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PA Bulletin, Doc. No. 99-693



Proposed Amendment of Rule 803.1, Hearsay Exceptions; Testimony of Declarant Necessary

[29 Pa.B. 2265]


   The Committee on Rules of Evidence is planning to recommend that the Supreme Court of Pennsylvania approve the revision of the Comment to Rule of Evidence 803.1. This Comment revision updates the subsection (1) Comment consistent with recent changes in the case law concerning the admission of prior inconsistent statements. This proposal has not been submitted for review by the Supreme Court of Pennsylvania.

   The following explanatory Report highlights the Committee's considerations in formulating this proposal. Please note that the Committee's Reports should not be confused with the official Committee Comments to the rules. Also note that the Supreme Court does not adopt the Committee's Comments or the contents of the explanatory Reports.

   The text of the proposed Comment revision precedes the Report.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel; Anne T. Panfil, Chief Staff Counsel, Supreme Court of Pennsylvania, Committee on Rules of Evidence, 5035 Ritter Road, Mechanicsburg, PA 17055, no later than Tuesday, June 1, 1999.


Annex A



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:

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   (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.


   Subsection (a) is similar to F.R.E. 801(d)(1)(A), except that the Pennsylvania rule classifies those kinds ofinconsistent 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, 510 Pa. 123, 507 A.2d 66 (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 (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 (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.

*      *      *      *      *

   Official Note:  Adopted May 8, 1998, effective October 1, 1998; Comment revised ____ , 1999, effective ____ , 1999.

Committee Explanatory Reports:

   Report explaining the proposed revision of the Comment to subsection (1) published at 29 Pa.B. 2266 (May 1, 1999).


Proposed Revision of the Comment to Pa.R.E. 803.1


   The Committee is proposing the revision of the Comment to Rule 803.1 (Hearsay Exceptions; Testimony of Declarant Necessary). This revision 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). In Wilson, the Supreme Court clarifies what statements qualify as a ''verbatim contemporaneous recording of an oral statement,'' within the context of subparagraph (1)(c).

   In addition to adding the Wilson citation, the Committee is revising the entire subsection (1) Comment 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. 99-693. Filed for public inspection April 30, 1999, 9:00 a.m.]

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