[225 PA. CODE ART. VIII] Order Adopting Amendments to Rule 803.1; No. 239, Supreme Court Rules; Doc. No. 1 [30 Pa.B. 1645] The Committee on Rules of Evidence has prepared a Final Report explaining the March 10, 2000 changes to Rule of Evidence 803.1, effective July 1, 2000. These changes include a technical amendment in the text of subsection (1) of Rule 803.1 (Hearsay Exceptions; Testimony of Declarant Necessary) that merely adds ''a'' before ''declarant'' in the first line of the subsection, and a Comment revision that updates subsection (1) of the Comment consistent with recent changes in the case law concerning the admission of prior inconsistent statements. The Final Report follows the Court's Order.
Order Per Curiam:
Now, this tenth day of March, 2000, upon the recommendation of the Committee on Rules of Evidence; this proposal having been published before adoption at 29 Pa.B. 2265 (May 1, 1999) and a Final Report to be published with this Order.
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule of Evidence 803.1 is hereby amended as follows.
This Order shall be processed immediately in accordance with Pa.R.J.A. 103(b), and shall be effective July 1, 2000.
Annex A TITLE 225. RULES OF EVIDENCE ARTICLE VIII. HEARSAY Rule 803.1. Hearsay Exceptions; Testimony of Declarant Necessary.
The following statements, as hereinafter defined, are not excluded by the hearsay rule if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement:
* * * * * (1) Inconsistent Statement of Witness. A statement by a declarant that is inconsistent with the declarant'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, or (b) is a writing signed and adopted by the declarant, or (c) is a verbatim contemporaneous recording of an oral statement.
Comment Subsection (a) is similar to F.R.E. 801(d)(1)(A), except that the Pennsylvania rule classifies those kinds of inconsistent statements that are described therein as exceptions to the hearsay rule, not exceptions to the definition of hearsay. Subsections (b) and (c) are an expansion of the exception [as defined] that is described in the federal rule.
Pa.R.E. 803.1(1) is consistent with prior Pennsylvania case law. See Commonwealth v. Brady, 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. Halstead, 542 Pa. 318, 666 A.2d 655 (1995);] Commonwealth v. Lively, [530 Pa. 464,] 610 A.2d 7 (Pa. 1992). To qualify as a ''verbatim contemporaneous recording of an oral statement,'' the ''recording'' must be an electronic, audiotaped, or videotaped recording. See Commonwealth v. Wilson, 707 A.2d 1114 (Pa. 1998). Inconsistent statements of a witness that do not qualify as exceptions to the hearsay rule may still be introduced to impeach the credibility of the witness. See Pa.R.E. 613.
* * * * * Comment * * * * * Pa.R.E. 803.1(2) is consistent with Pennsylvania law, although we have found no reported cases dealing with prior identification of a thing, as distinguished from a person. See Commonwealth v. Ly, [528 Pa. 523,] 599 A.2d 613 (Pa. 1991); Commonwealth v. Saunders, [386 Pa. 149,] 125 A.2d 442 (Pa. 1956).
* * * * * Comment * * * * * Pa.R.E. 803.1(3) is consistent with Pennsylvania law. See Commonwealth v. Cargo, [498 Pa. 5,] 444 A.2d 639 (Pa. 1982); Commonwealth v. Cooley, [484 Pa. 14,] 398 A.2d 637 (Pa. 1979).
Official Note: Adopted May 8, 1998, effective October 1, 1998; amended March 10, 2000, effective July 1, 2000.
Committee Explanatory Reports:
Final Report explaining the amendment to subsection (1) and the updates to the Comment to subsection (1) published with the Court's Order at 30 Pa.B. 1646 (March 25, 2000).
FINAL REPORT1 Amendments to Pa.R.E. 803.1 PRIOR INCONSISTENT STATEMENTS On March 10, 2000, upon the recommendation of the Committee on Rules of Evidence, the Supreme Court adopted the amendment of Rule of Evidence 803.1 and approved the revision of the Comment, effective July 1, 2000. These changes include a technical amendment in the text of subsection (1) of Rule 803.1 (Hearsay Exceptions; Testimony of Declarant Necessary) that merely adds ''a'' before ''declarant'' in the first line of the subsection, and a Comment revision that updates subsection (1) of the Comment consistent with recent changes in the case law concerning the admission of prior inconsistent statements.
Subsection (1) (Inconsistent Statement of Witness) of the Comment to Rule 803.1 has been revised in several ways. First, the change updates the Comment to subsection (1) by deleting the citation to Commonwealth v. Halsted, 542 Pa. 318, 666 A.2d 655 (1995), and replacing it with a citation to Commonwealth v. Wilson, 707 A.2d 1114 (Pa. 1998). Wilson, supra, clarifies what statements qualify as a ''verbatim contemporaneous recording of an oral statement'' within the context of subsection (1)(c).
In addition to adding the Wilson citation, the entire subsection (1) Comment has been revised to provide a clearer, more informative explanation of the evolution of Pennsylvania's law concerning the admission of prior inconsistent statements as substantive evidence. The revision includes a citation to Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), which is the seminal case that held that it was proper to admit as substantive evidence a prior recorded statement of a witness that was inconsistent with the witness's testimony at trial.
Finally, the Comment revision includes a cross-reference to Pa.R.E. 613 (Prior Statements of Witnesses)concerning the use of an inconsistent statement to impeach the credibility of a witness.
[Pa.B. Doc. No. 00-521. Filed for public inspection March 24, 2000, 9:00 a.m.] _______
