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In re Order Approving Amendment of Pennsylvania Rules of Evidence 901(A)

Supreme Court of Pennsylvania

November 4, 2019

IN RE: ORDER APPROVING THE AMENDMENT OF PENNSYLVANIA RULES OF EVIDENCE 901(a), 902(4), 902(6) AND 902(12)

          ORDER

          PER CURIAM.

         AND NOW, this 4th day of November, 2019, upon the recommendation of the Committee on Rules of Evidence; the proposal having been published for public comment at 49 Pa.B. 1336 (March 23, 2019):

         It is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Pennsylvania Rules of Evidence 901(a), 902(4), 902(6), and 902(12) are amended in the attached form.

         This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective January 1, 2020.

         ARTICLE IX. AUTHENTICATION AND IDENTIFICATION

         Rule 901. Authenticating or Identifying Evidence

         (a) In General. Unless stipulated, [T]to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

         (b) Examples. The following are examples only - not a complete list - of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
(2) Nonexpert Opinion about Handwriting. A nonexpert's opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.
(3) Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.
(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
(5) Opinion About a Voice. An opinion identifying a person's voice - whether heard firsthand or through mechanical or electronic transmission or recording - based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:
(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or
(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.
(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by law; or
(B) a purported public record or statement is from the office where items of this kind are kept.
(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:
(A) is in a condition that creates no suspicion about its authenticity;
(B) was in a place where, if authentic, it would likely be; and
(C) is at least 30 years old when offered.
(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.
(10) Methods Provided by a Statute or a Rule. Any method of authentication or identification allowed by a statute or a rule prescribed by the Supreme Court.

         Comment

         Pa.R.E. 901(a) is substantively identical to F.R.E. 901(a) and consistent with Pennsylvania law. The authentication or identification requirement may be expressed as follows: When a party offers evidence contending either expressly or impliedly that the evidence is connected with a person, place, thing, or event, the party must provide evidence sufficient to support a finding of the contended connection. See Commonwealth v. Hudson, [489 Pa. 620');">489 Pa. 620');">489 Pa. 620');">489 Pa. 620');">489 Pa. 620');">489 Pa. 620');">489 Pa. 620');">489 Pa. 620, ] 414 A.2d 1381 (Pa. 1980); Commonwealth v. Pollock, [414 Pa. Super. 66, ] 606 A.2d 500 (Pa. Super. 1992). The proponent may be relieved of this burden when all parties have stipulated the authenticity or identification of the evidence. See, e.g., Pa.R.C.P. No. 212.3(a)(3) (Pre-Trial Conference); Pa.R.C.P. No. 4014 (Request for Admission); Pa.R.Crim.P. 570(A)(2) & (3) (Pre-Trial Conference).

         In some cases, real evidence may not be relevant unless its condition at the time of trial is similar to its condition at the time of the incident in question. In such cases, the party offering the evidence must also introduce evidence sufficient to support a finding that the condition is similar. Pennsylvania law treats this requirement as an aspect of authentication. See Commonwealth v. Hudson, [489 Pa. 620, ] 414 A.2d 1381 (Pa. 1980).

         Demonstrative evidence such as photographs, motion pictures, diagrams and models must be authenticated by evidence sufficient to support a finding that the demonstrative evidence fairly and accurately represents that which it purports to depict. See Nyce v. Muffley, [384 Pa. 107');">384 Pa. 107, ] 119 A.2d 530 (Pa. 1956).

         Pa.R.E. 901(b) is identical to F.R.E. 901(b).

         Pa.R.E. 901(b)(1) is identical to F.R.E. 901(b)(1). It is consistent with Pennsylvania law in that the testimony of a witness with personal knowledge may be sufficient to authenticate or identify the evidence. See Commonwealth v. Hudson, [489 Pa. 620');">489 Pa. 620');">489 Pa. 620');">489 Pa. 620');">489 Pa. 620');">489 Pa. 620');">489 Pa. 620');">489 Pa. 620, ] 414 A.2d 1381 (Pa. 1980).

         Pa.R.E. 901(b)(2) is identical to F.R.E. 901(b)(2). It is consistent with 42 Pa.C.S. § 6111, which also deals with the admissibility of handwriting.

         Pa.R.E. 901(b)(3) is identical to F.R.E. 901(b)(3). It is consistent with Pennsylvania law. When there is a question as to the authenticity of an exhibit, the trier of fact will have to resolve the issue. This may be done by comparing the exhibit to authenticated specimens. See Commonwealth v. Gipe, [169 Pa. Super. 623');">169 Pa. Super. 623, ] 84 A.2d 366 (Pa. Super. 1951) (comparison of typewritten document with authenticated specimen). Under this rule, the court must decide whether the specimen used for comparison to the exhibit is authentic. If the court determines that there is sufficient evidence to support a finding that the specimen is authentic, the trier of fact is then permitted to ...


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