Title 225--RULES
OF EVIDENCE[225 PA. CODE ART. I] Order Approving Revision of Comment to Rule 104; No. 416 Supreme Court Rules; Doc. No. 1 [37 Pa.B. 2492]
[Saturday, June 2, 2007]Order Per Curiam:
Now, this 15th day of May, 2007, upon the recommendation of the Committee on Rules of Evidence, this proposal having been published before adoption at 36 Pa.B., No. 30, page 3977 (July 29, 2006) 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 approved in the following form.
This Order shall be processed in accordance with Pa.R.J.A. 103(b), and shall be effective June 15, 2007.
Mr. Justice Fitzgerald did not participate in the consideration or decision of this matter.
Annex A TITLE 225. RULES OF EVIDENCE ARTICLE I. GENERAL PROVISIONS Rule 104. Preliminary Questions.
* * * * * Comment * * * * * In Commonwealth v. Washington, 554 Pa. 559, 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, 578 Pa. 641, 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] memory of a child has been [''impaired''] so corrupted or ''tainted'' by unduly suggestive or coercive 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] as to render the child incompetent to testify.
* * * * * FINAL REPORT Pa. R.E. 104: Preliminary Questions Revision of Comment In examining the effect of decisions of the Supreme Court on the Rules of Evidence, the Committee has proposed certain refinements in the Comment to Pa. R.E. 104. In reviewing Commonwealth v. Washington, 554 Pa. 539, 722 A.2d 643 (1998), we decided to delete the word ''error'' from the per se rule language requiring a competency hearing to be held outside of the presence of the jury.
Turning to Commonwealth v. Delbridge, 578 Pa. 641, 855 A.2d 27 (2003), the effect of the opinion is that in the competency hearing it is whether the memory of the child, rather than the testimony of the child, has been ''tainted'' deleting the word ''impaired.'' Reference to burden of proof is deleted as surplussage because the burden is always on the party challenging competency.
[Pa.B. Doc. No. 07-962. Filed for public inspection June 1, 2007, 9:00 a.m.]
