693 Order adopting revision of comment to rule of evidence 104; no. 362 Supreme Court rules; doc. no. 1

Title 225--RULES
OF EVIDENCE

[225 PA. CODE ART. I]

Order Adopting Revision of Comment to Rule of Evidence 104; No. 362 Supreme Court Rules; Doc. No. 1

[35 Pa.B. 2209]

Order

Per Curiam:

   Now, this 29th day of March, 2005, upon the recommendation of the Committee on Rules of Evidence, this proposal having been published before adoption at 34 Pa.B. 2689 (May 22, 2004) 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 the revision of comment is hereby amended as set forth in Annex A.

   This Order shall be processed immediately in accordance with Pa.R.J.A. 103(b), and shall be effective May 2, 2005.

Annex A

TITLE 225. RULES OF EVIDENCE

ARTICLE I. GENERAL PROVISIONS

Rule 104. Preliminary Questions.

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Comment

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   The second sentence of paragraph 104(c) is identical to the second sentence of F.R.E. 104(c). Paragraph 104(c) [indicates] says that hearings on other preliminary matters, both criminal and civil, shall be conducted outside the jury's presence when required by the interests of justice. Certainly, the court should conduct [the] a hearing outside the presence of the jury when the court believes that it is necessary to prevent the jury from hearing prejudicial information. [The right of an accused to have his or her testimony on a preliminary matter taken outside the presence of the jury does not appear to have been discussed in Pennsylvania law.]

   In Commonwealth v. Washington, 722 A.2d 643 (Pa. 1998), a case involving child witnesses, the Supreme Court created a per se error rule requiring competency hearings to be conducted outside the presence of the jury. In Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003), the Supreme Court held that a competency hearing is the appropriate way to explore an allegation that the testimony of a child has been ''impaired'' or ''tainted'' by suggestive interview techniques, and that the burden is on a party alleging testimonial incompetency by reason of taint to prove it by clear and convincing evidence.

   The right of an accused to have his or her testimony on a preliminary matter taken outside the presence of the jury, a right that the rule expressly recognizes, does not appear to have been discussed in prior Pennsylvania case law.

FINAL REPORT REVISING

Revising Comment
Pa.R.E. 104

COMMENT CHANGES

   Some significant changes have occurred in the conduct of child competency hearings. The Comment of Pa.R.E. 104 has been revised to alert the Bench and Bar to these developments. In Commonwealth v. Washington, 722 A.2d 643 (Pa. 1998), the Supreme Court created a rule requiring that the competency hearing of a child witness be conducted outside the presence of the jury.

   In Commonwealth v. Delbridge, 855 A.2d 27 (Pa. 2003), the Supreme Court held that a competency hearing is the appropriate way to explore allegations that the testimony of the child has been ''impaired'' or ''tainted'' by suggestiveinterview techniques. In such a hearing, the burden is on a party alleging testimonial incompetency by reason of taint to prove it by clear and convincing evidence.

[Pa.B. Doc. No. 05-693. Filed for public inspection April 15, 2005, 9:00 a.m.]