IN RE:ORDER AMENDING RULES 803.1 AND 804, AND APPROVING THE REVISION OF THE COMMENT TO RULE 613 OF PENNSYLVANIA RULES OF EVIDENCE
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):
ORDERED pursuant to Article V, Section 10 of the Constitution
of Pennsylvania that:
Pennsylvania Rules of Evidence 803.1 and 804 are amended; and
Comment to Pennsylvania Rule of Evidence 613 is revised; in
the attached form.
ORDER shall be processed in accordance with Pa.R.J.A. No.
103(b), and shall be effective April 1, 2017.
to the rule are shown in bold and are underlined.
to the rule are shown in bold and in brackets.
613. Witness's Prior Inconsistent Statement to Impeach;
Witness's Prior Consistent Statement to
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.
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
paragraph does not apply to an opposing party's statement
as defined in Rule 803(25).
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
(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.
613 differs from F.R.E. 613 to clarify its meaning and to
conform to Pennsylvania law.
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
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.
be used for impeachment purposes, an inconsistent statement
need not satisfy the requirements of Pa.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).
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.
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.
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).
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).
Report explaining the January 17, 2013 rescission and
replacement published with the Court's Order at 43 Pa.B.
620 (February 2, 2013).
Report explaining the March 1, 2017 revision of the Comment
published with the Court's Order at Pa.B. ( ___,
803.1. Exceptions to the Rule Against Hearsay - Testimony of
following statements are not excluded by the rule against
hearsay if the declarant testifies and is subject to
cross-examination about the prior statement:
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).
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.
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
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.
inconsistent statement of a witness that does not qualify as
an exception to the hearsay rule may still be introduced to
impeach the ...