. Pa.R.E. 613(c) is consistent with Pennsylvania law in that the prior consistent statement is admissible, but only to rehabilitate the witness. See Commonwealth v. Hutchinson, [521 Pa. 482,] 556 A.2d 370 (Pa. 1989) (to rebut charge of recent fabrication); Commonwealth v. Smith, [518 Pa. 15');">518 Pa. 15,] 540 A.2d 246 (Pa. 1988) (to counter alleged corrupt motive); Commonwealth v. Swinson, [426 Pa. Super. 167');">426 Pa. Super. 167,] 626 A.2d 627 (Pa. Super. 1993) (to negate charge of faulty memory); Commonwealth v. McEachin, [371 Pa. Super. 188,] 537 A.2d 883 (Pa. Super. 1988) (to offset implication of improper influence).

         Pa.R.E. 613(c)(2) is arguably an extension of Pennsylvania law, but is based on the premise that when an attempt has been made to impeach a witness with an alleged prior inconsistent statement, a statement consistent with the witness's testimony should be admissible to rehabilitate the witness if it supports the witness's denial or explanation of the alleged inconsistent statement.

         Note: Adopted May 8, 1998, effective October 1, 1998; amended March 23, 1999, effective immediately; amended March 10, 2000, effective July 1, 2000; rescinded and replaced January 17, 2013, effective March 18, 2013; amended March 1, 2017, effective April 1, 2017.

         Committee Explanatory Reports:

         Final Report explaining the March 23, 1999 technical amendments to paragraph (b)(3) published with the Court's Order at 29 Pa.B. 1714 (April 3, 1999).

         Final Report explaining the March 10, 2000 amendments adding ''inconsistent'' to section (a) published with the Court's Order at 30 Pa.B. 1645 (March 25, 2000).

         Final Report explaining the January 17, 2013 rescission and replacement published with the Court's Order at 43 Pa.B. 620 (February 2, 2013).

         Final Report explaining the March 1, 2017 revision of the Comment published with the Court's Order at Pa.B. ( ___, 2017).

         Rule 803.1. Exceptions to the Rule Against Hearsay - Testimony of Declarant Necessary

         The following statements are not excluded by the rule against hearsay if the declarant testifies and is subject to cross-examination about the prior statement:

         Comment

         A witness must be subject to cross-examination regarding the prior statement. See Commonwealth v. Romero, 722 A.2d 1014, 1017-1018 (Pa. 1999) (witness was not available for cross-examination when witness refused to answer questions about prior statement).

         (1) Prior Inconsistent Statement of Declarant-Witness. A prior statement by a declarant-witness that is inconsistent with the declarant-witness's testimony and:

(A) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition;
(B) is a writing signed and adopted by the declarant; or
(C) is a verbatim contemporaneous electronic [, audiotaped, or videotaped] recording of an oral statement.

         Comment

         The Federal Rules treat statements corresponding to Pa.R.E. 803.1(1) and (2) as "not hearsay" and places them in F.R.E. 801(d)(1)(A) and (C). Pennsylvania follows the traditional approach that treats these statements as exceptions to the hearsay rule if the declarant testifies at the trial.

         Pa.R.E. 803.1(1) is consistent with prior Pennsylvania case law. See Commonwealth v. Brady, [510 Pa. 123');">510 Pa. 123,] 507 A.2d 66 (Pa. 1986) (seminal case that overruled close to two centuries of decisional law in Pennsylvania and held that the recorded statement of a witness to a murder, inconsistent with her testimony at trial, was properly admitted as substantive evidence, excepted to the hearsay rule); Commonwealth v. Lively, [530 Pa. 464');">530 Pa. 464,] 610 A.2d 7 (Pa. 1992). In Commonwealth v. Wilson, [550 Pa. 518,] 707 A.2d 1114 (Pa. 1998), the Supreme Court held that to be admissible under this rule an oral statement must be a verbatim contemporaneous recording in electronic, audiotaped, or videotaped form.

         An inconsistent statement of a witness that does not qualify as an exception to the hearsay rule may still be introduced to impeach the ...


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